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

POCA _ : Proceeds of Crime Act 2002ete : etcetera and so forth UNODC : United Nations Office on Drugs and Crime CoE : The Council of Europe UWOs _ : Unexplained Wealth Orders UDHR : Univ

TRAN DINH DUC

442938

LAW ON CONFISCATION OF PROCEEDS OF CRIME IN

A COMPARATIVE PERSPECTIVE - ENGLAND AND

VIETNAM

GRADUATION THESIS

TRAN ĐÌNH ĐỨC

442051

LAW ON CONFISCATION OF PROCEEDS OF CRIME INA

COMPARATIVE PERSPECTIVE - ENGLAND AND VIETNAM

PHAP LUAT VE TỊCH THU TÀI SAN DO PHAM TỘI MÀ CÓ TỪ GÓC ĐỘ

SO SÁNH GIỮA HỆ THÓNG PHÁP LUẬT VIỆT NAM VÀ ANH

Major: Comparative Law

GRADUATION THESIS

Supervisor

Dr Dao Le Thu

Supervisor`s confirmation

Dao Le Thu

STUDENT DECLARATIONIherewith formally declare that I myselfhave written the submitted bachelor’sThesis independentiy, the conclusions and

data in the Bachelor 's Thesis are truthfid

providing me with such a wonderfil chance to work on my graduation thesis, which

is titled “Law on confiscation of proceeds of crime in a comparative perspective England and Vietnam.” I am grateful to Dr Dao Le Thus for her gradance in helping

-me to complete this thesis, as her encorrage-ment, tolerance, patience and drivehave greatly motivated me Being able to work and learn tmder her direction wasahuge honoin:

Furthermore, I want to express my sincere gratitude to all of the instructors

at Hanoi Law University This thesis could not have been completed without the

guidance of my lechzers I am grateful for the learning experience that hasallowed me to broaden my iunderstanding of law as well as the English language,enabling me to put my thoughts into action

At the seme time, I want to express my gratitide to my family for their love,concern, and sacrifices to educate me and get me ready for the futire I also well

as to express my gratitude to my classmates Yến and If for helping me finish my

graduation thesis and for their spiritual support

Finally, given my lack of practical experience and understanding I wouldgreatly appreciate any input or recommendations on strengthening the thesismaterial from all teachers

Tam incredibly grateful for your support!

POCA _ : Proceeds of Crime Act 2002

ete : etcetera (and so forth)

UNODC : United Nations Office on Drugs and Crime

CoE : The Council of Europe

UWOs _ : Unexplained Wealth Orders

UDHR : Universal Declaration of Human Rights

ECHR _ : European Convention on Human Rights

FATF : Financial Action Task Force

ARIS : Asset Recovery Incentivisation Scheme

UNCAC : The United Nations C onvention against Corruption

DEA : The Drug Enforcement Administration

CPS : The Crown Prosecution Service

SFO : Serious Fraud Office

NC : National Crime Agency

MLATs : Mutual Legal Assistance Treaties

ECHR _ : the European Convention on Human Rights

MER : Mutual Evaluation Report

UNTOC_ : the United Nations C onvention against Transnational Organized

Crime

TABLE OF CONTENTS FRONT ISPIECE

STUDENT DECLARATION ñ

ACKNOWLEDGEMENT Tỉ

LIST OF ABBREVIATIONS iv TABLE OF CONTENTS „

PREFACE

1 Rationale of the research 2 Literature review:

3 Objectives and tasks of the Thesis

3 The object and delimitation of the Thesis -5 5 > 4 4 Methodology and research methods of the Thesis

6 Scientific and practical implications of the Thesis 7 Structure of the Thesis PROCEEDS OF CRIME

1.1 The concept of lw on confiscation of proceeds of crime 1.1.1 The definition of law on onfiscation of proceeds of crime 6

1.2.1 The necessity of law on confiscation of proceeds of crime 9

1.2.2 The significance of law on confiscation of proceeds of crime 10

1.3 The fundamentals of law on confiscation of proceeds of crime 12

1.3.1 The objectives of law on confiscation of proceeds of crime 12

1.3.2 The scope of law on coufiscation of proceeds of crime - 14 1.3.3 The principles of law on confiscation of proceeds of crim

ENGLAND 2 25

2.1.3 Law on Legal Enforcement

2.2 The fundamentals of lw on confiscation of proceeds of crime in

2.2.3 The main issnes regulated by law ou coufiscation of proceeds of crime

in England

Conclusion of Chapter 2

CHAPTER 3 LAW ON THE CONFISCATION OF PROCEEDS OFCRIME IN VIETNAM IN COMPARISION WITH ENGLADND’S LAW,AND PROPOSAL FOR THE IMPROVEMENT OF VIETNAM’S LAW 503.1 Law on confiscation of proceeds of crime in Vietnam

3.1.1 The legal framework of law on coufiscation of proceeds of crime in

3.2 Comparing law on confiscation of proceeds of crime between Vietnamand Enghnd

3.2.1 Similarities in law ou confiscation of proceeds of crime betweenVietnam and England

3.3 Proposals for improving law on confiscating proceeds of crime in

Vietnam from England’s experiences

3.3.1 Proposals for a special and comprehensive law governing the

confiscation of proceeds of criime

3.3.2 Proposals for the development of a non-conviction-based coufiscationmechanisut

Conclusion of Chapter 3

CONCLUSION

REFERRENCES _—.

The phenomenon of transnational crime has grown exponentially in recent decades,posing a significant challenge to the global community As a response to this, nationsworldwide have developed and refined legal frameworks to combat the financialaspects of criminal activities The confiscation of proceeds of crime has emerged as

a pivotal tool in dismantling criminal enterprises and recovering ill-gotten gains Asrates of money laundering, drug trafficking, and organized crime reach unprecedented

levels, criminal enterprises exploit gaps in legal systems, necessitating a

comprehensive understanding of effective measures for confiscating illicit proceeds

The urgency is underscored by the severe economic repercussions of transnational

crime, affecting both developed and developing nations Illicit funds undermine

economic stability, impede development, and erode public trust Additionally, the

evolving nature of criminal tactics, including the use of sophisticated technology,

demands an analysis of how legal frameworks in England and Vietnam adapt to these

changes

The urgency lies in ensuring that legal mechanisms remain robust and act as a

deterrent against future criminal activities Moreover, the commitment tointernational conventions and treaties requires a comprehensive evaluation of howjurisdictions like England and Vietnam engage in global cooperation to address thecross-border nature of financial crimes The research is imperative for safeguardingnational security interests, as the illicit flow of funds across borders poses significantthreats The comparative insights gained from analyzing different legal traditions andsocietal contexts, as represented by England and Vietnam, are crucial for informinglegal reforms globally

Based on the foregoing, the author chose the topic "Law on confiscation of proceeds

of crime in a comparative perspective - England and Vietnam" for graduationresearch This is a new comparative law study that does not overlap with published

studies The research results contribute to improving the efficiency and promoting the

role of law in the confiscation of proceeds of crime

2 Literature review:

Numerous international scholars consistently dedicate their attention to

studying the legal frameworks related to the confiscation of proceeds of crime,

examining perspectives rooted in criminology, sociology, legislative foundations, and

managerial skills specific to handling cases involving financial crimes The methods

and strategies employed to ensure an effective confiscation process and meet the

demands of addressing financial crimes are meticulously considered within various

models These models are crafted based on commitments and requirements tailored

to the unique cultural, social, and political contexts of each jurisdiction In the pursuit

of understanding and delving into the complexities of the law on confiscation ofproceeds of crime, the researcher has meticulously consulted a plethora of documents,including scientific articles, master's theses, doctoral dissertations, books, andmagazines Accordingly, some typical projects can be summarized below:

