On the Proceeds of Crime Act 2002 (Part 1)

You’re wrongly accused of an offence. The case goes to trial. You’re acquitted. Can you now breathe a sigh of relief that the issue is dead? Not really. Aside from the recent abolishment of the prohibition on double jeopardy for some serious crimes (see the Criminal Justice Act 2003), the govt can have another go at you. Instead of trying to imprison you, they can use civil asset forfeiture to seize assets they allege are the proceeds of crime.

You don’t need to have been charged or convicted of any offence. You may have been acquitted of an offence. It does not matter.

If the govt persuades a judge, on balance of probabilities (i.e. without solid proof, with a case with holes in it, so long as it casts enough suspicion on you), that you received the proceeds of crime they can seize your assets. Indeed a Scottish man has already had £24K seized despite being acquitted of a drugs offence. Note Lord Advocate Colin Boyd’s comment:

“What is significant about the seizure is it demonstrates the new legislation is working and those suspected of profiting through crime are being penalised.

Note that it is those *suspected* of profiting crime who are penalised. Not those who are profiting from crime or those convicted of a criminal offence.

Admittedly in this case the man concerned did not account for £46K worth of deposits into his bank account whilst on benefits and with no other known source of income. ISTM he should have been done for benefit fraud. However he’d been acquitted of the drugs offences and was thus legally innocent, yet they seized his money by claiming it was the proceeds of crime he’d been cleared of.

“So what?” some might respond. “I can easily account for my money and would thus it would be easy to prove where I got it all from if I were unlucky enough to fall victim to this”. However, effectively this means that refusal or failure to account for where your money comes from becomes grounds for losing it to the state. Moreover, whether or not your account for your money and any documentation you produce persuades the judge will depend on the hurdles presented by the state’s case against you, and the state can spend far more time and money, whilst exercising legal powers that others don’t have, on constructing a plausible case than just about any individual could manage.

Some might suggest that it’s no different to any other civil case so why worry? The problem is that it is different. Civil law concerns the resolution of disputes between private parties with the state as the adjudicator. A private party has to bring a case, thus has to be determined and well enough resourced to do it. The balance of probabilities test in civil cases may be appropriate for determing whether a contract has been broken or whether someone should pay compensation for an injury caused in accident they were party to, and where the two parties have relatively equal standing. Furthermore the money is going to the aggrieved party if he wins the case, not to the state.

In criminal law, the state makes the laws, the state performs the investigation, the state makes the arrest, the state constructs the case and the state runs the courts. This is one reason why in criminal law various protections for individuals were made, e.g. the presumption of innocence, the requirement of proof beyond reasonable doubt of guilt, the right to silence and the use of jury trials. The counters the imbalance of power whereby the state has both more resources and more legal powers to make a case than any individual.

With civil asset forfeiture however we have the state bringing a civil case against an individual on the basis of criminal matters (of which they might have been cleared) and acting also as the adjudicator. The odds are set against anyone who has this procedure used against them and they will not have the protections of criminal law. They are unlikely to be able to spend the time and money the state does to defend themselves. I thus contend this is an abuse of civil procedures and a dangerous law.
Innocent people could find their legally held after tax assets being stripped from them, on the basis they are probably the proceeds of crime, without any offence ever being proved against them.

And it gets worse. Suppose the police are investigating someone for crime but don’t believe they have a strong case to present to court. Instead of doing further investigation, they may decide it’s not worth their time and effort to prove the case beyond reasonable doubt but that civil asset forfeiture might work and pass the case to the civil assets recovery agency (CARA). This would lead to criminal cases being less thoroughly investigated, thus lessening the chances of real criminals actually being caught. A thorough investigation is a crucial element of crime fighting and may prove that an initial suspect was innocent. This legislation creates an incentive to cut investigation short by seizing assets on a low burden of proof. Thus looking purely at it from a crime fighting point of view the ability of the state to use this procedure instead of proving someone committed a crime will have counter productive effects.

There is also scope for corruption. Someone could be setup in collusion with the CARA and due to the low burden of proof, and even the possibility of a pliant judge, it would be relatively easy to get their assets. Further more the state is likely to find the income stream from this very useful and thus may end up in collusion with the criminal world to keep the income stream online without taking enough to stop crime, whilst people in the criminal world might direct the state to useful targets for the money in order to keep the state of their own backs.

In short I contend that civil asset forfeiture is bad law, an abuse of civil procedures, a threat to the innocently wealthy, will be counter productive in fighting crime and introduces opportunities for laziness in crime fighting and for corruption of the state. It should be repealed.

Regarding the “Part 1” in the title, I’m afraid that civil asset forfeiture is not the only nasty item in this legislation…

Samizdata have also commented on this legislation. The comments on their article refer to experiences in America where a similar law has been around for some time.

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