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How Far is Too Far? Theorising Non-Conviction-Based Asset Forfeiture

(2015) IJLC 11(4) 398-411

16 Pages Posted: 10 Sep 2016  

Jennifer Hendry

School of Law, University of Leeds

Colin King

Sussex Law School; Sussex Law School, University of Sussex

Date Written: August 2, 2015

Abstract

Non-conviction-based (NCB) asset forfeiture is a relatively recent addition to law enforcement's armoury in the fight against organised crime in the UK. It allows for criminal assets to be forfeited to the State even in the absence of criminal conviction, the stated objective being to undermine the profit incentive of criminal activity. Until now, NCB asset forfeiture has principally been critiqued from a criminological point of view, specifically concerning the Packer models and the civil / criminal dichotomy – aside from this, however, it remains rather underdeveloped theoretically. This paper addresses this lack of legal theoretical engagement with NCB asset forfeiture by providing an initial contribution from systems-theoretical perspective. This contribution makes use of systems theory’s unique insights to critique the perceived ‘failure of law’ that gave rise to the NCB approach, and challenges the legitimacy of that approach in terms of procedural rights.

Keywords: systems theory, civil recovery, differentiation, Luhmann, Teubner, Konditionalprogramme, organized crime

JEL Classification: K10, K14, K20

Suggested Citation

Hendry, Jennifer and King, Colin, How Far is Too Far? Theorising Non-Conviction-Based Asset Forfeiture (August 2, 2015). (2015) IJLC 11(4) 398-411. Available at SSRN: https://ssrn.com/abstract=2764935

Jennifer Hendry (Contact Author)

School of Law, University of Leeds ( email )

Leeds LS2 9JT
United Kingdom

HOME PAGE: http://www.law.leeds.ac.uk/about/staff/hendry.php

Colin P. King

Sussex Law School ( email )

Falmer
Brighton BN1 9QN
United Kingdom

HOME PAGE: http://www.sussex.ac.uk/law/people/peoplelists/person/355059

Sussex Law School, University of Sussex ( email )

Freeman Building
Falmer
Brighton, BN1 9QE
United Kingdom

HOME PAGE: http://www.sussex.ac.uk/law/people/peoplelists/person/355059

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