2.1 Foreign publications:

InKevinM Stephenson; Larissa Gray, Ric Power; Jean-Pierre Brun, Gabriele

Dunker, Melissa Panjer, STAR - The World Bank - UNODC, “Bariers to Asset

Recovery An Analysis of the Key Barriers and Recommendations for Action” , the

authors mobilize policy makers on the existing difficulties in stolen asset recovery

actions and convince them to take action on the featured recommendations Such

action would enhance the capacity of practitioners to successfully recover stolenassets The authors also recommend that practitioners should make more use of theexisting tools, as outlined in the Operational Recommendations of this study

2.2 Domestic publications:

In Lé Tuân Son, “Thực trang công tác th hồi tài sản liên quan đến tôi phạm, một số khó khăn, vướng mắc và dé xuất giải pháp nâng cao hiệu quả công tác thi hành án dan sự về thu hồi tài san”, Hội thảo - Tham vấn về cơ chê thu hôi tai sản không qua thủ tục kết tội ở Việt Nam, Hà Nội - 2022, the author briefly mentioned

the following contents: () Current mechanism for recovering corrupt assets, (it) Someresults of recovering corrupt assets in recent years; (1) Some limitations and (iv)Issues that need further research

In Ts Đỗ Thu Huyền, Hội thảo - Tham van về cơ chế thu hồi tài sản không qua thủ tục kết tôi ở Việt Nam, “Đánh giá tinh khả thi của ơ chế tịch thu tài sản không qua th tue kết tôi trong bỗi cảnh Iiệt Nam dưới góc đồ quyển con người, đặc biệt

là vấn đề quyển tài sản", Hà Nội -2022, the author adds some analysis and evaluation

of the feasibility of the asset confiscation mechanism without criminal proceedings

in the Vietnamese context from the perspective of human rights, especially the issue

of property rights According to the authors, to increase the persuasiveness and

feasibility of the asset recovery mechanism without criminal proceedings, countries,including Vietnam, need to conduct research to ensure harmony between twoimportant goals at the same time: ơn the one hand prevent and suppress corruptioncrimes, recover maximum corrupt assets to return to the state budget and otherdamaged subjects, and, on the other hand, still ensure full enjoyment of human rights

It is clear that the aforementioned publications, and articles are mainly focus

on the feasibility of the asset confiscation mechanism without criminal proceedings

in the Vietnamese; and the existing difficulties in stolen asset recovery actions, none

of them have actually approach this issues through a comparative perspective

between England Vietnam As a result, in this thesis, the author focuses on the overall

legal practices of England Vietnam in different terms of lew on confiscation of

proceeds of crime As a final point, I offer some proposals for confiscation

mechanism, and legisaltion in Vietnam from English experiences regarding law on

confiscation of proceeds of crime

3 Objectives and tasks of the Thesis

The study aims to make some proposals for the improvement of theconfiscation of illicit gains regime in Vietnam from England's experiences in terms

of law on confiscation of proceeds of crime To achieve these goals, the author hasfocused on the following tasks:

- Analyzing theoretical issues of law on confiscation of proceeds of crime

- Clarifying the legal framework, and fundamental aspects of law on confiscation of

proceeds of crime of the two countries;

- Comparing the similarities and differences in law on confiscation of proceeds of

crime between these two countries

3 The object and delimitation of the Thesis

Firstly, in terms of the research object, the thesis focuses on studying therelevant law and regulations concerning law on confiscation of proceeds of crime inEngland, and Vietnam

Secondly, regarding the research delimitation, the thesis researches law onconfiscation of proceeds of crime from an interdisciplinary perspective, mainly fromthe relevant parts of the legal framework, and fundamental aspects of law onconfiscation of proceeds of crime The focus of this thesis is to research on the legalframework, and fundamental aspects of law on the confiscation of proceeds of crime

in England, and Vietnam The legislative practices of these countries are not onlyrelated to law-making activities but also reflected in the development of other relevantlegal instruments by competent state agencies The countries withlaw on confiscation

of proceeds of crime that the author chose for comparison in this thesis includeEngland, which is on of the first countries to develop law on confiscation of proceeds

of crime, and Vietnam The result of this thesis is some proposals to ensure theimprovement of Vietnam’s law on confiscation of proceeds of crime from Englandsexperiences

4 Methodology and research methods of the Thesis

‘With the aim of achieving the objectives and tasks of the thesis, evaluations inthis paper are based on its dialectical method and materialistic view of Marxism-Leninism There is also a combination of research methods as an analytical method,synthetic method, and the methodology of Comparative Law; (1) Analytical and

synthetic methods are used in Chapter 1 to clarify the general issues of law on

confiscation of proceeds of crime; (2) Analytical and synthetic methods are also used

in Chapter 2 in addition with some brief case studies of notable cases involving theconfiscation of proceeds of crime to analyze law on confiscation of proceeds of crimeinEngland, (3) In Chapter 3, the author uses methods of interpretation, analytical andsynthetic methods and Comparative methods to highlight a number of similarities and.differences of the two countries mentioned above on the main issue of the thesis As

6 Scientific and practical implications of the Thesis

Firstly, the scientific significance, the thesis is a systematic study of lav on

confiscation of proceeds of crime The study has a comparison with developed

country, typically, England which have had a lot of experience in the process of

developing law on confiscation of proceeds of crime The research also analyzed and

clarified the necessity and significance of law on confiscation of proceeds of crime,

and evaluated the current legal framework, and fundamental aspects of law onconfiscation of proceeds of crime of the two countries After all, the thesis would like

to emphasize the importance of improving the legal provisions to develop acomprehensive and efficient law governing the confiscation of proceeds of crime aswell as introduce non-conviction-based confiscation mechanisms based on Englishexperiences

Secondly, in terms of practical significance, the proposals andrecommendations of the thesis are provided by a balanced curriculum of theoreticaland practical research toward law on confiscation of proceeds of crime This thesis is

a valuable reference for State agencies in the process of formulating policies and

developing law to ensure effective forfeiture of illicit gains as well as compatibility

with international commitments In addition, the proposals canimprove the efficiency

of the development and enforcement of law on confiscation of proceeds in Vietnam

Thisis also aresource to support research activities for any individual or organization

interested in lay on confiscation of proceeds

7 Structure of the Thesis

Apart from the introduction, conclusion and list of references, the thesis

content consists of 3 chapters:

Chapter 1: Theoretical issues of law on confiscation of proceeds of crime

Chapter 2: Law on confiscation of proceeds of crime 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

1.1 The concept of law on confiscation of proceeds of crime

1.1.1 The definition of law on coufiscation of proceeds of crime

Laws on confiscation of proceeds of crime has become increasingly important

in the 21st century, as countries around the world have provisions on propertyconfiscation as an additional penalty or other criminal handling measures, depending

on the nature, content, and method of application Although there are no sources thatdirectly define the law on confiscation of proceeds of crime, most of them do containthe terminology definition regarding the confiscation of proceeds of crime, which

varies depending on each country’s legal system and jurisdiction For example, in

Vietnamese criminal law, the measure of confiscation of property is an additionalpenalty, there is also the measure of confiscation of objects and money directlyrelated to the crime Confiscation of objects and money here is understood asconfiscation to add to the state budget; however, if material objects, after being

confiscated, no longer have value or use, they must be destroyed’ With that said laws

on confiscation of proceeds of crime must not be interpreted as a single Code arelegislation but rather a field of lav which covers a wide range of criminal offences aslong as there is the need to retrieve and deprive the advantages gained from crime

Referencing the criminal law of countries around the world, we can see thatthe form of confiscation of objects and money as additional punishment in somecountries, such as England, is similar to the measure of confiscation of money andobjects directly related to crimes under Vietnamese criminal law A great example ofthis is in the UNTOC Convention against Transnational Organized Crime, where

confiscation of proceeds of crime means the permanent deprivation of property

derived from or obtained, directly or indirectly, through the commission of an offensethat the court or other competent authority has ruled Similarly, the CoE has also

' Articles 45 and 47 of the 2015 Vietum Penal Code.

