Written evidence submitted by Dr Colin King, Senior Lecturer in Law, University of Sussex

Background

  1. This submission is made in my own capacity; and it should not be taken to represent any views of the University of Sussex nor Sussex Law School.
  2. I am a Senior Lecturer in Law at the University of Sussex. I previously worked at the Universities of Manchester and Leeds. I am Joint Lead of the Crime Research Group at the University of Sussex. I am an Academic Fellow at The Honourable Society of the Inner Temple.
  3. I am Principal Investigator of a Research Network on ‘Dirty Assets: Experiences, reflections, and lessons learnt from a decade of legislation on criminal money laundering and terrorism financing’, funded by the Arts and Humanities Research Council (Grant Ref: AH/IO14920/1). This Network is a collaboration between Dr Colin King (Sussex) and Prof. Clive Walker (Leeds).  The Network brings together policymakers, practitioners, and academics, to explore different ‘follow the money’ strategies over the past decade.
  4. Podcasts and slides from the Dirty Assets workshops can be accessed at: http://www.sussex.ac.uk/law/research/dirtyassets
  5. I was a discussant at a joint TI-UK/ Home Office forum on Unexplained Wealth Orders (2015). I have acted as ‘National Expert (Ireland)’ for an EU-wide study on criminal law responses to organised crime (2014). I have been consulted for an independent review of unexplained wealth laws commissioned by the US Department of Justice (2011).
  6. My research is primarily on Civil Recovery powers and caselaw. My PhD research examined the Irish model of civil forfeiture (the Irish equivalent to civil recovery). Since moving to the UK in 2009, my research also includes the UK Proceeds of Crime Act 2002.
  7. Relevant publications include:
    1. “Dirty Assets: Emerging Issues in the Regulation of Criminal and Terrorist Assets” (Colin King and Clive Walker, eds) (Ashgate, Farnham, 2014).
    2. “Civil Forfeiture in Ireland – Two Decades of the Proceeds of Crime Act and the Criminal Assets Bureau” In K. Ligeti and M. Simonato (eds), Chasing Criminal Money in the EU (Hart Publishing) For publication in 2016.  
    3. “Counter Terrorism Financing: A redundant fragmentation?” (with Prof. Clive Walker) (2015) 6(3) New Journal of European Criminal Law 372-395.
    4. “How Far Is Too Far? Theorising Non Conviction Based Asset Forfeiture” (with Dr Jen Hendry) (2015) 11(4) International Journal of Law in Context 398-411.
    5. “Civil Forfeiture and Article 6 of the ECHR: Due Process Implications for England and Wales and Ireland” (2014) 34(3) Legal Studies 371-394.
    6. “The Seizure of Illicit Assets: Patterns of Civil Forfeiture in Canada and Ireland” (with Dr Michelle Gallant) (2013) 42 Common Law World Review 91-109.
    7. “The disruption of crime in Scotland through non-conviction based asset forfeiture” (with Martin Collins) (2013) 16(4) Journal of Money Laundering Control 379-388.
    8. “Using Civil Processes In Pursuit of Criminal Law Objectives: A Case Study of Non-Conviction Based Asset Forfeiture” (2012) 16(4) International Journal of Evidence and Proof 337-363.

 

  1. I have recently conducted interviews with representatives of the Irish Criminal Assets Bureau, barristers, and solicitors who are experts in the Irish Proceeds of Crime Act. Where appropriate, that research also informs the submissions that follow. 

 

Incentivisation

  1. The Inquiry will consider ‘how best to incentivise agencies to use [proceeds of crime powers]’. Some Police and Crime Commissioners have called for seized funds to be made available, in their entirety, to local police forces, rather than the current shared allocation (see, eg, http://action.westyorkshire-pcc.gov.uk/page/s/giveusbackallthemoney). 
  2. On the other hand, there are significant concerns about the use of Incentivisation. In the United States, for example, there has been criticism about ‘policing for profit’ and abuse of police powers as a result of skewed priorities – see Sarah Stillman’s ‘Taken’ article in The New Yorker: http://www.newyorker.com/magazine/2013/08/12/taken.  
  3. Scotland does not operate the Asset Recovery Incentivisation Scheme (ARIS) in the same way as in England – in Scotland, the focus is more on disruption of criminal activity, instead of on recovering money for ‘the tin box’. 
  4. Neither does Incentivisation operate under the Irish Proceeds of Crime Acts. In my research interviews with policing and legal practitioners there, practitioners emphasised the added safeguard inherent in all seized assets being sent to the Central Fund, rather than a portion being allocated to the agency who led the relevant investigation. When asked if they would be in favour of a similar approach to ARIS in the UK, all respondents were firmly against the suggestion.
  5. It might be possible for the Treasury to ring-fence money seized under POCA for community purposes, which would be preferable to the current ARIS approach. If POCA money is to be ring-fenced in this manner, care should be taken to ensure that this does not reduce other funding allocated to local communities – POCA funding should be in addition to current funding.

