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Last Updated: Thursday, 3 March, 2005, 11:56 GMT
Is assets law fair or draconian?
By Jon Silverman
Legal affairs analyst

A flurry of press releases has marked the second anniversary of one of the most significant pieces of crime-fighting legislation of Labour's second term.

According to the home secretary, a million pounds a week has been clawed back from criminals in the 24 months since the Proceeds of Crime Act 2002 was implemented.

Money
Police and other agencies are set to keep half of all assets seized

In London alone, 20m has been seized in cash and assets.

But is the law a proportionate response to criminal greed ? Or evidence of a draconian state?

The act puts the onus on the suspect to prove that assets are not the result of criminal activity. It also enables confiscation to take place in the civil courts where the required standard of proof is lower than in the criminal ones.

Solicitor Tony Barnfather was involved in the first case to test the powers of the Assets Recovery Agency (ARA) to obtain a civil order to freeze and confiscate assets.

'Catch 22'

He discovered that a suspect can be at a serious legal disadvantage when fighting his case.

There's a long-standing principle in English law which says there should be finality of litigation, that it is wrong to give the state a second or third bite of the cherry
Barrister, Simon Taylor

"The Legal Services Commission will look at a client's assets and say he has enough to fund his case, so we're not giving him legal aid.

"But the act, as it stands, allows those assets to be frozen so they cannot be used in his defence. It's Catch 22."

Barrister Simon Taylor will be arguing a test case in the Appeal Court in May.

He believes the Proceeds of Crime legislation has something in common with the abolition of double jeopardy, which allows people to be re-tried for the same alleged crime.

"There's a long-standing principle in English law which says there should be finality of litigation, that it is wrong to give the state a second or third bite of the cherry.

"It is one thing for a confiscation order to follow on a criminal conviction. But a stand alone civil recovery case is another matter and has human rights implications."

But so far, the courts do not agree. In January 2005, the Court of Appeal in a significant judgment, ruled that civil recovery proceedings did not offer any enhanced protection under the European Human Rights Convention because they are not criminal in character.

'Lost opportunities'

Welcoming the judgment, the director of the Assets Recovery Agency, Jane Earl, said it meant that the agency could pursue assets obtained from unlawful conduct stretching back 12 years.

The ARA seeks a balanced portfolio of cases, not just concentrating on the Mr Bigs
Jane Earl
Asset Recovery Agency

She is, however, sympathetic to the argument about an inequality of arms concerning legal aid.

"It is important to be seen to use powers which are proportionate and fair and to engage in a proper legal contest. We have drawn this issue to the attention of the Home Office and I think it will be addressed in forthcoming legislation."

Despite more than 120m in cash and property being seized in the last two years, opportunities are being lost, according to a report by a joint inspection team published towards the end of last year.

The report found that activity was often targeted only at higher profile crime "barons" and almost exclusively against drug trafficking.

Prolific burglars and street-corner dealers, it said, were escaping the attentions of the law enforcers.

Jane Earl says this is changing. "The ARA seeks a balanced portfolio of cases, not just concentrating on the Mr Bigs. We've just taken out an order for 35,000 against a man who would otherwise have escaped any kind of sanction," she said.

"We did that so that the community would get the message that crime does not pay."

From next year, with the police and other agencies set to keep half of all assets seized, many more such orders will be applied for, whatever the legal objections.


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