The civil law: a potent crime-fighting device

Abstract

Purpose – The purpose of this paper is to increase the awareness of attorneys-at-law about the potential risks that they may encounter as a result of the developments in “intermeddler liability”. The article is also aimed at informing attorneys about the Proceeds of Crime Act (POCA) civil recovery machinery. Design/methodology/approach – The article is divided into two parts. The first part involves an analysis of the provisions in the POCA of Jamaica that invoke a civil machinery to recover criminally obtained wealth. In addition to a review of the main provisions of POCA, an examination of recent cases in Jamaica and in the UK, which has a similar legislative regime, has been undertaken. The legislative framework for providing a remedy to a victim of crime has also been examined. The second part of the article explores developments in the law of restitution and the law relating to constructive trusts which may impact lawyers and financial intermediaries who become engaged in transactions dealing with illicit funds. Findings – The first aspect of the article focuses on the ability of the Asset Recovery Agency to follow and recover illicitly obtained property in the absence of a criminal conviction. In the second part of the article, the evolution of the law relating to “intermeddler liability”, that is, knowing receipt and dishonest assistance, has been explored. It is observed that these developments are significant in providing a victim of financial crime with a remedy where the illicit activity involves a breach of trust or other fiduciary relationship. Originality/value – Much of the focus on anti-money laundering initiatives in Jamaica is on the money laundering offence and post-conviction orders under POCA. This article seeks to highlight the power of the civil law in countering serious crime.