Asset Forefeiture Still Wrong

Back in November 2004, I said:

Earlier this week, the government announced plans to introduce a civil forfeiture regime, giving a new agency the power to use tax information and other data to seize the assets of people who are suspected of gaining from crime committed by or for them.  There are stories in the Herald, and on Stuff.

I oppose this proposed regime on a very simple issue of principle: people who are not convicted of a crime should not be punished for something they have not been found to commit. 

The bar set using a balance of probabilities approach is, in my view, too low.  If you want to destroy someone's life and seize their assets, you'd better make damn sure you have a high standard of evidence backing you up.  That high standard, in our justice system, is "beyond reasonable doubt."

This kind of stuff makes me deeply uncomfortable, and is just another tragic example of Labour's insane bidding war with National on criminal justice issues.  We have massive growth in prison populations and increases in police numbers, which have little to do with falling crime rates - crime is falling mainly because the economy is booming and fewer people are poor or leading hopeless lives.  This sort of thing is simply a response to a political beatup based on the exploitation of people's fear and as such it is deeply abhorrent.

Now I see this is back, care of the news and of blogs like NoRightTurn.

Nothing has changed. The same principles apply. As far as I can make out, the regime proposed back in 04 was amended so it only applied to those convicted. Now they are trying to push it through again, so that people who have not been convicted of anything can have their assets stripped.

It ought to be an offence to benefit from the proceeds of crime. I have no questions about that. Proving it, as with criminal proceedings generally, should be required to be beyond reasonable doubt.

It is not good enough that the agencies of the State be allowed on the balance of probabilities to destroy someone's life. Sorry. If the Crown cannot convict someone of an offence then that should be the end of the story. I frankly do not trust the agencies of the State enough to want to see them with this sort of power.

The explanatory note to the bill does say, to be fair, that the provisions can only be used against proceeds that are derived from significant criminal activity. That is to be defined as activity that would be an offence punishable by 5+ years, or profits of at least $30k.

I guess that to some minds my comments might be seen as typical liberal paranoia. It's not quite that. I actually think liberals (of whom the Cabinet, for example, is largely composed) are posessed of a powerful assumption that everyone else is liberal too. In a liberal world, legislation like this would never be abused. The problem is that there is no guarantee that New Zealand will remain a liberal country, or that the criminal justice system, say under a future National / NZ First government, might not become considerably more conservative. And the prospects of abuse of these provisions would then rise...

I would really really like someone to make a reasoned, rational case why people's rights to due process (BEYOND REASONABLE DOUBT) should be trampled by the law like this. I'm buggered if I can work it out on my own. Any takers?

Comments

[Neil Morrison]

I'm not sure how anyone's due process is being trampled. It's aimed at property derived from criminal activity. That's not arbitrary; it will have to be shown to be the case. I'm not sure of what examples there might be but if a relative of mine acquires property illegally and then gifts it to me then it makes sense that although I am not at fault I should not benefit. After all, had the crime not been committed I would be in the same financial state as after forfeiture. Also the bill is aimed at people who know damn well the provenance of such property.

Your little scare story of a future conservative govt doesn't really stack up - it could be used to not make any laws. But I have a greater faith in the independence of our judiciary and justice dept.

[tim barclay]

The Labour Party should take to asset forfeiture like a duck to water. They routinely take wealth off law abiding citizens. But they get all worried about the rights of a bunch of criminals dealing in drugs. Perhaps these criminals should set up a lawful business and the Labour Party would happily confiscate that.

[kiwi_donkey]

I agree with you Jordan. We here all sorts of stories about how proceeds or crime legislation will be used, but then find it becomes just another tool for individual police to use to bully people they don't like.

And as this is a political blog - I feel obliged to note an exception for Forestry owners. They should definitely have their carbon credits seized by royal fiat! What's their crime? Trying to build their own wealth instead of relying on the nanny state.

[stephen]

"it will have to be shown to be the case."

Isn't that the issue though? The standard for showing it to be the case will be a weaker standard than that used in criminal proceedings.

"the bill is aimed at people who know damn well the provenance of such property."

Sure. The bill's purpose is worthy. It's the standard of proof required which is scary.

[Billy]

Asset forfeiture still wrong...unless you're Telecom.

[Neil Morrison]

the standard is "balance of probabilities", and it's the High Court that gets to make the call, not the Police or the Government. I can't see a porblem with that.

If, shock horror, the Police or a future govt of what ever persuasion had the inclination and ability to nobble the High Court then I doubt whether they would be bothering with any legal niceties at all.

Those opposed have to show that the High Court cannot be trusted.

Try reframing this. Imagine the people on the receiving end as "capitalist bosses" that run an "evil business" where they get their "employees" to commit crimes and the bosses get all the rewards and suffer no punishment and the employees go to prison. Now I imagine anyone on the Left would be rather keen to see those bosses, at the very least, not profit.

