-Caveat Lector-
http://www.telegraph.co.uk/et?ac=003038683162729&rtmo=gwSlrGru&atmo=ggggg3MK&pg=/et/00/10/14/nact14.html
Human rights blow to seizure of drug barons' assets
By Auslan Cramb and Philip Johnston
A CORNERSTONE of the Government's fight against organised crime was undermined
yesterday when a court ruled that confiscating the assets of convicted drugs
traffickers breached European human rights laws.
The decision by the Court of Criminal Appeal in Edinburgh has far-reaching
implications throughout Britain. It raises serious doubts over whether the Government
can proceed with plans, announced in the summer, to extend confiscation powers to
unconvicted men who run organised crime rings and whose wealth is thought to be linked
to their activities.
The ruling also opens the prospect that drug traffickers and other criminals whose
property has already been confiscated could sue for compensation. The decision is the
most significant blow to existing legislation since the European human rights
convention was incorporated into Scottish law a year ago. It took effect south of the
border this month.
Ministers had hitherto dismissed fears that the measure was a recipe for conflict with
the intentions of Parliament. Courts have had extensive powers since 1986 to seize the
assets of offenders on conviction. Under the Proceeds of Crime Act 1995, courts can
assume that all property held by a criminal in the six years before his conviction was
illegally gained. The onus is on the accused to prove that it does not.
But the Edinburgh court ruled by 2-1 that this practice contravened Article 6 (2) of
the European convention, which guarantees the presumption of innocence until proven
guilty.
In a case brought by Robert McIntosh, 38 - jailed for four years last year for heroin
trafficking - two judges, Lord Prosser and Lord Allanbridge, found that the practice
was "plainly in violation of the convention".
They argued that it could not be assumed that property owned by a drug dealer was
linked to his criminal activities. Chris Shead, for McIntosh, said that to decide
without evidence that assets were from drugs was "totally inconsistent with the
presumption of innocence".
The third judge, Lord Kirkwood, said the provisions had to be balanced against the
importance of protecting society from "the evils of drug trafficking". The Crown was
granted leave to appeal to the judicial committee of the Privy Council.
The plans for a National Confiscation Agency, which involve a radical departure from
the normal requirements of proof, now seem unlikely to proceed.
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