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Article
Publication date: 1 July 2006

Anthony Kennedy

The purpose of this paper is to examine what use has been made of civil recovery legislation in the first three years of its existence and to explain the legal issues which have…

1052

Abstract

Purpose

The purpose of this paper is to examine what use has been made of civil recovery legislation in the first three years of its existence and to explain the legal issues which have been raised before the courts so far. It also examines the legislative and non‐legislative changes to the civil recovery scheme since it is commencement in 2003.

Design/methodology/approach

The paper uses examples from amongst those cases initiated by the Assets Recovery Agency and draws on both reported and unreported court rulings.

Findings

The civil recovery cases brought against property by the Assets Recovery Agency may be classified into six categories: where a potential criminal defendant has died and is therefore beyond prosecution; where a criminal defendant has been acquitted; where a criminal defendant was convicted but the confiscation hearing failed; where the respondent is not within the jurisdiction; where the owner of the property is uncertain; and where a respondent is unprosecutable due to insufficient evidence.

Originality/value

The paper provides a useful framework for law enforcement agencies which are considering what type of cases they may useful refer for possible civil proceedings by the Agency. The paper also sets out for practitioners a useful summary of the civil recovery jurisprudence which has so far developed.

Details

Journal of Money Laundering Control, vol. 9 no. 3
Type: Research Article
ISSN: 1368-5201

Keywords

Article
Publication date: 7 January 2014

Shazeeda Ali

The purpose of this paper is to increase the awareness of attorneys-at-law about the potential risks that they may encounter as a result of the developments in “intermeddler…

1211

Abstract

Purpose

The purpose of this paper is to increase the awareness of attorneys-at-law about the potential risks that they may encounter as a result of the developments in “intermeddler liability”. The article is also aimed at informing attorneys about the Proceeds of Crime Act (POCA) civil recovery machinery.

Design/methodology/approach

The article is divided into two parts. The first part involves an analysis of the provisions in the POCA of Jamaica that invoke a civil machinery to recover criminally obtained wealth. In addition to a review of the main provisions of POCA, an examination of recent cases in Jamaica and in the UK, which has a similar legislative regime, has been undertaken. The legislative framework for providing a remedy to a victim of crime has also been examined. The second part of the article explores developments in the law of restitution and the law relating to constructive trusts which may impact lawyers and financial intermediaries who become engaged in transactions dealing with illicit funds.

Findings

The first aspect of the article focuses on the ability of the Asset Recovery Agency to follow and recover illicitly obtained property in the absence of a criminal conviction. In the second part of the article, the evolution of the law relating to “intermeddler liability”, that is, knowing receipt and dishonest assistance, has been explored. It is observed that these developments are significant in providing a victim of financial crime with a remedy where the illicit activity involves a breach of trust or other fiduciary relationship.

Originality/value

Much of the focus on anti-money laundering initiatives in Jamaica is on the money laundering offence and post-conviction orders under POCA. This article seeks to highlight the power of the civil law in countering serious crime.

Details

Journal of Money Laundering Control, vol. 17 no. 1
Type: Research Article
ISSN: 1368-5201

Keywords

Article
Publication date: 9 January 2007

Anthony Kennedy

The purpose of this paper is to explore how effective the four mechanisms of UK criminal asset recovery are – confiscation, cash forfeiture, civil recovery and taxation – and…

2044

Abstract

Purpose

The purpose of this paper is to explore how effective the four mechanisms of UK criminal asset recovery are – confiscation, cash forfeiture, civil recovery and taxation – and whether they, or their application, might be enhanced.

Design/methodology/approach

The paper draws on both the author's own practical experience of involvement in criminal asset recovery in the UK, and other published material in the field.

Findings

While an increasing amount is being recovered from criminals by the various agencies involved in the recovery of criminal assets, there is clearly more that can be achieved with the tools provided. In order to do so, there requires to be change at a number of levels, including legislative, structural and cultural.

Practical implications

The paper identifies a number of challenges, which need to be met if asset forfeiture is to fulfil its potential to reduce crime.

Originality/value

The paper combines a strategic overview as to whether the mechanisms of asset recovery are accomplishing what they are designed to do with a practitioner's grasp of what is occurring at a practical level.

Details

Journal of Money Laundering Control, vol. 10 no. 1
Type: Research Article
ISSN: 1368-5201

Keywords

Article
Publication date: 16 October 2007

Anthony Kennedy

Recognising that financially related, personal information is the raw material of successful asset recovery investigations, the paper aims to examine the mechanisms which…

1756

Abstract

Purpose

Recognising that financially related, personal information is the raw material of successful asset recovery investigations, the paper aims to examine the mechanisms which investigators may use to gather such information and the legal barriers to information gathering.

Design/methodology/approach

The paper draws on the author's own practical experience of involvement in criminal asset recovery proceedings in the UK.

