Khóa luận tốt nghiệp: Law on confiscation of proceeds of crime in a comparative perspective - England and Vietnam

TRAN DINH DUC442938

LAW ON CONFISCATION OF PROCEEDS OF CRIME INA COMPARATIVE PERSPECTIVE - ENGLAND AND

GRADUATION THESIS

TRAN BINH DUC

LAW ON CONFISCATION OF PROCEEDS OF CRIME INACOMPARATIVE PERSPECTIVE - ENGLAND AND VIETNAM.PHAP LUAT VE TỊCH THU TAI SAN DO PHAM TỘI MÀ CÓ TỪ GÓC ĐỘ.

SO SÁNH GIỮA HE THONG PHAP LUAT VIET NAM VA ANH

Major: Comparative Law

GRADUATION THESIS

Supervisor's confirmation

Dao Lê Thu

Therewith formally declare that Imyselfhave written the submitted bachelor’sThesis independently, the conclusions and

data inthe Bachelor's Thesis are truthfulandreliable /

Researcher's signature

"Tran Dinh Dục

want to start by sincerely thanking Ms Dao Le Thu, my supervisor, forproviingme with such awonderfud chance toworkon my grachation thesis, which

1s led "Law on confiscation of proceeds oferime ina comparative perspective England and etna." Tem graf to Dr Dao Le Thufor her guidance m helpingme fo complete this thesis, as her encowwagement, tolerance, patience and drivehave greatly motivated me Being able to work and learn oder her direction washuge honour

-thermore, want to express my sincere gratitude to all of the instructorsat Hanoi Law University This thesis could not have been completed without thegidance of my lechers I am grateful for the learning experience that hasallowed me fo broaden my widerstanding of law as well asthe English languageenabling me to pu my thoughts into action

“Atthe sane time, Iwant to express my gratin tomy family for their love,concern, and sacrifices to educate me and get me ready forthe fue Talso well

as to express my gratitude to my classmates Yến and Tÿ for helping me frish my

gradation thesis and for their spiritual support

Finally, given my lack of practical experience and understanding Iwouldgreatly appreciate any input or recommendations on strengthening the thesismaterialfrom al teachers

Taam incredibly grateful for your support!

POCA Proceeds of Crime Act 2002

tte etostera (nd sofort)

UNODC : United Nations Office on Drugs and CrimeCoB: The Council of Ewope

UWOs Unexplained Wealth Orders

UDHR Universal Declaration of Human RightsECHR Ewopeen Convention on Human RightsFATF Financial Action Task Force

ARIS: Asstt Recovery Incentivisation Scheme

UNCAC _: The United Nations Convention agsinst CosuptionDEA <The DrugEnforcement Administration

cps ‘The Crown Prosecution ServiceSEO Serious Fraud Office

NC National Crime Agency

MLATs : Mutual Legal Assistance Treaties

ECHR: the European Convention on Human RightsMER —_: Mutual Evalustion Report

UNTOC_ : the United Nations Convention ageinst Transnational OrganizedCrime

3 The object and delimitation of the Thesis 44, Methodology and research metheds of the Thesis 46 Scientific and practical implications of the Thesis 57 Structure of the Thesis 5CHAPTER 1: THEORETICAL ISSUES OF LAW ON CONFISCATION OFPROCEEDS OF CRIME.

11 The concept of hw on confiscation of proceeds of crime 6LLL The definition of lan on onfiscation of proceeds of crime 61.12 The characteristics of lan on confiscation of proceeds of crhue

12 The necessity and significance of aw on confiscation of proceeds of

crime 9

1.2.1 The necessity of lam on confiscation of proceeds of crime 91.2.2 The significance of law on confiscation of proceeds of crhme 101.3 The fundamentals of low on confiscation of proceeds fcrime 121.3.1 The objectives of law on confiscation of proceeds of crime 11.3.2, The scope of law on confiscation of proceeds of crime 41.3.3 The principles of law ou confiscation of proceeds of crime 16

CHAPTER 2: LAW ON CONFISCATION OF PROCEEDS OF CRIME IN

ENGLAND 38

2.1 The legal framework regulating confiscation of proceeds of crime in

Enghnd 2s

3.1.1 Substantive legislation 2s2.1.2, Procedural Law 22.1.3, Law on Legal Enforcement 3022 The fundamentals of law on confiscation of proceeds of crime in

Vietwam 53

3.2 Comparing law on confiscation of proceeds of crime between Vietnamand Enghad s64.2.1, Similarities in lam on confiscation of proceeds of crime betweenVietuam and England 56

Vietwam and England sĩ44 Proposals for improving law on confiscating proceeds of crime in‘Vietnam from England's experiences se4.3.1 Proposals for a special and comprehensive law governing the

4.3.2, Proposalsfor the development of a uon-conviction-based confiscationmechanism 60‘Conclusion of Chapter 3 62CONCLUSION.

REFERRENCES

1 Rationale of the research

‘The phenomenon of tranmetional crime hes grown exponentially in recent decades,posing significent chellenge to the global community As a response to this, nationsworldwide have developed end refined legel frameworks to combet the financialaspects of criminal activities The confiscetion of proceeds of crime has emerged as4 pivotal tool in dismantling criminal enterprises and recovering ill-gotten gains.Assates of moneylaundering drug tefficking, end organized crime reach unprecedentedlevels, criminal enterprises exploit gaps in legel systems, necessitating «comprehensive understanding of effective measures for confisceting ilicit proceeds‘The urgency is underscored by the severe economic repercussions of transnationalcrime, affecting both developed and developing netions Illicit funds undermineeconomic stability, impede development, and erode public trust Additionelly, theevolving nature of criminel tactics, including the use of sophisticated technology,demands an anelysis of how legal fremeworks in England end Vietnam adapt to thesechanges.

‘The wgency Kes in ensuing thet legel mechanisms remain robust end act es «deiement against futwe criminal activities, Moreover, the commitment tointernational conventions and treaties requires a comprehensive eveluetion of how{jwistictions like England and Vietnam engage in globel cooperstion to adkess thecross-border nature of financial crimes The sesearch is imperative for safeguardinganstional security interests, asthe illicit low of funds across borders poses significantthreats The comparative insights geined from analyzing different legal traditions andsocietal contexts, as represented by England end Vietnam, are crucial for informingegal reforms globally

Based on the foregoing the author chose the topic "Law on confiscation of proceeds@f crime in a comparative perspective - England and Vietnam" for gradustionresearch This is « new comperctive lew study thet does not overlap with publishedstudies The research results contibute toimproving the efficiency end promoting thesole of lew in the confiscation of proceeds of crime.

Numerous intemstional scholuz consistently dedicate their attention tostudying the legal frameworks related to the confiscation of proceeds of crime,sextmining perspective rootedin criminology, sociology legislative foundations, andmenagerie salls specific to handling cases involving financial crimes The methodsand strategies employed to ensue an effective confiscation process and meet thedemands of addressing financial crimes are meticulously considered within variousmodels These models ae crafted based on commitaents and requirements tailoredtothe unique culturd, social, and political contexts of each juisdiction In the pursuitof understanding and delving into the complexities of the ley on confiscation ofproceeds of crime, the researcher hes meticulously consulted plethora of documents,including scientific articles, maste’'s theses, doctoral dissertations, books, endmagicines Accordingly, some typical projects can be summarized below

21 Foreign publications

InKevinM Stephenson; misea Gray, Ric Power; Jean-Pierre Bran, GabrieleDunker, Melissa Penjer, STAR - The World Banke - UNODC, “Barriers to AssetRecovery An Analysis of the Key Barriers and Recommendations for Action” , thesuthors mobilize policy mekers on the existing difficulties in stolen asset recoveryactions and convince them to take ection on the festured recommendations Suchaction would enhance the capacity of practitioners to successfully recover stolenassets The authors also recommend that practitioners shoud make more use of theexiting tools, as outlinedin the Operational Recommendstions ofthis tuy,

22 Domestic publications

TaLê Trên Son, "Thực trang công tác th dt sản lên quan đẫn tối phar,mốt số khó khẩn, vướng mắc và để xuất giải php nông cao luận quả công tác tư"hành án dân sự về th hỗ tải sd, Hội thio - Tham vẫn về cơ chế th hi tài sẵn

không qua thi tục kết tô ð Việt Nam, Ha Nội - 2022, the author briefly mentionedthe following contents: () Current mechanism for recovering comupt anst (i) Someemits of recovering convpt assets in recent years; (i) Some limitetions and (iv)Issues that need further research.

