Supreme Court Rules Against Presumption of Innocence in Civil Forfeiture Proceedings

In a landmark decision, the Supreme Court of England and Wales has ruled that civil forfeiture proceedings under Part V of the Proceeds of Crime Act 2002 are not subject to the presumption of innocence.

Ruling

The court’s leading judgment, delivered by Lord Phillips, distinguished earlier decisions of the European Court and concluded that the commission of criminal conduct must be established according to a civil standard of proof. According to Lord Phillips, “the commission by the appellants in the present case of criminal conduct from which the property that they held was derived, had to be established according to the civil and not the criminal standard of proof.”

Rejection of US Supreme Court Decisions

The court also rejected arguments that the decisions of the United States Supreme Court, including Austin v United States and Halper v United States, were relevant to the issue. Lord Phillips noted that these cases involved different legal issues, such as a violation of the double jeopardy clause and excessive fines clause.

Preservation Order Process

In his conclusion, Lord Phillips stated: “For reasons that I have given, that remains my conclusion. It is a conclusion which, prior to Geerings, appeared to be firmly founded on the decision of the Privy Council in McIntosh… In my view that foundation is unshaken.”

The court also addressed concerns about the preservation order process under section 51(2) of the Proceeds of Crime Act 2002, which requires a court to make an order without notice to the owner of the property. While Mr Gauntlett argued that this provision infringes upon the right of a fair hearing, Lord Phillips accepted that the use of the term “must” in the provision indicates a clear intention to require such orders be granted without notice.

However, Lord Phillips noted that the standard for granting a preservation order is the same as that used for search warrants under section 20 and 21 of the Criminal Procedure Act, 51 of 1977. He also accepted that there are inherent risks in giving notice to those with an interest in the instrumentalities and proceeds of crimes who could dispose of them, encumber them or destroy them.

Impact

The court’s decision has been welcomed by law enforcement agencies, which have long argued that civil forfeiture proceedings are a vital tool in combatting organized crime. However, critics have expressed concerns about the lack of protections for property owners and the potential for abuse of power.

In response to the ruling, Mr Trengrove, representing the applicant, stated: “We are disappointed with the decision, but we will carefully consider our options and may appeal the matter further.”

Availability

The full court’s judgment can be found in Gale v Serious Organized Crime Agency [2011] 1 WLR 2760.