The UK is following the USA in adopting conviction-free, hell, trial-free presumption of guilt. It starts with ‘obvious’ bad guys but as USA’s example with asset forfeiture shows, it doesn’t stop there.
– Perry de Havilland, discussing this.
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Samizdata quote of the daySamizdata Illuminatus (Arkham, Massachusetts) · Civil liberty, Law & Regulation · Slogans & Quotations · UK affairs July 18th, 2019 |
 10 comments to Samizdata quote of the day |
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it doesn’t stop there
Well it hasn’t already.
Local councils have been dishing out “conviction-free, trial-free” fines on the assumption of guilt for minor offenses for a decade or more, there are plenty of examples of this going way beyond their original remit.
Ironically enough – we learned civil asset forfeiture from you guys. Sadly, unlike in other things, being subject to it didn’t teach us not to do it.
I remember when the Obama administration announced, with much fanfare, a new policy to rein in the excesses of civil asset forfeiture. But when I dug into the details I found the big change consisted of a prohibition on states stealing your stuff… unless the feds got to wet their beak.
Where I live if you have more than about $30k in cash on you the cops just take it, even in the absence of any evidence of criminal behavior. And then when the prosecutor’s office declines to charge you with anything, you ask for your money back. “No,” they explain.
In the USA, we’ve always had traffic tickets and ordinance violation notices that instruct you to mail in the fine. But always, always, you are able to notify the court that you dispute the charge and you then receive a court date to begin your fight.
Is this not the case in the UK? Is there no option to demand your day in court for a citation such as the bird-feeding violation?
Yep. But what’s the point when you’re sure to lose?
That’s the idea, anyway.
Sure, but my point is, there’s no due process violation inherent in such a scenario (e.g., the bird-feeding lady example.)
Very few of us contest traffic citations, because a), we did it, and b), the court-admissible evidence is usually quite strong.
But that’s not the same point as the lack of due process in a pre-trial, pre-contested-hearing government seizure such as what Perry speaks of.
(Although I note that this order was simply for a freeze, not for a seizure. The article also mentions that the same “explain your sources of income” law was used against “ . . . Zamira Hajiyeva, the wife of the jailed former chairman of Azerbaijan’s largest bank, to seize a property and a golf course worth about 22 million pounds.” But it fails to note that that seizure was preceded by a contested hearing. So while Perry’s ire at the asset forfeiture mess is justified, I’m not sure I see the parallel due process complaint in this story.)
English civil law has long gone down this path, the criminal law is (gleefully) catching up, have a look at this article om the Mareva injunction or asset ‘freezing order’, which mentions in passing the sinister Anton Piller order, a civil search warrant.
Almost none of the political class care for freedom, or seek to restrain either the bureaucracy or the Courts. We’ve not heard much about the abuses of super-injunctions recently, have we?
Mr Ed – don’t ask me why, but I used to be a bit of an expert on A-P orders and the Mareva injunction. And I can’t see how you can attach either one to issues of criminal law, both remain entirely-civil remedies that are not available in criminal cases. Neither has any confiscatory element, the Mareva order only secures assets up to the amount in contention for the duration of the case and the A-P order only allows for the securing of evidence. While the A-P order is ex-parte in its original grant, the defendant always has the opportunity to contest it immediately after it is carried out and suppress its results if they are not material to the case. While there are troubling issues surrounding both of these orders (as described in your article) they are worlds away from things like CAF and the UWO, where the state simply says ‘if you can’t explain where you got the money from, to our satisfaction, we get to keep it’.
llater,
llamas
llamas,
The Mareva order is an equitable remedy, equity being the bastard father of socialism. The order was quite new in 1975 and it has spread like knotweed since. The basic idea, grab and then put the receiving party to great trouble, is the root of it, grabbing before any process or finding, disturbing the status quo ante.
What the criminal law is doing is ‘catching up’ in the grab first and sort out later approach, and there are also things like civil-style injunctions where the breach of the civil order is a criminal offence. What is happening is that the State is looking at how the civil law has become a weapon, and adopted and adapted those tools to its own ends.
Enoch Powell was right – such things as asset confiscation reverse the burden of proof that the Common Law depends upon.
When I sat on a jury, we did NOT make a decision based on “do I like this man – or do I think he is dodgy” the decision of the jury was based upon “has the prosecution proved its case beyond a reasonable doubt”.
If the prosecution can not prove, beyond a reasonable doubt, that money or goods came from crime that should be THE END OF IT. I do not care if the man under suspicion comes from Sicily and wears a suit cut to allow for the bulge of a shoulder holster.
As for “on the spot fines” – the accused must always be allowed to appeal to court IF THEY WISH TO DO SO.
For example, they may say “no, I did not drop this litter” – and they may be telling the truth.