3 United Nations Office on Drugs and Crime - UND OC (2012), “‘Mamual on Intermational Cooperstion for the

Purposes of Confiscation of Proceeds of Crime”, pp.1-4, jWps:/Artvir vmodi

org/documents/organuzed-(wine Publications/Confiscation Munul Ebook Epdf, and Article 2 of the United Nations Offxe on Drugs

amd Crme - UNDOC (2004), “Unzed Nations Convention agaist trmsmutional orgmized crime and the

protocols thereto, pps,

https /Avyrr mode org/documentsireaties UNTO C/Pablications/ TO C% 20 Convention TO Cebook-e pat;

instruments evidencing title to or interest in such property, and that “proceeds of

crime" is any economic advantage that deprives of criminal offenses?

In this research, the readers may mun across other terms, from “asset recovery”

or “criminal asset forfeiture” to “confiscation of money and items directly related to

the crime”, but it can be understood that uniformity is a criminal remedy other than

punishment The author recognizes that these terms all promote a similar concept that,despite minor differences in terminology, law on confiscation of proceeds of crimecan be understood as a crucial legal tool for the court or other competent authority todeprive criminals of any economic advantage obtained directly or indirectly fromtheir offenses, including forfeiture and transferring part or all of the property in order

to compensate victims and deter future crime

1.1.2 The characteristics of law on coufiscation of proceeds of crime

The first characteristic of law on confiscation of proceeds of crime is itsprimary goal of depriving criminals of illicitly gained benefits When individualsengage in criminal activities such as drug trafficking money laundering fraud, ororganized crime, they often accumulate substantial wealth or assets, which areincredibly hard to track in our modern economic and spending habits since the illegal

origin of the assets can be easily concealed making it difficult for competent

authorities to trace the flow of money and prove the connection between assets and

criminal activities This law is designed to target not only the individual (in personam)

but also the resources (in rem) that support and enable criminal activity, specifically

the complex asset recovery in economic corruption, such as assets that have been

disbursed abroad, assets that are real estate projects that have not yet been legally

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

` Council of Europe - Treaty Series - No 198 (2005), “Council of Europe Convention on Laundering, Search,

Seize and Confiscation of the Proceeds from Crime amd on the Finacing of Terorian”, pp2,

Tuts Jim coe >#/16900837 lý.

‘Le Tuần Son, “Tha trang công tác tm hội tải sẵn liên quan din téiplum một so khó khẩn, „vướng mắc và

a aut eiliplup ning cao Thiệu quả công tác thủ hành in din sự về tm hồi tài sẵn”, Hội thảo - Tumvinvi co

chế tut hoi tai sin không qua thi tục kết tội ở Việt Nam, Hà Nội - 202

confiscation and non-conviction-based confiscation, which differ in the level of proof

required for it to take place Confiscation occurs under one of two types of

proceedings: conviction-based confiscation and non-conviction-based confiscation,

which differ in the level of proof required for it to take place Conventionally,

non-conviction-based confiscation requires a standard of proof that is lower than the

standard required to obtain a conviction in a criminal court because it focuses onhandling assets believed to originate or be related to crime with the aim of recoveringthem to the state budget or returning them to the rightful owners of the assets; in other

words, the crime is attributed to the property (‘in rem”, tainted property)5 In most

legal systems, the burden of proof lies with the prosecution to establish the guilt of

the accused However, in non-conviction confiscation cases, the burden of proof is

shifted onto the defendant to demonstrate the legitimate origins of their assets in order

to prove grounds to protect their property rights With this measure, authorities only

need to prove that the property is related to anillegal act based on the provided criteria

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

Finally, the confiscation of proceeds of crime is a complicated and consuming process In addition to the aforementioned administrative (no conviction),property, or criminal (conviction-based) asset recovery mechanisms, value-based.processes are one of the three predominant ways to confiscate property globally

time-‘When these procedures are enforced, it is typically a difficult process that takes a lot

of time, money, and specialist experts to investigate, estimate the value of theproceeds of crime, and identify what property may be seized for an equivalent amountThe resolution of criminal cases in some specific fields, especially in the fields ofcapital construction, finance-banking and public procurement, requires a lot ofproperty appraisal results and experts with the capacity and technical conditions tosolve the case However, inspection facilities, processes, and standards in some of

‘Le Twin Son, Hội thio - Tham vin vi cơ chế thu hỏi tai sin không qua thi tục kết tội ở Việt Nam, “Thực

trang công tác thu hội tải sẵn liền quan đến t6ipham, mét số khó khăn ,vướng mắc và đề xuất giải pháp ning

cao hiệu quả công tác thú hành én din sự về tm hội tải sẵn”, Ha Nội - 2022,tr

confiscation systems into place International cooperation is also necessary to ensure

effective asset forfeiture

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

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

impact that organised crime and illicit activities have on society The threat posed byoffences that necessitate the confiscation of proceeds of crime extends to variousckmensions of society, impacting individuals, communities, and the overall well-

being of nations Firstly, organized crime generates massive illicit profits, often

surpassing the GDP of some countries For example, in 2009, transnational organized

crime was estimated to generate $870 billion, whichis equal to 1.5% of global GDPÊ.

These funds can distort economic systems, contribute to inflation, and undermine faircompetition by allowing criminal enterprises to gain an unfair advantage Anothernegative impact of serious and organized crime, such as drug trafficking humantrafficking, and terrorism, is that they pose direct threats to public safety as theyexploit individuals and violate their basic human rights

Financial gam is the main motive for corruption offences As a rule,perpetrators attempt to legitimate the proceeds from corruption offences in order toconceal the source of origin and the inevitable link between predicate corruptionoffences and the laundering 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 law-enforcement system, to ensure impunity for

corruption, and to obtain all-new financial gains For this reason, one part of the

strategy in the fight against corruption and laundering of the proceeds is to conduct

an efficient financial investigation focused on tracing, freezing seizing andconfiscating instrum entalities and proceeds of corruption offences For instance, legalinstruments such as asset forfeiture can enhance the effectiveness of law enforcement

` UNODC, “Fremmational Organized Crime ~The Giobaled Me gal Ÿconơmy"",

Jhyrnrvmodc ors mmentsitoc Ýactsheets/TOC12 fs general EN HIRES:

efforts by providing a legal framework to target and seize assets linked to criminal

activities’ Furthermore, to effectively handle illegal profits from serious and

organized crime, a robust legal framework and tools are necessary This includes

legislation that allows for the confiscation of assets derived from criminal activities,

as well as mechanisms for the identification, tracing, and confiscation of illicitproceeds Additionally, law enforcement agencies also require specializedinvestigative techniques, such as financial intelligence gathering and analysis, touncover the proceeds of crime and facilitate their confiscation This can includeresources used to facilitate crimes, such as funds for drug trefficking or equipmentfor illegal enterprises

1.2.2 The significance of law ou coufiscation of proceeds of crime

Non-legal means in confiscating proceeds of crime often lack accountabilityand can lead to human rights violations They may also result in legal challenges andprocedural irregularities, undermining the legitimacy of confiscation efforts Thislack of transparency and procedural safeguards can erode public trust and reducecooperation from financial institutions and other stakeholders In contrast, a solid andflexible legal framework is essential for effective law enforcement This frameworkprovides clear guidelines and procedures for confiscating assets, protecting the rights

of the accused and conducting the process transparently and accountablely Legal

measures also contribute to the deterrence of organized crime by establishing clear

consequences for criminal actions However, non-legal means lack the force of law

and may not effectively deter criminals or prevent the recurrence of organized

criminal activities.Moreover, the legal framework must be adaptable to evolvingcriminal tactics, technological advancements, and cross-border criminal activities

Organized crime is a dynamic issue that constantly evolves, exploiting legalloopholes and technological advancements A flexible legal framework is crucial forauthorities to adapt and respond effectively Non-legal means may lack the agility

