The Guardian reported on August 14th that the City of London Police intends to conduct a pilot project to pursue the profits of cyber criminals in civil courts. Officers will pass details of suspects and cases to law firms, which will use civil courts to seize the money. The force says the scheme is a way of more effectively tackling fraud – which is now the biggest type of crime. It is overwhelming police and the criminal justice system.
The experiment, which is backed by the government and being closely watched by other law enforcement agencies, is expected to lead to cases reaching civil courts this year or early next year. Commander Chris Greany, head of economic crime at City of London police, said: "It is a huge shift … Civil recovery allows us to get hold of a criminal's money sooner, and repay back victims sooner."
One prominent criminal law firm was skeptical about the plans, expressing concern that a profit motive could damage the fairness of the process. Currently, police pursue people suspected of making millions through financial crimes by prosecuting them in the criminal courts, and need to prove their case beyond reasonable doubt. After conviction, a lengthy process starts to seize the proceeds of crime, which can take years. Police believe some suspects use the delay to hide their assets.
Under the pilot project, a law firm will pursue the suspect in the civil courts before any conviction and possibly even without a criminal charge. The burden of proof is lower in civil courts, and they will only have to show the probability that the suspect stole the money.
Katie Wheatley, joint head of criminal law at Bindmans, a London law firm, expressed unease over the proposals, which she said gave police "what they would regard as an easy deterrent, without having the inconvenience of proving an offence to a criminal standard".
Greany said the law firm and others in the private sector would bear the risk, in return for a share of the money taken off the criminal suspect.
Robert Wynn Jones, a specialist in fraud at Mishcon de Reya, said the "novel and pragmatic" scheme would boost the deterrent to criminals. Wynn Jones said victims might be asked to pay legal costs, or specialist insurers could fund the fees in return for a 20-30% share of the money taken from criminals.
There are two main downsides. If the suspect appeals and wins, or is cleared in a criminal case, then the money seized has to be repaid with interest added.
The second controversial aspect is the transfer of what was essentially punishment carried out through the state system, with established methods of accountability, to private firms, where it would be done for profit. However, Greany said: "It is a public-private partnership."
The Office for National Statistics said in July that there had been more than 5.8 million incidents of cybercrime in the past year, enough to virtually double the headline crime rate in England and Wales.
A working group to oversee the experiment has been set up by the City of London police, officers from the National Crime Agency, and Metropolitan police, and law and private investigation firms.
We'll see how this plays out in the UK - but I can see US law firms salivating over getting this kind of business on our side of the pond.
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Digital Forensics/Information Security/Information Technology