The United States
There are two types of forfeiture (confiscation) cases, criminal and civil. Approximately half of all forfeiture cases practiced today are civil, although many of those are filed in parallel to a related criminal case. In civil forfeiture cases, the US Government sues the item of property, not the person; the owner is effectively a third-party claimant. The burden is on the Government to establish that the property is subject to forfeiture by a “preponderance of the evidence.” If it is successful, the owner may yet prevail by establishing an “innocent owner” defense.
Federal civil forfeiture cases usually start with a seizure of property followed by mailing a notice of seizure from the seizing agency (generally the DEA or FBI) to the owner. The owner then has 35 days to file a claim with the seizing agency. The owner must file this claim to protect his property in court later. Once the claim is filed with the agency, the U.S. Attorney has 90 days to review the claim and file a civil complaint in the U.S. District Court. The owner then has 35 days to file a judicial claim in court asserting his ownership interest. Within 21 days of filing the judicial claim, the owner must also file an answer denying the allegations in the complaint. Once done, the forfeiture case is fully litigated in court.
In civil cases, the owner need not be judged guilty of any crime; the Government can prevail by proving that someone other than the owner used the property to commit a crime (this claim seems outdated and would be contradicted by the “innocent owner” defense). In contrast, criminal forfeiture is usually carried out in a sentence following a conviction and is a punitive act against the offender.
The United States Marshals Service is responsible for managing and disposing properties seized and forfeited by Department of Justice agencies. It currently manages around $2.4 billion worth of property. The United States Treasury Department is responsible for managing and disposing of properties seized by Treasury agencies. The goal of both programs is to maximize the net return from the seized property by selling at auctions and to the private sector and then using the property and proceeds to repay victims of crime and, if any funds remain after compensating victims, for law enforcement purposes.
- the United Kingdom*
In the UK, asset forfeiture proceedings are initiated under the Proceeds of Crime Act 2002. These fall into various types. Firstly there are confiscation proceedings. A confiscation order is a court order made in the Crown Court requiring a convicted defendant to pay a specified amount of money to the state by a specified date. Secondly, there are cash forfeiture proceedings, which take place (in England and Wales) in the Magistrates Court with a right of appeal to the Crown Court, having been brought by either the police or Customs. Thirdly, there are civil recovery proceedings that are brought by the National Crime Agency “NCA.” Neither cash forfeiture proceedings nor proceedings for a civil recovery order require a prior criminal conviction.
In Scotland, confiscation proceedings are initiated by the procurator fiscal or Lord Advocate through the Sheriff Court or High Court of Justiciary. Cash forfeiture and civil recovery are brought by the Civil Recovery Unit of the Scottish Government in the Sheriff Court, with appeals to the Court of Session.
In April 2014, the European Parliament and the Council of the European Union enacted Directive 2014/42/EU on the freezing and confiscation of proceeds of crime in the European Union.[The directive allows the seizure and confiscation of property without a criminal conviction only under very specific circumstances.
Article 4 states:
The Member States shall take the necessary measures to enable the confiscation, either in whole or in part, of instrumentalities and proceeds or property the value of which corresponds to such instrumentalities or proceeds, subject to a final conviction for a criminal offense, which may also result from proceedings in absentia.
Where confiscation based on paragraph 1 is not possible, at least where such impossibility is the result of illness or absconding of the suspected or accused person, Member States shall take the necessary measures to enable the confiscation of instrumentalities and proceeds in cases where criminal proceedings have been initiated regarding a criminal offense which is liable to give rise, directly or indirectly, to economic benefit. Such proceedings could have led to a criminal conviction if the suspected or accused person had been able to stand trial.
Part XII.2 of the Criminal Code, a federal statute, provides a national forfeiture régime for property arising from the commission of a designated offense (i.e., most indictable offenses) after the conviction. Provision is also made for the use of restraint and management orders to govern such property during the course of a criminal proceeding.
All provinces and territories except Newfoundland and Labrador, Prince Edward Island, and Yukon Territory, have also enacted statutes to provide similar civil forfeiture régimes. These generally provide, on a balance of probabilities basis, for the seizure of property:
Acquired from the results of the unlawful activity Is likely to be used to engage in unlawful activity.
The Supreme Court of Canada has upheld civil forfeiture laws as a valid exercise of the provincial government’s power over property and civil rights. The extent to which the Charter of Rights and Freedoms applies to civil forfeiture statutes is still disputed. If such laws are applied for a “punitive” purpose, case law suggests that the Charter applies.10 In cases where evidence has been obtained illegally, courts in Alberta and British Columbia have excluded such evidence.