® OECD, “Confiscation of instrumentalities and proceeds of corruption crimes in EasternEurope and Central Aga”, https:fhsvaa.oecd.orafcorruptionfaenfOECD-C onfiscation- of-Proceeds-

of Cortuption- Crimes-ENG.pdf, pg.7

required to keep pace with organized crime tactics, leaving law enforcement at a

disadvantage The efficacy of confiscating proceeds of crime depends on the strength

and flexibility of the legal framework To effectively combat organized crime,

authorities must have a robust legal basis that allows for the confiscation of various

assets, such as financial and real estate, through flexible mechanisms like the UK's

Proceeds of Crime Act of 2002 (POCA) This Act includes four procedures for

confiscating proceeds or instruments of crime: conviction-based, civil asset recovery,

taxation of gains, and police or administrative confiscation of cash suspected of beingproceeds of crime

Additionally, there is also the need for wide coverage in the legal basis forconfiscation of proceeds of crime which stems from the diversity and complexities oforganized crime Organized crime groups operate across multiple jurisdictions,engage in a wide range of offences, and often use sophisticated methods to concealtheir illicit proceeds such as drug trafficking, human trafficking terrorism financing,

money laundering, fraud, corruption, etc In this context, a narrow and limited legal

basis for confiscation would be inadequate to address the diverse tactics and

challenges posed by the various serious offences which is why in Vietnam, the legal

basis for the confiscation of proceeds of crime is likely to involve a combination of

law and regulations that address various aspects of criminal activities and financial

offences such as the Penal Code 2015, AML law, Corruption Law, AssetManagement Law, etc as well as other measures to prevent and control moneylaundering and terrorism financing, as evidenced by the issuance of a National Plan

of Action on the matter

In conclusion, law on confiscation of proceeds of crime holds immense

significance in addressing the issue of criminal wealth derived from illegal activities

This law enables the permanent deprivation of the proceeds of crime, providing amechanism to freeze and confiscate criminal wealth It plays a crucial role in tacklingthe concems related to enormous criminal wealth and preventing the utilization ofsuch wealth for further criminal activities,

1.3 The fundamentals of law on confiscation of proceeds of crime

1.3.1 The objectives of law on coufiscation of proceeds of crime

Criminal law provides for the penalty of confiscation of property to make the

offender no longer have the economic conditions to continue to commit the offense

or to fully recover the ill-gotten profits gained by the offender as a result of thecommission of the crime At the same time, this punishment also contributes todeterrence, education, and the prevention of crime

One of the main objectives of confiscation law is to disrupt the financial

incentives that drive criminal behavior By stripping criminals of their ill-gottengains, the law aims to remove the economic rewards associated with criminalactivities This creates a strong disincentive for individuals considering engaging incriminal acts, as they realize that any profits they may accumulate will be seized bythe authorities A great example of this is the case of John Darwin, who attempted tofake his death LŨ years ago to receive insurance payouts Mr Darwin and his wifemade it appear that he tragically died at Seaton C arew seaside in a canoeing accident.The benefit amount in his case was found to be £679,073 02 Mrs Darvin, who hadclaimed the life insurance policies in her husband's name, repaid £500,000 under a

separate confiscation order Mr Darwin was ordered to pay £40,000 by the court

using legitimately obtained money from his pensions as a teacher and prison officer”?

Secondly, the objective of the confiscation law is to dismantle criminal

networks and organizations By targeting the proceeds of crime, law enforcement

agencies can undermine the financial infrastructure supporting criminal networks

In many cases, confiscation law have been instrumental in unraveling complex

criminal enterprises, reducing their resources, and hindering their ability to carry outfurther illegal activities In particular, there are some cases in Vietnam, such as theAVG case, in which the entire amount of bribes confiscated was VND 137,644

billion The amount of damage to the state was estimated to be VND 8,776 billion;the case of Giang Kim Dat of VINASHIN OCEAN SHIPPING COMPANY

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

* press Association, 29/05/2014, The Guardian, “Canoe fraudster John Darwin order to surrender £40,000 to

authorities", hftps://avav†heguardan

com/ulcnes/2014/may/29/canoe-fraudster-john-darvin-ordered-surrender- pensions, Last accessed on 16/10/2023

the case of Trinh Xuan Thanh of PV Land, which confiscated VND 45.2 billion,

etc,

Beyond deterrence and disruption, the confiscation of proceeds of crime is

essential for achieving justice and compensating victims By stripping criminals oftheir ill-gotten gains, the justice system has the means to redress the harm caused tosociety and the individuals affected In Vietnam, for example, confiscated assets are

often used to compensate victims (legal owners/ managers of the property) or fund

the state budget; however, in the case of confiscation of all property, a certain portion

of the property must still be left for the convicted person and their family living

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

assisted in the unlawful immigration of 39 people from Vietnam who diedin the back

of a lorry in Essex, have been ordered to pay £31,493 47 in confiscation orders as

compensation to the bereaved families!

Moreover, the assets seized through the confiscation of proceeds of crime can

be directed towards funding law enforcement agencies, victim support programs, and

community initiatives aimed at prevention and rehabilitation By reallocating the

confiscated funds, the legal system can further bolster its ability to combat crime

effectively These resources can be channelled into training programs for law

enforcement personnel, technological advancements for crime prevention, or

assistance to victims of crime For instance, in England £1179 million of AssetRecovery Incentivisation Scheme (“ARIS”) funding was distributed to POCAAgencies in the financial year 2022 to 2023 which shows that ARIS Allocations toPOCA Agencies have increased by 53% over the 6-year reporting period, up from

£768 million allocated in 2017 to 2018" Consequently, the community benefits

1 Bài Thị Thm Huyền, 31/08/2021, Thu hồi tải sẵn than những: Thực trạng và nhiing vin di ditra, Trang tin

điện từ của Ban Nội chính trưng wong, https :/moichinh

vaunghien-ca-ao-doš/202108Ala-hoi-ta+-san.thana-nlumg-thuc-trang-va-nhung-van-de-dat-ra-310008/, Last accessed an 17/10/2023.

1 65.TS Nguyễn Ngọc Hỏa, Giáo trình Luật Hình Sự Việt Nam phần chung 2020, nxb Công an

nhân dân, tr 305, tr 310;

© The Crown Prosecution Service ,03/03/2022, “Convicted people-snmgglers ordered to pay over £30000 mn

confiscation orders”, s Jam cps gov uk/cps eves /comvicted-people -

's-ordered-pay-over-ps30000-confiscation-orders Last accessed an 10/10/2023.

“ GOV_UK-Home Office 02/09/2023, “Official Statistics Asset Recovery Statistical Bulletin: Fancialyears

ending March 2018 to March 2023”, hitps:/Ammny gov

uk/govenunent/statistics/asset-recovery-statistical-from a safer environment, improved law enforcement capabilities, and increased

support for those affected by criminal actions

Finally, the recovery of proceeds of crime is to ensure that the assets coming

from crimes are recovered and reinstalled in the place of origin, therefore ensuring

that the victims of crime and the economies from which the assets were taken do not

suffer from the economic loss By confiscating the ill-gotten gains from the

perpetrators, these funds can be returned to the victims, providing some measure ofrestitution and restoring a sense of justice A great example of this is the AssetForfeiture Program in the United States has returned millions of dollars to victims of

financial crime, with over $400 million returned in FY 2008 alonelế This not only

helps individuals rebuild their lives but also fosters trust in the legal system,reaffirming that it stands to protect and support those who have been wronged

1.3.2 The scope of law on coufiscation of proceeds of crime

The scope of law on the confiscation of proceeds of crime is vast and typicallyencompasses various legal provisions and procedures aimed at depriving criminals ofthe financial benefits gained from their illegal activities These law are designed toaddress the issue of ill-gotten gains and to prevent offenders from enjoying the

proceeds of their unlawful conduct The scope of such law can vary by jurisdiction,

but generally, they cover the following key aspects:

First and foremost are the substantive laws on confiscation of proceeds of

crime which dictate the legal basis for confiscating assets derived from criminal

activities These laws typically define the types of criminal offences that can result in

the confiscation of proceeds, the assets subject to confiscation, and the legal standardsfor proving the illicit origin of the assets For example, in the United States, theComprehensive Crime Control Act 1984 and the Money Laundering Control Act

1986 provide for the confiscation of proceeds of specified unlawful activities,including drug trafficking money laundering and racketeering In the United

Dulletin-financial-years-ending-2018-to-2023/asset-recovery-statistical-bullstin-financial-years-ending-naarch-2018-to-march- 2023Hasset-recovery-nucentivisation-scheme-aris, , Last accessed an 14/10/2023.

