European recovery – it's on the way

Asset recovery is regarded, increasingly, as an important law enforcement tool in Europe, writes Alan Osborn, with techniques becoming more sophisticated and integrated with prosecutions and investigations. The fundamental approach here is not new. ‘Go after the money’ has been a commonplace of law enforcement in the financial sector since at least the time of Al Capone. But there has undoubtedly been a sharp awakening of interest in the concept since around 2000 following the successful crackdown on organised crime in Ireland through the use of unexplained wealth orders (UWO) and a string of high profile prosecutions of Mafia figures in Italy using a similar approach. “Mafia members are prepared to spend time in prison, but to take their assets is to really harm these individuals,” the leading anti-Mafia prosecutor Raffaele Grassi, vice director of the Italian National Police told an Australian parliamentary committee in 2009.

So while the recovery of dirty assets may not be strictly necessary to detect and prosecute money laundering and other financial crimes, it has considerable potency in law enforcement in weakening and demoralising the criminal element. On the European continent, this aspect has been relatively neglected in the past because most countries there require a criminal conviction, where it is necessary to produce evidence beyond a reasonable doubt, to secure confiscation. By contrast, the UK and Ireland operate the Anglo-Saxon legal system of ‘in rem’, or non-conviction-based (NCB), confiscation (sometimes referred to as civil seizure) where the prosecution only has to convince on the balance of probabilities. The Irish justice minister Alan Shatter pledged in September this year “to promote and progress initiatives at European level that will seek to advance the concept of a European asset forfeiture regime that is built on a common non-conviction-based regime.” How likely is this and when might it happen?