In Ts, Đố Thu Huyền, Hai thảo - Tham vẫn vé cơ chế thu hồi tai sẵn không

aqua thủ tục kếttội 8 VIÊN am, "Đánh giá tinh khả cũa ơ chỗ rch thu tsi không

qua thủ tc két 11 trong bỗi cảnh liệt Nam dưới góc đổ quyển cơn người, đặc bậtavn để quyễn tài săn”, HAN 6-202, the author adds some analysis and evaluation

of the feasibility ofthe esset confiscation mechanism without criminal proceedingsinthe Vietnamese contest from the perspective of aman sights, especially the ismaeof property rights According to the authors, to increase the permuasiveness andfeaubility ofthe asset recovery mechanism without criminl proceedings, counties,including Vietnam, need to conduct research to ensure harmony between troimportant godlz atthe same time: on the one hand, prevent and suppress corruptioncrimes; recover maximum corrupt assets to rehan to the state budget and otherdamaged subjects, and, on the other hand, still ensure full enjoyment of humen sights.

Itis clear that the aforementioned publications, and articles are mainly focuson the fsasbility of the asset confiscation mechanism without criminal proceedingsinthe Vietnamese; and th existing difficulties in stolen asset recovery actions noneof them have actually agproach this issues through « comparative perspectiveebrsen England Vietnam, Ara rem, inthis thesis the author focuses on the overelllegal practices of England Vietnam in different terms of ley on confiscetion ofproceeds of crime As a final point, I offer some propossls for confiscationmechanism, and legseltion in Vietnam from English experiences regarding le onconfiscation of proceeds of crime

3 Objectives and tasks of the Thesis,

The study cims to make some propossls for the improvement of theconfiscation of illicit gains regime in Vietnam from England's experiences in termsof lew on confiscation of proceeds of crime, To achieve these goals, the author has

focused on the following tasks:

- Analyzing theoreticel issues of lew on confiscation of proceeds of esime

- Clavifying the legal framework, and fundamental aspects of lew on confiscation of

proceeds of crime of the two countries,

= Comparing the similmities and differences in nw on confiscation of proceeds of

crime between these bo counties

3 The object and delimitation ef the Thesis

Firstly, in terms of the research object, the thesis focuses on studying theselevant lew and regulations concerning law on confiscetion of proceeds of crime inEnglend end Vietnem

Secondly, segarding the research delimitation, the thesis researches lew onconfiscation of proceeds of crime from an interdisciplinary perspective, mainly fromthe relevant parts of the lege! framework, end fundamental aspects of ew onconfiscation of proceeds of crime, The focus of this thesis isto seseerch on the legalframework, end fundamental espects of lew on the confiscation of proceeds of crimein England, end Vietnam The legislative practices of these counties ere not only‘elated to lew-m king activities but also reflectedin the development of other relevantlegelinstruments by competent state agencies The countries with lew on confiscetionof proceeds of crime thet the author chose for compasison in this thesis includeEnglend whichis on ofthe first countries to develop law on confiscetion of proceedsof crime, and Vietnam The result of this thesis is some proposals to ensure theimprovement of Vietnam's lev on confiscation of proceeds of crime from Englands

4 Methodology and research methods of the Thesis

‘With the aim of achieving the objectives end tasks of the thesis, evalustions inthis papar are based on its dialectical method and metesilistic view of Merxism-Leninism, There is also « combination of seseerch methods as an analytical method,synthetic method, and the methodology of Comparative Lew; (1) Analyticel andsynthetic methods are used in Chapter 1 to clasify the general issues of lew onconfiscation of proceeds of crime; (2) Anslyticel and synthetic methods ere also usedin Chapter 2 in addition with some brief case studies of notable cases involving theconfiscetion of proceeds of crime to analyze law on confiscetion of proceeds of crimeinEnglend, G3) InChapter 3, the euthor uses methods of interpretation analytical endssmthetic methods and Comparative methods to highlight e mumber of similarities anddifferences of the two countries mentioned above on the main issue of the thesis As

from Englands experiences in lew on confiscation of proceeds of crime6 Scientific and practical implications of the Thesis

Fussy, the scientific signaficence, the thesis is e systemetic study of law onconfiscetion of proceeds of crime The study hes a comparisơn with developedcountry, typically, Englend which heve hed a lot of experience in the process ofdeveloping aw on confiscation of proceeds of crime The research also analyzed andclarified the necessity and significance of lew on confiscetion of proceeds of cximeend evelusted the curent legel framework, and fundamental aspects of law onconfiscetion of proceeds of crime of the two counties Afterall, the thesis would iketo emphasize the importance of improving the legal provisions to develop «comprehensive and efficient lew governing the confiscation of proceeds of crime as‘well as introduce non-conviction-based confiscation mechenisms based on English

Secondly, in terms of practical significence, the proposels endrecommendations of the thesis are provided by a belanced cusiculum of theoreticalsend practical research towerd law on confiscation of proceeds of crime, This thesisis4 valunble seference for State agencies in the process of formulating policies enddeveloping lew to ensure effective forfeiture of illicit gains as well as compatibility‘with international commitments In addition, the proposals cenimprove the efficiencyof the development and enforcement of lew on confiscation of proceeds in Vietnam‘Thisis also axesource to support research activities for any individual or organizetion

interested in lew on confiscation of proceeds7 Structure of the Thesis

Apart from the introduction, conclusion and list of references, the thesiscontent consists of 3 chapters

Chapter 1: Theoretical issues of law on confiscation of proceeds of crimeChapter 2: Law on confiscation of proceeds of csime in England

Chapter 3: Law on the confiscation of proceeds of crime in Vietnam in comparisonwith England's law, and proposals for the improvement of Vietnam's lav

confiscated, no longer heve value or use, they must be destroyed! With that seid laws

cn confiscation of proceeds of crime must not be interpreted as « single Code arelegislation but rather @ field of law which covers a wide renge of criminal offences esJong as there isthe need to retieve and depsive the advantages gained from crime.

Referencing the criminal law of counties eround the world, we can see thatthe form of confiscation of objects and money as atldtionsl punishment in somecountries, such as Englend, is similer to the mesure of confiscation of money endobjects directly related to crimes under Vietnamese criminel law.A great example ofthis is in the UNTOC Convention ageinst Tranmetional Organized Crime, whereconfiscetion of proceeds of crime means the permanent deprivetion of propestyderived from or obteined, dxectly or indxectly, through the commission of an offense

thet the cout or other competent euthority has suled?, Similarly, the CoE has also

Arcee 45 mi 47 ofthe 2015 Vinton Penal Code

2 ted Ngữmg Office en Drags avd Crx - UNDOC (2012), ‘Mma on Reharial Cooperation fr the

Purposes of Confiscation of Proceeds of Cre”, pp 1-4, hips Jnr ode ergldecumntslrguuzedmu Prblietins/Contsction Maul Ebook Eel end Arce 2 of the United Netans Office on Dragsfd reo, - UNDOC (2004), “Unted Nations Convention aguiet trygutona argued cate and tt

retools ‘hereto, PS,np fe mod orgidoconnts eats ONTOC/ bi ems! TOCY20 Convention TOCeboak-« BI)

whether corporeal or incorporeal, movable or immovable, and legal doctonents orinstruments evidencing ttle to or interest in such property, and that “proceeds of

crime" is ary economic advantage that deprives of criminal offenses

Inthis research, the readers may run across other terms, from “asset recovery”or “criminal esset forfeiture” to “confiscation of money and items directly related tothe crime”, butit can be understood that uniformity is criminal remedy other thenpunishment The author recognizes thet these terms all promote a similer concept thet,despite minor differences in terminology, law on confiscation of proceeds of crimecan be understood as « crucial legal tool for the coutt or other competent authority todeprive criminals of eny economic advantage obtained directly or indirectly fromtheir offenses, including forfeiture and trensfesring pastor all of the property in orderto compensate victims and deter Future cxime

