I. A ‘failure’ of law

As mentioned above, the threat posed by serious and organised crime (see, e.g., Home Office, 2004, 2006)Footnote ⁵ has motivated much legislative change within criminal law and evidentiary procedures since the mid 1990s. For example, the Criminal Justice and Public Order Act 1994 placed restrictions upon the right to silence, aimed specifically at professional criminals and terrorists (see Quirk, Reference Quirk2013; Jackson, Reference Jackson2001). After the turn of the millennium, the Criminal Justice Act 2003 overhauled the law governing admissibility of hearsay evidence in criminal proceedings (see Jones, Reference Jones2010; Birch, Reference Birch2004), the Serious Organised Crime and Police Act 2005 introduced a statutory framework for agreements with assisting offenders (Martin, Reference Martin2013; de Grazia and Hyland, Reference De Grazia and Hyland2011), and the Coroners and Justice Act 2009 contained qualifications to anonymity provisions (see Ormerod, Choo and Easter, Reference Ormerod, Choo and Easter2010), while since 9/11 there have also been numerous changes to anti-terrorism legislation (see, generally, Walker, Reference Walker2009; Donohue, Reference Donohue2008). Common to each of these legislative changes is the reliance upon allegations of a failure of the criminal law's procedures to push them through, while the augmentation of those procedures invariably comes at the expense of individual rights. Hence, adverse inferences can potentially be drawn where an individual fails to answer questions at the police station or refuses to give evidence at their own trial, despite concern as to the evidential value of such adverse inferences; hearsay evidence is more readily admissible, contrary to long-standing criticisms; evidence from accomplices is embraced in spite of the inherent dangers, not least that an accomplice might be trying to gain favour with the police or prosecutors; and, finally, anonymous witnesses can tender evidence, notwithstanding the obvious difficulties that the accused would face in raising a challenge to that evidence.

These examples are cited in order to illustrate the clear and concerted erosion of procedural safeguards afforded to a suspect or accused within the criminal justice process – a ‘rebalancing’ in favour of State power that continues even today (see, e.g., HM Government, 2011, 2013). The attack upon the financial assets of criminality manifest in POCA 2002 is a further instance of the State being afforded enhanced powers in tackling organised crime (see Murray, Reference Murray2013; Sproat, Reference Sproat2009; Kennedy, Reference Kennedy2005). Indeed, this targeting of criminal finances can be regarded as yet another move to weight criminal justice processes away from the individual and towards the State, on the assumption that classical forms and procedures were on their own unfit and inefficacious for the purpose of tackling organised crime. Falling under the collective title of a ‘follow-the-money’ approach, since the turn of the millennium measures concentrating on criminal finances have gained increasing prominence (see, e.g., Performance and Innovation Unit, 2000; for discussion, Bullock and Lister, Reference Bullock, Lister, King and Walker2014, pp. 48ff.): anti-money laundering provisions, post-conviction confiscation, civil recovery absent criminal conviction, taxation of assets, and counter-terrorist financing measures have all came to the fore.Footnote ⁶ Our focus in this critique is civil recovery, also known as NCB forfeiture.Footnote ⁷ While NCB forfeiture was presented as an alternative approach whereby the attention would be on criminal assets, it was in fact a further illustration of the prevailing crime control ideology, which – we will argue – served further to undermine the individual procedural rights inherent to the legitimate operation of criminal justice processes.

