Tuesday, November 23, 2004



Ahmed Zaoui standards of evidence

Phil Goff has introduced his move in his struggle to pander to the "hang 'em high" brigade and be ever more vicious and vindictive towards criminals: a civil forfeiture regime. In English, this means "taking stuff off criminals". But Goff's plan goes well beyond that, to taking stuff off criminal suspects:

"Under the legislation, the Crown will be able to seek a High Court order restraining a person's assets if it can show there are reasonable grounds to believe that person benefited directly or indirectly from serious criminal activity.

"The Court can then order confiscation if it is satisfied the Crown has proven on the balance of probabilities that the person derived some benefit from criminal activity in the previous seven years. No specific criminal offence need be proved."

Reasonable grounds. No specific offence. There's not even any suggestion that the "criminals" targeted even need to be charged. Instead it's proof by suspicion, and guilty until proven innocent. In other words, Ahmed Zaoui standards of evidence.

We have only to look to the United States to see why we should not go down this path. In Reefer Madness, Eric Schlosser touches on US federal asset seizure laws and the role they play in the war on drugs. Goff's suggestion follows the US model, in that

Property may be seized and forfeited even after a defendant is found innocent of the offence, since the strict burden of proof that applies to people - "beyond a reasonable doubt" - does not apply in accusations against inanimate objects. Property can be forfeited without its owner ever being charged with a crime...

In the US, this system has led to gross injustice. Seizures have been made for budgetary reasons, and guilt or innocence sometimes takes a back seat to demands for revenue. That is if they're even a consideration:

In California, thirty-one state and federal agents raided Donald P. Scott's 200-acre ranch on the pretext that marijuana was growing there. Scott was inadvertently killed by a deputy sheriff. No evidence of marijuana cultivation was discovered, and a subsequent investigation by the Ventura County's District Attorney's Office found that the drug agents had been motivated partly by a desire to seize the $5 million ranch. They had obtained an appraisal of the property weeks before the raid.

It has also led to corruption, cronyism, and double standards from police and prosecutors, as well as further injustice from informers motivated by a share of the spoils:

Informers have been caught framing innocent people. Law enforcement agents have been caught using nonexistant informers to justify search warrants. "Criminals are likely to say and do almost anything to get what they want," Stephen S. Tott, a federal judge who was chief of the Justice Department's Criminal Division during the Reagan years, told the National law Journal. "This willingness to do anything includes not only truthfully spilling the beans on friends and relatives, but also lying, committing perjury, manufacturing evidence, soliciting others to corroborate their lies with more lies, and double-crossing anyone with whom they come into contact, including - and especially - prosecutors."

New Zealand so far has an admirably low level of corruption in our police and justice systems. Do we really want to bring all that here?

At its heart, asset seizure is a punishment. It is no different from a fine; instead of taking several years of a criminal's life through a jail sentence, they take their possessions. It should therefore be subject to exactly the same safeguards as any ordinary criminal penalty. I say "safeguards" because the basic standards of justice - innocent until proven guilty, security from unreasonable search and seizure, proof beyond a reasonable doubt - serve a very real purpose: preventing injustice. They provide built-in checks against innocent people being unjustly punished, and some safety against mistakes and malevolence - problems that can exist within any justice system. In his lust for vengeance, Phil Goff wants to eschew these safeguards. The result will be injustice - innocent people losing their houses, cars, livelihoods. That is not something we should tolerate. If the government cannot punish those they believe deserve punishment within the current bounds, then so much the worse for the government. The solution is for them to work harder, rather than abandon the principles of justice itself.

1 comments:

Well done, you made it to the top of tailrank with this post. I took a screenshot for you just in case, ping me if you want a copy.

Posted by sethop : 3/19/2007 07:24:00 PM