`? Council of Europe Portal - Conmnittee of Experts on the Evahation of Anti-Monsy Lamdering Measures

ml de Thang of = Terrorism, §=— “Confiscation anỈ âsSt — xeCOVEY”,

Tưtps:ÑvvtT coe ttienlrebfnsoneyrva ng lenaertatiort/confiscatiam, Last accessed on 13/10/2023.

3* Department of Justice-Asset Forfeiture Program, “Retuming Forfeited Assets to Crime Victims: An Overview

ofRemission and Restoration” https Jiwww justice gov/file/414326/downioad;

Kingdom, the Proceeds of Crime Act 2002 allows for the confiscation of assets

obtained through criminal conduct, including drug trafficking fraud, and moneylaundering

Secondly, procedural laws on confiscation of proceeds of crime govern the

processes and mechanisms for identifying, freezing, and confiscating illicit assets

These laws often outline the roles and responsibilities of lav enforcement agencies,prosecutors, and courts in the confiscation process Additionally, procedural lawsmay establish investigative powers, seizure and forfeiture procedures, and the rights

of affected individuals to contest confiscation orders For instance, the Confiscation

of Proceeds of Crime Act 1989 in New South Wales, Australia, empowers a court to

make orders for the confiscation of property derived from or used to commit a

“serious offence" The court must be satisfied that the accused has derived proceeds

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

Vietnam, the legal system is composed of a system of different legal instruments,

hierarchically and highly consistent, pertaining to the confiscation of proceeds of

crime which is primarily regulated by the provisions of the Criminal Procedure Code

2015 and related regulations

Thirdly is the legal enforcement of laws on confiscation of proceeds of crimewhich involves the implementation and application of substantive and procedurallaws to ensure compliance and enforcement Legal enforcement measures may

include the establishment of specialized investigative and prosecutorial units, training

and capacity-building for law enforcement and judicial authorities, and internationalcooperation mechanisms for asset recovery Appendix no.1 - Example of law onlegal enforcement

Overall, the scope of laws on confiscation of proceeds of crime encompassessubstantive, procedural, and legal enforcement measures to effectively address thefinancial benefits derived from criminal activities Through the implementation ofthese laws, countries around the world seek to deprive criminal networks of their

illicit gains and disrupt their operations The examples of legislation from different

* Local Court Bench Book, “Proceedings under the Confiscation of Proceeds of Crime Act 19897,

https://wvawjudcom.nsv/gov.au/publxations/benchbis/local/contiscation_proceeds_crimes_act.html.

countries demonstrate the diverse approaches to confiscating proceeds of crime and

the importance of international cooperation in tackling transnational criminal

activities.

1.3.3 The principles of law on coufiscation of proceeds of crime

The principles of law on the confiscation of proceeds of crime are designed to

provide legal mechanisms for authorities to seize and confiscate assets derived from

criminal activities These principles vary across jurisdictions, but there are common

themes found in many legal systems Here are key principles often associated with

the confiscation of the proceeds of crime:

To begin with, there is the principle of legality, a fundamental aspect of theconfiscation of the proceeds of crime This principle states that the confiscation ofassets must be based on a clear and unambiguous legal framework This means thatthere must be specific law in place that allow for the seizure and confiscation of assetsderived from criminal activities The legal framework must outline the circumstancesunder which confiscation can occur, the process for confiscation, and the rights ofindividuals who are subject to confiscation proceedings In addition, the coreprinciple is that assets subject to confiscation must be linked to specific criminal

conduct This principle ensures that the confiscation of proceeds of crime is carried

out in a transparent and lawful manner, with due process and legal safeguards in

place Speaking of due process, similar to other legislation around the world, the legal

systems generally ensure that individuals subject to confiscation proceedings have

the right to a fair hearing and due process

Secondly, the principle of proportionality is another key principle in the

confiscation of the proceeds of crime This principle of proportionality requires that

any confiscation order by the court be reasonable and proportionate, taking intoconsideration the interests of third parties who are legal owners or have alegal interest

in the property In other words, the value of the assets being confiscated should becommensurate with the severity of the offense committed This principle seeks toprevent excessive or arbitrary confiscation of assets and ensures that confiscation isnot used as a punitive measure beyond what is necessary to address criminal conduct.Appendix no.2- Example of the principle of proportionality

Thirdly, the principle of international cooperation is also relevant, as the

confiscation of proceeds of crime ofteninvolves cross-border criminal activities This

principle emphasizes the importance of collaboration between different jurisdictions

inthe enforcement of confiscation orders, and the recovery and repatriation of assets

International cooperation is essential for effectively combating transnational

orgenized crime and ensuring that assets derived from criminal activities are

confiscated and returned to their rightful owners This principle can be recognisedin

cases of Mutual Legal Assistance, Recognition and Enforcement of Orders, and AssetRepatriation A great example of this is the United Nations Convention againstCorruption (UNCAC) The UNCAC, a comprehensive international legal framework,promotes global cooperation in combating corruption, including measures related tothe confiscation of proceeds of crime Countries that are parties to the UNCACcommit to providing mutual legal assistance, extraditing offenders, and facilitating

the recovery of assets".

Another noteworthy principle is the principles of recovery and repatriation of

assets which are outlined in the UN Convention against Corruption (UNCAC)

Specifically, Chapter V (Articles 51-59), which is devoted to asset recovery includes

the return of stolen assets diverted through corruption as a fundamental principle?

The process of asset recovery involves the return of stolen or embezzled public funds

stashed away by corrupt officials, as well as any proceeds of corruption transferred

abroad, including those of private origin” C onfiscation actions can be brought either

domestically in the victim country or in the recipient where the proceeds of corruptionare located Once a confiscation order is made, assets are not directly repatriated tothe victim country According to UNCAC Article 57, the return of the assets will beorganized as follows: when confiscation is ordered in the victim country, the return

of assets requires a request from the victim country (requesting party) to the recipient

country (requested party) The UNCAC provides a framework for the repatriation of

18 UNODC, “The United Nations Convention against Corruption”.

https :waw.unode.org/unode/enfreaties/CAC/

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CRP.12_E.p

» https //uncaccoalition org/learn-more/ass et recovery/#Recovering_and_returning assets

https :/Avaw.unode.org/documents/teaties/UNCAC/C OSPis essionO/CAC-C df

OSP-2021-confiscated assets to their countries of origin, but successful repatriation tends to be

based on longer-term commitments, and the process may face operational barriers

and communication issues, such as difficulty identifying contact points in other

countries and delays in processing mutual legal assistance?!

1.3.4 The main issues regulated by law on confiscation of proceeds of crime

1.3.4.1 The objects to be confiscated

First and foremost is the identification of Proceeds, where the law defines whatconstitutes “proceeds of crime" and sets out the criteria for identifying assets or fundsthat are subject to confiscation According to the Treaty between the Government ofthe United Kingdom of Great Britain and Northern Ireland and the Socialist Republic

of Vietnam, "proceeds of crime" means any assets derived or realized, directly or

indirectly, by any person as a result of criminal conduct All proceeds of crime

involving both tangible and intangible assets are subject to confiscation, which has

been interpreted to include interest, dividends, income, and real property, althoughthere 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 as real estateproperties purchased with illicit funds, and the intangible assets, like bank accountsand investments derived 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 aims to prevent individuals from benefiting from the proceeds

of their illegal activities The offences for which confiscation is available may vary

by jurisdiction, particularly those related to corruption is a global trend and the law

aims to subject not only the proceeds from the specific offence but also assets whoselegitimacy of the source of origin cannot be proven in adversarial proceedings toconfiscation with the overarching goal is to deprive criminals of the benefits of their

illicit actions In addition, due to the complex nature and sophisticated tactics of

7 https /uww addles hawgoddard.com/en/insights/insights-briefings/2022/africa/corporate-

crime-aftica- update/tepatriating- confis cated ass ets-to- theit- countries- of origin 5-the- uk- doing- enough!

organized crime to disperse assets abroad international cooperation betweencountries is often needed to assist each other in confiscating those illegal assets.