Before in personam confiscation of assets can occur under Part 2 of POCA, there must be a criminal conviction, subsequent to which civil rules are applied.Footnote ⁸ The underpinning normative rationale, namely that convicted criminals should not benefit from crime, is in this regard relatively uncontroversial.Footnote ⁹ The same, however, cannot be said for in rem NCB asset forfeiture: for example, under Part 5 of POCA, an individual may be subject to restrictions regarding dealing with specified property where the court is satisfied that said property comprises the proceeds of crime (for detailed rules, see, e.g., Sutherland Williams, Hopmeier and Jones, Reference Sutherland Williams, Hopmeier and Jones2013; Rees, Fisher and Bogan, 2011). Moreover, the standard of proof to be applied in such cases is the civil one, namely the lower threshold of a balance of probabilities, as opposed to the more robust criminal standard of beyond reasonable doubt (POCA 2002, s.241(3)), and the State's hand is strengthened all the more by the lack of any requirement that the individual be convicted of a criminal offence before their property is liable to become the subject of such proceedings.Footnote ¹⁰

But what is it about organised crime that makes it such a problem for criminal law enforcement, and why the emphasis on its financial proceeds? The main difficulty facing law enforcement agencies appears to be the disconnected or cumulative nature of the criminal activity, which provides the ‘organisers’ with a degree of distance from the ‘coalface’, as it were, and thus a certain level of immunity from successful police investigation, prosecution and conviction.Footnote ¹¹ As Lord Goldsmith stated during the passage of the Proceeds of Crime Bill:

Lord Goldsmith's frustrations here concern the supposed lack of criminal justice tools suitable for dealing effectively with such criminality, hampered as they were by procedural safeguards frequently seen as providing excessive protection for criminals who, by virtue of operating at a remove, do not risk getting their own hands dirty.Footnote ¹³ The apparent ‘failures’ of the criminal law here are clear to see: police time and public money are wasted on the arrest and prosecution of easily replaceable foot soldiers, while those at the upper echelons of the criminal enterprise remain insulated against criminal liability (Simser, Reference Simser and Young2009, p. 20).

These perceptions of the criminal law's fitness for purpose and efficacy can be articulated systems-theoretically as a failure of the legal system to achieve its primary function, namely the stabilisation of normative expectations in society. The role of a functionally differentiated legal system in society is to enable society to differentiate between communications that are lawful or legal, and communications that are unlawful or illegal. To this degree, it makes it possible for society to establish what will meet with legal censure or legal approval, and what will be subject to legal sanction: as Luhmann (Reference Luhmann2004, p. 148) states, ‘law deals with the function of the stabilization of normative expectations by regulating how they are generalized in relation to their temporal, factual, and social dimensions’. Expectations allow for both the evolution and smooth operation of the system while simultaneously providing for its connection with previous operations and selections; they build up over time, facilitating systemic ‘learning’ by reducing the number of possible selections created under conditions of uncertainty. Indeed, without this reduction or ‘condensation’, ‘the burden of selection would be too great for connecting operations’ (Luhmann, Reference Luhmann1995, p. 96). To restrict this analysis for the moment to the criminal law, the (normative) expectations here are that social communications comprising illegal behaviour will be designated as such, which is to say, will generate the systemic operations familiar to us as the criminal justice process: police action, arrest, charge, prosecution, proof, conviction, and proportionate sanction. These operations can be conflated into a single core expectation, namely that the legal system will counteract and punish criminal – and thus illegal – activity within society. On this basis, therefore, it would appear that the increased ‘inapplicability’ of criminal law procedures to the complexities of organised crime comprises the disappointment of these expectations. It is the reaction of the legal system to such disappointed normative expectations that drives its evolution and maintains its autonomy (Rogowski, Reference Rogowski2013, p. 4). Its cognitive openness to the environment means that the legal system is not restricted to applying established normative standards, although it does retain that option; it can either follow this route – namely one of counter-factual stabilisation – or it can learn from the disappointment and recalculate its expectations on that basis. Different socio-legal examples can be cited of each of these legal-systemic options: for instance, no matter how many homicides are committed, repeated disappointment of the normative expectation that people should not kill others has not prompted any alteration of the legal prohibition, while the decriminalisation of suicide by the Suicide Act 1961 illustrates a legislative change being implemented where the illegal act was considered apocryphal.Footnote ¹⁴ The case of organised crime appears, however, to have given rise to a third option, one which, we submit, is premised upon the perceived ‘failure’ of law outlined above – a ‘failure’, one should note, of procedural efficacy (Leistung) as opposed to the systemic function (Funktion). The legal system in this situation counter-factually stabilises those disappointed normative expectations – crime should not pay, illegal behaviour should be punished – while simultaneously effecting changes to its system-internal programming (Konditionalprogramme), targeting those aspects restricting its smooth and effective operation, which in this case can be identified as the established procedural safeguards within the criminal process. As Teubner (Reference Teubner, Teubner and Febbrajo1992, p. 15) says, the law regulates society by regulating itself. The erosion of these procedural safeguards – for example, the rule against hearsay, restrictions on investigatory powers, and exclusionary rules of evidence, to name but a few – has been accompanied by the implementation of a ‘follow-the-money’ approach in the form of NCB forfeiture, which further diminishes those procedural protections assumed to be inherent to criminal proceedings – especially the presumption of innocence and the standard of establishing guilt beyond reasonable doubt.

