Cash forfeiture and the meaning of draconian
I was due to represent a client in a cash forfeiture hearing this week, although it has been called off at the last minute. But, I thought I’d take the opportunity to say a few words about these proceedings.
The point of the various financial seizure/forfeiture/confiscation orders is for the authorities to deprive criminals of cash found in their possession. There are a few ways this can be done. Confiscation proceedings follow a conviction for certain offences, such as drug dealing, money laundering, etc. Put very simply, in confiscation proceedings the prosecution must show that a) the convicted criminal has benefited from crime to a value of X; and b) that he has realisable assets (in other words has cash or can sell goods) to the value of Y. The court will then make an order that the defendant owes X but that he must pay Y wherever X is greater than or equal to Y. Obviously if he can pay the total benefit figure (X) then he must pay that. Failure to make payment can result in more time in prison. Confiscation is not concerned so much with the source of the funds being confiscated as it is with the benefit that the criminal has derived from his crime.
Cash forfeiture is different and less widely known among the general public. It focuses on cash, literally notes and coins, found in someone’s possession. Possession, in this context means under his control, so it doesn’t have to be on his person but could be in a safe at home or (as in my case) locked away safe and sound in a security box at the bank.
The cash can be restrained initially by the police and then by order of a court. Subsequently it can be forfeited if the prosecutor can show that the money is the proceeds of a crime or is to be used in the commission of a crime. So, if a drug dealer has earned it or was planning to buy more drugs to deal then it can be forfeited.
I, and many other lawyers, say that cash forfeiture is draconian.
If the police arrest Mr Smith and accuse him of drug dealing (for example, although cash forfeiture is by no means restricted to drug offences) then they must produce evidence sufficient to make a jury certain (we used to say “sure beyond reasonable doubt”) that Mr Smith is guilty of the offence. It is a high burden for the prosecution to achieve and it is right that it should be so because a conviction will likely result in prison, damage to a person’s reputation and future legitimate employment prospects, not to mention that the convicted person is then easy prey for a confiscation hearing.
Cash forfeiture requires no conviction and, in fact, does not even require that there be criminal charges contemplated let alone proved. An application could even be made where the defendant has been acquitted, although I imagine the magistrates’ would consider that highly probative evidence.
Cash forfeiture is a civil matter, which means that instead of deciding a case “beyond reasonable doubt” the magistrates (for these are always heard in the mags court) must decide whether it is more likely than not that Mr Smith either obtained the money through crime or intended to use it for a crime. In effect, they must decide on whether he is a criminal. This will have the same effect on his reputation, although he may not have to reveal it to an employer in future and he stands to lose his money.
Simply the massive reduction in the standard of proof may be enough to call this draconian, but then we look at how Mr Smith can defend himself against these actions. He can either represent himself against highly trained and professional investigators and highly experienced lawyers in a very technical area of law or he can instruct a solicitor. Fine, you may be thinking, he goes along to see The Defence Brief, gets some lovely legal aid and everything will be okay. No. Legal aid is not available for these proceedings so he needs to pay privately for representation. Hang on a minute though; the police have already seized all his money. No problem, we’ll ask the court to release some fund to pay for the lawyers. Nice try, but no the court has no power to release funds to fight the application.
Where then does this leave Mr Smith (who may actually be innocent since he hasn’t been convicted of anything)? Well it may leave him in a lot of trouble.
In my case, there is no suggestion of drugs but there is a somewhat unique explanation for the source of the money that is backed up by another party (and witnesses) claiming the cash belongs to them. It’s so unique that I’m not even going to hint at it here. The other party is represented by a solicitor who normally haunts the High Court and who has absolutely no experience of this area of work. Personally, I think they may yet crash and burn because of their choice of representation, but that’s another matter. I have tried to explain to that solicitor that the purpose of cash forfeiture is to get the loot, not to afford the owner of the money a particularly fair hearing. I don’t think he believed me at the time, but he seems to be working it out the longer this drags on.
You can make up your own mind whether you think it’s draconian or not. For my part, I wouldn’t object if the forfeiture requires proper proof to the criminal standard, but that is exactly why cash forfeiture is used: because the prosecution are struggling to prove to a criminal court beyond reasonable doubt that the defendant has done anything wrong!