Last week I received a package of cabinet papers and policy advice relating to the Criminal Proceeds (Recovery) Bill. Most of it is unsurprising, the usual nitty-gritty of agreeing the final shape of the bill and bringing it before the House. However one part of a Cabinet Legislation Committee paper ("Criminal Proceeds (Recovery) Bill: Approval for Introduction" (LEG (06) 126)) caught my attention, because it really does my work for me:
Aspects of the bill likely to be contentious
- The Bill will be contentious on the same grounds as were canvassed before the introduction of the Criminal Proceeds and Instruments Bill. A civil forfeiture regime is vulnerable to criticism on civil liberties/fundamental rights grounds. This criticism is answered by the checks and balances in the regime. These include the fact that the courts must find a proven connection between criminal activity and criminal proceeds before forfeiture takes place, and that undue hardship may be taken into account when a court considers forfeiture.
- The conviction based regime allows forfeiture of an offender's property to be taken into account in the overall sentence imposed, which may lead to allegations that wealthy offenders can buy themselves lighter penalties. However, confiscating a person's lawfully gained property is a sanction. The confiscation is similar in effect to a fine or an order to pay reparation, both of which are also taken into account when considering the totality of a sentence.
- The Bill will apply retrospectively, which may attract criticism on civilliberties/fundamental rights grounds. The Bill allows for the confiscation of assets and profits acquired during the seven years prior to the restraining or forfeiture order being made. This period will initially include the seven years prior to the Act coming into force. The retrospective application is necessary to allow the civil forfeiture regime to operate from the date of enactment
At least they recognise that there is a problem. As to their justifications, the "proven connection" required for forfeiture is on a reduced standard of proof - "the balance of probabilities" rather than "beyond a reasonable doubt". This is insufficient for what is effectively a criminal sanction. And there's no question it is a criminal sanction - the government admits as such in its discussion of sentencing. The government is trying to do an end run around fundamental rights by attempting to impose criminal penalties through civillaw.
One issue they do not address is double jeopardy. As the civil forfeiture regime is intended to operate completely seperately from the criminal process, there is a real possibility that people will be effectively punished twice for the same offence - once by jail time, and once by a forfeiture of their assets. This is fundamentally unjust, and an explicit violation of the BORA and the International Covenant on Civil and Political Rights. This problem is not shared by a single, conviction-based process. Of course, such a process would require that the police actually do their job, and collect evidence against criminals to allow their prosecution. But obviously, that's just too much to expect.