However, it is also important to differentiate criminal instruments and

proceeds of crime Unlike the illicit assets gained through criminal activity, criminaltools are the instruments, equipment, or items used to facilitate the commission of acrime These can include weapons, vehicles, communication devices, and other

physical or digital tools utilized in the planning or execution of criminal activities

While proceeds of crime pertain to the financial gains derived from criminalactivities, crime tools encompass the physical or digital instruments utilized in thecommission of criminal acts

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

crime

Law enforcement agencies play a crucial role in the confiscation of proceeds

of crime These agencies are responsible for investigating and prosecuting criminalactivities, identifying and seizing assets that are the proceeds of crime, and ensuringthat the assets are forfeited to the state Here are some examples of law enforcement

agencies involved in the confiscation of proceeds of crime: The confiscation of

proceeds of crime typically involves collaboration among various law enforcement

agencies at both the national and intemational levels The specific agencies involved

can vary based on the jurisdiction and the nature of the criminal activity Here are

some common law enforcement agencies that play a role in the confiscation of

proceeds of crime:

First is the Local and regional Police Departments, These departments areresponsible for enforcing state law and investigating criminal activities within theirjurisdictions They work closely with federal agencies to identify and seize assets thatare the proceeds of crime They work diligently to gather evidence and build cases inorder to present a strong argument for the confiscation of criminal proceeds.Additionally, the police may work with other specialized units, such as financialinvestigation units or organized crime units, to track down and seize criminal assets

Another important law enforcement agency involved in the confiscation of

proceeds of crime is the financial investigation unit Some of the most famous

agencies are the USA Federal Bureau of Investigation (FBI), the Drug Enforcement

Administration (DEA), and the Internal Revenue Service (IRS) are responsible for

investigating and prosecuting federal crimes, including money laundering drug

trafficking, and tax evasion These agencies work closely with state and local law

enforcement agencies to identify and seize assets that are the proceeds of crime By

utilizing financial investigative techniques, such as surveillance, analysis of financialrecords, and conducting interviews, these units play a critical role in identifying andseizing criminal assets

In addition to the police and financial investigation units, other layenforcement agencies, such as customs and border protection, play a role in the

confiscation of criminal proceeds These agencies focus on intercepting and seizing

illegal goods and contraband aswell as preventing the movement of criminal money

across borders By working to disrupt the flow of illicit goods and money, these

agencies play a vital role in preventing criminals from profiting from their illegal

activities.

Furthermore, International law enforcement agencies such as Interpol,

Europol, and UNODC work to combat transnational organized crime and facilitate

the confiscation of criminal assets across borders These agencies work closely withnational law enforcement agencies to identify and seize assets that are the proceeds

of crime

Finally, prosecutors and the judiciary are essential players in the confiscation

of proceeds of crime The judiciary plays a crucial role in the confiscation process.Judges in Crown Courts and other relevant courts are responsible for overseeingconfiscation proceedings They evaluate the evidence presented by prosecutors, makedecisions on the amount to be confiscated, and issue confiscation orders Whereasprosecuting agencies such as the Crown Prosecution Service (CPS), Serious Fraud

Office (SFO), and National Crime Agency (NCA), etc in England work to build

strong cases for the confiscation of criminal assets, presenting evidence to the courts

in order to obtain forfeiture orders

are believed to be obtained through criminal activities There are two main

mechanisms for confiscation conviction-based confiscation and non-conviction

confiscation These mechanisms very depending on the legal jurisdiction, but in

general, itis as follows:

Conviction-based or Criminal confiscation is tied to a criminal conviction Thelegal basis for this mechanism is often laid out in specific legislation, such as theProceeds of Crime Act 2002 (POCA) in the UK or the C omprehensive Crime C ontrolAct in the United States as well as in the Vietnam 2015 Penal Code and its relatedregulations The process begins with the criminal prosecution and conviction of theoffender for a qualifying offence, such as drug trafficking fraud, or moneylaundering After conviction, the prosecution applies to the court for a confiscationorder This involves presenting evidence of the defendant's benefit from criminalconduct and the available amount for confiscation The standard of proof required

(normally proof beyond a reasonable doubt) for the confiscation order is often the

same as that required to achieve a criminal conviction The court will then conduct a

benefit assessment to determine whether the defendant has a “criminal lifestyle" as

well as the financial benefit derived from the criminal conduct This may involvetracing assets, identifying hidden assets, and assessing the value of gains After that,the court must issue a confiscation order specifying the amount to be confiscated If

the defendant fails to pay, they may face additional penalties, including

imprisonment?? Law enforcement agencies or specialised units are 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 soldand the proceeds are distributed to victims or used for law enforcement purposes It

is also worth noting that legislation often includes provisions to protect the rights of

a https://sherloc.unode org/eld/en/education/tertiary/organized-crime/module- 10%

ey-issues/confiscation.htm!

innocent third parties who may have a legitimate interest in the confiscated property.

They can apply to the court to protect their interests

On the other hand, non-conviction-based or admimstrative confiscation, often

known as civil or asset forfeiture, does not require a criminal conviction Instead, it

focuses on the property itself being “galt” of involvement in criminal activities

Legal frameworks for this type of confiscation vary widely Law enforcement

authorities initiate civil forfeiture proceedings against specific assets believed to be

linked to criminal activities This can happen independently of a criminal trial.Conviction of the property owner isnot relevant in this kind of confiscation Itis mostoften seen in the field of customs enforcement at borders (e.g, bulk cash, drug, orweapons seizures), and applies when the nature of the item seized justifies anadministrative confiscation approach (without a prior court review) Subsequently,the standard of proof required in civil forfeiture cases is often lower than in criminalcases Authorities may need to demonstrate that it is more likely than not that theproperty is connected to criminal activities rather than proving guilt beyond a

reasonable doubt”? Property owners can challenge the forfeiture, asserting their

innocence or claiming that they were unaware of the criminal use of the property

There may be opportunities for appeals Some jurisdictions even provide an “irmocentowner” defence, allowing individuals to prove that they were unaware of and did notconsent to the criminal use of their property This is particularly relevant in caseswhere property is shared or owned by multiple parties Non-conviction-basedconfiscation can be broader in scope, encompassing a range of offences beyond thoseleading to criminal convictions, including tax evasion, regulatory offences, andcertain civil violations

There are some common aspects in both conviction-based and non-

conviction-based mechanisms, however, such as both involve tracing and identifying assetslinked to criminal activity Given the global nature of many crimes, both mechanismsmay involve international cooperation for the recognition and enforcement of

confiscation orders across borders In some cases, confiscated funds may be used to

# https://sherloc.unode org/eld/en/education/tertiary/organized-crime/module- 10%

ey-issues/confiscation.htm!

compensate victims of the underlying criminel activities Legal frameworks often

include safeguards to protect the rights of individuals, including the rights of theaccused and innocent third parties

Conclusion of Chapter 1

In short, the law on confiscation of proceeds of crime is a crucial legal tool

designed to deprive criminals of economic advantages obtained from their offenses,

including forfeiture and permanent transfer of property It aims to combat criminal

activities such as drug trafficking money laundering, fraud and organized crime The

law has four characteristics: it aims to deprive criminals of illicitly gained benefits,

has a unique burden of proof requirement, is a complicated and time-consuming

process, andis closely related to human rights, particularly property rights.

