Civil forfeiture threatened by European Convention on Human Rights

It appeared to be an elegant yet straightforward solution to the problem of how to prevent fraudsters from benefiting from their illicit activities. Admittedly there were mutterings about a shift in the burden of proof to the respondent and potential conflict with the European Convention on Human Rights (ECHR), but Downing Street was confident enough to give its imprimatur to proposals for a new National Confiscation Agency that would be exclusively responsible for the pursuit of noncash civil forfeiture cases. The aim was to apply civil forfeiture “where there is strong evidence of the criminal origins of the property, but insufficient evidence for criminal prosecution of the owner (see "Making crime pay”, Fraud Intelligence , July/August 2000). However, the viability of the plans is now in serious doubt following a recent decision by the Court of Criminal Appeal in Edinburgh. The court ruled that confiscation of the assets of a convicted drugs trafficker breached his rights under Article 6 of the ECHR. In the case of Robert McIntosh, who was jailed last year for heroin trafficking, Lords Prosser and Allanbridge held that to assume, in the absence of evidence, that his assets derived from his crime, was “totally inconsistent with the presumption of innocence.” If this view is upheld on appeal by the judicial committee of the Privy Council, it is difficult to see how the weaker balance of probabilities test in cases of civil forfeiture could survive judicial scrutiny.