A Fair Cop

The Law Commission is taking a “once in a generation” opportunity to turn a good law bad. The review consultation closes on 18 December 2020, so there is still time to stop them. The paper has 104 questions, by Question Five, I was wondering how Britain had gone from the vaulting ambition of the new millennium to the stunted legal treacle of 2020. What on earth has happened?

The Law Commission has already consulted experts, they even mention me, in Appendix 3 (on page 677, if you were wondering) and if sheer size is a measure of anything, they have been busy. However, I want to begin at the very beginning, such a very good place to start. Questions 1 to 5 address the crucial question of objectives. The ‘why are we here?’ question that should be on every working-from-home screen-saver. If we assess objectives wrongly then it is a double waste of time and money. First, we set off doing something wrong and then we have to turn back and start all over again. That’s why it’s important to have your say. The Commission themselves say that this is a “once in a generation” review. Have look at their proposal for objectives and see what you think. Does it sound reasonable to you? Read and contemplate their question, have a long cup of coffee and mull it over. Here is their summary of questions 1 to 5:

“Do consultees agree: 

That there ought to be a statement of the statutory objectives of the confiscation regime set out clearly in law? 

That the statutory objectives ought to be:

a) A primary objective of depriving a defendant of his or her benefit from criminal conduct, within the limits of his or her means; 

b) Secondary objectives of:

i. deterring and disrupting criminality; and 

ii. compensating victims (where such compensation is to be paid from confiscated funds)?”

I mean, there is nothing to dislike about this on a first reading, so why did it jar with me?

It took me a little while to work out that the victim came in at third, out of three, in a criminal justice list of objectives. Surely, we should have victim-centred justice, not a primary objective that looks at bean-counting, i.e. the limits of the defendant’s means? The victim should be front and centre of any statutory objective in the world of criminal justice, that’s why we have a Victims Commissioner, is it not? To me, the point of confiscating criminal assets, in any particular case, is to return the situation to the status quo before the criminality in question began. This is fundamentally separate from punishment for the offender and compensation to the victim for the harm caused by the crime. It is obviously not enough for a captured thief to just return what they stole, that is an affront to both the victim and society. An affront to justice itself.

I suppose I also have a police view, inspired by Sir Robert Peel in 1829, that says that the efficiency of a police force is to be measured by the absence of crime. Deterrent, therefore, should be at number one. Well, you cannot have everything in the number one spot, something has to give. Then I thought about why we should have a “statutory objective” at all, can’t we just let judges interpret the will of Parliament, as normal? This seems quite an important point. Why is the Law Commission proposing to constrain judges from their normal role applying legislation to the case in hand? Perhaps this is for constitutional lawyers to ponder? Well, David Allen Green, over to you…

I then thought about the Proceeds of Crime Act, 2002; the specific law that is the subject of this consultation. If only there was a way to get back to basics and find out what the objective of the law had been at the outset. POCA was introduced by a Prime Minister’s “Performance & Innovation Unit” Report in 2000. The Prime Minister of the day set out his government’s objectives. I ask you to compare and contrast these with the Law Commission’s objectives above:

“This Government is determined to create a fair and just society in which crime does not pay. Leaving illegal assets in the hands of criminals damages society.

First, these assets can be used to fund further criminal activity, leading to a cycle of crime that plagues communities. Second, arrest and conviction alone are not enough to clamp down on crime; they leave criminals free to return to their illegal enterprises, or even to continue their ‘businesses’ from prison. And third, it simply is not right in modern Britain that millions of law-abiding people work hard to earn a living, whilst a few live handsomely off the profits of crime. The undeserved trappings of success enjoyed by criminals are an affront to the hard-working majority. And it is, of course, often the underprivileged in society who suffer most from crime.”

In a single generation we have gone from trying to create a fair and just society to bean counting.

Official reports normally reveal their hidden agenda near the beginning and the Law Commission’s “Confiscation of the proceeds of crime after conviction. A consultation paper” is no exception. The hidden agenda is normally revealed by an omission, a non-sequitur or an addition. Here is the crucial text in paragraphs 1.3 and 1.4. The problem of the law to be addressed is set out first: “growing concern as to its effectiveness in disgorging the proceeds of crime”. The solution follows in the next paragraph: “the objective of the Commission is to ensure that the law is fair, modern, simple and cost effective”.

So, there it is, the simple addition of the word “cost” changes everything. The additional fluff of fairness, modernity and simplicity serve merely to disguise the importance of the additional word “cost”. The move from “concerns about effectiveness” to the objective of “cost effectiveness” is a classic non-sequitur. If you were looking for the ‘omission’, for the full hat-trick of the hidden agenda, as it were, it is to be found in 1.3. The “growing concern” comes after the publication of the National Audit Office report of 2013 on confiscation which is missing from the summary in 1.3, but gets repeated at length elsewhere in the report. I published a response to that report at the time in the Money Laundering Bulletin.

This review is not about victims, or effectiveness, or the worthy ambition of a previous generation, it is all about cost. So, my answer to their opening question is not to have a statutory objective set out in law. Instead, go back to basics and review why the law was created in the first place. Restate and modernise the objectives of the previous generation, by all means. Consider how we can make the law more effective for victims and society and deliver better, not just cheaper, justice.