Friday, 28 August 2009

Illegal immigrants to be asset stripped

Bystander is a magistrate, probably somewhere in London, who writes an anonymous blog about the cases he tries and other topical issues at the lower end of the criminal justice system. He's always an interesting read, although tends towards the Liberal.

Today he has reported something new to me. (See: A Bit Harsh.) An illegal immigrant was brought before him for a Confiscation of the Proceeds of Crime case. The crime in this case was working without having a valid visa, and the "proceeds" were the man's wages which he'd earned on various building sites, having paid tax and NI. A police raid on his home found his savings in cash and these were confiscated.

This is actually a civil case operating on a "balance of probability" level of proof. Additionally, since it's "civil" there is no legal aid - if you can't afford a lawyer you're on your own.

This raises a couple of serious concerns. First, how can it be right to apply a criminal sanction, in this case forfeiture of cash, when no criminal conviction has taken place. There used to be "checks and balances" - on one hand an accused person risked his property or liberty but on the other hand he was protected by a presumption of innocence and the right to a fair trial, legal representation, and conviction could only be beyond reasonable doubt. Now much of the protection has been removed but the sanction remains.

Second, what exactly are the proceeds of a crime? In this case the illegal immigrant was paid for construction work; he wouldn't have been paid if he hadn't worked. He gave genuine value for the money he received. The money wasn't stolen or defrauded from the employer; it doesn't derive from the "victim" of the crime therefore I would argue it isn't actually a "proceed".

If a salesman drove around for a day in a car with an expired tax disc would his sales be the proceeds of crime? If an office worker jumped a railway ticket barrier would his day's salary be the proceed of a crime.

In Bystander's case if the illegal immigrant had not committed the crime of failing to obtain a work permit, ie he had obtained a work permit, he would have received the same remuneration for working. Generally I don't think anything can be the "proceed" of a crime if it would have been obtained without the crime being committed. The only "proceed" is the amount saved by committing the crime, ie, the price of a tax disk or rail fare.

One could argue of course that the illegal immigrant would never have qualified for a work permit and therefore all his earnings are the proceeds of a crime, however this is supposition. We cannot know for sure that he would never have obtained a permit therefore we cannot know how much of his earnings is the result of the crime.

We have seen before overweening governments attempting to extract money from citizens on the pretense of it being a criminal sanction. For this reason the 1689 Bill of Rights was enacted as part of the constitutional arrangements which brought William III (and Mary) to the throne.

Inter alia it says:

That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void.

In other words, to apply a criminal penalty on a person first they must have a criminal trial.

True to form, our utterly corrupt New Labour government has kicked away all the protection in law offered by the Bill of Rights in its insatiable desire to get its hand on people's money

But it's debatable just how legal it is to ignore the Bill of Rights. It's a fundamental part of the United Kingdom's "unwritten" constitution. (It's called unwritten but this really means: not written in a single place.) The Bill of Rights is part of the structure from which Parliament and the monarch derive their authority and as such may not be abrogated by them. It's our equivalent of the US Declaration of Independence stating that governments derive their just powers only from the will of the people. As such it is not open to the government to change - it is one of the preconditions of their existence.

If it is ignored we effectively live in a dictatorship.

2 comments:

Anonymous said...

> If it is ignored we effectively live in a dictatorship.

And you only just noticed this?

Nationalist said...

> And you only just noticed this?

I'm a soft boiled frog. ;)