This is another post triggered by Bystander, the interesting Magistrate, this time with a blog about the Proceeds of Crime Act (POCA).
Bystander seems a little uneasy, but is content to call POCA a civil matter and go along with it. I don't know why.
I agree with the comment of Special Forces Alpha Geek: the POCA is not really a civil matter. It is a tool of the law enforcement agencies, and its justification for confiscating property is that it was acquired as the proceeds of crime. The seizure or confiscation of property by the state is a sanction of the criminal justice system. The proceeds of these proceeds of crime actions go to the very agencies undertaking the actions.
Especially worrying is that the POCA imposes criminal sanctions without the procedural safeguards of the criminal law: there are none of the procedural safeguards surrounding criminal prosecutions; the burden of proof is reduced from beyond reasonable doubt to balance of probabilities (with the onus on the defendant); and there is no possibility of a jury.
The government sold the Act on the basis it would be used mainly against wealthy "Mr Bigs" (as if that justifies circumventing normal due process) - but it is being used against all sorts of Mr Smalls (and who knows how many Mr Smiths?). If you look on the Home Office website there is a lot of talk about recovering "criminal cash", "criminals' ill-gotten gains", etc, but the POCA does not require there even to have been a charge brought against anyone, let alone a prosecution or conviction. Indeed, someone can be acquitted after a trial, and still be subject to related asset seizures.
As in other areas - like the detention of terrorist suspects - the government seems to think criminal trials make it too difficult to deal with those they just know to be criminals.
With the terrorist suspects, the government says 'trust us, what we do is based on good intelligence, it's just it cannot be divulged lest we compromise our sources'.
The POCA is based on intelligence too - it requires all accountants, bankers, estate agents, traders and retailers, and in many circumstances lawyers too, to be secret informers of the state. Any suspicions they may have about anyone, e.g. their clients, they must reveal to the National Criminal Intelligence Service. Failure to do so is a criminal offence punishable with imprisonment, as is letting the suspect know they are suspected. The intelligence is then used to identify possible asset seizures outside the normal criminal justice system.
It can only encourage lazy police work and rough justice.
Why then do good men like Bystander go along with it?
Subscribe to:
Post Comments (Atom)
2 comments:
The New Zealand government is currently working on introducing a law similar to the British POCA. Interestingly, one of the chief concerns of the government's own advisors was that allowing asset forfeiture with lower standards of evidence would create a "perverse incentive" to "divert police resources away from criminal investigations and take priority over criminal prosecutions". naturally, these concerns disappeared fairly quickly, once the Minister made up his mind.
I have more on the New Zealand version here.
I go along with POCA because it is the law. When I took the judicial oath there was nothing in it about being able to pick and choose which laws to enforce. In a democracy that's the way it is - fortunately I can have my five penn'orth on the Interweb thingy.
One does not dine a la carte at the table of the law.
Post a Comment