Monday, 5 October 2009

Confiscatory Justice

Occasionally, you read something that makes your eyes pop out of your sockets, that makes you doubt the quality of your vision. You think, how can that possibly be true? I had that experience this morning, when I read in The Times that "a pharmacist who had overclaimed £464 in VAT was subjected to a confiscation order of more than £212,000". Surely, even under New Labour with its well-attested disregard for traditional concepts of justice, that can't actually have happened?

Well it did. The £212,000 represented the total sum that the pharmacist, Mohammed Shabir, had receieved, almost all of which was legally owing to him. He was convicted of fraud in respect of the £464 overclaim, however, and jailed for it. Under the terms of the 2002 Proceeds of Crime Act, it was decided that the whole sum represented the "proceeds" of his crime, since it was paid to him in response to claims that were, in one respect, untrue. The Court of Appeal was "unable to see how it can be said that this defendant did not obtain by his offences of deception the payments which were actually made in response to his inflated claims". The fact that the vast majority of the money would have been paid under an honest claim was irrelevant. The Act is quite clear on the matter.

In that particular case (as The Times failed to point out), the order was overturned by the Court of Appeal, as being (as Lord Justice Hughes put it) "patently oppressive". Nevertheless, the Appeal judges made clear that the original judge had correctly applied the statute. Hughes LJ also stressed that the decision to strike down the order was wholly exceptional, and that in most instances, discretion "cannot be exercised simply on the grounds that the Judge disagrees with the decision of the Crown to pursue confiscation, or with the way it puts its case on that topic." According to the relevant CPS guidelines (pdf), "Parliament's decision to remove the Court's discretion not to make a confiscation order was a deliberate measure designed to strengthen, and not weaken, the legislative framework for confiscation." In other words, injustice was built into the law. POCA's framers foresaw the possibility that judges might come to reasonable and proportionate conclusions about the proper value of assets to be seized, and made sure that they couldn't.

This is all in order, apparently. Hughes LJ commented that "it may well be perfectly proper for a confiscation order to be massively greater than the gain from the offences of which the defendant has been convicted. That is the whole purpose of the criminal lifestyle provisions. They extend the reach of confiscation beyond the particular offences of which the defendant has been convicted." And that's not the worst of it. In a chilling press release which made plain exactly what they thought of traditional ideas like "guilty until proven innocent" and "the rule of law", Wiltshire Police boasted that "under the Proceeds of Crime Act, criminals can have their illegal earnings and possessions taken away – even if they are not convicted of the crimes they have committed."

What extraordinary language. "Criminals" can have their "illegal" earnings taken away, even if there is no proof that they are criminals or that their earnings are illegal. Yes, sometimes the guilty go free - especially if the prosecutors are unable to assemble sufficient evidence. That is as it should be: the alternative would be to do away with trials altogether and have the CPS decide guilt and punishment. But legally someone who has been acquitted of an offence is innocent. The concept of a criminal "not convicted of the crimes they have committed" is unknown to the law. But apparently it is well known to the police (and, indeed, to the Home Office). If they decide someone is guilty, then under the terms of POCA they can, financially, skin them alive. And then put the property up for sale on Ebay. "Our intervention creates an opportunity for the public to bid to purchase high-value goods at competitive prices, with profits going towards new crime fighting initiatives," says Leicestershire's DI Dharmendra Bhakta, sounding more like a salesman than a police officer.

As the senior barrister and former Conservative MP Sir Ivan Lawrence put it in a speech (pdf) last September (from which The Times seems to have taken much of its report), "it is one thing to punish an offender and also to deprive him of the proceeds of his crime; it is quite another to deprive him of property that is not the proceeds of crime". He told the Cambridge International Symposium on Economic Crime that POCA - both in its principles and in its operation - was "a law more draconian and manifestly unjust than anything ever devised by the state in modern times". It was contrary to traditional British principles:


At the heart [of English justice] has been the doctrine of the rule of law. This has been anchored to the concepts of fairness and justice, with its judges, juries and barristers standing firmly against oppresion by the state and its sometimes harsh laws, whenever it threatens the liberty of the citizen...our judges, who have risen through the ranks of lawyers practising daily in our courts, are imbued through every fibre of their judicial being with the traditional principles of our common law, and so have been able to just their own judgement or discretion when they perceive any risk of injustice.


Lawrence finds it "astonishing that no-one is up in arms about it".

So why is this happening? Money would seem to be the prime motivation. With tax revenues declining, expropriating money from people who are (or who may be characterised as being) offenders is a potentially lucrative source of revenue. While it was originally presented as a deterent to crime, and a just punishment of drug dealers and gangsters, POCA is now being used nakedly as a money-making racket. The various parts of the criminal justice system can enjoy un petit souper at the expense not just of major-league crimelords but others who may merely have been careless with their accounts. Under the rules, police, prosecutors and courts receive a share of receipts on an 18.75%, 18.75% and 12.5% basis. There are incentives - The Times suggests that in some cases individuals are receiving bonuses based on the money raised under the Act. There are also targets. Nationally £135.7 million was seized in the financial year 2007-8, up from £96 million two years before. The Home Office has now set the criminal justice system a target for the annual seizure of £250 million of criminal assets by 2010 and wants the figure to rise to £1 billion per year.

When such high figures are involved, the crime (or suspicion of crime) can be little more than a pretext. Police and prosecutors pursue the most lucrative, rather than the most justifiable, cases. This skews not only justice but law enforcement priorities. For example, brothel keepers and owners of escort agencies, many of whom have been known to the police and tolerated for years have recently begun to yield rich pickings via POCA. The result, in many cases, has been to force vulnerable women - for whom the brothels might have provided a safe place to work - onto the streets. It is not the establishments linked to criminal gangs, or involved in people trafficking or the exploitation of underage prostitutes that are now most likely to be closed down by the police, but those that provide the best opportunities for profit. The state has become a glorified ponce, living off immoral earnings. As Belinda Brooks-Gordon has put it, "the Home Office has provided the police with a huge vested interest in the criminalisation of sex work."

It's not just POCA in which this profiteering approach to justice now obtains, of course. It is equally blatant in the use of speeding fines, parking fines and bin fines to raise money for the police and local authorities, or in disproportionate administrative "fines" such as that levied on Baroness Scotland for (in the accepted version of events) forgetting to photocopy some documents. In most of these cases, the normal protections of criminal law are sidestepped (as they are when people are made subject to ASBOs) by calling it a civil matter, despite the fact that not paying up will result in a long prison sentence.

As Sir Ivan noted, "it is difficult to have any sympathy for financial criminals whose greed has led them to deprive their fellow citizens of their hard-earned money". But equally, it's difficult to have any faith in a criminal justice system based on the profit motive.