Retreating into Doubt: Tainted Finance, Civil Devices and the Rule of Law

In confronting the financial aspect of crime, states place increasing reliance on civil, in contrast to criminal, legal processes. Sometimes called non-conviction based approaches, civil devices greatly facilitate the assault on finance since they operate in accordance with conventional civil legal principles rather than the norms of the criminal law. Accordingly since the legal ordering governing criminal manners is more exacting that the processes, rights or evidential understandings that apply to civil matters, a civil tool more ably captures tainted finance than any criminal device*. Drawing principally on developments in select common law jurisdictions, particularly Canada, this article offers a critical appraisal of modern civil tools aimed at criminal finance. Part 1 locates the civil strategy within the international anti-criminal finance project. Part 2 introduces the central attributes of the civil mechanisms. Part 3 lays out the essential theoretical tenets of the civil approach and Part 4 examines whether civil devices conform to the rule of law. Part 5 examines taxation as a discrete civil tool.