Relationship between criminal prosecution and civil rehabilitation

Criminal prosecution, especially paper intensive fraud, corruption and money laundering is expensive. The standard of certification is high, it is difficult to predict the result, the system is not intended to lose the procedure of criminal acts mainly for the state.

Some may think that this explains the introduction of voluntary forfeiture proceedings and the recent grant of binding power to the indictment authorities.

This kind of force is not entirely new. For example, HM Customs had the authority to confiscate goods for a long time. However, general citizenship resilience was introduced by Part 5 of the 2002 Criminal Procedure Proceedings.

Procedures are scheduled in the High Court and CPR applies. Initially, only the Director of the Asset Collection Agency was able to bring it out. ARA was abolished and its authority was transferred to the Crime Organized Crime Agency in 2007. At the same time, the right to raise a civil trial at the Crown Prosecution, Revenue Agency, Serious Fraud Office was granted.

The structure of the civil rehabilitation provision shall be confiscated by the court to the state if the property is found by the court to be acquired by crime, acquired by crime, or it is found to be traceable to crime. There are some exceptions. Especially if the property owner is a sincere buyer deserves without noticing the origin of the crime. The authority for the court to issue an order to freeze real estate has the authority that can be used to hold real estate and is similar to the order to freeze a part 25.

The use of these forces raises interesting questions. How should the prosecutor decide how to conduct a civil action, not a criminal? Will the criminal procedure be used to close the safeguard of criminal punishment? Are there any doubts that serious criminal activity has not been characterized by prosecution and convictions? What happens to the results of civil rehabilitation proceedings if a criminal action is bought?

Prosecution authority & # 39; decision to conduct civil rehabilitation proceedings

The opening section of Part 5 of the criminal action suit is s. 240. It provides the following:

"Purpose of this chapter

240 .- (1) In this chapter,

(A) In the civil proceedings in front of the High Court or the Court of Justice, it is possible to restore property that is or is represented by illegal acts.

(B) [similar in respect of cash forfeiture]

2) The authority granted by this section can be exercised with respect to property (including cash) whether or not there was illegal activity in connection with property. "

Section 2A of POCA (Originally s.2, which was reworked when ARA was discontinued) reveals the hierarchical structure between criminal and civil lawsuits. In this section, authority of POCA agrees with SOCA and indictment authorities must be exercised to reduce crime. The Secretary of the Interior shall issue the problem guidance of SOCA and the prosecutor general to the prosecutor authorities. That guideline should say that the reduction of crime is best achieved by criminal prosecution, not civil rehabilitation proceedings.

Therefore, by law, it is clear that civil rehabilitation proceedings are secondary to criminal proceedings. Where possible, criminal proceedings generally should be brought. If they are not brought in or fail, you can consider the civil rehabilitation process appropriately. So Collins J. in ARA v Director of He and Chen [2004] EWHC 3021 (Administrator) (Case prior to the abolition of ARA)

Therefore, the supervisor's approach must make criminal actions take precedence, if such procedures are not taken or fail for any reason for whatever reason, in order to take them she is her In the requirement of action ___ ___ 0 ___ ___ 0 ___ ___ 0

This system is understood and the authority given to the directors is wide and the object behind this law is that it is reasonable to enable the property obtained by means as I have indicated Regardless of whether an important prosecution has occurred, it is a criminal act to be collected from the person involved in the criminal act. "

Similar comments are (1) Satnam Singh v Director of ARA [2005] 1 WLR 3747 Here, Latham LJ states that "Generally, civil lawsuits are intended to be a subsidiary of the criminal process," (2) SOCA v Olden [2010] EWCA Civ 143, Sir Scott Baker, in consideration of the changes on serious criminal activity in 2007, said, "The philosophy of the law is to give priority to criminal proceedings and to bring them public Profit.

On November 5, 2009, the Secretary of the Interior and the Attorney General instructed the SOCA and the indictment authorities and are posted on the Attorney General's website. In summary, it says:

(1) Criminal prosecution must be considered first.

(2) If the case does not meet the indictment criteria (validity of evidence + public interest), civil rehabilitation can be considered.

(3) The SOCA / prosecution authority has the right to believe that public interests will be better by civil rehabilitation proceedings in determining whether public interest criteria are met for prosecution.

(4) Before considering civil rehabilitation, it is not necessary to complete a criminal investigation.

5 Criminal investigation can be continued concurrently with civil rehabilitation investigation, but criminal and civil trials can not be conducted simultaneously on the same criminality.