[Nigel Kearney]

I not sure I support it either but the best argument in favour is based on ease of proof.

If an honest person has a new TV set in their house, they can almost always produce evidence to show they acquired it honestly. It just takes one receipt or electronic record or one person who remembers selling it. On the other hand, if a known burglar has a new TV set in their house and simply rests on his right to remain silent, without a serial number match it will be near impossible for the police to prove beyond reasonable doubt that the TV is stolen.

Burglary is a criminal offence but also corresponds to the tort of conversion, which has always been judged on the balance of probabilities.

A question for you Jordan: in a tax dispute, should the commissioner have to prove beyond reasonable doubt that the taxpayer incurred the disputed income or failed to incur the disputed expense? It seems like the same ease of proof situation to me. The taxpayer is just much better placed to produce the relevant evidence.

[pacman]

You are not being fair. You are reading the actual wording of the law rather than focusing on the message. It is the message that the bill sends that is important and there is always "the discretion of the police" that we can rely on to ensure their will not be any injustice enacted in the enforcement of the bill.

[Neil Morrison]

That irony struck me too. On the one hand, dealing with otherwise law-abiding decent parents, there is enough good sense and checks and balances in the system but on the other, dealing with pretty nasty crime bosses, all of a sudden there isn't.

I wonder why there is that disconnected. Confronting conservative parents seems to warrant greater effort and be worth greater risk of inappropriate legal action than confronting crime bosses.

[peter mck]

an interesting parellel would be say a senior government official raping a woman (or maybe several woman) and going to court say three times and then wanting his job back because he was found "not guilty". By the same arguement you put forward, he should just walk back into his job even although it is known he is as guilty as sin.

I think crime should not pay and that if someone cannot document how they enjoyed a particular lifestyle on say a benefit, (eg expensive cars and a house, and boat) then those goods should be forfieted without that proof. Take for example the paua poacher making $150,000 per annum off his crime but is supposedly a sickness beneficary - he has the boat, the house, the car all purchased in the past two years. It is obvious it is from the crime - and therefore the goods should be taken.

to do otherwise says crime does pay. (except the 200 hours community service that he does not turn up for.)

[Idiot/Savant]

Jordan:
"As far as I can make out, the regime proposed back in 04 was amended so it only applied to those convicted. "

Nope - they pulled the bill before it even got a first reading. The conviction-based regime was passed back in the 90's, and nobody really has a problem with it.

Neil:
"the standard is "balance of probabilities", and it's the High Court that gets to make the call, not the Police or the Government."

Actually, the standard is defined in the bill - the government _is_ making the call. But its not just about the standard of proof, but its burden; the bill imposes a reverse onus, so that if the government wants to seize your assets, you must prove yourself innocent. And that's without even getting into the Orwellian restraint rules...

I agree with Jordan: the government should not be able to punish without proof beyond a reasonable doubt, and people should not have to prove themselves innocent. This bill is a gross violation of human rights and fundamental judicial standards, and I'm ashamed to see it put forward in New Zealand.

[That's Me Second From The Right Two Rows Back]

"In a liberal world, legislation like this would never be abused" ... what fuckin planet are you on son?

[Dean]

"The problem is that there is no guarantee that New Zealand will remain a liberal country, or that the criminal justice system, say under a future National / NZ First government, might not become considerably more conservative"

You're a one trick pony, Jordan.

If anything, people should be scared that property rights under the current "liberal" government, who saw fit to confiscate property before due process was followed from the "haters and wreckers".

[Stephen Judd]

In the past Jordan I've said that Phil Goff scares the pants of me, and you asked why. This is why. Goff doesn't give a shit about civil rights and will say and do anything to be seen as tough on crime.

[Neil Morrison]

"...the bill imposes a reverse onus, so that if the government wants to seize your assets, you must prove yourself innocent."

No, the Director reponsible has to provide evidence to the High Court which then determines on the balance of probabilities, which is the standrad of proof in civil law. The Government has to prove its case like nornmal and people have the opportuniy to defend themselves. The first onus is on the Govt to prove its case to the High Court - they, not he Govt or Police, make the judgement.

[Oliver]

Jordan,

This govt has happily seized plenty of assets where there was not even a suggestion of criminal activity.

[Stephen Judd]

Neil, do you think it's appropriate for a criminal punishment to be applied when the "beyond reasonable doubt" standard has not been reached? That's the core issue. I have no doubt the High Court will apply the balance of probabilities standard as fairly as it can, but the fact remains it is a lower standard of proof.

Just to make this perfectly clear - effectively the goverment proposes to create a special class of crime where the state does not have to reach as high a standard of proof as other crimes. I think that is a very bad thing indeed.