To confiscate or not to confiscate? A comparative analysis of the confiscation of the proceeds of crime legislation in the United States of America and the United Kingdom

Ryder, Nicholas

Abstract

The origins of the international community’s policy and legislative measures towards confiscating the proceeds of crime can be traced back to the instigation of the ‘War on Drugs’. The scope and remit of these confiscation powers were extended following the al-Qaeda attacks in September 2001 to include terrorism. Over a decade later these confiscation mechanisms have been used to target ‘white collar criminals’ as a result of their illegal activities during the ‘Credit Crunch’. Therefore, the confiscation of the proceeds of crime has become an integral part of the battle against drug cartels, organised criminals, terrorists and white collar criminals in the United States of America (US) and the United Kingdom (UK). Both of these countries have reacted to the global financial crisis by increasing the amount of civil liability on responsible “market participants”. For example, the ability to forfeit the proceeds of crime has been used by US authorities to tackle ‘rouge traders’ who have profited from their unauthorised and fraudulent transactions during the ‘Credit Crunch’. This includes for example Bernard Madoff who was convicted of architecting a pyramid fraud scheme, sentenced to 150 years imprisonment and ordered to forfeit $170m. In the UK, the Serious Organised Crime Agency (SOCA) has increased the amount of money and assets confiscated by over 250% since 2007. Therefore, the purpose of this article is twofold. Firstly, it seeks to determine a ‘confiscation typology’ based on a review of the international confiscation legislative instruments and the ‘soft law’ Recommendations of the Financial Action Task Force (FATF). Secondly, the article reviews the implementation of the ‘confiscation typology’ in the US and UK.

• Journal Article Type: Article
• Publication Date: Oct 1, 2013
• Deposit Date: Jun 25, 2013
• Publicly Available Date: May 27, 2016
• Journal: Journal of Business Law
• Print ISSN: 0021-9460
• Publisher: Sweet and Maxwell
• Peer Reviewed: Not Peer Reviewed
• Volume: 8
• Pages: 767-798
• Keywords: conficastion, proceeds of crime, typology, white collar crime
• Public URL: https://uwe-repository.worktribe.com/output/927418
• Publisher URL: http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?productid=7128&recordid=476
• Contract Date: May 27, 2016