(6) Failed prosecution could lead to civil revival.

(7) Civil lawsuits may violate civil rehabilitation proceedings, but potential defenses can not escape prostitution by causing civil actions. If the case justifies the prosecution, a criminal procedure should be brought.

The guidance is prudent, following the statutory jurisdiction and the authorities decided under it, except to absolutely prohibit the coexistence of crime and civil litigation.

It is not clear that what is meant in guidance by criminal and civil lawsuits can not be "handed over" at the same time "on the same criminality". That means that in the event of a criminal action, civil rehabilitation proceedings should not be positively pushed through litigation. However, at the same time as a criminal action, it is possible to assume that it is prudent to have an order to freeze civil rehabilitation provisions. For example, if a property derived from a crime executed by X is held by Y, X is prosecuted and Y is not prosecuted for any reason.

Into R v Innospec Limited [2010] EW Misc 7 EWCC (Thomas Crown Court), Thomas Justice lives in Crown Court and declares the company that sinned Innospec for corruption. Crown and InnoSpec agreed to the amount of criminal confiscation order: $ 6.7 million, subject to the approval of the Crown Court. Parties have also agreed and naturally must obtain approval from the High Court. Innospec Submit it to a civil rehabilitation order of another $ 6 million.

Thomas · LJ explained that prosecutors can not agree on a specific fine in this manner, and do not enter this type of agreement again. In Consolidated Criminal Practice Direction, it is possible to specify only the range of sentences according to authority. The UK's international obligation under the OECD Foreign Public Official Bribery Convention 1997 requires the UK to implement "effective, proportional, refusal" criminal sanctions.

Thomas LJ emphasized that corrupt companies should be treated like any other criminal defendant. It was "rarely appropriate" for criminal activities by companies dealing with civil rehabilitation orders. This should have been a patent for crime sanctions, especially in the case of corruption. The main presiding judge may have room for civil revitalization in addition to fines. At the same time, we should consider the direction so that the same judge can consider both simultaneously.

Thomas · L · J's comment needs to be seen in the context. The context was a company with a prospect of realistic guilt. Indeed it was appealing for a crime. Thomas LJ can not imply that if there is evidence of corruption (or if there is a serious crime), it should be prosecuted and rarely cause a civil lawsuit. Otherwise Thomas LJ will encourage future decision making contrary to the Crown Prosecutors Code. What Thomas LJ needs to mean is that inspections for legal prosecution are fulfilled and usually the proposal should continue.

In this way, Innospec Crown prosecution and coordination guidance code are consistent. Criminal proceedings can be filed and if it is on the public interest to bring up the case, it should be acquired rather than a civil trial. Joint guidance allows the indictment authorities to take into consideration whether civil rehabilitation is possible in deciding whether prosecution is on the public interest. However, as mentioned in paragraph 4 of the joint guidance:

"We must pay attention so that individuals or corporate companies will avoid criminal investigation and prosecution by agreeing to create civil rehabilitation orders.The criminal disposal under the top priority principle that reduction of crime is relief measure Is generally best served by its route justified and in response to public interest factors in the relevant plaintiff's code "

Therefore, there is still a prospect of processing revenues from corruption or other serious crime investigations in civil lawsuits. SFO is promoting a policy on corruption that encourages self-report on the prospect that there is a possibility of processing civic recovery orders, not accusation, in particular, so it is highly likely to regard this as good news.

Initiation of civil rehabilitation proceedings in case criminal action failed

A defender who won the criminal action can understand at all that he is surprised at submitting a bill for civil rehabilitation claiming the same crime.

However, this is explicitly stipulated by s. 240 (2) above and it is worth being supported by joint guidance.

Furthermore, in a series of unbroken cases, at least for now, the courts have consistently claimed that such courses are within the law.

Into ARA v Green and other directors [2004] EWHC 3340 (Administrator) Collins J. POCA returned a submission that the ARA Director would have been wrong that submitting civil rehabilitation proceedings if the criminal action remained as an abuse of the process. Fate had entered the former criminal procedure. The ARA Director was an organization separate from the previous indictment authorities. The fact that the criminal procedure was an abuse of process did not itself constitute an abuse to pursue a recovery procedure in the High Court.

Similar comments ARA v Director of He and Chen [2004] EWHC 3021 (administrator).

In most of these cases, the court, in contrast to the function of prosecutors, was influenced by the separate role of ARA or SOCA. So Olupitan and another v Director of Asset Collection Agency [2008] EWCA Civ 104 Appeals Court approved the Langley J judgment to the judge.

