Select Committee on European Scrutiny Forty-First Report








Draft Framework Decision on confiscation of crime-related proceeds, instrumentalities and property.

Draft Framework Decision on confiscation of crime-related proceeds, instrumentalities and property.

Legal base:Articles 31 and 34(2)(b) EU; unanimity; consultation
Document originated:(a) 13 June 2002

(b) 1 October 2002

Deposited in Parliament:(a) 2 July 2002

(b) 4 October 2002

Department:Home Office
Basis of consideration:(a) EM of 16 July 2002

(b) EM of 23 October 2002

Previous Committee Report:None
To be discussed in Council:28/29 November 2002 Justice and Home Affairs Council
Committee's assessment:Legally and politically important
Committee's decision:(a) Cleared

(b) Not cleared; further information requested


  9.1  The conclusions of the Vienna European Council of December 1998 called for further measures to combat international organised crime in accordance with an action plan on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice. The 2000 Action Plan, which was approved by the Council in March 2000, includes an examination of the need for legislation which would extend existing confiscation powers and consideration of the possibility of reducing the burden of proof for the confiscation of crime-related assets.

The draft Framework Decision

  9.2  The original draft EU Framework Decision (document (a)) has been superseded by a revised proposal (document (b)). Like the original version, the revised draft Framework Decision seeks both to extend existing confiscating powers and to introduce new powers that would go beyond the present provisions for the confiscation of the proceeds of specific crimes.

  9.3  Article 2 would oblige Member States to adopt measures to allow for the confiscation of instrumentalities[16] and proceeds from offences punishable by imprisonment for more than one year, or of property the value of which corresponds to such proceeds. This provision is subject to an exception contained in Article 2(2) which allows Member States to use procedures other than criminal confiscation to recover the proceeds of tax offences.

  9.4  Article 3 of the draft Framework Decision seeks to ease the burden of proof applicable to confiscation of property for certain types of offences and to introduce a range of new confiscation powers that go beyond existing provisions for the removal of the benefit gained by an offender for specific crimes of which he has been convicted.

  9.5  Article 3 (1) would allow for confiscation of an offender's property, including property not resulting from the criminal act for which he has been convicted, subject to the following three conditions: first that the offence of which he is convicted is of such a nature that it "can generate substantial proceeds"; secondly, that the offence is punishable by at least a maximum sentence of up to six years in prison; and, thirdly, that a national court, basing itself on information produced by the prosecution, "concludes that it is likely[17] that the person concerned has also committed one or more other criminal acts, which can generate substantial proceeds, and that the person as a result of that owns property, which has been acquired illegitimately or by illegitimate means."

  9.6  Article 3(2) requires Member States to extend the provisions of Article 3(1) to confiscation of property acquired by the offender's spouse or cohabitee. Member States may disregard cases where the property was acquired up to three years before commission of the offence, or where the marriage or cohabitation did not exist at the time the property was acquired. Article 3 (3) would allow for the confiscation of property transferred to a legal person over the same period and subject to the conditions of paragraph 1 of article 3.

  9.7  Article 3(4) provides that confiscation may not take place if the offender can demonstrate that it is "likely that the property was acquired in a legitimate manner or by legitimately acquired means". Member States are required to ensure that the person concerned has the opportunity to present information concerning the acquisition of property.

  9.8  Finally, Article 3 (5) provides for the possibility of confiscation, in place of property as specified in paragraphs 1 to 3, of an amount equivalent to the value of the property or a part thereof.

  9.9  Article 3a would require Member States to take the necessary measures to ensure that interested parties affected by measures under Articles 2 and 3 have effective legal remedies in order to preserve their rights. Articles 4 and 5 deal with implementation and entry into force.

The Government's view

  9.10  In his Explanatory Memorandum of 23 October 2002 the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) expresses the Government's support for "the central principle of this initiative." At the same time the Minister emphasises the Government's concern in relation to at least two of the detailed provisions contained in Article 3 of the draft Framework Decision.

  9.11  In relation to the new confiscation powers envisaged by Article 3(1) in conjunction with Article 3(4), the Minister states that these powers "advocate a similar principle to the assumptions procedures applicable under UK confiscation legislation and, insofar as they cover all property held by the defendant at the time of conviction, are comparable to the provisions in the Proceeds of Crime Act in relation to the assumptions which the court must make once it has determined that the defendant has a criminal lifestyle. Whilst the UK supports the principle of extended confiscation it considers that the text is not clear in defining the burden of proof required, or who the burden falls on, the offender as provided for in Article 3(4) or the prosecutor as provided for in Article 3(1)(c)."

  9.12  In relation to Article 3(2) the Minister states that the Government does not agree with the proposal that a spouse's or cohabitee's property should automatically be assumed to be the product of criminal gain and liable to confiscation, regardless of whether they had committed or had knowledge of any offence. The Minister explains that the UK would favour a revised text which allows for the confiscation of any property which has been transferred or given to any individual by a convicted offender.

  9.13  The Minister emphasises that the proposed measure is a new proposal in this area and that the Government expects that there will be changes to the text as a result of working group discussions prior to its adoption.


  9.14  We share the Government's concerns about the proposed measure in its present form and look forward to receiving, in due course, the Government's proposals for amendments to Article 3. We are particularly concerned at the assumption made that the property of a spouse or cohabitee should be liable to confiscation merely on the assertion by the prosecution that it is 'likely' that the person's partner has committed one or more criminal acts.

  9.15  We ask the Minister to explain why the only reference to human rights in this proposal, apart from the one relating to 'due process', is the reference in recital (11) to freedom of association, freedom of the press and freedom of expression, none of which appears to us to have much relevance to the subject matter. We also ask why no reference is made to the right to peaceful enjoyment of possessions under Article 1 of the First Protocol to the European Convention on Human Rights (ECHR).

  9.16  We also ask if the Government is satisfied that the draft Framework Decision is consistent with the decision of the European Court of Human Rights in Phillips v United Kingdom, and whether Article 3(4) conflicts with the right to a fair trial under Article 6 of the European Convention on Human Rights and with Article 1 of Protocol No. 1 to that Convention.

  9.17  We clear document (a), as it has been superseded, but we hold document (b) under scrutiny.

16  These are defined in Article 1 as any property used or intended to be used to commit an offence. Back

17  This does raise the question of consistency with the decision of the European Court of Human Rights in Phillips v. United Kingdom, 5 July 2001. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2002
Prepared 25 November 2002