From Free Life, Issue 24, December 1995
ISSN: 0260 5112
Proceeds of Crime Act 1995
HMSO, London, 1995, 26pp, £4.85 (pbk)
(ISBN 0 10 541195 7)
Though drafted and supported at every stage by the Government, the Proceeds of Crime Act was carried in form as a Private Member's Bill. This requires us to notice Sir John Hannam, the Conservative Member for Exeter, who introduced it. From his speeches in Hansard, he appears a vain, worthless creature, quite unaware of what he was doing. Even so, he has betrayed his country and the alleged traditions of his Party; and we wish him every possible ill. We are glad that he will soon retire from the House that he has disgraced by his presence. We hope that any business venture in which he engages will fail, that his health will speedily collapse, and that he will die reviled by those he loves. Cruel wishes, perhaps – but men have been hanged, drawn and quartered at Tyburn for less than he did.
For this is a disgraceful Act. A mass of amendments to the Criminal Justice Act 1988, it does not easily give up its meaning; and little of what it does mean will affect the assorted vagabonds and lefties who rioted last year against the Criminal Justice and Public Order Bill. But it is at least as great an assault on liberty and property. Where earlier Acts make particular breaches in the Common Law, this generalises them – pulling down great stretches of the wall that once secured us from arbitrary power. Let us see what it actually does.
In short, it extends the power of the courts to seize the assets of convicted criminals. This power was first introduced into English law by the Drug Trafficking Offences Act 1986. It was here provided that the assets of a person convicted of drug trafficking could be confiscated where they exceeded £10,000. Now, though we believe that all drugs should be made as legally available as ashtrays, we are not complaining about the harshness of punishment. If the penalty for this offence had been made to involve a potentially huge fine, our objections would not be constitutional but simply to the criminalisation of drugs. However, confiscation is not the same as a fine. It is a new and dangerous breach of the Common Law.
The 1986 Act allows the court to enquire into a convicted person's assets over £10,000. These being found, it can then assume them to be the proceeds not only of the offence for which guilt has been proved – but also of other offences that have not so far been proved in court. Further, the burden of proof is reversed. It is for the Defendant to argue that any particular asset has been honestly obtained. Where this is not argued or established, the assets are confiscated. The Act therefore provides for punishment without trial, and sets aside the normal presumption of innocence.
During the debates in Parliament on this law, Enoch Powell protested that it was a manifest breach of natural justice. He was answered that it was a "dangerous innovation", but that the War against Drugs was so important that a limited derogation from the Common Law was justified.1 Of course, this "limited derogation" became a precedent for further measures. Part IV of the Criminal Justice Act allows the courts to confiscate the proceeds of profitable and serious offences other than drug trafficking. To be fair, this Act allows the court to confine its enquiries only to the proceeds of those offences tried or taken into account in the same proceedings. But the tendency has been to make what was introduced as an exception to the rule into the rule itself.
These efforts have been resisted by the Judges – for all their faults, truer servants of the public good than the elected politicians. Ruling on an appeal case in 1990, the Lord Chief Justice of the day described confiscation orders as "unusual in the criminal law". He then interpreted the law to make them harder to obtain.2 Partly in consequence, the value of the sums confiscated has tended to fall in the 1990s. In 1992, a total of £5,662,500 was realised by the courts under the 1986 and 1988 Acts. In 1993, this fell to £5,603,000.3
The present Act makes it easier to obtain confiscation orders. It does so in various ways. Most important of these are:
First, the distinction between trug trafficking and other offences is abolished. The wider powers conferred by the 1986 Act have been extended to all indictable offences.
Second, the £10,000 limit has been abolished. The courts can now confiscate any assets, no matter how small.
Third, the right to silence has been abolished in confiscation proceedings. As in the Criminal Justice and Public Order Act 1994, where a Defendant refuses without reasonable cause to answer questions, the court may draw whatever inferences it thinks appropriate.
Fourth – and this is an innovation – the rule against double jeopardy has been abolished. Section 6 of this Act inserts a new Article 74B into the 1988 Act. If, at any time within six years of a confiscation enquiry, evidence is found to support an order that was not made at the time, the enquiry may be reopened. This is not the same as allowing an acquitted person to be rearrested and tried again for the same offence. It is, however, a breach in the rule that forbids that. Just as with the principle of confiscation orders, it is a precedent for further breaches.
Fifth – another innovation – interlocutory confiscations are allowed. Section 76(2) of the 1988 Act is amended to allow these where:
(a) the court is satisfied that a person is to be charged (whether by the laying of an information or otherwise) with an offence to which this part of the Act applies or that an application of a kind mentioned in subsection (1)(b) above is to be made; and
(b) the court is satisfied that the making or variation of a confiscation order may result from proceedings for that offence, or, as the case may be, from the application.
The meaning of this is that the Prosecution may go into a Crown Court and make an ex parte application for a suspected person's assets to be frozen before arrest and charge. The procedure is different from the civil asset forfeiture described by Mr Furlong in his article on the American militias.4 Confiscation must be followed by arrest and charge. Nor is there need to sue for the return of assets – they are automatically returned if there is no conviction or confiscation enquiry. But considering what has happened in the United States, and how well this is followed here by the Home Office, we cannot but see these paragraphs as further movement towards punishment without trial.
As said, this is a difficult Act to understand. It works mostly by amending earlier Acts which look themselves like a mass of technicalities. However, anyone with even a small understanding of law can see its general effect. Since the House of Commons is full of lawyers, we might have expected a stiff opposition to the Bill. There was nothing of the sort. Sir John Hannam introduced it with a speech of the utmost complacency:
This is third time lucky for me in the private Members' ballot. I was also lucky last year in the private motions ballot, so I am not going to buy any more lottery tickets as I am sure that my luck has now run out. However, I am delighted to have the opportunity to present this Bill. Although it may appear a narrow and fairly technical measure – I apologise for its technicalities – it is none the less an ambitious one and I am confident that hon. Members of all parties will support its aims and principles.5
And they did. Speaking for Labour on the third reading of the Bill, Harry Barnes joined in the complacent selling of our birthrights:
The House has never been divided on the Bill…. [T]he hon. Member for Exeter (Sir J. Hannam) has done a service to the House in introducing this measure.6
Or see Mrs Roche, again for Labour:
Does the hon. Gentleman agree that [the Bill] is no new departure? If he casts his mind back, he may recall that the previous legislation on forfeiture and confiscation received the whole-hearted support of the Opposition, especially as regards the proceeds of the dreadful trade in drugs.7
We said above that Sir John has disgraced the House of Commons by his presence there. Recalling the debates on his Bill, we should rather say that everyone now sitting there is a disgrace to it. Like some ancien régime fossil, they have forgotten their duties, remembering only their privileges. We almost rejoice that there are courts in Europe to keep these people under some kind of civilised control.
A depressing conclusion – but this is a depressing Act. And we predict many more of the same.
Anthony Furlong and Edward Hume (Sean Gabb)
1. See J. Enoch Powell, The Drug Trafficking Act versus Natural Justice, Legal Notes, No. 2, The Libertarian Alliance, London, 1987.
2. R v Dickens , 2 Queen's Bench, 102. Lord Lane is to praised for this – though his judgment is so hard to follow that we had to turn for its meaning to the textbooks.
3. Figures taken from a written answer to a Parliamentary question – see House of Commons Debates, vol. 253, col. 670(W), 1st February 1995.
4. Anthony Furlong, "A Second American Revolution?", Free Life No.22, April 1995.
5. House of Commons Debates, vol. 257, col. 1322, 3rd February 1995.
6. Ibid., col. 1336, 31st March 1995.
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