Using Civil for Criminal Processes and Penalties

Abstract

In recent years, the distinction between civil and criminal procedures has blurred and become less clear. Governments in common law jurisdictions have created new civil processes and penalties to further criminal law aims. One notorious example is the growth of civil forfeiture laws used to target the proceeds of crime. These new processes serve as an alternative to bringing traditional criminal proceedings. Foregoing the sanction of imprisonment and the stigmatising effect of a criminal conviction, these civil processes provide governments with the advantages of a lower standard of proof, relaxed proof of fault requirements, greater opportunities for case settlement, and fewer evidential and procedural safeguards. But courts have reacted critically to these developments and demanded procedural standards higher than those applied in ordinary civil litigation. This paper will discuss the legal implications for governments in pursuing criminal law aims with non-criminal law processes.