Using Civil Processes in Pursuit of Criminal Law Objectives: A Case Study of Non-Conviction-Based Asset Forfeiture

Abstract

Conventional understanding distinguishes between criminal law (and procedures) and civil law (and procedures). These distinctions often rest upon differences as to the moving party, the culpability of a wrongdoer, the nature of a wrong, the remedy available, etc. to determine whether a particular action ought to fall upon the civil or the criminal side of the paradigmatic divide. These distinctions, however, prove problematic in relation to hybrid systems of justice, given legislative attempts to pursue criminal law objectives using civil processes. Using the non-conviction-based asset forfeiture model adopted in Ireland, and drawing upon the test adopted by the US Supreme Court as to what distinguishes the civil from the criminal, this article examines how the Irish judiciary has responded to this approach, ultimately contending that the courts have failed to provide a check against the legislature circumventing enhanced procedural protections of the criminal process and imposing punishment in the civil forum. The article concludes by asking whether a hybrid, or middle-ground, process, in which some enhanced procedural protections are afforded to a person confronted with punitive civil sanctions, offers an alternative to the rigid confines of the conventional civil/criminal dichotomy.