As mentioned above, it is really when the focus shifts to the money – the ‘lifeblood of the organization’ (Simser, Reference Simser and Young2009, p. 20), as it were – that a systems-theoretical perspective comes into its own, mirroring in its own anti-humanism the apersonal quality exhibited by a follow-the-money approach.Footnote ¹⁵ In what is perhaps the most alienating aspect of systems theory for some scholars, Luhmann deliberately decentres the individual, thus bypassing the classic dichotomy of subject/object that restricted the ambit of many other sociological approaches. This move also facilitated the construction of an overarching epistemological framework premised upon the distinction system/environment, and the differentiation of social systems on the basis of their function. These function systems comprise the deep structures of society, identifiable by their respective codes, programmes and media. The function systems of most relevance to this analysis are the legal, economic and political systems;Footnote ¹⁶ while the legal system's core function is the stabilisation of normative expectations in order to eliminate contingency, the economic system functions to regulate scarcity, and communicates through the symbolically generalised communicative mediumFootnote ¹⁷ of money (see Moeller, Reference Moeller2006, pp. 26–29), while the political system in turn carries out its function of making binding decisions for society through the medium of power. What makes a follow-the-money approach so interesting, therefore, is the involvement of the communicative medium of one system in the programmes and operations of another. This is not to say, of course, that there is any disruption of systemic autonomy: for example, the economic medium of money is ‘seen’ by the legal system as the result of illegal communicative acts – literally, the proceeds of crime. More important, however, is the structural coupling between the legal and economic systems in the form of the ‘institution’ of the financial sanction (Richardson, Reference Richardson2002, p. 138; see also Luhmann, Reference Luhmann1993, pp. 453–456). NCB forfeiture has the overt aims of deterring criminal activity through reduced returns and demonstrating the non-profitability of crime (Performance and Innovation Unit, 2000, paragraph 3.2) – these regulatory aimsFootnote ¹⁸ provide the scale upon which the efficacy of the system would ideally be gauged,Footnote ¹⁹ while NCB forfeiture is classifiable as a financial sanction and thus a structural coupling between law and economics.

