Hitting them in the pocket? Civil recovery powers under POCA 2002

Civil recovery powers represent a radical approach to tackling crime. This is especially so in relation to so-called Godfathers of organised crime (the ‘organisers’), who are frequently thought to be beyond criminal prosecution whether because they do not directly commit the dirty work themselves or because people are afraid to testify. Civil recovery thus allows for property to be seized even where criminal prosecution is not possible.

Targeting criminal assets is an understandable normative stance, in that assets arising from criminal activity ought to be forfeited – ie, crime should not pay. The normative stance underpinning civil recovery is uncontroversial – what is problematic, however, is that civil recovery allows for property to be seized in the absence of criminal conviction, undermining due process rights, and introducing the potential for abuse by law enforcement agencies (as has happened in the United States). While civil recovery does have the potential to impact on organised criminal activities, it also has the potential to distort policing priorities (a form of ‘policing for profit’), to undermine individual rights, and to circumvent the criminal law.

This project will explore the development of civil recovery powers during their first 15 years (2002- 2017), using case transcripts and in-depth qualitative interviews to garner insights from key actors in the criminal justice system on (i) history, policy, and legal developments and (ii) human rights and legitimacy. This project will examine problems that enforcement agencies faced during the embryonic (indeed, defining) years of civil recovery, as well as criticisms of civil recovery and whether such criticisms have come to fruition or were merely of theoretical concern.

While it does have some advocates, civil recovery has attracted a great deal of criticism in the academic literature. My work to date has criticised the use of civil processes to avoid enhanced procedural protections of the criminal process, arguing that civil recovery undermines due process rights and is a step ‘too far’ even for tackling organised crime. Similar sentiments have been expressed by others, in the UK and elsewhere. To consider whether such criticisms have come to fruition in the initial years of civil recovery, this project will carry out a systematic examination of the content and development of civil recovery powers during the period 2002-2017, undertaking approx 35 research interviews (open-ended questions) with key stakeholders.

At the end of this project, a workshop will be held to disseminate findings.

This project is funded by the AHRC Leadership Fellowship scheme (ref: AH/P00640X/1).