It has been in the news this week that the powers of the Proceeds of Crime Act have been exercised for the first time
in Scotland. Glasgow businessman, Russell Stirton, had assets worth perhaps £2 million frozen, although he has no convictions for drug dealing nor any recent convictions for any other criminal conduct. If Mr. Stirton wishes to recover his property, he will have to take the authorities to court. Under the new law however, rather than having to meet the criminal standard of evidence, that he should be shown to be guilty beyond all reasonable doubt, the authorities will merely have to meet the civil standard of evidence, that the balance of probabilities imply that he is probably guilty.
Good Morning Scotland
discussed the new law this morning. They compared it to a similar law in Ireland. Introduced in the 1990s, the Irish law has been tested all the way to the European Court of Human Rights and has been upheld on every occasion. It has also proved to be immensely popular. Irish politicians have been able to claim that as well as punishing criminals, the law also raises revenue to be spent improving the public welfare. Indeed, they are now proposing that some of the revenue should be spent specifically on the communities who are harmed by the criminals whose assests have been seized. There wasn't much discussion of who would receive the revenue in Scotland, or the UK generally, but this source
tells us that it will go to the Treasury, with the possibility that some of the money will be returned to the police forces who enforce the law:
Any funds confiscated under the Act are not allocated pro-rota to forces. All funds confiscated under the Act will continue to go to the Treasury, who in turn place a percentage (possibly 30%) into the Recovered Assets Funds. A number of bodies, including the police, can make a bid to the fund. The fund is not available for growth, but is intended for initiatives that are time specific or, alternatively, equipment.
This is worrisome. The United States
have already gone down this road:
In 1984, Congress enacted the Comprehensive Crime Control Act, which gave federal prosecutors new forfeiture provisions to combat crime. Also created by this legislation was the Department of Justice Assets Forfeiture Fund (AFF). The proceeds from the sale of forfeited assets such as real property, vehicles, businesses, financial instruments, vessels, aircraft and jewelry are deposited into the AFF and are subsequently used to further law enforcement initiatives. Moreover, under the Equitable Sharing Program, the proceeds from sales are often shared with the state and local enforcement agencies that participated in the investigation which led to the seizure of the assets. This important program enhances law enforcement cooperation between state/local agencies and federal agencies.
If are going to follow them, we may first like to consider where they are leading us
In Washington, DC, police stop black men on the streets in poor areas of the city, and "routinely confiscate small amounts of cash and jewelry." Most confiscated property is not even recorded by police departments. "Resident Ben Davis calls it 'robbery with a badge.'" [USA Today, 5/18/92.]
In Monmouth, New Jersey, Dr. David Disbrow was accused of practicing psychiatry without a license. His crime was providing counseling services from a spare bedroom in his mother's house. Counseling does not require a license in New Jersey. That didn't stop police from seizing virtually everything of value from his mother's home, totaling over $60,000. The forfeiture squad confiscated furniture, carpets, paintings, and even personal photographs.
In Malibu, California, park police tried repeatedly to buy the home and land of 61-year-old, retired rancher Don Scott, which was next to national park land. Scott refused. On the morning of October 2, 1992, a task force of 26 LA county sheriffs, DEA agents and other cops broke into Scott's living room unannounced. When he heard his wife, Frances, scream, he came out of his upstairs bedroom with a gun over his head. Police yelled at him to lower his gun. He did, and they shot him dead.
Police claimed to be searching for marijuana which they never found. Ventura County DA Michael Bradbury concluded that the raid was "motivated at least in part, by a desire to seize and forfeit the ranch for the government . . . [The] search warrant became Donald Scott's death warrant."
For as long as the Recovered Assets Funds are not distributed pro-rata to the police forces, we may be spared such horrors. But how much confidence can we have in the integrity of the bidding process? How are we to prevent collusion between the police forces and the Treasury which would result in a force being given a specific reward for each seizure it makes? In the United States, where states have tried to pass laws preventing this, police forces have proved adept at bypassing those laws
And amending the system to abolish the Recovered Assets Funds, or to repeal the law altogether, won't be easy. A police chief has much to gain, in terms of pay, job security and status, from the rewards of asset seizure. He has every incentive to lobby against such an amendment. Do you think no policeman would do that here? It already happens in America
. How much support can we expect to see for such an amendment or repeal? The potential victims are not as well organised as the police forces and most are probably not even aware of what the consequences of this law might be. It is just the sort of issue which everyone will leave to everyone else to sort out, with the result that nothing is done about it and the special interests will have their way.
Giving the police every tool they need to enforce the law may seem like a good idea, but, in the long run, we risk seeing honest policemen, who normally respect the rights of citizens, being replaced by corrupt ones, who have no compunction about seizing property from innocent people for their own gain. One of the presenters of Good Morning Scotland
glibly asked "If you are innocent, what have you got to fear?" Quite frankly, I fear having my property seized or even being shot dead by a corrupt policeman.