At this juncture some reference ought to be made to the unusual civil/criminal hybrid nature of NCB forfeiture, which has been the subject of much critique and conjecture. Though usually concerning allegations of criminality, NCB forfeiture proceedings are purportedly ‘civil’, a questionable stance that has been upheld by the courts (e.g. Gale v. SOCA [2011] UKSC 49). And, as these proceedings are seen as civil, criminal procedural protections do not necessarily apply. This has attracted widespread criticism, with many commentators arguing that ‘civil’ (or NCB) forfeiture ought to be regarded as a criminal mechanism (e.g. Gray, Reference Gray2012; Campbell, Reference Campbell2007, Reference Campbell2010; Gallant, Reference Gallant2004). At the very least, NCB forfeiture arguably represents a ‘middle ground’ between civil and criminal paradigms (see Mann, Reference Mann1992).Footnote ²⁰ While interesting issues for critique from a systems-theoretical perspective are raised by NCB forfeiture's strange procedural hybridity, systems theory in fact accommodates this elision of civil and criminal rather well; at least, it is not as jarring for systems theory as for other legal theories centred around the individual and on considerations of State power and authority. The reason for this is the system boundary established by the operation of the legal system's binary coding. Under this coding – where legal is the positive value, applied if a social fact conforms to system norms, and illegal is the negative value, employed by the legal system in the event such norms are violated – societal communications are ‘seen’ by the legal system as being of relevance to it. The dichotomy civil/criminal, therefore, is encompassed by the systemic code and included within the unity of the legal system.

Where this civil/criminal distinction does feature is in terms of additional system-internal semantic elements known as programmes: as Luhmann (Reference Luhmann2004, p. 192, emphasis in original) explains: ‘[s]ince the values legal and illegal are not in themselves criteria for the decision between legal and illegal, there must be further points of view that indicate whether or not and how the values of a code are to be allocated, rightly or wrongly’. These programmes are conditional in character (Konditionalprogramme), which is to say that they stipulate the conditions under which the binary coding is applied, linking self-reference with external reference and providing ‘the system's orientation to and from its environment with a form that is cognitive and at the same time which can be evaluated deductively in the system’ (p. 196). Within these conditional programmes exist further reflexive mechanisms for the ‘recursive reproduction’ of legal decisions, the most notable of these being rules of procedure, which have the task of ‘applying norms to the application of norms’ (p. 158). It is by means of the operation of these conditional programmes that the legal system is able to restructure its internal procedures in a way that addresses problems of operative efficiency (Leistung), such as the ‘failure’ of law adequately to tackle the complexities of organised crime. Such restructuring reorients the rules of procedure, such as in the case of NCB forfeiture, allowing their application in situations where they would previously have been inapplicable and unenforceable: the use of a civil standard of proof in what is, arguably, a criminal mechanism, for example.

To be clear in this regard, such system-internal reorganisation is purely operational and undertaken to optimise its realisation/achievement of its primary function – the legal system has no interest in the civil/criminal dichotomy other than operatively. Nor does it engage with issues of either the moral content of the law or the policy motivations for legislativeFootnote ²¹ change – in spite of the crime control ideology underpinning follow-the-money approaches, not to mention their overt political and normative instrumentality, the legal system's cognitive openness is restricted by the filter of its binary code and systemic autonomy is protected by means of its normative closure. To put this another way, while the perceived ‘failure’ of law in tackling organised crime led to the adoption of the draconian option of NCB forfeiture under POCA 2002, the legal system only experiences these in terms of an initial disappointment of normative expectations and a subsequent alteration of its internal programming.

Thus far this paper has concentrated on what we have been referring to as the ‘failure’ of criminal law and processes in effectively combatting organised crime. This has been presented as a failure of Leistung, of legal systemic efficiency and procedural fitness for purpose, a situation that gave rise to follow-the-money approaches in general and NCB forfeiture in particular. Our attention now turns to NCB forfeiture, this hybrid civil/criminal legislative creation, with the view of examining its circumvention of procedural safeguards comprising fundamental individual and procedural rights. This critique submits that this simultaneous evasion and erosion of procedural rights protections serves to render NCB forfeiture illegitimate as a process, on the grounds that it is non-compliant with rights protections. This systems-theoretically based argument, namely that NCB forfeiture gives rise to a different kind of ‘failure’ of law, will form the focus of the next section.

