Guilty until proven innocent

The government's plan to confiscate the proceeds of suspected criminals, even if they have not been convicted, cuts across the presumption that someone is innocent until proven guilty, argues Ian Smith

The government's proposals in its report 'Recovering the proceeds of crime' is not the complete answer to ensuring that crime does not pay.Ministers have in their sights 400 cases of unnamed persons, who between them hold assets worth 440 million which the government would like to get its hands on.

No law-abiding person would weep if a drug trafficker lost his business capital or the vintage cars collected on the back of the misery of others (while not even paying basic rate tax).

But are the proposals a step too far?The regime envisaged is a three-pronged attack by a new National Confiscation Agency (NCA) on offenders - criminal confiscation, civil forfeiture and taxation of unspecified - ie, criminal - profit.Firstly, the existing drug-trafficking confiscation laws would be extended to all crimes.

This means that on first conviction for any offence, all income and gifts received by the convicted person in the previous six years would be assumed to be the proceeds of crime and forfeited, unless the offender could show their origins to be legitimate.

The only exception would be if such a move could be proved to be unjust or disproportionate given the circumstances of the defendant.

Presumably, a person convicted of violent disorder or shoplifting would not feel the weight of the legal equivalent of a sledgehammer.

Secondly, if a person were acquitted, or not prosecuted for lack of evidence, the NCA could bring civil proceedings in the High Court for forfeiture.

It would only have to prove, on the balance of probabilities, that there were reasonable grounds for suspecting that assets to be forfeited represent a person's proceeds of crime or are intended to be used by that person in criminal conduct.

Suspicion is a low threshold; the word reasonable would only compel a degree of objectivity in the proceedings.Thirdly, where there is little or no evidence - or presumably none that is admissible - the government plans to tax income and gains from unidentifiable sources.

In these cases, a tax assessment would be raised on the income.

In the absence of a legitimate explanation - such as, for example, that it was a gift from Auntie Agnes - the assessment would be enforced and tax collected.

If an explanation revealed criminal activity, the NCA would go back to the confiscation or forfeiture options.The current confiscation regime has been widely referred to as draconian by the government and courts but is positively libertarian when compared to the proposed regime.

Lower burdens of proof are likely to lead to more miscarriages of justice.

The new laws would redraw the boundaries of the state's encroachment into personal and financial affairs.If the losers are to be those impaled - rightly or wrongly - on the new trident of powers wielded by the NCA, the winners could be us, the taxpayers.

The winners may also be us the lawyers, with one notable caveat.Defence lawyers are singled out for their 'very high rates'.

The government complains that by the time it gets its share of frozen ill-gotten gains, lawyers have substantially eaten away at the pot, citing the 'inequality of arms' between low-cost prosecuting lawyers and higher cost defence lawyers hired by defendants.To tackle this problem, the government suggests that accused persons should only be able to pay their lawyers at legal aid rates.

So, even having the means - albeit frozen - of paying for one's own lawyer would not guarantee a right to the lawyer of choice.

So much for innocent until proven guilty.

Ian Smith is a solicitor in the London office of the business crime group at Irwin Mitchell