1.1.2 The characteristics of law on confiscation of proceeds of crime

The first characteristic of law on confiscation of proceeds of crime is itsprimary goal of depriving criminals of ilicitiy gained benefits When individuals

engege in criminal activities such as drug trafficking money leundering fraud, ororganized crime, they often accumulate substantial wealth or assets, which ereincredkbly hard to track in ow modern economic and spending hebits since the illegalorigin of the assets con be easily concealed, making it difficult for competentauthorities to trace the flow of money end prove the connection between assets endcriminal ectivties Thislew is designed to terget not only the individual (in personem)‘but also the resources (in rem) that support end enable criminal activity, specificellythe complex asset recovery in economic corruption, such as assets that have beenisbursed broad, assets that are real estate projects that have not yet been legally

completed, shares, stocks, etc, causing great difficulty in asset recovery activities*

of different mechanisms of recovery of illegal assets, including comiction-basedconfiscation and non-commiction-based confiscation which differ inthe level of proofrequired for it to take place Confiscetion occurs under one of two types ofproceedings: conviction-based confiscetion and non-conviction-based confiscation,‘which dffer in the level of proof required for it to take place Conventionally, non-conviction based confiscation requires « standard of proof thet is lower than thestandard required to obtain @ conviction in a criminal court because st focuses onhandling essets believed to oiginsts or be related to crime with the eim of recoveringthem to the state budget orretuming them tothe sightful owners ofthe assets, in other

‘words, the crime is ettibuted to the property (“in xem”, tainted propesty)! In most

legal systems, the burden of proof lies with the prosecution to establish the guilt ofthe accused However, in non-conviction confiscation cases, the burden af proof isshifted onto the defendant to demonstrate the legitimate oigins of their assets in orderto prove gyounds to protect their property sights: With this measure, euthorities only"nesdto prove that the propertyisrelated to enillegal act based on the provided criteria

of “preponderance of evidence” or “balance of probability”

Finally, the confiscation of proceeds of crime is e compliceted end consuming process In addition to the aforementioned administrative (no conviction),property, or criminal (conviction-based) asset recovery mechanisms, valus-basedprocesses are one of the three predominant ways to confiseete propesty globally.‘When these procedures are enforced, it is typically a difficult process thet takes alotof time, money, ond specialist experts to investigate, estimate the value of theproceeds of crime, andidentify what property maybe seized for an equivalent amount‘The resolution of criminal cases in some specific fields, especilly in the fields ofcapital construction, finance-banking, and public procurement, requires @ lot ofproperty appraisel results and experts with the capacity and technical condfions tosolve the case However, inspection facilities, processes, and stendards in some of

time-8 ng qu thi nự Wit 3 Việt Nem, “Tie

"rụng công tic te hts in qua dan ôihươ một số khó dn, tướng nắc đề rất gi pháp ning,

cạo tên gi công tác tỉ hành n dan sve te hội ân”, Hà Nội 702,8

delays in inspection work, causing many stetes to have trouble putting domesticconfiscetion systems into place International cooperstionis also necessary to ensueeffective asset forfeiture

1.2 The necessity and significance of law on confiscation of proceeds of crime1.2.1 The necessity of law ou confiscation of proceeds of crime

One of the primary reasons for the necessity of such lay is the crippling’

impact thet orgenised crime andillict activities have on society The threat posed bycffences thet necessitate the confiscation of proceeds of crime extends to variousmensions of society, impacting individuals, communities, and the overall well-‘being of nations Firstly, orgenized crime generetes massive illic profits, oftensupessing the GDP of some counties For exemple, in2009, transnational organized

crime was estimated to generate $970 billion, which is equal to 1.5% of giobal GDP

‘These funds cen distort economic systems, contribute to inflation, end undermine Feitcompetition by allowing criminal enterprises to gain an unfair edventage Anothernegative impact of serious and orgenized crime, such as drug trefficking bomen‘wafficking, and terrorism, is that they pose disect threets to public safety as theyexploit individuals and violet their besic aman sights

Financiel gain is the mein motive for coruption offences As @ rule,perpetrators attempt to legitimate the proceeds from corruption offences in order toconceal the source of origin end the ineviteble link between predicate corruptionffences and the leundering of the proceeds of corruption In top corruption cases,obtained gains are also used to achieve economic or political influence in the society,to establish control over the state's lew-enforcement system, to enswe impunity forcorruption, end to obtain all-new finencial geins For this reason, one past of thestrategy in the fight against corruption end laundering of the proceeds is to conductsa efficient financial investigation focused on tracing, freezing seizing endconfiscating instrum entelities end proceeds of cotruption offences For instance, legalinstruments such as asset forfeiture can enhance the effectiveness of law enforcement

“UNODE, “Peeunational Orgened Cre ~The Globatzed Tegel onan)",pe shronriade srpdocimentshoctacthurte/TOCLD fe gu] BN HIRES gã.

efforts by providing a legal framework to gọt end seize assets linked tơ criminal

scivitie® Fustheimore, to effectively hele illegal profits fom serious end

orgenized crime, a robust legal framework end tools are necessary This includeslegislation that allows for the confisetion of assets derived from criminal activities,ts well as mechanisms for the identification, tracing, end confiscation of illicitproceeds Additionally, lew enforcement agencies also require specializedinvestigative techniques, such as financial intelligence gathering and analysis, toUncover the proceeds of erime and facilitate their confiscation This can includererowces used to facilitate crimes, mình as fonds for drug taficking or equipmentfor legal enterprises.

12.2, The significance of law on confiscation of proceeds of crime

Non-Legal means in confiscting proceeds of erime aften lack accountabilitynd can ead to inman rights violations They may also result in egal challenges andprocedure ireguleities, undermining the legitimacy of confiscation effrts Thislack of transparency and procedural sefeguards can erode public trust and reducecooperation from finencial institutions end other stakeholders In contrast, slid endflexible legl framework is essetia for effective lew enforcement This frameworkprovides clear guidelines and procedures for confiscating assets protecting the sightsof the accused and conducting the process traneperently and accountablely Legalmeasures also contribute to the deterrence of organized crime by establishing cladrconsequences for criminal actions However, non-legal means lack the force of lewand may not effectively deter eciminals or prevent the recurence of organizedcsiminal activites Moreover, the legal framework must be adaptable to evolvingcriminal tacics technological advancements snd cross-border criminal activities

Organized crime is « dynamic issue that constantly evolves, exploiting legalJoophales end technological advancements A flerible legal framework is crucil fortuthotites to adapt and respond effectively Non-legal means may lack the aglity

*'OECD, “Confiscation of instrimentaites and proceeds of corruption crimes in Eastern

Exrope and Central Asia”, nts: seed oglcoruption/acnOECD-Confscaton of Proceeds

ot Comuption-Crimes-ENG pd pa

required to keep pace with organized crime tactics, leeving law enforcement at @&sadventege The efficacy of confiscating proceeds of crime depends on the strengthend flexibility of the legal framework To effectively combst organized crime,authorities must have & robust legal bess thet allows for the confiscation of veriousassets, such as financial and real estate, through flexible mechanisms like the UK'sProceeds of Crime Act of 2002 (POCA) This Act includes four procedures forconfiscating proceeds or instruments of crime: conviction-based, civil asset recovery,tecetion of gains, and police or ackninistrative confiscation of cash suspected of beingproceeds of crime

Additionally, there is also the need for wide coverage in the legel basis forconfiscation of proceeds of crime which stems from the diversity end complexities ofcrgenized crime, Organized crime groups operate across multiple jwsistictions,engage in a wide range of offences, and often use sophisticated methods to concealtheir illicit proceeds such as drug trafficking, humen trafficking texosism finencing,money laundering freud, corruption, ete In this context, a narrow end limited legal‘basis for confiscation would be inedequate to atlévess the diverse tactics andchellenges posed by the vasious serious offences which is why in Vietnam, the legal‘basis for the confiscation of proceeds of cxime is likely to involve « combinetion ofJew and regulations that address various aspects of csiminel activities end financialffences such as the Penal Code 2015, AML lew, Comuption Law, AssetManagement Lew, ete as well as other measures to prevent end control moneyTeundering end texrorism financing, as evidenced by the issuance of « National Planof Action on the matter