 

Performance measurements

  1. The Committee should ask the question: what is the purpose of POCA? Is it intended (i) to disrupt criminal activity or (ii) to raise money? Or both (and, if so, which should take priority)?
  2. The current approach to performance measurement is unduly focused on monetary returns – eg how much is seized. Monetary figures, on their own, do not allow for adequate performance measurement. Neither does a bare reliance on the number of orders granted under POCA.
  3. There should be greater attention on how, if at all, POCA disrupts criminal activity: this point was made in an article that I co-authored with a member of the Scottish Civil Recovery Unit in 2013 (M. Collins and C. King, ‘The disruption of crime in Scotland through non-conviction based asset forfeiture’ (2013) 16(4) Journal of Money Laundering Control 379-388 - http://www.emeraldinsight.com/doi/full/10.1108/JMLC-07-2013-0023) While that article specifically focused on non-conviction based powers, the same arguments equally apply to post-conviction confiscation.
  4. The National Audit Office released a Report on Confiscation Orders in December 2013 - https://www.nao.org.uk/report/confiscation-orders-2/ - which was heavily critical of the operation of confiscation under POCA.
  5. I would concur with the NAO contention that it is important to set out how ‘success’ is to measured. As stated above, it is inappropriate to attempt to measure ‘success’ based solely on how much money is confiscated.
  6. However, the use of headline-grabbing statements like ‘only about 26p in every £100 of criminal proceeds was actually confiscated in 2012-13’ (NAO Report) is not helpful. There have been many issues in the application and interpretation of POCA (such as double-counting benefit, failure to apportion benefit, etc), which were not taken into account in previous performance measurements. For example, if 2 drug traffickers imported £3 million of drugs, how much ‘benefit’ accrues? If the court makes an order of £3million against each person, then the amount to be paid is £6 million. Even if the police do recover £3 million, on paper there is an outstanding amount of £3 million. This clearly distorts performance measurement. [Note that the Supreme Court decision in Ahmad (2014) does now address apportionment].

 

Mr Big, or the little fish?

  1. There is widespread reference to ‘Mr Bigs’ in discussion of POCA. However, there is little analysis of how (or whether) POCA impacts on the Mr Big-type person. Research by Bullock and Lister (drawing upon data from HMCTS and JARD) shows that the value of confiscation orders are much lower than might have been expected – given the emphasis on Mr Bigs in the passage of the legislation. Bullock and Lister found that there were only 25 confiscation orders in excess of £1 million over a 14 year period.
  2. A related point here is the poor information available, including a lack of consistency – for example, Harvey obtained figures from SOCA that did not correspond with the HMCTS figures provided to Bullock and Lister for the same year.
  3. The studies by Bullock and Lister, and by Harvey, are published in ‘Dirty Assets’: https://www.routledge.com/products/9781409462538.

 

Civil Recovery

  1. The Terms of Reference appear to be focused on issues related to confiscation orders and criminal benefit. I do recognise though that the Committee does have a wide remit in considering: ‘Whether additional measures are required to achieve the objectives of ensuring criminals do not benefit from their crimes’.
  2. Both the Public Accounts Committee and the National Audit Office, in their Reports, were concerned with Confiscation Orders, with little consideration of Civil Recovery powers under Part 5 of POCA.
  3. The Home Affairs Committee might also wish to consider the use of such powers in its Inquiry into the operation of POCA.

 

Whether additional measures are required

  1. The Terms of Reference specifically asks: ‘Whether additional measures are required to achieve the objectives of ensuring criminals do not benefit from their crimes’. There are different trains of thought in this respect: some argue that there is a need for a clean break, that there is too much piecemeal additions and changes to POCA, such that the legislation is now unwieldy and too burdensome. A second view, however, is that if POCA were to be replaced, and the slate wiped clean, then a lot of the work done over the past 14 years (since enactment) would be undone and there would be unnecessary re-litigation of issues that are now settled under POCA jurisprudence.
  2. A separate issue here is the use of POCA in relation to terrorist-related activity. There are extensive provisions under Anti-Terrorism legislation (eg Terrorism Act 2000; Anti-Terrorism Crime and Security Act 2001; Terrorism Asset-Freezing etc Act 2010) that closely mirror POCA provisions. Yet, in practice, POCA is often used against terrorist-related activity, in preference to the anti-terrorism legislation. The Committee might also wish to consider this issue, and whether it might be more streamlined to consolidate the two codes.

 

 

Dr Colin King

Sussex Law School

University of Sussex