THE MORAL DILEMMA

The moral aspect is not entirely straightforward, and for inspiration I have looked to a favourite philosopher of mine, Immanuel Kant whose central thesis:

“That the possibility of human knowledge presupposes the active participation of the human mind”

is deceptively simple ,but it’s application is notoriously complex(no legal connotation is meant )

Encapsulated in the above is Kent’s idea of "moral worth”, what makes an action morally valuable is whether it is done from respect for the law, and not from the effect expected, or what we would like to do. The law is the universal that we arrive at by the above process.

It is within this expression of moral worth that I believe are the strands of an answer but not necessarily the sole answer. Kant indicated that one of the clearest examples of morally right actions where

” An individual determined to act in accordance with duty overcomes evident self interest and obvious desire to do otherwise"

and he concludes that "Duty is the necessity to act out of reverence for the law"

IS IT LEGAL?

Defendants be they convicted or just charged have "currently "under the law the right to receive a fair hearing in the criminal justice process and in particular that they can state their case on an equal footing with the prosecution .This is embodied in Article 6 of the Human Rights Act 1998 and for anyone charged with a criminal offence has the following minimum rights

1 To be informed promptly,in a language which he understands and in detail ,of the nature and cause of the accusation against him

2 To have adequate time and facilities for the preparation of his defence

3 To defend himself in person or through legal assistance of choosing or ,if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require

4 To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him

5 To have the free assistance of an interpreter if he cannot understand or speak tha language used in court

ARE THEY WORTHWHILE?

Whilst the United Kingdom’s criminal confiscation scheme has had some effect in depriving criminals of their assets, it has not been as successful as originally anticipated. Most criminal confiscation orders have been made against persons convicted of drug trafficking offences. The Criminal Statistics (England and Wales) show that the number of convicted drug traffickers liable to a confiscation order rose from about 3000 in each of the years 1987 to 1991 to over 7000 in 1996.The number of confiscation orders actually made first exceeded1000 in 1991,rising to a little over 1500 in 1996.In the same year the total amount ordered to be confiscated rose from just over £1 million in 1987 to over £10 million in 1996. Between 1987 and 1996 only 157 drug trafficking confiscation orders for £100,000 or more were made against a background of over 45000 convictions for the supply of drugs

It may be inferred from the statistics that large numbers of persons are convicted who have insufficient assets to justify a confiscation order being made, whilst relatively few confiscation orders are being made against major criminals with substantial assets. Furthermore whilst the amounts ordered by the courts to be confiscated have risen those actually realised have remained constantly low at about £5 million per annum in relation to the proceeds of drug trafficking and less where the proceeds of all other serious crimes are concerned

On any estimate, this represents only a tiny portion of the sums by which criminals are benefiting from crime .Although there is scope for enhancing the effectiveness of the criminal confiscation system there are other powers that can help make an impact on criminals ability to benefit from their crimes

Civil or "in rem" forfeiture is the alternative to criminal confiscation which is most frequently upheld as most likely to strengthen the UK’s overall ability to recover, which is currently abject .In particular there seems to be no good reason why only cash which is suspected to be the proceeds of drug trafficking should be liable to civil forfeiture ,while cash proceeds from other crimes are immune from seizure .There is also a strong case that civil forfeiture which should not be restricted to cash proceeds which is imported or exported, but should be available wherever the suspected proceeds or instrumentalities of crime are discovered

Secondly the current very limited scope of civil forfeiture means that in most cases criminal proceeds and instrumentalities cannot be seized by the authorities unless a criminal conviction has been obtained, sometimes not even then, if the proceeds have been transferred to an associate and no specific evidence of the transfer can be found. The police and customs authorities have advised that they regularly encounter cases where there is strong circumstantial evidence of the criminal origins of property, but insufficient evidence for a criminal prosecution of the owner. Cases are known where individuals are enjoying great wealth and a lavish lifestyle ,in circumstances where if civil forfeiture were available a court would be likely to conclude that the assets were of criminal origin. The inability of the authorities to intervene in cases of this kind, some of which are known locally, can be damaging to public confidence in our system of justice .It is arguably unsatisfactory that in the absence of a prosecution (except in very restricted circumstances) there is no alternative form of proceedings.

ROUNDUP

In the criminal justice area the impulse to restrict the rights of those accused or convicted of criminal offences seems to have been particularly strong with the government continuing in the tradition set by the previous administration

Effective crime control clashes with due process and civil liberties. It is certainly legal to defend confiscation orders .the process, and the basis upon which they can be raised must be made more effective , but the moral grounds are suffering erosion