Trinidad And Tobago's 'You Can't Afford That' Forfeiture Law Claims Its First Victims

from the government-is-just-another-word-for-the-people-telling-you-what-you-can-afford dept

Here in the United States, asset forfeiture is pretty straightforward. In civil asset forfeiture, the government decides it wants something you have and files the paperwork to take it. In criminal asset forfeiture, the government takes your stuff pre-trial to prevent you from mounting a decent defense and finalizes the transfer of wealth post-conviction.

In both cases, the government takes stuff before anything’s been proven in court. Only in criminal asset forfeiture does the government have to do much work convincing a judge it should have your property instead of you.

Legalized theft in the United States is scary, abusive, and the target of much criticism. It’s a one-sided process that favors the accusers.

But at least you still get to keep the clothes you’re wearing, unlike in the Netherlands. Dutch police are willing to disrobe anyone they suspect can’t afford (at least not with legally-obtained funds) the clothes on their backs, the watches on their wrists, and any other accoutrements cops think a person couldn’t have purchased without ill-gotten gains.

Meanwhile, the UK government allows law enforcement to secure “unexplained wealth orders,” which allows them to seize anything someone can’t produce receipts for. To move forward with these orders, there has to be at least some articulable suspicion the wealth may have been derived from a serious criminal act. The downside is the power has also been granted to tax collection authorities, which turns less-serious crimes like owing back taxes into “serious” crimes since it’s subject to the same legalized theft program. No convictions need to be secured before the government can start taking stuff away from people. And the burden of proof rests almost entirely on the person whose property is being taken.

It appears Trinidad and Tobago has instituted the same sort of government-enabled theft program. And it actually beat the Brits to it by a couple of months. The islands’ “explain your wealth” law went into effect in April of this year, but it took until December for anyone to take it out for a test drive.

The law allows law enforcement to freeze/seize assets, utilizing either restriction or forfeiture orders. The process starts with the filing of a request by law enforcement or revenue officers. All the government needs to do is tell the court it suspects the wealth is unexplained. The burden of proof is on the accused.

Where the High Court “is satisfied that there are reasonable grounds to suspect that the total wealth of the respondent exceeds the value of his wealth that was lawfully obtained, it may make a Preliminary Unexplained Wealth Order, requiring the respondent to file a declaration and appear before the High Court to answer questions relative to his assets for the High Court to decide whether to make an Unexplained Wealth Order.”

After this, a notice of the making of the Order shall be served on the respondent.

Here’s who the government is going after with its first “unexplained wealth order.”

A St Helena couple has 28 days to explain their wealth after a High Court judge granted the police an order under new legislation.

Justice Carla Brown-Antoine granted the order on Monday after finding the police had presented enough evidence to justify it.

The order was granted ex-parte.

Under the judge’s orders, the two are each to file a declaration under sections 58(1) and 61(1)of the Civil Asset Recovery and Management and Unexplained Wealth Act within 28 days, and are to appear in court on January 7.

There are few details on who this couple is or why they’re suspected of having too much stuff. But it could be anybody, really. The Attorney General of Trinidad and Tobago says the law will be used to go after “bandits who wear gold chains and drive Mercedes Benz and BMWs.” Looking for gold and imported cars casts a pretty wide net. There’s really no downside for the government since citizens will have to do all the evidentiary heavy lifting.

Oh, and the AG tossed out this horseshit chestnut while arguing on behalf of giving law enforcement the power to strip people of their possessions without having to prove any connection to criminal activity:

If in­no­cent cit­i­zens have noth­ing to fear or hide, the Civ­il As­set Re­cov­ery Un­ex­plained Wealth Bill should not scare them.

This was the mes­sage At­tor­ney Gen­er­al Faris Al-Rawi sent to the pop­u­la­tion in Par­lia­ment yes­ter­day, as he read out the 75-clause bill which seeks to cre­ate a civ­il as­set re­cov­ery and man­age­ment agency for the re­cov­ery of crim­i­nal prop­er­ty through re­stric­tions in deal­ing with civ­il as­sets re­stric­tion, for­fei­ture of crim­i­nal prop­er­ty and the man­age­ment of crim­i­nal prop­er­ty.