In conclusion, lay on confiscetion of proceeds of crime holds immensesignificance in addressing the issue of criminal wealth derived from illegal activities‘This lew enables the permanent deprivation of the proceeds of crime, providing «mechanism to freeze and confiscete criminal wealth It plays crucial role in tacklingthe concems seleted to enormous criminal weelth end preventing the ublizetion ofsuch wealth for futher criminal activities

1⁄4 The fundamentals of lw on confiscation of proceeds of crime13.1 The objectives of law on confiscation of proceeds of crime

Criminal lew provides for the penslty of confiscation of property to make thecffender no longer have the economic conditions to continue to commit the offenseor to fully recover the ill-gotten profits gained by the offender as e result of thecommission of the crime, At the seme time, this punishment also contributes todetesrence, education, and the prevention of crime

One of the main objectives of confiscation law is to disrupt the financialincentives thet drive criminal behavior By stripping criminals of their ill-gottengrins, the lew eims to remove the economic rewards asrocisted with criminalactivities This crestes 8 strong disincentive for individuals considering engeging incriminal acts as they realize thet any profits they may eccumulete will be seized bythe authorities A great exemple of thisis the case of Tohra Danwin, who attempted tofake his death 10 years ago to xeceive inswence payouts, Mr Darwin and his wifemade it appear thet he tragically died at Seston C arew seaside in a cenosing accident‘The benefit amount in his case was found to be £679,073 02 Mrs Deswin, who hadcleimed the life insurence policies in her husband's name, repeid £500,000 under @seperate confiscation order Mr Derwin was ordered to pay £40,000 by the cout

using legitimately obtained money rom his pensions as ateacher end prison officer!

‘Secondly, the objective ofthe confiscetion lay isto dismantle criminalnetworks and organizations By tergeting the proceeds of cxime, lew enforcementagencies can undermine the financial infrastructure supporting cximinal networksInmeny cases, confiscation lew heve beeninstrumental in unraveling complexcriminal enterprises, seducing their resources, and hindering their ability to cay outfusther illegal activities In pasticuler, these are some cases in Vietnam, such as theAVG case, in which the entire amount of bribes confiscated wes VND 137,644‘illion The emount of damage to the state was estimated to be VND 8,776 billion,the case of Giang Kim Det of VINASHIN OCEAN SHIPPING COMPANY

LIMITED seized, disclosed, end blocked accounts worth over VND 300 billion;

° pres association 29/05/2014, The Guardian “cance fraudster ihn Darwinonler to surrender 40,0000

authoriis", mgs: theguand in conus /2013/mai/29 (canoe fraudster ohn darvin-oneredSurrender persons, last accessed 0n16/10/2023,

the case of Trinh Xuan Thanh of PV Land which confiscated VND 45 2 tillion,

Beyond deterrence end disruption, the confiscetion of proceeds of exime isessential for achieving justice and compensating victims By stipping criminals ofthei ill-gotten gains, the justice system hes the means to redress the erm caused tosociety end the individuals affected In Vietnam, for example, confiscated assets arecften used to compensate victims (legal owners! manegers of the propesty) or fundthe state budget; however, in the case of confiscation of ell property, a certain postionof the propesty must still be left for the convicted person and their family living

conditions! In the past year, in Englend, four convicted people smugglers, who

sssistsdin the unlawful immigration of 39 people from Vietnam who diedin the beckof a lony in Essex, have been ordered to pay £31,493.47 in confiscation orders as

compensetion to the bereaved families!

Moreover, the assets seized through the confiscation of proceeds of crime canbbe directed towards fundinglew enforcement agencies, victim support progrems, andcommunity initstives aimed at prevention and rehebilitetion By seelloceting theconfisceted funds, the legal system con further bolster its ability to combat crimeeffectively These sesouces can be chennelled into treining programs for lawenforcement personnel, technological advancements for cưme prevention, orassistance to victims of crime For instence, in England, £117°9 million of AssetRecovery Incentivisetion Scheme (“ARIS") funding was distributed to POCA‘Agencies in the finencial year 2022 to 2023 which shows that ARIS Allocations toPOCA Agencies have incressed by 53% over the 6-yeer reporting pesiod, up from

£768 million alloceted in 2017 to 20181 Consequently, the community benefits

`” Bùi T Ta Huyền, 31/082021, Dou bdith sin hơn nhớng: Tax rạng viaking vind ditra, Tengen

Gin ir cin Ban Một chi trưng ương, hưạc noid minghien-cmetao-cos002 108 echt santa

Hang Da tụng visinng Vwvd.ê ro310008/, Last accessed on 17/102023.

22 65.75 Nguyễn Ngọc Hòa, Giáo tỉnh Luật Hình Sự Việt Nam phần chung 2020, nxb Đông an

nhân dân, tr 305, tr 310,

° Tụ Co Prostetion Szvkt,03/032033,*Canyicad paopb-raugglrs ordered pay over 630,000eewficdien ards", Tgne/Anncbegosuikikhehsiri.msvctrdssopk serenepO <xgbctepsee 8z Last accessed at 107102023,

` 60V UK Home Offve, 020092023, Ofixil Sutstis Asst Recovay Sutisicel Bultic Frailyeers

from & safer environment, improvetl lew enforcement cepebilities, end increasedsupport for those affected by criminal actions

Finally, the secovery of proceeds of crime isto ensure that the essets comingfrom crimes are recovered and seinstelled in the place of origin, therefore ensuingthet the victims of crime end the economies from which the assets were taken do not

suffer from the economic loss!’ By confisceting the ill-gotten gains from the

perpetrstors, these funcls can be returned to the victims, providing some meanwe ofrestitution and restoring œ sense of justice A great exemple of this is the AssetFosfeiture Program in the United States has returned mullions of dollars to victims of

financial cme, with over $400 million retuned in FY 2008 elone'* This not only

helps individuals rebuild their lives but also fosters trust in the legal system,seaffisming thet it stands to protect end support those who have been wronged13.2 The scope of lan ou confiscation of proceeds of erime

‘The scope of law onthe confiscation of proceeds of crime is vast and typicellyencompasses various legel provisions end procedures sim eđ st depriving criminals ofthe financial benefits geined from their illegal activities These law are designed toadécoss the issue of ill-gotten geins and to prevent offenders from enjoying theproceeds of their unlawful conduct The scope of such law can vary by jurisdiction,‘out generelly, they cover the following key aspects:

First ond foremost are the substantive laws on confiscation of proceeds ofcrime which dictete the legal basis for confiscating assets derived from cximinalactivities, These laws typicelly define the types of criminal offences that can est inthe confiscetion of proceeds the essets subject to confiscation, and the legal sienderdsfor proving the ilicit origin of the assets For example, in the United States, theComprehensive Crime Control Act 1984 and the Money Laundering Control Act1986 provide for the confiscation of proceeds of specified! unlawful activities,including dug trefficking money lauadsing, and racketeesing In the United

‘palit fauncial-yere- dng 2018-to-2073hsse-xecovey-sutsticaL buletn Saancalyere ending"ardt2018 4e dh 2073Haset recovery-ncentarstam schemes, Last accessed an 147102035.