Findings

It is the State's obligation to deliver criminal asset recovery in the most efficient and cost‐effective way, consistent with privacy rights and obligations, providing value for money in what is delivered by law enforcement. Doing so will require making better use of financial information held by public sector agencies. There must be no form of financial information which is beyond the reach of an investigator in an appropriate case. If there is, criminals will utilize that weakness to place criminal assets where information in respect of those assets cannot be obtained. If asset recovery is to be successful, it is essential that – to use the metaphor of financial information as “dots” – investigators are able to collect the dots, connect the dots and share the dots.

Practical implications

The paper identifies: the need to keep the legal tools used to obtain information under regular review; eight core information skills which investigators must develop for effective asset recovery; and the importance of a multi‐disciplinary approach in analysing financial information.

Originality/value

The paper explores UK criminal asset recovery from an informational perspective.

Details

Journal of Financial Crime, vol. 14 no. 4
Type: Research Article
ISSN: 1359-0790

Keywords

Article
Publication date: 2 January 2018

Francis Dusabe

In this paper, the author intends to showcase the effectiveness of the Rwandan legal regime governing criminal asset recovery. This paper aims to advocate for a need to enforce…

Abstract

Purpose

In this paper, the author intends to showcase the effectiveness of the Rwandan legal regime governing criminal asset recovery. This paper aims to advocate for a need to enforce laws, which seems to be dormant, and to ensure fairness of action when confiscating or seizing assets that initially belongs to bonafide third parties.

Design/methodology/approach

The author assesses the effectiveness of law No. 42/2014 of 27/01/2015 governing the recovery of offence-related assets in Rwanda and compares it with established international standards provided in major conventions to which Rwanda is a party. Primary and secondary sources of legal research have been used. Primary sources include international conventions, domestic laws and case laws. Secondary sources include books, chapters, journal articles and policy papers.

Findings

In this paper, the author submits that the law on crime-related asset recovery suffers from strategic deficiencies and gaps and posits that the process of asset recovery should be streamlined and balanced to meet the aims of crime prevention.

Originality/value

This research paper is a first of its kind. Through positive criticism, it showcases that Rwanda is doing well through the establishment of relevant laws to combat crime. However, it proposes solutions to identify gaps. This paper is original and has never been published anywhere else, and all sources used have duly been recognized.

Details

Journal of Financial Crime, vol. 25 no. 1
Type: Research Article
ISSN: 1359-0790

Keywords

Article
Publication date: 1 February 1999

Michelle Gallant

In November 1998, the Home Office Working Group on Confiscation, a group convened in 1990 to monitor the operation of confiscation and money‐laundering legislation, released its…

Abstract

In November 1998, the Home Office Working Group on Confiscation, a group convened in 1990 to monitor the operation of confiscation and money‐laundering legislation, released its third report, a comprehensive examination of the confiscation and money‐laundering control regimes in England and Wales. The report recommends numerous changes, some of which fill gaps in the present framework and others that radically alter the methods deployed to ensure that criminal profits do not lie secure in the hands of their owners. Previous reports heavily influenced subsequent legislative developments so it is anticipated that this document foreshadows the legislative course to be pursued by the Labour Government in the near future.

Details

Journal of Financial Crime, vol. 6 no. 4
Type: Research Article
ISSN: 1359-0790

Article
Publication date: 2 July 2018

Stefan D. Cassella

Civil forfeiture is an increasingly common way for governments to relieve criminal wrongdoers of the proceeds of their crimes and to restore the property to the victims of the…

179

Abstract

Purpose

Civil forfeiture is an increasingly common way for governments to relieve criminal wrongdoers of the proceeds of their crimes and to restore the property to the victims of the offense. The question that is asked, however, is this: Is civil forfeiture an essential tool that is needed to fill a gap in the arsenal of weapons available to law enforcement or is it a prosecutorial shortcut that allows cases to be closed without obtaining the evidence needed to obtain a criminal conviction in cases that should be prosecuted criminally. The answer is that it is both. When properly used, civil forfeiture is an essential tool that provides a means of recovering property, but it is a tool that can also be used to save time and money even though the investment of those resources in bringing a criminal to justice would better serve the public interest. The aim of this paper is to show why this is so.

Design/methodology/approach

Analysis of the use of civil forfeiture in the USA.

Findings

Civil forfeiture is an essential law enforcement tool.

Originality/value

While undeniably an essential law enforcement tool, civil forfeiture is sometimes used as a shortcut to conserve resources.

Details

Journal of Money Laundering Control, vol. 21 no. 3
Type: Research Article
ISSN: 1368-5201

Keywords

Article
Publication date: 2 January 2024

Veltrice Tan

This paper aims to determine the types of legal mechanisms that authorities can use to recover stolen assets for and from China.

Abstract

Purpose

This paper aims to determine the types of legal mechanisms that authorities can use to recover stolen assets for and from China.

Design/methodology/approach

Newspaper articles and books are examined as are relevant reports by various regulatory authorities and academic institutions.

