Prosecutorial challenges in freezing and forfeiting proceeds of transnational crime and the use of international asset sharing to promote international cooperation

Abstract

Argues that confiscation of criminals’ assets is an effective and justifiable way of depriving them of the proceeds of crimes such as drug trafficking. Describes the challenges facing confiscation and the reasons why there has so far been only modest success in this. Refers to legal cases in the Cayman Islands as an illustration. Distinguishes between the conviction‐based approach and the civil or in rem forfeiture method, and illustrates use of the latter in the USA, the Cayman Islands and the UK. Discusses the justification for the reversal of proof in forfeiture cases. Considers the civil and in rem forfeiture procedures as countermeasures to the special case of terrorism. Cites the Geneva Convention as an example of global law enforcement in order to overcome problems of mismatch between different countries’ regimes, and points out the effectiveness of mutual legal assistance treaties (MLATs) as methods of legal assistance and cooperation. Contends that since all states have an obligation to combat organised crime, each state also has a moral right to share in the forfeited proceeds of these crimes.

Citation

Smellie, A. (2004), "Prosecutorial challenges in freezing and forfeiting proceeds of transnational crime and the use of international asset sharing to promote international cooperation", Journal of Money Laundering Control, Vol. 8 No. 2, pp. 104-114. https://doi.org/10.1108/13685200510621109