Come of Bxope Portal - Commute of parts on the Bvekation of Ati Money Leaderng Measresad te Tưng of Terran, “Confscation and asset recovuy”,Imps Jann coe elmhitblostuyvtlnphenatihjcenfectien, Last accessed on 3107033

* bepartment of stie-asset Forfeiture Program, “Returning Forfeited Assets fo Crime Vetms: An Overview

oftemision and Restoration” hips Siw justice govile/#14326/ download;

Kingdom, the Proceeds of Crime Act 2002 allows for the confiscation of assetsbteined through criminal conduct, including drug trefficking freud, end moneynundering

Secondly, procedural laws on confiscation of proceeds of cm govern theprocesses end mechanisms for identifying freezing and confiscating illicit assets.‘These laws often outline the roles and responsibilities of lew enforcement agencies,prosecutors, and couts in the confiscation process Additionally, procedural lawsnay esteblish investigative powers, seizure end forfeiture procedures, and the sightsof effected individuals to contest confiscation orders For instance, the Confiscationof Proceeds of Crime Act 1989 in New South Weles, Australie, empowers a coust tomake orders for the confiscation of property derived from or used to commit «“serious offence" The cout must be sstisfied thet the accused hes derived proceeds

of crime before making a confiscetion order whereas, in Civil law countries like

Vietnam, the legel system is composed of « system of different legel instruments,hierarchically end highly consistent, pertaining to the confiscation of proceeds ofcrime whichis primarily regulated by the provisions of the Criminal Procedure Code2015 endseleted reguletions

“Thy isthe legal enforcement of laws onconfiscation of proceeds of crime‘which involves the implementation end application of substantive and proceduralews to snswe complience end enforcement Legal enforcement messes mayinclude the establishment of specislizedinvestigetive and prosecutorial units, trainingend capacity-building for law enforcement end judiciel authorities, end internationalcooperation mechanisms for asset recovery Appendix mo.1 - Example of law oulegal enforcement

Overall, the scope of ews on confiscation of proceeds of crime encompassessubstentive, procedural, end legal enforcement measwes to effectively address thefinancial benefits derived from criminal activities Through the implementation ofthese laws, countries around the world seek to deprive criminal networks of theirillicit grins and disrupt their operetions The exemples of legisetion from different

” tøạil Court serch Book “Proceedings under the Confiscation of Proceeds of crime Act 13487

ntge/wirjadeom nv govau/publeatons/benchble/ocaVconfecaion proceeds crimes act ht

countries demonstrate the diverse approaches to confiscating proceeds of crime andthe impostence of intemnstionel cooperation in tackling twenmetional criminal

13.3 The principles of law on confiscation of proceeds of crime

‘The principles of lew on the confiscetion of proceeds of crime are designed toprovide legal mechanisms for authorities to seize and confiscate assets derived fromcriminal activities These principles vary across jurisdictions, but there are commonthemes found in many legel systems, Here are key principles often associated withthe confiscation ofthe proceeds of cxime

To begin with, there is the principle of legelity, a fundamental espect of theconfiscetion of the proceeds of crime This principle stetes thet the confiscation ofassets must be based on a clear end unambiguous legal framework This means thetthere must be specific law in place thet allow for the seizure and confiscation of assetsđeqvedftom criminal activites: The legal framework must outine the circumstances‘under which confiscation cen occu, the process for confiscetion, and the rights ofindtviduals who ere subject to confiscetion proceedings In eddition, the coreprinciple is thet assets subject to confiscation must be linked to specific criminalconduct This principle ensures that the confiscation of proceeds of crime is caniedcout in & transparent and lawful manner, with due process and legal safeguerds inplace Speaking of due process, similar to other legislation around the world, the legalsystems generally ensure thet indkviduals subject to confiscetion proceedings hevethe right to feir hearing and due process.

Secondly, the principle of proportionality is enother key principle in theconfiscetion of the proceeds of crime, This principle of proportionslity requires thetsy confiscation order by the cout be reesonsble end proporionate, taking intoconsideration the interests of third parties who are legal owners or have alegalinterestin the property In other words, the value of the assets being confiscated should becommensurate with the sevesity of the offense committed This principle seeks toprevent excessive or exbitrary confiscetion of assets and ensures thet confiscation isaot used as a punitive measure beyondwwhat is necessary to adékess criminal conduct.

Appendix no.2- Example of the principle of proportionality.

Thirdly, the principle of internationsl cooperstion is also selevent, as theconfiscetion of proceeds of crime often involves cross-border criminal activities: Thisprinciple emphasizes the impostence of collaboretion between different jurisdictionsinthe enforcement of confiscation orders, and the recovery and sepetiation of assetsInternational cooperstion is essential for effectively combsting transmationalcrgenized crime and ensuing thet assets derived from criminal activities areconfiscated end returned to their rightful owners, This principle can be secognised incases of Mutuel Legal Assistance, Recognition end Enforcement of Orders, and AssetRepahielion A greet example of this is the United Notions Convention ageinstCorruption (UNCAC) The UNCAC, « comprehensive intzmational legal framework,promotes globel cooperation in combeting corruption, including measures related tothe confiscation of proceeds of crime, Counties that are pasties to the UNCACcommut to providing mutual legel essistance, cetrediing offenders, and feiliteting

the recovery of assets!

Another noteworthy principle isthe principles of recovery and sepebiation ofassets which ere outlined in the UN Convention ageinst Corruption (UNCAC)Specifically, Chapter V (Asticles 51-59), which is devoted to asset secovery includes

the tem of stolen assets diverted through corruption as e fundamental principle!

‘The process of asset recovery involves the return of stolen or embezzled public fundsstashed evay by corrupt officiels, es well as eny proceeds of corruption transferred

sbroad including those of private oxiginTM®.Confiscetion actions cen be brought either

domestically in the victim county or in the reciptent where the proceeds of corruptionexe located Once ạ confiscation order is made, essets are not directly repatriated tothe victim country According toUNCAC Article 57, the return of the assets will becrgenized es follows: when confiscation is ordered in the victim country, the returnof assets requires a request from the victim country (requesting pasty) to the recipientcountry (requested party) The UNCAC provides a framework forthe repetsiation of

38 UNODC, “The United Nations Convention against Corruption’

confiscated assets to their countries of origin, but successful repatriation tends to be‘based on longer-term commitments, and the process may face operational barriersand communication issues, such es difficulty identifying contact points in other

countries and delays in processing mutual legel assistance?)

13.4, The main issues regulated by law ou confiscation of proceeds of crime13.41 The objects to be confiscated

First and foremost is the identification of Proceeds, where the law defines whatconstitutes ‘proceed af crime" and sets out the criteria for identifying assets or fundsthất are subject to confiscation According to the Treaty between the Government ofthe United Kingdom of Great Britain and Northern Ireland end the Socialist Republicof Vietnam, "proceeds of crime" means any assets derived or realized, directly orindirectly, by any person as a result of criminal conduct All proceeds of crimeinvolving both tangible and intangible assets are subject to confiscation, which has‘been interpreted to include interest, dividends, income, and real propasty, although‘there are variations by jurisdiction A great example of this is the United States v.James R Bulger (2013) which involved the notorious mobster Whitey Bulger Thecourt ruled that the government could seize both the tangible assets, such asreal estateproperties purchased with illicit funds, and the intangible assets, like bank accountsand investments desived from criminal activities,

Secondly, based on each country’s legislation and legal framework we can seethe types of offences which it stipulated, often the law covers a wide range of seriouscriminal offences such as drug trafficking corruption, money laundering andorgenized crime, and sims to prevent individuals from benefiting from the proceedsof their ilegsl activities The offences for which confiscation is available may vary‘by jurisdiction, particularly those related to corruption is a global trend, end the lew

sims to zubject not only the proceeds from the specific offence but also assets whoselegitimacy of the source of origin cannot be proven in adverseriel proceedings toconfiscation with the overarching gosl is to deprive criminals of the benefits of theirillicit actions In addition, due to the complex nature and sophisticated tactics of

5 pits: tiwon adleshawgoddars,com/eninsighs/insighs-brefings/2022/atiealcorporate-cime

shlea-undstellepatiating confs cated assets-te-thee counties-oforgin-s-the ắc doing enough!

crgenized crime to disperse essete abroad, intemstional cooperstion betweencountries is often needed to assist each other in confiscating those illegal assets.

