Why Prosecute? POCA Them Instead!

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?

When The Innocent Plead Guilty

The Magistrate's blog has got me thinking.

Is it right that people who plead guilty should get a lighter sentence - perhaps for a lesser offence - than someone who pleads not guilty and fights the prosecution?

I can see there are benefits to the Crown, and the victims and witnesses, in not having a contested trial: less stress and inconvenience, and fewer costs.

What worries me is that innocent people, or people for whom guilt is a moot point (as, for example, in a case of self defence) may plead guilty because they don't think they have a very good chance of acquittal and want to cut their losses.

If justice is to be seen to be done, it needs to be open. Guilty pleas to secure lighter sentences suggest a calculation by the accused, even if there is not necessarily overt negotiation between defence and prosecution.

We get some idea of how many people may be wrongly convicted as a result of their trial, because some later have their convictions quashed and are released on appeal.

But we will never know how many people serve time having pleaded guilty, while believing themselves to be innocent.

For that reason we should give only a very slight discount (if any) to a sentence following a guilty plea, and not accept a guilty plea on a lesser offence in lieu of a trial on a more serious offence.