Wednesday, June 22, 2005

Asset forfeiture: sacrificing justice

The Government has finally introduced its long-anticipated asset forfeiture legislation to the House as the Criminal Proceeds and Instruments Bill. The bill allows the crown to seize assets from suspected criminals on a civil ("balance of probabilities") standard of proof. But the crown does not have to link the assets to any specific criminal activity; all it has to prove is that the target has engaged in "serious criminal activity" within the last seven years. No specific criminal offence needs to be proved, and the bill is explicitly intended to be applied not just to those convicted of a criminal offence, but for those suspected of one (but for whom the police don't have enough evidence to prove it), or even those acquited in court. Worse, the onus of proof on the accused is reversed;

"Those who want to dispute forfeiture will have to prove their wealth has not been funded by criminal activity. If they can prove the value of restrained assets exceeds the benefits they derived from crime, the forfeiture will be reduced accordingly. If they can't prove that, their entire estate may be confiscated."

This violates fundamental norms of justice, such as the presumption of innocence and the prohibition on double jeopardy. Instead, it's proof by suspicion and guilty until proven innocent - Ahmed Zaoui standards of evidence.

Goff claims that

"No person stands to lose assets or profits that they have rightfully owned or gained"

However, the civil standard and the reversed burden of proof virtually guarantee it. While Goff may see things like the presumption of innocence and the onus of proof being on the crown as impediments to putting criminals behind bars, they are there for a very good reason: to prevent injustice. By removing those safeguards, Goff opens the door to innocent people, incorrectly suspected of criminal activity, having their houses seized.

But perhaps the most odious aspect of the legislation is Goff's emphasis on money. According to his press release, the bill "will reap millions" from criminals. Reading down, the government expects to gain $14 million a year. And we're sacrificing justice for that?

See also:

Asset forfeiture: the dangers of settlements
Asset forfeiture: "a valuable means of revenue collection"
Asset forfeiture: disappearing concerns
Ahmed Zaoui Standards of Evidence


The bill is at least partly based on the British model. I visited the Home Office in London last May to discuss their assett seizure regime and was horrified at what I heard. Like W. Australia, where seized assets go to the police, the police were talking about introducing an incentive scheme to encourage more use of asset seizures. Any unit that seized over a certain amount would recieve a proportion of the take! When I asked whether there was evidence that seizures reduced criminal activity I was told they hadn't done any work on that. The measure of it's success was how much money it had seized!

The other interesting thing in England was the law was specifically geared to 'mid-level operators' although they were looking at reducing the level at which any cash found on your person could be confiscated, I think from ten thousand pounds to five thousand (but I may have recalled that incorrectly). They talked about the importance of targetting that level because of the deterrence effect of other members of the community. When I suggested that busting top level operators in country estates was an even better symbol that crime doesn't pay than busting yardies on housing estates, he didn't seem to get the point. I guess the message they want to send is that crime doesn't pay, unless you're REALLY fuken rich!

I agree with your post though. Goff's bill is an(other) outrageous attack on the basic principles of justice and even so national and NZF (soon to be followed by the UFO party I'm sure)is still screaming that it doesn't go far enough. Kind of makes me dispair sometimes


Posted by Anonymous : 6/23/2005 01:36:00 PM