However, it is also important to differentiate criminal instruments andproceeds of crime Unlike the illicit assets geined through criminal activity, criminaltools are the instruments, equipment, or items used to facilitate the commission of «crime, These can include weapons, vehicles, communicetion devices, end otherphysical or digital tools utilized in the planning or execution of criminal activitiesWhile proceeds of crime pertain to the financial gains derived from criminalactivities, crime tools encompass the physical or digitl instruments utilized in thecommission of eriminel acts,

1.3.42 The law enforcement agencies involved in the confiscation of proceeds of

Law enforcement agencies play œ crucial role inthe confiscation of proceedsof crime These agencies are responsible for investigating and prosecuting cximinalactivities identifying and seizing essets that are the proceeds of exime, end ensuringthet the assets are forfeited to the state Here are some examples of lew enforcementagencies involved in the confiscation of proceeds of crime: The confiscation ofproceeds of crime typically involves collaboration emong vasious lew enforcement‘agencies at both the netional end international levels The specific agencies involvedcan vary besed on the jurisdiction and the nature of the criminal activity Here aresome common law enforcement agencies that play a sole in the confiscation ofproceeds of crime

Fisst is the Locel and regoonel Police Departments, These departments areresponsible for enforcing state lew end investigeting criminal activities within theirjjuistictions They work closely with federal agencies to identify and seize assets thatsre the proceeds of cme, They work diligently to gather evidence and build cases incrder to present e strong argument for the confiscetion of criminel proceedsAdditionally, the police may work with other specialized units, such as financialinvestigation units or orgenized crime units, to treck down and seize criminal assets

Another important lew enforcement egency involved in the confiscetion ofproceeds of crime is the finencial investigation unit, Some of the most femousagencies are the USA Federel Bureau of Investigation (FBI), the Drug EnforcementAdiministrtion (DEA), and the Intemel Revenue Service (RS) are responsible forinvestigating end prosecuting federal crimes, including money leundering, drug‘uefficking, and tax evasion These agencies work closely with state and locel lawenforcement agencies to identify and seize assets thet are the proceeds of crime ByUlizing financial investigative techniques, suchas suveillance, enalyas of finenciel,records, end conducting interviews, these units play a critical role in identifying andseiaing criminal asset.

In addition to the police end finencial investigation units, other layenforcement agencies, sich as customs and border protection, play & sole in theconfiscetion of criminal proceeds These egencies focus on intercepting and seizingillegal goods end conlrebend, es well es preventing the movement of criminal moneyacross borders By working to disrupt the flow of illicit goods and money, theseagencies play « vitd sole in preventing criminals from profiting from their illegal

Futhsimore, Intemational lew enforcement agencies such as Interpol,Ewopol, end UNODC work to combet transnational orgenized crime end facilitatethe confiscation of criminal assets across borders These agencies work closely withational lew enforcement agencies to identify end seize assets thet are the proceedsof csime

Finally, prosecutors and the judiciary are essential players in the confiscationof proceeds of crime The judiciary plays « crucial sole in the confiscation process

Judges in Crown Courts end other relevent couts are responsible for overseeingconfiscation proceedings They evaluate the evidence presented by prosecutors, makedecisions on the emount to be confisceted, and issue confiscation orders Whereasprosecuting agencies such as the Crown Prosecution Service (CPS), Serious FreudOffice (SFO), end National Crime Agency (NCA), ete in Englend work to buildstrong cases for the confiscation of criminel essts, presenting evidence to the cowtsin order to obtain forfeiture orders

‘Thisis «lege process through which authorities seize assets or propesty thatse believed to be obtsined through criminal activities There ere two mainmechanisms for confiscetion conviction-based confiscation and non-convictionconfiscetion These mechenisms very depending on the legal jurisdiction, but ingeneral, tis es follows

Conviction-based ot Criminal confiscationis tied to a criminal conviction Thelegal bests for this mechanism is often leid out in specific legislation, such as theProceeds of Crime Act2002 (POCA) in the UK or the Comprehensive Crime Control‘Act in the United States as well asin the Vietnam 2015 Penal Code and its relatedsegulstions The process begins with the eximinel prosecution and comviction of theoffender for a qualifying offence, such as drug trefficking freud or moneyJeundesing After conviction the prosecution applies to the cout for a confiscationarder This involves presenting evidence of the defendant's benafit from cximinalconduct andthe aveilable amount for confiscation The standard of proof required(oormally proof beyond a reasonable doubt) for the confiscation order is often theseme os thet sequired to echieve a ciminel conviction The court will then conduct @‘benefit assessment to determine whether the defendant has @ “criminal lifestyle" es‘well as the financiel benefit derived from the criminal conduct This may involve'acing assets, identifying hidden essets, and assessing the value of gains After thet,the cout must issue 4 confiscation order specifying the emount to be confiscated Ifthe defendant fails to pay, they may face sd4Homl penalties, including

imprisonment”? Lew enforcement agencies or specialised units ere responsible for

enforcing the confiscation order This may involve seizing bank accounts real estate,vehicles or other valuable assets In some cases the confiscated assets may be soldend the proceeds are distibuted to victims or used for law enforcement purposes Itis also worth noting thet legislation often includes provisions to protect the sights of

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‘They can apply to the cout to protect their interests,

Onthe other hand, non-commiction-based or acbninistrative confiscation, oftenknown as civil or asset forfeiture, doss not sequite a criminal conviction Instead, itfocuses on the property itself being "gual” of involvement in criminal activitiesLegal frameworks for this type of confiscetion very widely Lew enforcementcuthorties initiate civil forfeiture proceedings against specific assets believed to belinked to criminal activities This can happen independently of a criminal tilConviction of the property owner isnot relevent in this kind of confiscation Itis mostcften seen in the field of customs enforcement at borders (e.g, bulk cash, drug, or‘weapons seizures), and applies when the nature of the item seized justifies enadministrative confiscetion epprosch (without « prior cout review) Subsequently,the standard of proof required in civil forfeiture casesis often lower then in criminalcases Authorities may need to demonstrate thet it is more likely then not thet theproperty is connected to criminel ectivities rather then proving guilt beyond «

reasonable doubt? Property owners cen challenge the forfeiture, asserting their

innocence or claiming thet they were unaware of the criminel use of the property.‘There may be oppostunsties for appeals Some jusistictions even provide an "trmocentowner" defence, allowing individuals to prove thet they were unaware of and did notconsent to the criminal use of their property This is perticulasly relevant in cases‘where propety is shared or owned by multiple pasties Non-conviction- basedconfiscation can be broader in scope, encompassing a range of offences beyond thoseleading to criminal convictions, including tex evasion, regulatory offences, endcestein civil violations

‘There are some common espectsin both conviction-based bessd mechanisms, however, such as both involve tracing and identifying assetslinked to criminal activity Giventhe global nature of many crimes, both mechenismsmay involve intesnetional cooperstion for the recognition and enforcement ofconfiscation orders across borders In some cases, confiscated funds may be used to

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compensate victims of the underlying cưiminal activities Legal frameworks ofteninclude safeguards to protect the rights of individuals, including the sights of theaccused and innocent third parties.

‘Conclusion of Chapter 1

In short, the law on confiscetion of proceeds of crime is a crucial lege tooldesigned to deprive criminals of economic advantages obteined from ther offenses,including forfeiture end permanent trensfer of property It eims to combat criminalactivities such es drugtrafficking money laundering fraud, and orgenized crime Thelew has four characteristion it aims to deprive criminals of illicitly gained benefits,thas @ unique burden of proof requirement, is a compliceted and time-consumingprocess, endis closely related to human sights, pasticuledly property sights

‘The global impact of organized crime has ledto the need for e legal frameworkthet addresses both punitive and preventive aspects of criminal justice, Regulationslike the POCA ellow law enforcement to trace, evaluste, and confiscate assetsacquired through criminal conduct, disrupting economic incentives for unlawfulactivities It also sim sto dismantle the financial infrestrachue of criminal enterprises,prevent economic benefits from unlawful actions, end restore ill-gotten gains to theirsightful place within the legal economy.