Yeah, but the government decides who’s innocent. It makes the first judgment call when it requests an order. Then a judge decides whether or not those accused of having too much money can explain why they have the things they have. If the explanations aren’t good enough, the government gets to keep the stuff it’s seized and the question of innocence (in terms of criminal accusations) goes completely unaddressed.

The forfeiture system in the United States has plenty of perverse incentives. The one in place in Trinidad and Tobago is pretty much nothing but perverse incentives — a simple way for the government to deprive people of their property with only the thinnest pretense of due process.

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Comments on “Trinidad And Tobago's 'You Can't Afford That' Forfeiture Law Claims Its First Victims”

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That One Guy (profile) says:

Ah the authoritarian/voyeur classics...

If in­no­cent cit­i­zens have noth­ing to fear or hide, the Civ­il As­set Re­cov­ery Un­ex­plained Wealth Bill should not scare them.

Hey, great mindset, so, if you would just provide all of your medical records, full access to your computer and everything on it, phone records, tax records, travel history, financial records, and anything else that might come to mind to the public to show that you have ‘nothing to hide’, then that’d be great.

After all, ‘if you’ve done nothing wrong then you have nothing to hide’, and you don’t have things to hide do you?

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Anonymous Coward says:

Re: Ah the authoritarian/voyeur classics...

Hey, great mindset, so, if you would just provide all of your medical records, full access to your computer and everything on it, phone records, tax records, travel history, financial records, and anything else that might come to mind to the public to show that you have ‘nothing to hide’, then that’d be great.

Correct. I DO have nothing to hide. The only people who need privacy are criminals and liars. One day privacy will not exist or there will be safeguards that prevent its abuse.

Unexplained wealth is used by the IRS all the time, and it’s legit: how can someone have wealth on which they haven’t paid taxes.

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That One Guy (profile) says:

Re: Re: Re:2 Like watching someone dig a pit-trap and then jump in it

That sounds remarkably like the excuse a criminal and/or liar would use, or a hypocrite that doesn’t want to be bound by the very argument they’d just made. ‘I don’t need privacy, I’m just making use of it by refusing to take even the most basic steps to identify myself.’

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Like watching someone dig a pit-trap and then jump in it

"I can ENJOY privacy without NEEDING it. "

Nope.

It’s very well documented that for most of humanity the loss of privacy is more harmful than mere incarceration.

Seeing as we need a judge and jury to convict a person before we incarcerate them there really is no excuse to remove privacy from the innocent either.

It’s somehow ironic that you think you’d be better off making money than caring about your privacy given that what you advocate is for a society built on Soviet-style standards using classical communist dictatorship rules.

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Anonymous Coward says:

Re: Re: Re: Re:

Nothing to hide doesn’t mean everything to reveal at this time. It would have to be done to everyone to be fair.

The point is that IF this were to happen to everyone, I’d emerge relatively unscathed. Just like because I’m not a billionaire, I never flew to Epstein’s island, never hung with Trump, and never acted like a horndog around the office like that(those) media guy(s).

Rocky says:

Re: Re: Re:2 Re:

I’m assuming that everyone you know and every acquaintance have the highest regards for you and they would never, ever (pinky swear) use your private information against you in some way? Because all of them are paragons of virtue, right?

Your whole argument hinges on the premise that no-one would use your information for a bad purpose. If you believe that, you are fool.

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Re:

"The point is that IF this were to happen to everyone, I’d emerge relatively unscathed."

Wrong. Cardinal richelieu said it best about how you can condemn even the most honest man alive as long as you have six lines written by him and a name to link to them.

Whether you are unscathed or not depends entirely on your naíve assumption that there will not be ANYONE who will find your very existence objectionable over what you would consider trivial details.

Demonstrably any single post of yours from this thread is enough to have several of the more militant US groups of citizens put you solidly on the "remove" list.

Democracy can not exist without privacy. Nor can humans.
And if you believe, for a single second, that you could that merely means you’ve never spent a minutes worth of not having any.

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Uriel-238 (profile) says:

Re: Re: Re:2 Ah the authoritarian/voyeur classics...

The innocent people have nothing to hide philosophy means the police can presume refusal to answer questions is an admission of guilt…in something.

This the same bullshit that King George’s redcoats did to us in the mid 18th century. It’s why we have the Fifth Amendment in the bill of rights.

