Confiscation and Civil Recovery
A Guide to Parts 3 and 5 of the Proceeds of Crime Act 2002
PUBLISHER: W GREEN
The trouble with proceeds of crime law is that it falls between two stools. Civil practitioners tend to associate it with crime, while criminal practitioners seem to find the use of what looks like civil pleadings offputting. This is unfortunate because it means, in practice, that only a few practitioners have any real grasp of the subject, and what should be a judicial procedure degenerates into a process which diverges markedly from the statutory regime. An example is to be found in the description of what happened in HM Advocate v Cheung 2013 SCCR 580, para 11.
Confiscation has been an element in the disposal of criminal cases since 1987 (1986, if one looks south of the border). Civil recovery is a more recent innovation, but not much more recent. Both regimes can have very significant consequences. Confiscation orders will often wipe out the entire estates of those to whom they apply. Civil recovery proceedings will sometimes result in orders for the payment of very large sums of money. It is, therefore, important that those affected are represented properly. The regimes are, undeniably, complex and, until now, my own annotations to the Act as passed were the only consideration of the subject from a Scottish perspective. It is, therefore, a pleasure to be able to commend to the profession Heather Carmichael’s excellent textbook on confiscation and civil recovery.
The initial impression on opening the book is of structure and thoroughness. That impression is confirmed by closer examination. The learned author approaches her subject in a well-organised way and, after an initial brief introduction which sketches its outlines, she provides a cogent and comprehensive account of each element and stage in a confiscation or civil recovery procedure. A practitioner confronted by a proceeds of crime case could, with confidence, follow this book through, applying each stage to the case with which he or she is dealing, and be sure that nothing had been missed.
Carmichael addresses the questions to be addressed by the court in relation to confiscation, procedure, human rights issues, enforcement, preservation of property and investigatory orders. Then, she turns to part 5 of the Act and to civil recovery in the Court of Session and summary applications for the forfeiture of seized cash. For this part, too, she sets out the concepts and describes the procedure with helpful clarity. Finally, she devotes a chapter to the (somewhat arcane) subject of exploitation proceeds orders, which are designed to prevent criminals from benefiting from their crimes by writing profitable books about them.
One notable feature of the book is the full and intelligent use which is made of English authorities. The Proceeds of Crime Act 2002 contains parallel regimes for the several parts of the United Kingdom and, as a jurisdiction with a larger caseload, the English courts have had the greater opportunity to analyse the statutory scheme. That is not to say that what the English courts have done can be applied without further thought to the Scottish provisions. As Fortson has pointed out in his chapter on the subject, there are important differences between the regime in England and that in Scotland (Rudi Fortson QC, Misuse of Drugs and Drug Trafficking Offences (6th ed, 2011), para 13-002). Carmichael has handled the English authorities with skill and discrimination, and her use of them adds significantly to the value of the book.
Going by what is said to the press on behalf of the Crown whenever a confiscation order of any size is imposed, the use of confiscation and civil recovery orders is only likely to increase. Any court practitioner (in particular, any criminal practitioner) could be confronted by such a procedure at any time. That being so, an understanding of the regime is essential. Heather Carmichael has provided an excellent reference.
Law of the European Convention on Human Rights
Harris, O'Boyle and Warbrick
PUBLISHER: OXFORD UNIVERSITY PRESS
This book is regarded by many as the longstanding, authoritative text on the application of the European Convention. Now in its third edition, it remains a superb overarching text on an area of law that is engaged in all aspects of practice, as evidenced by the breadth of this work.
The authors bring the text up to date as at 31 October 2013. They note that the court has continued its expansion of positive obligations on the state under article 2, but note a recognition by the court of criticism of its perceived encroachment on the role of national decision makers, particularly in the application of the Convention in immigration and deportation issues. The extraterritorial application of the Convention in Al-Skeini is well considered.
A constructive dialogue has developed with the Supreme Court in the UK, as well as with those in France and Germany. However, the rule of subsidiarity provides that the application of the Convention is considered before the national courts and, in this book, practitioners will be able to draw on a wealth of case law and research which will enable them to develop an approach to interpretation under national law.
In this issue
- Factors in the balance
- Balancing the right to decide
- Life yet in oil and gas
- Commercial awareness begins at trainee stage
- Relocation and the finances of contact
- Reading for pleasure
- Opinion: Archie Maciver
- Book reviews
- President's column
- Up and running at last
- People on the move
- With this Act, I thee wed
- Tax: a mission to inform
- For better, for worse
- Filling the Bournewood gap
- Power talking
- For whose aid?
- Balanced view
- A laughing matter?
- Directors: how much is too much, or not enough?
- Credit where it's due?
- New age, new image, new media, continuing problems?
- Scottish Solicitors Discipline Tribunal
- Lawyers as leaders
- Property Law Committee update
- Property Standardisation Group update
- Over the finishing line – 2
- Not proven no more?
- Vulnerable clients guidance now extended to the young
- From the Brussels office
- Take it to the schools
- A future – a vision
- Ask Ash
- A strategy with legs?
- Who's got what it takes?
- I can act, but should I?
- Prominence unplanned