Joint Committee On Human Rights Eleventh Report

The Home Office Response on Civil Recovery Issues


17. The Government takes issue with our view that the civil recovery procedure would be likely to be treated as giving rise to a criminal charge, thus importing the right to be presumed innocent until proved guilty and the right to legal representation under ECHR Article 6(3), as well as activating the right to be free of retrospective penalties under ECHR Article 7. The reasons for the Government's view that the civil recovery regime would fall to be treated as civil rather than criminal for the purposes of the ECHR are helpfully set out.[24] We accept that this is an area of law in which the application of established principles to particular facts is sometimes difficult. None the less, in view of the centrality of the issue to the human rights compatibility of the proposed new civil recovery regime, we think it may be useful for us to put on record our reservations about the Government's argument.

18. The Government accepts[25] that, as we explained in our Third Report,[26] there are three relevant factors, none of which is decisive—

-  the classification of the issue in domestic law;

-  the essential nature of the proceedings or 'offence', as a matter of substance rather than form;

-  the nature and severity of the 'penalty'.

The Government prefaces its discussion of these factors by observing—

it is important to bear in mind the purpose of civil recovery, namely to establish as a matter of civil law that there is no right to enjoy property that derives from criminal conduct. This applies no matter who committed the conduct; the focus is on the property, not the person.[27]

This comment sets the tone for the Government's argument as a whole.

19. We consider that it is mistaken. We start from the position that, as a matter of domestic law (apart from the new provisions contained in the Bill) there is no general principle that prevents everyone in the world from asserting a right to enjoy property merely because it derives, directly or indirectly, from criminal conduct. On the contrary: the general position is that people are entitled to enjoy the property which is in their possession, unless and until someone with better title to it lays claim to it. An attempt by the Government to establish a legal claim to property merely on the ground that it derived from criminal conduct was only recently rejected by the House of Lords in Attorney-General v. Blake (Jonathan Cape Ltd., third party).[28] That is why special legislation is needed in order to give power to recover proceeds of crime. To claim that the proposed civil recovery regime is concerned only with the property, and not with the conduct of any specific person in relation to it, highlights the human rights problems to which, we think, the proposals give rise; it does not help to justify the result.

20. Turning to the three relevant factors, the first is classification as a matter of domestic law. If domestic law classifies a matter as criminal, it will be treated by the European Court of Human Rights as criminal under the ECHR, automatically attracting all the safeguards accorded to defendants in criminal proceedings. If domestic law classifies the proceedings as civil, that carries relatively little weight under the ECHR. The reason is that giving domestic classification any real weight would make it too easy for a State to deprive people of the protection of appropriate standards of criminal procedure, merely by re-classifying matters as civil. We are therefore not swayed by the decision in the Bill to characterize the proposed new regime as civil.

21. The second factor is the substance of the proceedings. Here, the Government suggests that criminal conduct has relatively little relevance in civil recovery proceedings, because they do not lead to a conviction or sentence in criminal courts, the person in possession of property cannot be detained, and the proceedings may be brought against someone who is wholly innocent of any wrongdoing but merely happens to be in possession of property derived from crime.[29] We recognize that these considerations carry some weight. However, their weight is lessened by the facts that the recovered property goes to the state, and is not used to compensate victims; that it is recoverable merely because it derives from crime, not because anyone was unlawfully deprived of the property in the first place; and that (as the Government has said before) one of the main purposes of the civil recovery process will be to deprive of the benefits of crime those people who are thought to have committed crimes, but whom it has proved impracticable to charge or convict.[30] In our view, these factors indicate that the proceedings are intended to be both deterrent and punitive, and they counterbalance the considerations on which the Government relies.

