Civil Forfeiture and Article 6 of the ECHR: Due Process Implications for England and Wales and Ireland

Abstract

Civil forfeiture is playing an increasingly prominent role in the fight against organised crime. While this tool is attractive to law enforcement agencies, it does give rise to concerns under Art 6 of the ECHR. Such proceedings ought to attract the full range of enhanced procedural protections inherent in the criminal process. Even if the Strasbourg Court decides otherwise, there is an argument that the presumption of innocence ought to apply where civil forfeiture proceedings are instituted against a person subsequent to that person being acquitted in criminal proceedings. The Strasbourg jurisprudence, though, is permeated by confusion and inconsistency, which does not inspire confidence that the rights of the individual will be protected. The final section of this paper, then, considers whether civil forfeiture represents a proportionate response in the fight against organised crime. Ultimately, though, given lack of information on such crime, we cannot provide an answer either way – what can be said, though, is that civil forfeiture has had a significant impact on the rights of the individual.

Keywords: proceeds of crime, civil forfeiture, non conviction based asset forfeiture, confiscation, organised crime, proportionality, presumption of innocence, criminal procedure, evidence, due process, ECHR, human rights