Legal and other fictions of civil recovery: is it possible to reconcile the civil recovery of the proceeds of grand corruption with criminal justice and human rights?

Thesis

Owing to corruption, between USD20 billion and USD40 billion is estimated to be in flight from developing countries annually - with only USD5 billion in stolen assets having been successfully repatriated in the past 15 years. The Arab Spring served only to strengthen the view that civil recovery is a helpful tool in the fight against the evils of corruption. However, difficult tensions exist between civil recovery and principles of criminal justice and human rights, including the presumption of innocence and the right to property. This thesis is centrally concerned with the civil classification of the civil recovery regime of England and Wales, as provided for in Part 5 of the Proceeds of Crime Act 2002 (POCA 2002), and its use to recover the proceeds of grand corruption. I conclude that grand corruption is a serious criminal wrong requiring it to be, except in a very limited number of exceptions, prosecuted in the criminal law. I also conclude that there are strong human rights-based objections to the court’s classification of civil recovery as ‘civil’, and that Part 5 powers ought to be considered criminal in substance thereby attracting the procedural protections of the criminal law and the European Convention for the Protection of Human Rights and Fundamental Freedoms. The core values of liberty, autonomy and freedom that underpin human rights are threatened by Part 5 proceedings since assets are recovered without any criminal conviction or any of the enhanced protections of the criminal law. Yet, at the same time, the recovery and repatriation of illicit assets through civil recovery can enhance human rights, in particular social and economic rights, and corrupt acts can in themselves constitute a violation of human rights. The thesis concludes that despite the important potential human rights benefits of civil recovery, the weakening of certain protections of Article 6 by the use of civil recovery can only be justified in extreme cases when clear criteria are met.

Authors: Virdi, A

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: asset recovery; social and economic rights; human rights; criminal justice; civil and political rights
• Subjects: Human rights; Criminal justice