The global impact of organized crime has led to the need for a legal frameworkthat addresses both punitive and preventive aspects of criminal justice Regulationslike the POCA allow law enforcement to trace, evaluate, and confiscate assetsacquired through criminal conduct, disrupting economic incentives for unlawfulactivities It also aims to dismantle the financial infrastructure of criminal enterprises,

prevent economic benefits from unlawful actions, and restore ill-gotten gains to their

rightful place within the legal economy

The fundamental issues regarding confiscation include asset identification,

law enforcement agencies involved seizure procedures, and international

cooperation mechanisms The law is grounded in fairness, proportionality, and

respect for human rights, ensuring due process and safeguards in the confiscationprocess of criminal proceeds In essence, the most comprehensive definition of thelew on confiscation of proceeds of crime encapsulates its role as a dynamic andadaptive legal tool essential for combating organized crime, promoting societal well-being, and 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 inEnghnd

of the Act cover a wide range of provisions, including provisions for both criminal

and civil recovery, the definition of criminal property, the powers of law enforcementagencies, confiscation orders, and specific offences such as drug trafficking andmoney laundering and acknowledges the need for international cooperation in thepursuit of assets across borders

While the Proceeds of Crime Act 2002 (POCA) is the primary legislationregulating the confiscation of proceeds of crime in England and came into force onthe 24th March 2003, meaning it only applies to POCA offences committed on, orafter, that date Before the Proceeds of Crime Act, law on confiscation was governed

by some other law and regulations which contribute to the overall legal framework.These may not be as comprehensive or central as POCA, but they address specificaspects of asset recovery and confiscation concerning certain offences such as theDrug Trafficking Act 1994 and the Criminal Justice Act 1988 These Acts still apply

to confiscation proceedings where POCA offences were committed before the 24th

March 2003, with some main legislations including

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

* 02/11/2020, St Pauls Chambers, "The Proceeds of Crime Act Explained’,

https:/Awuvw,stp auls chambers comithe- proceeds-of crime actexplained/, Last accessed on 3/11/2020

orders, and extension of investigative powers These changes aim to strengthen the

enforcement of confiscation orders, prevent assets from being hidden, and expedite

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

related to drug trafficking and the confiscation of assets obtained through criminalconduct which demonstrated the application of the Serious Crime Act 2015concerning confiscation orders linked to drug offences

The Criminal Finances Act 2017 (CFA) introduced measures to tackle moneylaundering and corruption It includes provisions related to the forfeiture of moneyheld in bank accounts It also introduced the concept of corporate criminal liabilityfor certain offences, allowing for the confiscation of assets from corporate entitiesinvolved in criminal conduct A great example of this is the

Jn addition to the aforementioned legislation, there are honourable mentions

that aid in the confiscation of proceeds of crime in the UK The Drug Trafficking Act

1994 (DTA) while largely superseded by POCA, the DTA is still relevant in cases

related specifically to drug trafficking and established provisions for the confiscation

of assets derived from drug trafficking offences The Bribery Act 2010 addresses

bribery and corruption offences While its primary focus is on preventing and

punishing bribery, the Act also includes provisions related to the confiscation ofassets derived from corrupt practices In cases involving offences related to customsand excise, the Ctistoms and Excise Management Act 1979 (CEMA) may beapplicable It provides authorities with powers to seize and forfeit goods, includingvehicles and vessels, involved in certain customs offences The Terrorism Act

2000 includes provisions for the confiscation of assets related to terrorism offenses

It allows for the forfeiture of cash, as well as the confiscation of other assets, in cases

involving terrorism The Fraud Act 2006 addresses various forms of fraud While its

primary focus is on defining and penalizing fraudulent activities, it includesprovisions related to the confiscation of assets in cases involving fraud

* 4/03/2015, GOVUK” Fact sheet: Overview of the Act Serious Crime Act 2015”,

https://assets publishing service gov.uk/med ia/5a803105 40f0b62305 b8a090/Serious Crime_Act_Overview.

pa

** 44/05/2008, ViexJustis, "R v Raymond George May”, https://viex.co.uldvid /r-v-may-8187 28084, Last

‘accessed on 3/11/2020.

Furthermore, in common lew countries like England case law plays a

significant role in shaping and interpreting the legal framework related to the

confiscation of proceeds of crime The legal principles and procedures governing

confiscation often evolve through decisions made by higher courts in specific cases

Even though the primary legislation governing the confiscation of proceeds of crime

in England and Wales is the Proceeds of Crime Act 2002 (POCA) However, the

general principles and specific provisions within POCA are subject to interpretation

through case law For example, case law can establish precedents regarding theconditions under which confiscation orders can be issued, the calculation of thebenefit from criminal conduct, and the determination of available assets Each casemay present unique challenges, and the outcomes of these cases can influence howthe lew is appliedin similar situations F or example, courts may addressissuesrelated

to the valuation of assets, third-party interests, and the proportionality of confiscation

orders For instance, when deciding whether the confiscation order regarding the R

v Sale (2013) case was disproportionate or not, the Court of Appeal refers to the

Supreme Court's decision in R v Waya [2012] 3 WLR 1138.7”

Another noteworthy substantive legislation is that of various international

conventions and agreements These agreements facilitate cooperation between

countriesto combat transnational crime, money laundering and the recovery of assets

obtained through criminal activities Some key international instruments that

influence and support the confiscation efforts in England include: “United Nations

Convention against Transnational Organized Crime (UNTOC) - PalermoConvention” (2000), “United Nations Convention against Corruption (UNCAC)”(2003), “European Convention on Mutual Assistance in Criminal Matters” (1959),

“European Convention on Laundering, Search, Seizure and Confiscation of the

Proceeds from Crime” (1990), etc These international agreements and conventionsreflect the global effort to combat transnational crime and ensure that criminalscannot enjoy the proceeds of their illicit activities In England as in many othercountries, domestic legislation aligns with these international standards to enhancethe effectiveness of asset recovery and the fight against organized crime

2” 25/07/2015, ViexJustis, “Rv Sale", https~//vlex.co.uldvid /ry-sale-79 3999 341, Last accessed on 5/11/2020.

These legislations work in conjunction with the POCA to address specific

types of criminal activities and provide authorities with additional tools to combat

financial crime and recover the proceeds of unlawful conduct It's important to note

that the legal landscape is dynamic, and changes or updates to legislation may occur

over time Legal practitioners and law enforcement agencies stay abreast of these

changes to effectively navigate the regulatory framework for asset recovery and

confiscation

2.1.2 Procedural Law

Similar to the substantive legislation regarding this issue, the procedural

provisions on confiscation of proceeds of crime in England also primarily fall under

the Proceeds of Crime Act 2002 (POCA) This Act provides the procedural legalframework for confiscation, including the process of determining whether thedefendant has benefited from criminal conduct, the making of confiscation orders,and the enforcement of such orders Specifically, part 2 and 3 of this Act involvesseveral key stages starting with the “Identification of Criminal Benefit” (Schedule 2and Section 76) which stipulates factor for the court to determine the financial benefitobtained from the criminal conduct that is convicted as a "trigger offence" listed in

Schedule 2 of POCA After that the Confiscation Proceedings (Part 2, Chapter 2)

started including the provisions for the: “Confiscation Order Application” (Section