II. How far is too far?

The dynamic at the heart of the crime control/due process dichotomy is one which demands the striking of a balance between considerations of State power and those of individual liberties. This interaction not only lies at the heart of criminal justice process but at the heart of modern constitutional development – it involves what we tend to refer to as the ‘rule of law’, which is to say, that (constitutional) commitment to minimum standards of both substantive and procedural fairness. Whether understood as entrenched principles of the common law or meta-principles articulated in international agreements and enacted by legislation,Footnote ²² rights such as due process and the right to a fair trial (European Convention on Human Rights, Article 6; International Covenant on Civil and Political Rights, Article 14) not only represent ‘principled expressions of the moral life of the nation (Sittlichkeit)’ (Loughlin, Reference Loughlin2010, p. 361), but also comprise limitations upon the potential excesses in the exercise of governmental power. Indeed, it could even be argued that rights protections have become a laundry list of requirements amounting to ‘a contract of good government’ (Tomkins, Reference Tomkins, Campbell, Ewing and Tomkins2003) and, furthermore, an indicator of good governance.Footnote ²³

As outlined above, however, such processes and thresholds certainly contributed to difficulties in successfully prosecuting individuals suspected of participating in and benefiting from organised crime – not only do they curb abuses of power, they also operate as a necessary restraint upon the efficacious operationFootnote ²⁴ of the criminal law, thus giving rise to the first ‘failure’ of law. Douzinas (Reference Douzinas2000, p. 380) stated that ‘rights are the necessary and impossible claim of law to justice’, and this duality of necessity and impossibility has perhaps never been more apparent than it is here: while in the first instance rights comprise a barrier to the application of the classical processes of criminal justice, in the second, any reliance upon them comes at the arguable expense of legal operations that are perceived – in Lord Goldsmith's ‘plain as a pikestaff’Footnote ²⁵ sense of the term – as being just.

For this is the point at hand, and the problem facing both criminal law enforcement agencies and criminal justice itself: the attrition of formerly robust and entrenched procedural standards within criminal justice has the effect of giving rise to anti-organised crime practices that are – if not de facto illegitimate – at the very least in contradiction to the spirit of the rule of law. As mentioned earlier, criminal procedural safeguards are justified by reference to the relationship between the State and the individual, the balance of resources between them, the consequences of an adverse verdict for an accused, and respect for individual dignity and autonomy. In NCB forfeiture proceedings, such safeguards are sidestepped in spite of such proceedings being, in essence, concerned with matters of criminal law. It is our contention that this step is, simply, one too far. Indeed, the only salient difference amounts to the fact that what is being targeted is not individual liberty, but rather an individual's property – as such the protection provided appears far less robust for personal property and assets than if the deprivation concerned either personal integrity or freedom.Footnote ²⁶

While the initial failure of law outlined in the previous section is one of legal systemic efficiency, of Leistung, it does not automatically follow that we are alleging a subsequent failure of Funktion in this section; the failure we pinpoint here is, rather, one of legitimacy. As mentioned above, constitutional due process rights and the right to a fair trial can be understood as reflecting a moral position as well as forming a bulwark against the abuse of political power; however, it is in terms of this latter understanding that systems theory understands constitutional rights. Indeed, the notions of morality, justice and fairness contained within the former have little purchase under a systems-theoretical construction that reduces both justice and validity to eigen-values, which is to say, to values that are constituted by ‘the recursive performance of the system's own operations and [… which] cannot be used anywhere else’ (Luhmann, Reference Luhmann2004, p. 124) or, rather, that are produced simply by a system ‘repeatedly doing what it does’ (Nobles and Schiff, Reference Nobles and Schiff2013, p. 163).