Findings

The effectiveness of legal mechanisms in the recovery of stolen assets may be affected by issues such as the difficulties in tracing illicit funds, the ambiguous nature of “value” as well as the rise in technology.

Research limitations/implications

There are limited data available in relation to the prevalence of corrupt officials along the Belt and Road Initiative and the statistical success in the recovery of stolen assets. Any discussions within this paper are based on the impressionistic observations of this author, which may not reflect the true state of affairs of the Belt and Road Initiative.

Practical implications

Those who are interested in examining how authorities could recover stolen assets from and for China will have an interest in this topic.

Originality/value

The value of the paper is to demonstrate the difficulties in recovering stolen assets for and from China.

Details

Journal of Financial Crime, vol. ahead-of-print no. ahead-of-print
Type: Research Article
ISSN: 1359-0790

Keywords

Article
Publication date: 2 October 2017

Zaiton Hamin, Normah Omar and Muhammad Muaz Abdul Hakim

The purpose of this paper is to examine the broad concept of forfeiture, its legal positions in the UK and Malaysia, and to highlight the implications of such forfeiture systems…

Abstract

Purpose

The purpose of this paper is to examine the broad concept of forfeiture, its legal positions in the UK and Malaysia, and to highlight the implications of such forfeiture systems and legislations.

Design/methodology/approach

This paper uses a doctrinal legal analysis and secondary data, which analyses primary sources, the POCA (2002) and the AMLATFA 2001, and secondary sources including case law, articles in academic journals, books and online databases.

Findings

The authors contend that the civil forfeiture system and law have far-reaching implications, affecting not only law enforcement agencies, but also on property owners, the courts and bona fide third parties. Also, civil forfeiture law as contained in AMLATFA 2001 represents one of the most serious encroachments on private property rights. Not only that, such a legal rule has made property, and not the owner, guilty until proven innocent.

Originality/value

This paper could be a useful source of information for practitioners, academicians and students. It could also be a beneficial guide for policymakers for any possible future amendments to the law.

Details

Journal of Money Laundering Control, vol. 20 no. 4
Type: Research Article
ISSN: 1368-5201

Keywords

Article
Publication date: 17 February 2022

Olusola Joshua Olujobi and Ebenezer Tunde Yebisi

This study aims to investigate the Federal Government’s failure to combat money laundering and terrorism financing and the various hurdles to enforce the Money Laundering…

Abstract

Purpose

This study aims to investigate the Federal Government’s failure to combat money laundering and terrorism financing and the various hurdles to enforce the Money Laundering (Prohibition) Act, 2012 (as amended), effectively, which prohibits illegal earnings criminally induced investments in and out of Nigeria. This has had an impact on the country’s economic potential and its image in the international community. Despite many anti-corruption laws criminalising money laundering and terrorism financing, it is rated among the nations with the highest poverty index despite its immense natural resources.

Design/methodology/approach

This study uses a conceptual legal method to help a doctrinal library-based investigation by using existing material. This study also makes use of main and secondary legislation, such as the Constitution, the Money Laundering (Prohibition) (Amended) Act 2012 and the Terrorism (Prevention) Act 2013 (as amended), as well as case law, international conventions, textbooks and peer-reviewed publications. A comparison of anti-money laundering legislation in Canada, the UK, Hong Kong, China and Nigeria was conducted, with lessons learned for Nigeria’s anti-money laundering and anti-terrorism financing laws. According to the findings, the Act is silent on the criminal use of legitimate earnings to fund terrorism and cultism.

Findings

There is no well-defined legal framework for asset recovery and confiscation. In Nigeria’s legal system, this evident void must be addressed immediately. To supplement existing efforts to prevent money laundering, the research develops a hybrid model that incorporates the inputs of government representatives and civil society organisations. This study suggests a complete revision of the Act to eliminate ambiguity and focus on the goals of global anti-money laundering and anti-terrorist funding restrictions.

Research limitations/implications

One of the limitations of this study is the paucity of literature and data on money laundering and terrorist financing in Nigeria due to the secrecy around the crimes, which do not give room for the collection of statistical data and due to the transactional nature of the crimes. This is not to submit that no attempts have been made in the past or recent times to quantify the global value of money laundering and its effects on Nigeria’s economy. Such attempts have been inconclusive and inaccurate.

Practical implications

The dearth of records on the magnitude of money laundering in Nigeria has limited generalising the research findings due to the limited access to some required information. However, this study is suitable for adoption in other sectors of the economy in dealing with clandestineness in money laundering and terrorism financing. Future researchers are commended to use the quantitative assessment method to appraise the effects of money laundering and terrorist financing laws and policies in Africa to supplement the current literature in the field.

Originality/value

The research develops a hybrid model that incorporates the inputs of government representatives and civil society organisations. This study suggests a complete revision of the Act to eliminate ambiguity and focus on the goals of global anti-money laundering and anti-terrorist funding restrictions.

Details

Journal of Money Laundering Control, vol. 26 no. 2
Type: Research Article
ISSN: 1368-5201

Keywords

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