6), “Confiscation Hearing”, “Assessment of Available Amount” (Section 7), and

“Making the C onfiscatian Order” (Section 6) Before a confiscation order is made,

the court may issue a “Restraint Order” (Part 2, section 40 and 41) to prevent the

defendant from disposing of assets that might be subject to confiscation as well astake steps to realize the assets identified in the restraint order Finally, both theprosecution and the defendant have the right to “Appeal” ection 31 to 33) against

a confiscation order which can be made on various grounds, including challengingthe calculation of the benefit or the amount of the confiscation order, ensuring thatthe process is subject to legal review and oversight It is also noteworthy that incertain cases, the court may appoint a management receiver to manage and realize theassets subject to the confiscation order which is called “Post-ConfiscationManagement” (Section 48) However, the confiscation process is complex, and the

above steps only provide a general overview and the specifics of each case can vary

the confiscation procedure to a certain extent

Additionally, the Act also provides for other means of recovering the proceeds

of crime, such as civil recovery, cash seizure, and taxation powers, which do not

require a conviction This is achieved through the use of the civil courts, where the

standard of proof is lower than in criminal proceedings which allows for a more

flexible and efficient approach to the confiscation of assets, asit removes the need to

secure a criminal conviction before pursuing the confiscation of assets

In parallel with the substantive provisions mentioned above, other statutes andlegal provisions may be relevant to the process, either in conjunction with POCA or

in specific contexts Firstly is the CFA which introduced new measures to tacklefinancial crime, including the facilitation of tax evasion It includes provisions related

to the civil recovery of the proceeds of unlawful conduct, unexplained wealth orders,

and the extension of the offence of failure to prevent the facilitation of tax evasion

Secondly, The SCA also includes provisions related to asset recovery, including the

recovery of assets derived from criminal conduct It amended certain aspects of the

POCA and introduced measures to strengthen law enforcement's ability to seize and

recover criminal assets Thirdly, while primarily focused on offences related to its

substantive offences, the other Acts such as the Bribery Act 2010, the CEMA, the

DTA etc include provisions for the confiscation of assets derived from the proceeds

of 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 crime in Englandprimarily involves international cooperation agreements and conventions Severalinternational instruments facilitate cooperation among countries for the investigation,prosecution, and confiscation of proceeds of crime with some key internationalagreements including International C ooperation Agreements, Financial Action TaskForce (FATF) Recommendations, Mutual Legal Assistance Treaties (MLAT$),

European Union Directives, etc In practice, the enforcement of international

procedural legislation in England often involves coordination between law

enforcement agencies, financial intelligence units, and judicial authorities across

borders The effectiveness of international cooperation depends ơn the willingness of

countries to collaborate and the existence of relevant legal frameworks, such as

extradition treaties and mutual legal assistance agreements Legal professionals

involved in international asset recovery cases typically navigate these agreements and

conventions to ensure the successful identification and confiscation of proceeds of

crime

2.1.3 Law on Legal Enforcement

Correspondently to the previous substantive and procedural aspects of law on

confiscation of proceeds of crime, the primary legislation that governs theenforcement of confiscation orders in England is the Proceeds of Crime Act 2002(POCA) The enforcement of confiscation orders involves various authorities andagencies, and the process is designed to ensure that convictedindividuals are deprived

of the financial benefits derived from their criminal conduct Specifically, part 2 ofthe POCA outlines the provisions for confiscation orders and the process for theirenforcement Additionally, this Act provides legal enforcement and investigationpowers for legal authorities to carry out and investigate the confiscation of proceeds

of crime including Restraint Orders (Sections 41-47), Civil Recovery Orders (Part 5),

Realization of Asset, Production orders, Search and seizure warrants, Customer

information orders, Disclosure orders, and Account monitoring orders (Part 8,

Chapter 2) The POCA also provides for the enforcement of confiscation orders

through various means, including the appointment of enforcement receivers/

Management receivers (Sections 48 to 51) and the forfeiture of assets To ensure

payment the Act provides for the appointment of enforcement receivers ormanagement receivers They are appointed on the application either of the prosecutor

or the ARA when an order isnot complied with Rules are provided to guide receivers

in the order in which money recovered must be applied The Act also provides for theprosecutor to ask the Home Secretary to request the assistance of foreign states toprevent the disposal of assets and to secure their realisation Finally, the enforcement

of confiscation orders in England is overseen by various law enforcement agenciesstipulated in the POCA and other related legal tools, including the National CrimeAgency (NCA), the Crown Prosecution Service (CPS), and the Financial Conduct

Authority (FCA), Local police forces, Serious Fraud Office (SFO), etc These

agencies work together to investigate and enforce confiscation orders, and to ensure

that individuals convicted of criminal activities are held accountable for their

financial gains

In addition to the POCA, the enforcement of confiscation orders is also

governed by the Criminal Finances Act 2017 This act introduced new measures to

strengthen the enforcement of confiscation orders and to enhance the recovery of

assets obtained through criminal activities The Criminal Finances Act 2017established the Unexplained Wealth Orders (UWO9), which allow law enforcementagencies to investigate and seize assets that are deemed to be the proceeds of crimewhere a person's wealth is disproportionate to their known income The act alsointroduced provisions for the disclosure of unexplained wealth and the creation of

new powers for the enforcement of confiscation orders The enforcement of

confiscation orders in England is also supported by the Money Laundering, Terrorist

Financing and Transfer of Funds (Information on the Payer) Regulations 2017 This

legislation sets out the requirements for anti-money laundering measures and the

reporting of suspicious financial transactions The regulations also provide for the

identification and verification of beneficial owners of assets, which is crucial in the

enforcement of confiscation orders

In conclusion, these legislations together provide the legal basis for the

confiscation 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 have derived financialbenefits from criminal activities are held accountable and required to pay back the

proceeds of their criminal conduct, thus depriving them of the financial benefits of

their criminal activities

2.2 The fundamentals of law on confiscation of proceeds of crime in England2.2.1 The objective of law on confiscation of proceeds of crime in England

One of the most crucial and prominent objectives of law on the confiscation

of proceeds of crime in England is to deprive offenders of the proceeds of theircriminal conduct, deter the commission of further offences, and reduce the profits

available to fund further criminal enterprises ®Š The confiscation of proceeds of crime

lew in England are designed to ensure that criminals do not benefit from their illicit

gains and to compensate victims who have suffered financial losses as a result of the

crime These law are an important tool in the fight against crime and play a crucial

role in the criminal justice system of England According to the Proceeds of Crime

Act 2002, the UK government has the power to recover assets that have been obtainedthrough criminal activities This includes cash, property, and any other assets thathave been obtained through criminal means The objective of these law is to ensurethat those who have engaged in criminal activities do not benefit financially fromtheir actions By confiscating the proceeds of crime, the government aims to send astrong message to would-be criminals that crime does not pay, and that those whoengage in criminal activities will be deprived of any financial benefits they may have

gained Additionally, a fact sheet on the Proceeds of Crime Act 2002” highlighted

that since 2010, more than £746 million of criminal assets has been seized across all

methods of recovery, and over the same period, assets worth more than £2.5 billion

have been frozen However, it's important to note that the value of proceeds of crime

recovered through Confiscation Order receipts has fallen to £99 million in the

financial year 2020 to 2021 30

Firthermore, the impact of law on the confiscation of proceeds of crime inEngland, particularly under the Proceeds of Crime Act 2002 (POCA), on the

disruption of criminal enterprises is significant Confiscation orders and asset

recovery measures play a crucial role in undermining the financial foundations ofcriminal organizations Firstly, confiscation orders target the financial gains obtainedthrough criminal activities This can severely disrupt the funding and operationalcapabilities of criminal enterprises, making it more difficult for them to continueillegal operations In addition, the enforcement of confiscation orders involves the

3* 19/12/2019, The Crown Prosecution Service, “Proceeds of Crime“, guidance/proceeds-crime, Last accessed on 9/14/2020.

lứtps://wwwcpsgov.ul¿egal-2” 6/06/2014, GOV.UK,” Fact sheet: Overview of the Proceeds of Crime Act 2002",

https://assets publishing service gov.uk/media/Sa7d7 b6740f0b64fe 6c

23fae/Fact_Sheet_-Overview of POCA 2_ pdf, Last accessed on 9/11/2020.

® 9/09/2021, GOV.UK, Official Statistics, “Asset recovery statistical bulletin: financial years ending 2016 to

10/11/2020.