Friday, May 29, 2009

Proceeds of Crime

Something was nagging me about a story highlighted by Devil's Kitchen regarding the confiscation of money. To recap the original story Police found stash of money at someone's home after reports of a burglary, as the owner couldn't produce a legitimate reason for its existence the police "Instigated proceedings under the Proceeds of Crime Act [POCA]" and had it confiscated.

The nagging bit was the Bill of Rights 1689 which states quite clearly

That all Grants and Promises of Fines and Forfeitures of particular persons before Conviction are illegall and void. [sic]
So if we read the story correctly the POCA allows forfeitures without conviction which contradicts the BOR. Oh dear.

Time to look into POCA which given the number of SIs attached is quite difficult. Anyway the key section is Part 2 Section 6 "Making of order" that is when the Crown Court can proceed.

There are two conditions that need to be fulfilled before proceeding, the first is split into a three-part "or" stripped of legalese they boil down to:

1) You've been convicted in the Crown Court, or
2) You've been convicted in another court and sent to the Crown Court for sentencing, or
3) You've been convicted and sentenced in another court and the prosecutor is asking for a confiscation order to be made.

From that we don't even need to continue to the second condition (does the Court think it's appropriate) because we can see that the Bill of Rights hasn't been contradicted. You can only have a confiscation order made if you've been convicted So all is right, except let's go back to that original story -
The un-named suspect was arrested on suspicion of money laundering, but released without charge
But even though they did not charge him, police instigated proceedings under the Proceeds of Crime Act, or POCA, as the man could not provide a legitimate explanation of where the money came from
So how did they start proceedings if he hadn't been convicted and that's the first and main condition required? Well the only the only get-out is in section 28 for that and again we get a set of conditions but this time the first one is a three-part "and". Again stripped of legalese

1) Proceedings for an offence were started but weren't finished, and
2) The defendant absconds, and
3) The defendant has been absconded for two years.

This would be fine if the man in the story had absconded, no mention of that so we assume not. So how does this warrant this quote
specific criminal conduct need not be proved for forfeiture orders under the Proceeds of Crime Act
It's correct because POCA doesn't come into play until after a conviction and it doesn't deal directly in what that conviction was for. However a conviction has to occur to mesh with the Bill of Rights.

How about:
A forfeiture hearing was held at Neath Magistrates Court where the police application was granted.
So first off we're not told what this man has been convicted of (though I guess undeclared earnings would be possible) and then we're told the forfeiture application was from the police which isn't possible.

Okay woah there all that is for a criminal case, a civil case is a whole other board game and is dealt with in Part 5.

This is where things go strange. This part allows proceedings through a civil rather than criminal court for forfeiture involved in "unlawful conduct" the definition here of said conduct
Conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part.
Er try that again. Something is unlawful if it's criminal? Doesn't that make it a criminal offence? The entire proceeding boils down to:
3. The court or sheriff must decide on a balance of probabilities whether it is proved
(a) that any matters alleged to constitute unlawful conduct have occurred, or
(b) that any person intended to use any cash in unlawful conduct.
In other words you're being convicted in a civil court. But civil courts are dispute courts, the old you owe me money, no I don't arguments. What has happened here is the Director of the Assets Recovery Agency, which isn't staffed by the police,

[Update: ARA was discontinued and moulded into SOCA, but otherwise everything still applies]

has initiated proceedings against this man and he's being convicted by a judge, not a jury, on the "balance of probabilities" rather than "beyond reasonable doubt" and no specific criminal charge needs to be made. That means without being able to demonstrate a "legitimate" source for the money the court decided on the balance of probabilities it was obtained unlawfully and thus should be turned over to the ARA [SOCA].

In other words it's the OJ Simpson trial where the criminal court found him not guilty, but the civil court found him liable.

So to sum up the entire section of Part 5 appears to be a con-job to allow the police... sorry the ARA [SOCA who are the police] to confiscate property from people against whom the CPA can't get a criminal conviction. A return to the 'We know it was you wot done it' school of policing perhaps?

[Update - great quote form SOCA themselves regarding Asset recovery -

Where a law enforcement agency or prosecution authority has a criminal case after 1st April, which it has been unable to prosecute successfully; it will be able to refer it to SOCA to consider adopting it for civil recovery and/or assessing for tax
Yup we couldn't convict you in a criminal court so we'll try the civil court instead. Oo two bites at the apple]