The confiscation of criminal assets: tackling organised crime through a ‘middleground’ system of justice

―The Innocent Have Nothing To Fear‖Over the past quarter of a century, conventional criminal procedure has often been perceived as inadequate in the face of increasing levels of (and concern surrounding) organised crime. Against this backdrop, the criminal justice system has undergone significant substantive, institutional and procedural reform, with a demonstrative shift in the direction towards a crime control model at the expense of due process norms. This is particularly evident in the adoption of civil forfeiture as a tool of law enforcement, which sees criminal law objectives being pursued in the civil process. While this might be attractive to police and prosecution authorities in terms of enhanced efficiency and expediency, it does raise a number of serious concerns as to the rights of the individual – not least that a person can be ―punished‖ in ―civil‖ proceedings stripped of the benefit of enhanced procedural protections inherent in the criminal process. Civil forfeiture was adopted in Ireland primarily through the Proceeds of Crime Act. Even in the absence of a criminal conviction, a person may be restrained in dealing with specified property where the courts are satisfied that that property constitutes, or was acquired with, proceeds of crime. This is on the civil standard, proof on the balance of probabilities, rather than the criminal standard of proof beyond reasonable doubt. Moreover, there are rules of evidence and investigatory powers that enhance efficiency and expediency but are particularly burdensome on a person faced with proceedings under the Proceeds of Crime Act. Alongside this Act, a new policing body was formed, composed of officials from different state agencies working together for crime control purposes. The Criminal Assets Bureau is, it is contended, a multi-agency policing body, exercising police powers for crime control purposes but also empowered with enhanced powers and resources as a result of its multi-agency character. By virtue of its civil/ administrative persona, though, the Bureau is able to circumvent many of the checks and balances that apply to An Garda Síochána. While the Bureau does have the potential to enhance the efficacy of law enforcement, there are a number of concerns as to governance, transparency and accountability. Given executive enthusiasm for the use of the civil process as a tool of law enforcement, it is left to the courts to ensure that before criminal punishment is meted out a person is afforded standard due process protections. The difficulty here, however, is how to distinguish the civil from the criminal, and when criminal procedural safeguards ought be applied. Indeed, in light of the demarcation between the civil and criminal paradigms being blurred and fragmented, the courts have, regrettably, failed to insist upon enhanced procedural protections in ―criminal‖ matters proceeding under the guise of a ―civil‖ matter. This thesis contends that civil forfeiture, while purportedly a civil procedure, is, de facto, a form of criminal punishment and, as such, ought to attract enhanced procedural safeguards.