This afternoon’s OSPAs thought leadership webinar about asset confiscation was in many ways a companion-piece to Tuesday’s about fraud, and not only because some cases for asset confiscation are a result of frauds and scams.
The speakers were the criminal investigator Aidan Larkin, CEO of Asset Reality; Marie-Claire Amuah, a private prosecutor, Senior Associate at law firm Edmonds Marshall McMahon; Simon Davis, Barrister at Law at St Philips Chambers; and Mick Beattie, a retired policeman now National Coordinator for the financial crime portfolio at the UK national police chiefs’ body NPCC.
Marie-Claire began, by pointing to an all-time low for resources for the investigation and prosecution of fraud and acquisitive crime; and at the same time an unprecedented high in such reported crimes.
Mick Beattie described asset confiscation as a complicated process, and ‘a system with many moving parts’, and many loopholes. The defence think-tank RUSI and the Law Commission are among those to point to a problem. Mick asked where – at what point in a case – do you try to put this right, and ‘make the offender pay’. Before conviction, after the sentence? From the execution of a warrant, and arrest? What assets do you identify, who do you take or leave, and how do you store it – works of art will need insuring, an instance he gave. Assets may have disputed ownership. What training is there for the judiciary?
Simon Davis as a barrister ‘at the coal face’ as he put it, likewise described confiscation as complicated; and poorly paid. Generally, and unfortunately, the Bar is not interested in the process, he said, ‘and see it as torture, and as something to pass to the next person’. Often counsel will look to easy options, to avoid time in court, and resolutions are reached to drastically reduce the amount of confiscation – to the annoyance of the financial investigator, he added.
And as many of the judiciary have grown up experiencing this ‘torture’ as a lawyer, rather than embrace asset confiscation they look to counsel; hence, as he put it, a ‘general malaise’. He questioned also if HM Government is willing to invest in a proper confiscation regime. Simon suggested a ‘task force’ of confiscation lawyers, especially in high-value orders.
Last but not least, Aidan Larkin said that most criminals’ proceeds remain in the hands of criminals: “So crime pays for the criminals involved, we are not getting money back to victims, to fund more law enforcement; and we really need to look at it differently.” He pointed to the systems in the UK and worldwide for insolvency – for dealing with someone bankrupt, not allowing people in financial difficulties to make decisions; why not something similar around the assets of criminals? “I think we are a bit soft in that regard. We are not making crime pay.”
As for civil recovery, he spoke of a ‘postcode lottery’ in the UK and around the world,when civil recovery is chosen; he felt it’s not chosen enough.
Aidan featured in the April 2019 print edition of Professional Security Magazine when, while Asset Recovery Director at Wilsons Auctions, he spoke at the Midlands Fraud Forum annual conference in Birmingham.
The webinar also threw up how long-winded and hard to understand the law is around asset confiscation; and vague – such as, police and crime commissioners can spend a portion of assets recovered, and some do – yet what portion? One percent? 99pc?
You can freely listen back to the webinar, and past ones going back to March 31, at https://theospas.com/thought-leadership-webinars/. You can also sign up for this month’s announced webinars. Next Thursday’s covers victims, asking if they are forgotten in the criminal justice system.