‘The fundementel issues regarding confiscation include asset identificetion,tow enforcement ogencies involved, seizwe procedures, and internationalcooperation mechanisms The lew is grounded in feimess, proportionality, andsespect for human rights, ensuing due process and safegusrds in the confiscetionprocess of criminal proceeds In essence, the most comprehensive definition of thelew on confiscation of proceeds of cxime encepaulates its role es « dynamic andadaptive legal tool essential for combating orgenized crime, promoting societal well-‘being end upholding the integrity of global legal systems

CHAPTER 2: LAW ON CONFISCATION OF PROCEEDS OF CRIME INENGLAND

2⁄1 The legal framework regulating confiscation of proceeds of crime inEnghad

3.1.1 Substantive legislation

Firct andforemost is the Proceeds of Crime Act 2002 (POCA) which is alsothe primary substantive legislation regulating the confiscation of proceeds of crimein England is the Proceeds of Crime Act 2002 (POCA) POCA is & comprehensivepiece of legilation thet provides a legal framework for the identification, restreit,end confiscation of assets derived from criminal activities The substantive contentsof the Act cover a wide renge of provisions, including provisions for bot criminalend civil recovery, the definition of criminal propetty the powers of lew enforcementagencies, confiscation orders, and specific offences such as drug trafficking andmoney laundering, and acknowledges the need for international cooperation in thepost of assets across borders

While the Proceeds of Crime Act 2002 (POCA) is the primery legislation+sgvlsing the confiscetion of proceeds of crime in England and came into force onthe 24th March 2003, meaning it only applies to POCA offences committed on, orsex, that date Before the Proceeds of Crime Act, lew ơn confiscation wes governed‘by some other law and regulations which cantsibute to the overall legal framework‘These may not be as comprehensive or central es POCA, but they address specificaspects of asset recovery and confiscation concerning certain offences such as theDáng Trafficking Act 1994 and the Criminal Justice Act 1988 These Acts sill apply4o confiscation proceedings where POCA offences were committed before the 24th

‘Mere 2003%, with some mein legislations including,

The Serious Crime Act 2015 (SCA) hes significantly impacted the Proceeds ofCsime Act 2002 (POCA) in England Key changes include increased prison sentencesfor failure to pay confiscation orders, prevention of hiding criminal assets, imposingoverseastrevel bans, quick asset restraint, reduced defendant time to pay confiscetion

“ ga/via020, St Pau Chambers, “The Proceeds of Crime Act Explsineg

hntpshnmustpaulschambers comihe-pioceeds-cf-cime actexplained!, Last accessed on3hig0a,

ccdess, and extension of investignive powers These changes sim to strengthen theenforcement of confiscation orders, prevent assets from being hidden, and expedite

the recovery of eximinel proceeds R v May (2008)%, the case involved charges

related to doug trafficking and the confiscation of sssetz obteined through cximinelconduct which demonstrated the application of the Sesious Crime Act 2015concesning confiscation orders linked to drug offences.

The Criminal Finances Act 2017 (CFA) introduced measwes to tackle moneyInundedng and corruption It includes provisions related to the forfeiture of moneyhheld in bank accounts It also introduced the concept of comporate criminal lisbilityfor certain offences, allowing for the confiscation of assets fom corporate entitiesinvolvedin eximinal conduct A great exemple of this is the

In adihtion to the aforementioned legislation, there are honourable mentionsthat sid in the confiscation of proceeds of cm in the UK The Drug Traficking Act1994 (DTA) while lngely superseded by POCA, the DTA is sill relevant in cesesrelated specificelly to drug treficking and established provisions forthe confiscationof assets derived from drug tafficking offences The Bribery Act 2010 addcessestribary and comuption offences While its primary focus is on preventing andpunishing tribery, the Act also includes provisions related to the confiscation ofassets devived from corrupt practices In cases involving offences related to customsand excise, the Cistoms and Ercise Management Act 1979 (CEMA) may beapplicable It provides authorities with powers to seize and forfeit goods, includingvehicles and vessels, involved in cartain customs offences The Terrorism Act2000 includes provisions for the confiscation of assets related to terroriam offensesItallows for the forfeiture of ces, as well as the confiscation of other assets in casesinvolving texorism, The Fraud Act 2006 addresses various forms of fraud, While itsprimary focus is on defining and penelising fraudulent activities, it includes‘provisions related to the confiscation of assets in cases involving fraud

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accessed on 3/41/2020,

Futhermore, in common lev counties like England, case lew plays @Significant role in shaping and interpreting the legel framework related to theconfiscetion of proceeds of crime The legel principles and procedures governingconfiscetion often evolve through decisions made by higher courts in specific cases.Even though the primary legislation governing the confiscation of proceeds of cximein England and Weles is the Proceeds of Csime Act 2002 POCA) However, thegeneral principles end specific provisions within POCA are subject to interpretationthrough case law For example, case lew can establish precedents regerding theconditions under which confiscation orders can be issued, the calculation of the‘benefit from criminal conduct, and the determination of aveilable assets Each casenay present unique challenges, end the outcomes of these cases can influence howthe law is appliedin similar situations, For exemple, cowts may addvessissuesseletedtothe valuation of assets, third-perty interests, and he proportionality of confiscetionarders For instence, when deciding whether the confiscation order regarding the Rvy Sele (2013) case was disproportionate or not, the Coust of Appesl refers to the

Supreme Coutts decision in R v Ways [2012] 3 WLR 1138”

Another noteworthy substantive legislation is that of veious internationalconventions and agreements These egreements facilitete cooperstion betweencountiiesto combet renmationel crime, moneyleundering, andthe recovery of assetsobteined through criminal activities Some key internetional instruments thetinfluence and support the confiscation efforts in England include: “United NationsConvention against Tranmational Orgaszed Crime (UNTOC) - PalemoConvention” 000), “United Nations Convention against Corruption (UNCAC)"(2003), “Ewopean Convention on Mutual Assistance in Criminal Matters” (1959),“Euwepsen Convention on Laundering Search, Seizure and Confiscation of theProceeds from Crime” (1990), ete These intesnstional agreements and conventionsseflect the global effort to combet transnational crime end enswe thet criminalscannot enjoy the proceeds of their illiit activites In England, as in many othercountries, domestic legletion sligns with these international stendards to enhancethe effectiveness of asset secovery end the fight egainst organized cxime

‘These legislations work in conjunction with the POCA to address specifictypes of criminal activities end provide authorities with edditional tools to combatfinancial crime and recover the proceeds of unlawful conduct It's important to notethet the Legal lendscape is dynamic, end changes or updates to legislation may occurover time, Legel practitioners and lew enforcement agencies stay abreast of thesechanges to effectively nevigate the regulstory framework for asset recovery andconfiseetion.

2.12, Procedural Law

Similar to the substantive legislation regarding this issue, the proceduralprovisions on confiscetion of proceeds of crime in England also primarily fll underthe Proceeds of Crime Act 2002 (POCA) This Act provides the procedural legalfremework for confiscetion, including the process of determining whether thedefendant has benefited from criminal conduct, the making of confiscation orders,end the enforcement of such orders Specifically, pest 2 end 3 of this Act involvesseveral key stages steting with the “Identification of Criminel Benefit” Schedule 2end Section76) which stipulates factor for the cout to determine the financial benefitobtained from the criminel conduct thet is convicted as a "tigger offence" listed inSchedule 2 of POCA After thet the Confiscation Proceedings (Pert 2, Chapter 2)stacted including the provisions for the: “Confiscation Order Application” (Section6), “Confiscetion Hearing’, “Assessment of Available Amount” (Section 7), and“Making the Confiscation Order” (Section 6) Before « confiscation order is made,the cout may issue a “Restraint Order” (Pest 2, section 40 and 41) to prevent thedefendant from disposing of assets that might be subject to confiscetion es well axtake steps to realize the assets identified in the restraint order Finelly, both theprosecution end the defendant have the sight to “Appeal” Section 31 to 33) against4 confiscetion order which can be made on various grounds, including challengingthe calculation of the benefit or the emount of the confiscetion order, ensuing thatthe process is subject to legal review and oversight It is also noteworthy thet incestein cases the court may appoint e management receiver to menage andzsalize theassets subject to the confiscation order which is called “PostConfiscationManagement” Section 48) However, the confiscation process is complex, end the

be steps only provide a generel overview end the specifics of canh case can varythe confiscetion procedure to a certain extent

