Proceeds of Crime Act 2002

The Proceeds of Crime Act 2002 (POCA; also known as the "Al Capone Act") is a UK Act of Parliament which authorises "draconian[1] police powers designed to deprive crime barons of luxury lifestyles".[2] It was introduced by then Home Secretary David Blunkett, who insisted it would only be used to confiscate "the homes, yachts, mansions and luxury cars of the crime barons."[3] In October 2009, the incumbent Home Secretary Alan "Pants On Fire"[4] Johnson announced that catching real criminals had proved too difficult and the law would now be amended to allow the local council to force entry and empty your house of goods and chattels for fare dodging on the bus.[2][3][5]

Purpose

“”To establish the Assets Recovery Agency… to provide for confiscation orders in relation to persons who benefit from criminal conduct and for restraint orders to prohibit dealing with property, to allow the recovery of property which is or represents property obtained through unlawful conduct or which is intended to be used in unlawful conduct, to make provision about money laundering.[6]

Although it may have sounded like a good idea at the time, it is unique in the world in terms of justifying such stringent measures on the basis of such minimal qualifying offences.[1] Almost unique, anyway — predictably, between the War on Drugs and the War on Terror the United States has crafted similarly broad legislation on the matter, with similar effects.

Who is affected

• Crime barons.
• Drug lords.
• Everyone else.

Criticism

Prior to the introduction of POCA the law allowed for "confiscation orders" which authorised the confiscation of criminal assets after a person had been convicted of a qualifying criminal offence. POCA effectively moved the goalposts by authorising the "recovery of the proceeds of unlawful conduct", a new form of civil confiscation that takes place before and regardless of whether any criminal conviction is obtained.[1] In common with all New Labour legislation, the inversion of the law "to place a burden of proof on a defendant to show on the balance of probabilities that his assets are not derived from criminal conduct… not only destroys the essence of the presumption of innocence, but also has the capacity to lead to arbitrary and irrational results."[1]

The Act was also interpreted as a sneaky way of circumventing the criminal process, allowing the government to launch civil proceedings "for extensive confiscation of defendants' assets in circumstances where it does not have sufficient evidence to prosecute them in the criminal courts."[7] Since forfeiture can occur before indictment, if criminal charges are brought, this can have the additional and predictably disastrous effect of totally stripping the victim of their ability to fund an effective legal defense.

The [[civil rights] pressure group Liberty complained as early as 2001 that the Act was framed so loosely that it was open to back-door extension, giving the criminal courts "the power to embark on wide ranging confiscation proceedings in circumstances where a person is convicted of nothing more than two shoplifting offences over a two-year period."[1]

2009 amendment

In October 2009, the Home Secretary decided to beef up POCA and extend the "right to search homes, seize cash, freeze bank accounts and confiscate property… to town hall officials and civilian investigators employed by organisations as diverse as Royal Mail, the Rural Payments Agency, Transport for London,"[2] "Department of Work and Pensions, trading standards and other local authority workers."[3] The amendment was made in a Statutory Instrument, which means it will not be debated by MPs.[3] "Each empowered body will receive 'financial investigators' trained and monitored by a quango. This is a very good thing apparently, because they become "less reliant on more traditional law enforcement agencies" like the pesky police. Quite right, why should someone trained in upholding the law decide when the right time to confiscate somebody's wealth is, when a faceless bureaucrat would do so much more eagerly? We are assured that this extension shall not be exploited or abused; presumably in the same way that anti-terrorism legislation has not been used to rifle through bins and deny school places."[8]

One might assume that most bodies given these new powers "will scarcely use them, deciding they should focus on their real jobs and that if a criminal deserves to have assets frozen that is a matter for the police."[8]As with the speed camera scam, however, a Home Office explanatory memorandum adds that asset seizure will result in financial rewards and drinks all round for the newly empowered: "Investigation bodies will receive a share of money recovered as additional funding to incentivise further work in recovering the proceeds of crime."[2] Andrew Bodnar of Matrix Chambers warned that "with the incentive of their department collecting a share of the confiscated money, there is the potential for charges to be brought which are intended to maximise confiscation recovery rather than reflect the level of criminality concerned."[2] Sir Ivan Lawrence QC said: "Far worse is the encouragement being given to non-police bodies to search for what they think are proceeds of crime but may not be and subject the victim to the draconian and manifestly unjust processes of the Proceeds of Crime Act. Does anyone in Government understand that if you give prosecutors, who are supposed to be unbiased ministers of justice, the bribe of a proportion of the money they can find, you are actually poisoning the roots of justice in our society?"[2]

Paul McKeever, Chairman of the Police Federation of England and Wales, said: "The public are unaware that these very serious powers are being extended incrementally without their knowledge. Where is the consultation process that you would expect the Government to go through? How widely are these powers going to be used? What is the intention behind this? In the back-door extension of these serious powers I see a parallel with the creep of surveillance and counter terrorism. It is another incremental change in the way the criminal justice system works and represents mission creep for local authorities. The result is that we may find ourselves living in a very different society."[9]

Conclusion

"Good old Labour. In an attempt to make Britain a safer and better place to be they have devised yet another way to terrorise the public into ensuring that we never, ever commit even the most minor of crimes."[8]

See also

• Presumption of innocence

References

1. Proceeds of Crime: Consultation on draft legislation. May 2001. Liberty. Retrieved 6 November 2009.
2. O'Neill, Sean. Councils get ‘Al Capone’ power to seize assets over minor offences. 28 October 2009. The Times. Retrieved 5 November 2009.
3. Pickles, Anne. More idiot laws - but these are just plain evil. 3 November 2009. News & Star. Retrieved 5 November 2009.
4. Slack, James. What Alan Johnson said ... and why he's so wrong. 4 August 2009. Daily Mail. Retrieved 5 November 2009.
5. Councils to get asset seize power. 28 October 2009. BBC. Retrieved 6 November 2009.
6. Preamble. Proceeds of Crime Act 2002. Office of Public Sector Information. Retrieved 6 November 2009.
7. Proceeds of Crime Act 2002. 19 January 2009. The Guardian. Retrieved 6 November 2009.
8. Bowyer, Charlotte. Proceeds of crime. 30 October 2009. Adam Smith Institute. Retrieved 6 November 2009.
9. Should councils be able to seize assets? 30 October 2009. The Times. Retrieved 6 November 2009.