In November 1965 England abolished capital punishment for murder. As a sweeping generalisation, this was done, in part, to remove the risk of hanging the wrong person. More than 51 years later – can the same logic be applied to the new approach of hiring private law firms to tackle cybercrime?

Internet fraud remains a hot topic. In the past year alone, statistics suggest a 5.8m incidence of cybercrime and fraud estimates have reached £193bn per year. Authorities are increasingly under pressure not to just solve the existing crimes, but also to prevent new ones. However, with resources being cut across all police forces, making the task at hand even greater, a new approach has been adopted in a bid to speed things up.

The theory

Instead of the police pursuing a criminal charge against a perpetrator of cybercrime, private law firms are being brought in to carry out the civil recovery process. Seeking civil forfeiture or confiscation orders to recover the proceeds of fraud and cybercrime is the new pilot scheme being carried out by the City of London police. Police suspects and case details will be passed on to lawyers, who will then proceed through the civil courts in an attempt to seize any ill-gotten gains. This is a huge volte-face for British law enforcement, which has historically relied upon the criminal courts for dealing with financial crime. However, it has long been argued that this method has several flaws and the shiny new civil recovery method is designed to address this.

Historic approach

In the criminal justice system there is a heavy reliance on the burden of proof. Before taking any punitive action, the crime must be proved beyond reasonable doubt, lending a convincing cloak of certainty to any recovery procedures. Critics of the new system suggest that a potential lack of evidence could lead to some very serious consequences. With the burden of proof being there for a reason, is it necessarily the right thing to rely on a procedure which virtually removes the need for it? Huge sums of money are being talked about and the knock on repercussions need to be very strongly considered. Critics suggest that this could potentially draw out what is already a long process, allowing criminals the time to hide the very assets the criminal justice process is seeking to recover.

As far as a deterrent goes, practicalities and cost management mean that the new approach would only be worthwhile in cases where the money runs into hundreds of thousands.

So what’s to be gained from using the civil recovery system?

To begin with, what is it that authorities are actually looking to do? In a nutshell, they want to address the problem at source; removing the power from criminal gangs to prevent financial benefit, and destabilising them by cutting out their main method of income, is the strategy at hand.. Fraud and cybercrime is a massive area and one which the criminal justice system is struggling to cope with. The argument for the new system being trialled is simply that it is far more effective than previous ones. The timescales are reduced significantly because it’s only necessary to show that the offence was committed on the balance of probability and a criminal charge is not necessarily needed at all. This means a victim benefits in having a quicker return of funds or assets; a very persuasive factor. Seeking recompense through civil forfeiture or confiscation is a lot quicker than taking no action before beginning the criminal process. Fraudsters are well versed in delaying tactics in order to give themselves the opportunity to hide assets and this new approach through private law firms will prevent this to some extent.

But – despite the predicted benefits, there should be residual concerns about deviating from the natural criminal justice process. A large part of tackling the ever-prevalent cybercrime is about incentivising recovery for maximum gain to all parties, and adding in a costly law firm is a questionable benefit. The amounts recovered would have to be substantial in order to see any gains and it is therefore doubtful that this new scheme would have much impact at grassroots level – where the change is perhaps needed most.

Pursuing justice through the criminal court is a process that has been honed for hundreds of years. Seeking shortcuts through law firms, where perhaps little proof of a misdemeanor is needed, will possibly not be regarded as an advancement in our judicial system. Ultimately, it is likely to be a while before this method is honed for maximum benefit and, in the meantime, the victims of cybercrime continue to suffer.

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