Systems theory conceptualises rights as a means by which society is able to ‘protect its own structure against self-destructive tendencies’ (Verschraegen, Reference Verschraegen2002, p. 262), such as de-differentiation. Rights operate specifically as communications of the political system that comprise curbs upon its potential excesses, thus establishing limitations to be imposed upon the political system and its operations by the political system itself. Not only do these rights operate as instruments of self-restriction, they also preclude systemic de-differentiation. This ‘establishment’ – or self-creation – of systemic limitations is accomplished by a concretisation of systemic expectations: ‘in their very concreteness, the rights-based expectations take on the nature of fixed points, of facts’ (Hendry, Reference Hendry, Avbelj, Fontanelli and Martinico2014, p. 68, emphasis in original). In the absence of any such limitations upon its operations, the political system would be liable to encroach upon those of other function systems in a manner liable to compromise ‘the ability of other systems to operate in ways that are productive for society’ (Nobles and Schiff, Reference Nobles and Schiff2013, pp. 199–200). It should be noted at this juncture that the fixation upon protecting society from the dangers of de-differentiation is, for Luhmann, restricted to those excesses of the political system; it is not until Teubner (Reference Teubner2006, Reference Teubner, Blecher and Hendry2008), who insists that other function systems need to operate under comparable controls, that the excesses and crises of the other systems are appreciated as being equally dangerous as those of politics. Taking an overtly normative stance, Teubner thereby endorses rights as a shield against the structural violence created by unrestricted functional differentiation. What becomes important in this regard is the influence of rights upon not only the functionally differentiated political system but also the legal system and the economic system, and all of the others. In the same vein that the political system is subject to restraints upon its operations and programmes, so too is the legal system, with the result that its own operations and conditional programmes, its own media and eigen-values, must occur relative to those restraints. This, then, is our argument concerning the erosion of procedural safeguards facilitated (with overt political instrumentality) in the form of NCB forfeiture under POCA 2002: the conditional programme (procedural) alterations engendered by POCA are, we argue, illegitimate, because they specifically exceed legal systemic self-limitations. Legitimacy is understood here in the Luhmannian sense of being defined ‘through disseminated factual conviction in the validity of law [and] of principles and values upon which binding decisions are based’ (Luhmann, Reference Luhmann2013, p. 199) – in this regard the procedures comprising NCB forfeiture disappoint.

One final point should be made here in terms of validity, which, as mentioned above, is a legal systemic eigen-value. Our argument has been framed in terms of legitimacy, or rather the lack thereof, but this relates specifically to the procedural changes implemented by POCA and does not purport to encompass any more than this within its ambit. Systems theory provides holistic assertions concerning legal systemic validity, which is both the marker of unity for the legal system and that which symbolises the autopoiesis of its communications (Luhmann, Reference Luhmann2004, pp. 122–123). Indeed, Luhmann himself provides a stout argument against the notion that systemic validity could be in any way justiciable, stating that: ‘All law is valid law. Law which is not valid is not law. It follows that the rule that makes validity recognizable cannot be one of the valid rules. There cannot be any rule in the system that regulates the applicability/non-applicability of all the rules of the system’ (Luhmann, Reference Luhmann2004, p. 125; see also Habermas, Reference Habermas1996, p. 138). Constructed on the back of the legal system's binary coding, validity is designated as being norm-free and thus both empty and malleable – this is uncontested. Nevertheless, there must necessarily be layers of legitimacy relative to the validity of system-internal operations, for how else could a situation of procedural illegitimacy on the basis of non-compliance with the meta-norms of rights and procedural safeguards be achieved at the same time that those procedures adhere to the rules established by the relative conditional programmes? Arguably, this draws attention to a systemic recognition of difference between what is specifically legal – in essence, what the legal system holds to be legal – and what is legitimate. The eigen-values of validity map on to legality but not necessarily to legitimacy, a situation caused by the system's own protective mechanisms – which is to say, by the self-imposed restrictions upon systemic operations that we recognize as rights. This, we argue, is the legal system's recognition of what constitutes going too far. NCB forfeiture aptly illustrates this in relation to criminal procedural protections. Part 5 of POCA allows for such protections to be circumvented simply by virtue of being a ‘civil’ process. This is a contentious issue, however, and our argument is that the use of a civil process to target criminal assets in the absence of criminal conviction is an affront to legitimacy.