"The director should not be equal to the crown as inspector, the director is independent with different roles and powers." The role and its authority exist regardless of criminal proceedings. Article 240 (2) (Act 2002). "

And Serious Organized Crime Investigation Agency v Olden (Above), the counsel appealed to the Court of Appeal for reasons that witnesses were illegally acquired and should not be accepted. His belief was abandoned. Civil rehabilitation proceedings began. The appellate court upheld the decision of the judge to appeal the evidence. Reference was made to the language provided from Langley J's ruling. Olupitan. The Court of Appeal insisted there was a decision to admit that it was evidence of a judge judge to be exempt from the judgment of the criminal court.

All these cases will be saved Olden It was the place where the only person who can submit civil rehabilitation proceedings was the director of ARA. The only case that was decided after a change was considered by the Criminal Law of 2007 was the case, Olden But, Olden The petitioner was not the former indictment authority but the SOCA and the appeals court seemed to have put some emphasis on the fact that SOCA was not the indictment authority.

As a result, the executive agency of civil rehabilitation function by Congress needs to reconsider which civil rehabilitation proceedings will be brought by the same person who failed in the criminal procedure.

The answer is considered to be found by law. S.240 (2) allows civil lawsuits, especially when criminal proceedings fail. If it turns out that the court is a criminal proceeding, it must receive a recovery order (s.266). Proof criteria is low - balance of probabilities (s.241 (3)). In addition, the joint guidance approved by s.2A specifically acknowledges civil rehabilitation in the event of criminal proceedings failing. These functions themselves are sufficient to be the same institution that civil rehabilitation claimors had previously refused the same defense.

The rescue of the defendant must be accepted in the general law of the High Court and is available in all cases and is stipulated in CPR paragraph 3.4 to strike as an abuse of the defendant's case. Thus, the filing of a civil lawsuit in which the prosecution failed is not considered itself as an abuse. However, it is possible to assume situations where it may be. For example, if the indictment authorities and the defendant reach an agreement to take advantage of the crime when preparing the confiscation order, that same agreement that the same indictment authority may in fact decline the subsequent civil rehabilitation proceedings Behind the (parity of reasoning Lunnon [2005] 1 Cr App (S) 24, the basis of the agreed judgment restricted the Crown's assertion in subsequent forfeit procedures).

Civil proceedings with confiscation order

POCA is taking measures to prevent recovery multiple times. The second part of the POCA creates the authority of the Crown Court to issue a confiscation order after the judgment. It is an order to pay the sum of money. It is calculated by evaluating the amount of the "interest" of the accused from the crime. Profit is the value (not retained) of the property acquired by the defendant. It can also be the value of the financial advantage obtained (eg avoided taxes or other liabilities). If so, the defense is considered to have got the sum of that amount (s.76 (5)). The benefit amount will be paid as a confiscation order unless the defense indication can be paid from his property. Then the order is limited to the value of the asset in the red.

POCA has already done somewhat disgusting attempts to prevent unfair civil rehabilitation when there is a confiscation order already.

First, s.308 (9) stipulates that if the Crown Court considers the person's interests for the creation of a confiscation order, its property can not be recovered. This is a terribly unthinkable legal provision. Even though it is aimed at preventing double recovery, recovery can be prevented at all.

For example, if the defendant stole 50,000 pictures in the fence at 20,000 points, his profit is 50,000 and its value is the value at the time of acquisition (s.80). If he dissipates 20,000 people and has no assets, no order of confiscation can be issued (excluding the nominal amount) (s.7 (2)). However, the effect of s.308 (9) is that paintings are not recoverable wealth. Therefore, it can not be subject to civil rehabilitation proceedings in the hands of the fence, nor to any other person receiving it. Furthermore, if the fence sells it for 40,000 yen, 40,000 people in the hands of the fence can not be collected because POCA's tracing rules need to exchange new assets for recoverable property. In this example, (s.305).

The same problem occurs when there is a joint acquisition and the only defense is guilty. Collaborative acquisition means each acquires everything that can occur in that property ( May [2008] 1 AC 1028). Therefore, if A is rejected to obtain 1 m illegally and it is passed to B which can not be prosecuted for any reason, civil rehabilitation proceedings against another person who can deal with B or a traceable fund or property on it You can not purchase. Even if A has assets and no confiscation orders are issued against him, that is the case.

This is a serious legislative mistake and needs to be fixed in Congress.

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