22. The third factor is the nature and severity of the 'penalty'. This criterion looks to the effect or impact of the measure: even if it is not designed to deter and punish, is it so severe in its impact on the person against whom the order is made as to make it punitive? The test ensures that the full procedural safeguards of Article 6(2) and (3) apply to prevent a breach of the principle of nulla poena sine culpa (nobody should suffer a penalty who is not at shown to be at fault), a principle enshrined in the ECHR, EC law and European written constitutions, as well as in English criminal law, tort law, and public law. The Government claims that the recovery of property is preventative and reparative, not penal. It is said to be preventative because it takes out of circulation property which might otherwise be used to fund crime,[31] and reparative because it is 'akin to the right of a victim to recover in civil proceedings property which the victim has been deprived of by unlawful conduct...'[32] Both the adequacy of these claims as a guide to the nature and severity of the penalty, and their accuracy, are questionable. With regard to the nature and severity of the penalty, neither assertion addresses the severity of the impact of civil recovery on the person in possession of the property. This is important, in the light of the purpose of ECHR Article 6 and of the Government's acceptance that the person against whom proceedings are brought might not be implicated in the offence from which the property is alleged to derive.

23. In respect of the accuracy of the statements, we note, first, that there is nothing in the Bill requiring the effect of the order on the funding of other crime to be taken into account by the courts (as opposed to the Director of the Asset Recovery Agency) when deciding whether to accede to an application for civil recovery. Secondly, we do not accept that the procedure can properly be regarded as reparative. As already noted, none of the money recovered would go to victims of crime, and as a matter of current law the Government has no restitutionary right to recover property merely on account of the fact that it derives from crime. We have argued above that it is as at least as strongly arguable that the essential nature of the penalty is penal as that it is civil. It seems to us that the nature and severity of the penalty point in the same direction. The punitive element appears to us to be particularly strong in cases (which are likely to be common) where the respondent to the proceedings, who holds the property, is suspected of having been personally responsible for the offence from which the property was derived, especially if that person has not been convicted of and sentenced for the offence; but the severity of the impact on the defendant will be no less where he or she is not implicated in any criminal activity.

24. Taking all these matters into account, we consider that the Government's confidence that the civil recovery process would be treated as civil, rather than criminal, for ECHR purposes is not justified. We do not think that the matter is concluded either way by existing case-law from either the European Court and Commission of Human Rights or domestic courts.[33] We draw this conclusion to the attention of each House. It has implications for the discussion which follows.


25. Rights under Article 6(3) include the right to defend oneself through legal assistance of one's own choosing. The rights under Article 6(3) apply only to people charged with criminal offences. Consistently with their view on the proper classification of the civil recovery scheme, considered above, the Government believes that the civil recovery scheme would be unlikely to engage these rights.[34] For reasons which we have already developed, we disagree. However, the Government also makes it clear that, in any case, it expects that publicly funded legal aid would be available.[35] We consider that this satisfactorily answers our concern on this point.


26. In accordance with its view on the classification of civil recovery proceedings, the Government considers that they are not proceedings for a criminal offence or a penalty, and so do not engage the right to be free of retrospective penalties under ECHR Article 7. For reasons which we have already developed, we disagree. The Government accepts that, if it is wrong on the classification issue, the civil recovery provisions would violate ECHR Article 7 because of their retrospective operation.[36] We draw this matter to the attention of each House.

24   Memorandum, paras 22-37 Back

25   Memorandum, para. 25 Back

26   Third Report, para. 33 Back

27   Memorandum, para. 24 Back

28   [2000] 4 All ER 385, HL Back

29   Memorandum, paras. 27 and 28 Back

30   See our Third Report, para 5 Back

31   Memorandum, para 3 Back

32   Memorandum, para 32 Back

33   We note the Government's view, contained in note 6 to para. 35 of its Memorandum, that United Kingdom decisions, treating as criminal for ECHR Art. 6 purposes certain procedures which were normally regarded as civil in domestic law, are 'clearly distinguishable' from the civil recovery scheme, although the Government provided no argument to support that claim, which we regard as questionable Back

34   Memorandum, para 37 Back

35   Memorandum, paras 38-39 Back

36   The Government points out in para. 42 of the Memorandum, and we draw to the attention of each House, that we were wrong to suggest, in para. 40 of our Third Report, that there would be no limitation period for civil recovery proceedings. In fact, clause 287 of the Bill would insert a new section 27A in the Limitation Act 1980, providing for a twelve-year limitation in civil recovery cases Back

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