Addktionslly, the Act also provides for other means of recovering the proceedsof crime, such as civil recovery, cash seizure, and taxetion powers, which do notsequire & conviction Thisiis achieved through the use of the civil courts, where thestandard of proof is lower then in criminal proceedings which allows for & moreflexible and efficient apptoach to the conficetion of assets, asit removes the need tosecure « criminal conviction before pursuing the confiscation of assets

In parallel with the substantive provisions mentioned above, other statutes end1egal provisions may be relevant to the process ether in conjunction with POCA orin specific contexts, Firstly is the CFA which introduced new measures to tacklefinancial crime, including the fecilittion of tex evasion Itincludes provisions relatedtothe civil secovery ofthe proceeds of unlawful conduct, unexplained wealth orders,end the extension of the offence of falure to prevent the facilitation of tex evasion.Secondly, The SCA also includes provisions releted to asset recovery, including thesecovery of assets desived from criminal conduct It amended certain aspects of thePOCA end introduced measures to strengthen lew enforcement’s ability to seize andsecover criminal assets Thirdly, while primarily focused on offences related to itssubstentive offences, the other Acts such es the Bribery Act 2010, the CEMA, theDTA ete, include provisions for the confiscation of assets derived from the proceedsof the crime stipulated in each act

In a similar fashion to the substantive aspect of this law, the internationalprocedural legislation regulating the confiscation of proceeds of cxime in Englandprimarily involves international cooperation agreements and conventions Severalinternational instruments Facilitate cooperetion emong countsies forthe investigation,prosecution, and confiscation of proceeds of crime with some key internationalagreements including Intemetionel Cooperation Agreements, Finencial Action TaskForce ŒATE) Recommendations, Mutual Legal Assistence Treaties (MLATS),Ewopean Union Disectives, ete In practice, the enforcement of internationalprocedural legislation in England often involves coordinstion between lewenforcement agencies, financial intelligence units, end judicial authorities across

‘borders, The effectiveness of intentional cooperation đẹpnds onthe willingness ofcountries to collaborate and the existence of selevent legal frameworks, such asextradition tresties and mutual legal essistence agreements Legal professionalsinvolved in international asset recovery cases typicelly navigate these agreements andconventions to ensue the successful identificetion end confiscation of proceeds of

2.13 Law on Legal Enforcement

Correspandently to the previous substantive and procedural aspects of lew onconfiscetion of proceeds of crime, the primary legidstion thet governs theenforcement of confiscetion orders in England is the Proceeds of Crime Act 2002(POCA) The enforcement of confiscation orders involves various authorities andagencies end the procassis designedto ensure that convictedindividuals are deprivedof the financial benefits derived from their criminal conduct Specifically, part 2 ofthe POCA outlines the provisions for confiscetion orders and the process for theirenforcement Additionelly, this Act provides legel enforcement end investigationpowers for legel authorities to carry out and investigate the confiscation of proceedsof crime including Restrsint Orders Sections 41-47), Civil Recovery Orders Past 5),Realization of Asset, Production orders, Search and seize warrants, Customerinformation orders, Disclonuce order, end Account monitoring orders Pest 8,Chapter 2) The POCA also provides for the enforcement of confiscation orders‘through vedous means, including the eppointment of enforcement receivers!Management receivers (Sections 48 to 51) end the forfeiture of assets To ensurepeyment the Act provides for the eppointment of enforcement receivers orsmenagement receivers They ere eppointed on the epplicetion ether of the prosecutororthe ARA when an order isnot complied with Rules are provided to guide receiversinthe order in-which money recovered must be applied The Act also provides for theprosecutor to ask the Home Secretary to requast the assistance of foreign states toprevent the disposal of essets and to secure their reslisation Finally, the enforcementof confiscetion orders in England is overseen by vesious lew enforcement agenciesstipulated in the POCA and other related legal tools, including the Netional CrimeAgency (NCA), the Crown Prosecution Service (CPS), and the Financial Conduct

Authority (FCA), Locel police forces, Sesious Fraud Office (SFO), ete Theseagencies work together to investigate and enforce confiscation orders, end to ensuethet individuals convicted of criminal activities ere held accountable for theirfinancial grins

In addition to the POCA, the enforcement of confiscetion orders is alsogoverned by the Criminal Finences Act 2017 This ect introduced new measures tostrengthen the enforcement of confiscetion orders and to enhance the recovery ofassets obteined through criminal activities The Criminel Finances Act 2017established the Unexplained Wealth Orders (UWO, which allow lew enforcementagencies to investigate and seize assets that are deemed to be the proceeds of crimewhere a personis weelth is disproportionate to their known income The act alsointroduced provisions for the discloswe of unexplained wealth end the creation ofnew powers for the enforcement of confiscation orders The enforcement ofconfiscetion ordersin Englendis also supported by the Money eundering, TeoristFinancing end Transfer of Funds (Information on the Peyes) Regulstions 2017 Thislegislation sets out the requirements for enti-money leundering meanwes end theseporting of suspicious financial transactions The regulations also provide for the{identification and verification of beneficial owners of assets, which is crucil in theenforcement of confiscetion orders.

Ta conclusion, these legislations together provide the legal bass for theconfiscetion of proceeds of crime in England, promoting the objectives of deterrence,punishment, and the financial recovery of the proceeds of crime, The frameworkestablished by these legislations ensures that individuals who hve derived financial‘benefits from criminal activities are held accountable and required to pay back theproceeds of their criminal conduct, thus depriving them of the finencial benefits oftheir criminal acivitiee

2.2 The fundamentals of law on confiscation of proceeds of crime in England22.1, The objective of law on confiscation of proceeds of crime in England

(One of the most erucial and prominent objectives of lew on the confiscetionof proceeds of crime in England is to deprive offenders of the proceeds of theircriminal conduct, deter the commission of futher offences, end reduce the profits

svalsble to fund further criminal enterprises ** The confiscation of proceeds of crime

Jew in Englend are designed to ensue that criminels do not benefit from tha Hicitgrins and to compensate victims who have suffered financial losses as result ofthecrime, These low are an importent tool in the fight against crime end play a crucialsole in the criminal justice system of England According to the Proceeds of Crime‘Act2002, the UK government has the power to recover assets that have been obteined‘trough criminal activities This includes cash, property, and any other assets thathave been obtained through criminal means The objective of these lew is to ensurethet those who have engeged in criminel activities do not benefit financially fromthsi actions By confiscating the proceeds of crime, the government aims to send astrong message to would-be criminals thet crime does not pay, and thet those whoengage in criminal activities will be deprived of eny financial benefits they may have

grined Additionally, « fect sheet on the Proceeds of Crime Act 2002?” highlighted

thet since 2010, more then £746 million of criminal asets hes been seized across allmethods of recovery, andl over the seme petiod, assets worth more then £2 5 billionhave been frozen However, its impostent to note thatthe value of proceeds of cximerecovered through Confiscation Order receipts has fallen to £99 million in the

financial year 2020 to 2021 39

Furthermore, the impact of lew on the confiscation of proceeds of crime inEnglend, pasticulaly under the Proceeds of Crime Act 2002 (POCA), on thesruption of criminal enterprises is significent Confiscation orders end assetsecovery meastres play «crucial sole in undermining the financial foundetions ofcriminal organizations Firstly, confiscetion orders target the financial gains obtained‘through criminal sctivities This can severely disrupt the funding end operationalcapabilities of criminal enterprises, making it more difficult for them to continueillegal operations In eddition, the enforcement of confiscation orders involves the

% 392209, The Gown Prsecwon Senice, ‘oceeds of Crime’, gs:/wcps gov ubefuldance/proceeds-crne st acesed on 9/1/2020

HM SN 3eH, COVUK" fact sheet’ Oveniew of the Proceeds of Crime set 2007,

ngs:/assets publishing service gov ul/media/sa7d? beraovobetfes2eeFat Sheet,‘Oveweu_of POCA 2 pif, Lan accessed 0n 9/31/2020.

39/09/2023, GOVUK, OR stats, “Asset mcovery statistical bulletin: Financ years ending 2016 1020m", tpe://wwugou uldgovernmentstatsts (asset covery statist bullet franca yeas-end61 2024 atet ecovery atteal bulbtn fnanelyeag-ending 20160202, Last accessed onloa