Criminal Memoirs: The Daily Mail Test and why the Coroners and Justice Bill is wrong

By Andrew Neilson / @neilsonandrew

UPDATE: Director of the Howard League Frances Cook says the Bill is still no good.

Next Wednesday the Coroners and Justice Bill will get a final review in the House of Lords and with it comes a cross-party amendment led by Lord Borrie and the last chance for the legislature to remove a new power enabling the state to confiscate the earnings of former prisoners.

Part 7 of the Coroners and Justice Bill will create a new scheme of Exploitation Proceeds Orders (EPOs), to seize any proceeds an individual may make from describing their criminal experiences. The degree to which the public is offended is the litmus test for seizing the proceeds of any individual.

The Howard League for Penal Reform believes that this Bill represents a threat to both freedom of expression and the reintegration of prisoners into society. It also threatens to punish people twice over, for the most tenuous of purposes.

Under an EPO an individual convicted of a crime will be sentenced to a term in jail and then released. However this new law will grant the state licence to punish again by removing profits connected to artistic expression of their criminal experiences or their time in the penal system.

Not only is a second fiscal penalty disproportionate to and inconsistent with the aims of the penal system, but the additional penalty’s application will be uncertain in defiance of the rule of law.

Rarely has a more uncertain trigger to a criminal sanction been purportedly enshrined in law than ‘the degree to which the public is offended’. We would be better off defining this as the ‘Daily Mail threshold’ from here on in. Individual justice will be replaced by media-fuelled public outrage and former prisoners will become subject not to a rule of law but instead a changeable and malleable political construct masking itself as justice.

The government’s aim in bringing forward this bill is clearly to prevent those who commit crime from glorifying their actions and to “prevent further hurt and distress to the families of the victims of criminal actions”. The Howard League for Penal Reform supports such a motive but we do not believe that this part of the Bill will achieve the government’s goals.

It does not prevent publication where no payment has been made, so glorification of crime would still be possible. Further it does not stop the author from getting someone else to publish the work. Equally, there are already rules in place to confiscate excessive criminal proceeds: there are restrictions under the Prison Rules, and also confiscation provisions under the Proceeds of Crime Act 2002 that can be used to recover any royalties made due to a criminal past.

However, perhaps the most horrifying part of this part of the Bill lies in the detail. The Bill allows the Government to confiscate proceeds even if the crime has been committed abroad, which means that should the British Government ever again find itself supporting an oppressive regime akin to the apartheid regime in South Africa, this legislation would grant it the power to seize assets from a publication written by a UK national imprisoned in that country, provided the individual in question was a national and charged under a terrorism offence akin to one of our own. Indeed it is not hard to imagine that if the current Secretary of State for Wales had travelled to South Africa in his youth the publication of many of his political and campaign pamphlets might have fallen foul of this law.

The legislation also has little or no limitation on who or what counts as a criminal act. Will serial graffiti artists handed an ASBO soon have profits confiscated for photo albums? The Howard League for Penal Reform’s biggest concern is that this law will be wrongly applied, not to serious offenders, but to individuals who are not trying to glorify their acts but trying to achieve contrition through creative expression.

Prisoners who receive a custodial sentence have already served the penalty owed to the state and often some form of artistic expression is essential to their full reintegration back into society. Part 7 of this bill will not act as a bastion of victims’ rights; indeed it will not aid victims’ rights. It will work as an unpredictable and discretionary double punishment which might have been applied to many notable works written in jail, from John Bunyan’s Pilgrim’s Progress to Oscar Wilde’s De Profundis, both of which offended a fair share of people at the time but are rightly recognised as classics.

This statute from the Ministry of Justice, on the other hand, should go straight to the remainders pile.

Andrew Neilson is Deputy Director of the Howard League for Penal Reform.