I am reading through the crime review proposals launched by Tony Blair today. They are contained in a large pdf here.
In particular, I am interested in the proposals for ’summary’ action against criminals. One of the proposed measures is the introduction of new forfeiture powers:
[to] allow the police to seize and forfeit movable non-cash assets that are suspected of being both the proceeds and instrumentalities of crime up to a certain value threshold (for example £100,000). This would mainly affect vehicles; …
Leave to one side any human rights or constitutionality issues. I am interested in the word ‘instrumentalities’. I take this to mean that if a movable non-cash asset, rather than having been bought with the proceeds of crime, is being itself used as an instrument to commit a crime, then that asset may be seized by police under the new rules. Applying nothing but a formalist approach to this measure, I would say that it makes sense. The police may be able to seize a suspected getaway car, or a car suspected to have been used in a kidnapping, even if the car was bought with legitimate money. This would satisfy the ‘instrumentalities’ condition of the measure, even if not the ‘proceeds’ condition.
But consider the next paragraph, in which it is proposed that the measure may not just be restricted to vehicles, but:
possibly extend to all non-cash assets (lifestyle assets like jewellery, plasma TVs and laptops) up to £100,000. This would be a highly powerful tool against bad criminal role models, … [emphasis mine]
While I can understand how a a gold necklace could be seized on suspicion of being part of the proceeds of crime, I am a bit baffled as to how it could qualify as an ‘instrumentality’ of crime. It is not a weapon, and unlike a getaway car in my example above, it is hard to see how jewellery could be used to commit a crime. Same goes for a plasma TV, except maybe if it is used to smash someone over the head. I suppose you could always strangle someone with a thick gold necklace; that would meet the ‘instrumentality’ definition, but somehow I don’t think that that is what the Government is getting at.
Bearing in mind the sentence I highlighted in the above quotation, I submit that what the Government is trying to say is this: ‘even if we cannot prove that the jewellery you have around your neck is from the proceeds of crime, we can still seize it if you are a criminal, because by displaying such flash ‘lifestyle’ goods, you are encouraging young people to follow you in a life of crime.’
This is wrong. The Government would be breaking its own rules if it implemented this measure. If the rule is that goods are to be seized because they are either ’proceeds’, or ‘instruments’, then that is what the rule is. A gold necklace or a plasma TV bought by a gangster out of legitimate money is neither proceeds nor instrument. It may well serve as an incentive to impressionable children to emulate the gangster’s behaviour, but on the strict reading of the Government’s measures, I do not see why that should lead to seizure of the offending items. The best that can be said for it is that it is a generous extension of the definition of ‘instrumentality’.
The ‘bling seizure’ proposal may never see the light of day, though. The document itself admits that including these measures ‘could increase the risk of human rights challenge’. No kidding.
In writing this post, I have deliberately refrained from discussing whether it is even right for the police to be given these powers at all. This should not be taken to mean I endorse wide-ranging powers for the police to usurp the role of the judiciary. I do not. I spend a lot of time on this blog writing about what the law ought to be, rather than what it is. That in itself is an exercise in futility, especially given the political circumstances of our time. The law is what it is, not least because our lily-livered Parliamentarians are prepared to sit back and let this Government ride roughshod over every constitutional right and principle. The point of my post is that, even on a positivist reading of these proposals, without considering their intrinsic merits and demerits, the Government would still be wrong to attempt to seize ‘lifestyle property’ bought with legitimate money.