The Limits of Asset Confiscation: On the Legitimacy of Extended Appropriation of Criminal Proceeds

The Limits of Asset Confiscation: On the Legitimacy of Extended Appropriation of Criminal Proceeds

by Johan Boucht

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Product Details

ISBN-13: 9781509907076
Publisher: Hart Publishing
Publication date: 06/01/2017
Pages: 280
Product dimensions: 6.14(w) x 9.21(h) x 0.80(d)

About the Author

Johan Boucht is Professor of Criminal Law at the University of Oslo, Norway. He has a law degree from the University of Helsinki, Finland, and obtained his doctorate from Uppsala University, Sweden.

Table of Contents

Acknowledgements vii

Table of Cases xiii

Table of Legislation xix

Official Documents xxi

List of Abbreviations xxv

1 Introduction 1

I The Rise of Extended Appropriation as a Criminal Policy Measure 1

II Extended Asset Appropriation and other Forms of Confiscation 14

III A Note on Terminology 16

IV A Note on Methodology 19

V Delimitations 24

VI Outline of the Book 24

2 Extended Criminal Confiscation 27

I The Principal Features of Extended Criminal Confiscation 27

II Extended Criminal Confiscation in the EU 30

A Background to the EU's Asset Confiscation Regime 30

B Extended Confiscation in the 2005 Framework Decision 33

C The Directive (2014/42/EU) on the Freezing and Confiscation of Proceeds of Crime in the EU 35

III Criminal Confiscation in Norway and Sweden 40

A Norway 40

i Regular Criminal Confiscation 40

ii Extended Criminal Confiscation 42

B Sweden 45

i Regular Criminal Confiscation 45

ii Extended Criminal Confiscation 48

IV Criminal Confiscation in England and Wales 51

A Introduction 51

B The First Phase: Determining if the Defendant has a Criminal Lifestyle 52

C The Second Phase: Determining Whether the Defendant has Obtained Benefit from Criminal Activity 53

i 'Obtaining Benefit' 53

ii Alternative 1: The Defendant Has a Criminal Lifestyle 57

iii Alternative 2: The Defendant Does Not Have a Criminal Lifestyle 59

D The Third Phase: Determining the Recoverable Amount 59

E The Fourth Phase: Determining the Available Amount 62

F Enforcement 64

V Summing Up the Comparison 64

3 Non-Conviction Based Asset Confiscation 67

I The Principal Features of Non-Conviction Based Confiscation 67

II Non-Conviction Based Confiscation in England and Wales, Ireland and the EU 73

A Civil Recovery in England and Wales 73

i Introduction 73

ii Recovery of Property 75

iii Recovery of Cash 80

B Civil Recovery in Ireland 82

i Introduction 82

ii The Criminal Assets Bureau 83

iii Civil Recovery of Criminal Proceeds 84

C Non-Conviction Based Confiscation in the EU 89

D Summing Up the Comparison 92

4 Justifying Asset Confiscation 95

I Introduction 95

II Justifying Extended Appropriation 96

A Introduction 96

B Ratio 1: Restoration 98

C Ratio 2: Deterrence 101

D Ratio 3: Safety Measures (Prevention) 109

E Ratio 4: Remedy 114

F Concluding Discussion 115

III The Legal Nature of Extended Asset Appropriation 116

A Introduction 116

B Punishment and Confiscation: Two Approaches 118

i The Conceptual Approach 118

ii The ECtHR Approach 121

C Consideration of the Two Approaches 131

D Concluding Remarks 139

5 Towards a Normative Framework for Assessing Extended Asset Appropriation 141

I Exploring the Limits of Extended Asset Appropriation 141

II Extended Criminal Confiscation: The Target Area 144

A Preliminary Remarks 144

B The Triggering Offence 144

C The Confiscation Subject 146

i One-time Offenders 146

ii Habitual Offenders 149

iii Organised Crime 150

iv Third Party Confiscation 156

D The Confiscation Object 159

E The Nature and Specificity of the Prior Unlawful Conduct 164

F A Link between the Confiscation Subject and the Criminal Conduct? 167

III Quantification of Extended Criminal Confiscation Orders-Should Substantive Proportionality Be Required? 168

A Preliminary Remarks 168

B Retrospective Proportionality 170

C Prospective Proportionality 173

i Prospective Proportionality under Article 1 ECHR-P1 173

ii The Relevance of Prospective Proportionality in Criminal Confiscation Proceedings Generally 177

iii Extended Confiscation and Prospective Proportionality 181

iv A General Fairness Requirement? 182

IV Extended Criminal Confiscation: Procedural Safeguards 185

A Introduction 185

B The Standard of Proof 185

C The Burden of Proof 193

D General Procedural Guarantees 201

V Non-Conviction Based Confiscation: The Target Area 205

A Preliminary Remarks 205

B The Confiscation Object 205

C The Confiscation Subject 209

D Specificity of the Unlawful Conduct 213

VI Quantification of Non-Conviction Based Confiscation Orders-Should Substantive Proportionality be Required? 215

A Introductory Remarks 215

B Prospective Proportionality 216

C A Fairness Requirement 218

VII Non-Conviction Based Confiscation: Procedural Safeguards 219

A Preliminary Remarks 219

B The Standard of Proof 220

C Burden of Proof 227

D General Procedural Guarantees 230

6 Curtain: Assessing the Feasibility of Extended Appropriation 233

Bibliography 237

Index 245

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