Anonymous Coward says:

Re: Re: Ah the authoritarian/voyeur classics...

The IRS actually doesn’t care where the money came from, as long as you report the amount and pay your taxes on it. All you have to do is report the money as "Fifth Amendment income" or simply as "miscellaneous income", as per United States v. Wade and United States v. Brown.

Anonymous Coward says:

Re: Re: Re: Ah the authoritarian/voyeur classics...

per United States v. Wade

held that a criminal defendant has a Sixth Amendment right to counsel at a lineup held after indictment?

and United States v. Brown.

The 1965 case saying a person can’t be convicted of tax fraud based on hearsay?

How is either case relevant?

Anonymous Coward says:

Re: Re: Re:2 Ah the authoritarian/voyeur classics...

Sorry, didn’t realize there was a caption collision there, the full cite for the United States v. Wade I’m after is United States v. Wade, 585 F.2d 573 (5th Cir. 1978), cert. denied, 440 U.S. 928 (1979).

Anyway, Wade bases its reasoning on United States v. Johnson, 577 F.2d 1304 (5th Cir. 1978), which in turn cites United States v. Sullivan, 274 U.S. 259 (1927). The latter case states, in part, that:

In the decision that this was contrary to the Constitution, we are of opinion that the protection of the Fifth Amendment was pressed too far. If the form of return provided called for answers that the defendant was privileged from making, he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld. Most of the items warranted no complaint. It would be an extreme, if not an extravagant, application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime. But if the defendant desired to test that or any other point, he should have tested it in the return, so that it could be passed upon. He could not draw a conjurer’s circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law.

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James Burkhardt (profile) says:

Re: Re: Ah the authoritarian/voyeur classics...

how can someone have wealth on which they haven’t paid taxes.

Tax accounting Lesson. (US-based info)

Generally speaking, Gifts are not taxable income to the recipient. A person can give gifts to other individuals of up to $14,000/person/year and it not be subject to the gift tax either.

This is a way the rich reduce estate taxes by giving their children (and their spouses) $14,000/year each, non taxable, transferring wealth from one generation to the next.

These gifts, so long as they are not in excess of $14,000/person/year, are not even necessarily reported to the IRS.Do that over 50 years, and a person would have $700,000 in non-taxed wealth transferred to them.

But really, its that gift of a High-end laptop and an iPhone which show evidence of tax evasion. /s

Anonymous Coward says:

Re: Re: Re: Ah the authoritarian/voyeur classics...

Do that over 50 years, and a person would have $700,000 in non-taxed wealth transferred to them.

Or $11.4 million, if it makes a 9% annual return during that time and they don’t spend it. The gains would be taxable, in theory, but the rich can play games with cost bases, charitable donations, esoteric investments, etc.

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Uriel-238 (profile) says:

Re: Re: "I DO have nothing to hide."

So we can assume, then, you are white, male, cisgendered, heterosexual and simultaneously Catholic, Protestant Evangelist, Anglican and three or four shades of Muslim, depending on what province you’re in.

We can also assume you’re rich enough to retain a lawyer.

Also that you never engage in sexual interests except with your legal spouse for reproductive purposes.

Because if not, you will find yourself on the wrong side of the law. And they can indict a ham sandwich and assure you’ll lose all your assets and serve no less than five years in a federal penitentiary. Because some law enforcement officer has a hunch you’re a bad guy. They’ll find out what later after they have access to all your records.

If you’re a billionaire, of course you get a free pass, but then criminal syndicates and rival industrialists might pose an even worse threat.

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Call me Al says:

Perhaps a tad over concerned about the UK one

I think the key point with the UK rule is it is about unexplained wealth. The onus is on the individual to explain it. So far all the cases are multimillion pound ones, including a woman who spent over £10m in Harrods and who’s husband had a relatively menial job at a foreign bank and should not have had that kind of wealth for his wife to spend.

We’ve a problem in the UK historically with money laundering, our banks have facilitated it as have others. Also UK property is a very attractive place for those with ill-gotten wealth to park their money. This was the government’s attempt to catch up with that.

I am not aware of it being used for anything less than £1m in value. It is not equivalent to the US rules.

It also isn’t about receipts for what you have bought, it is about proving the providence of the funds used to buy it.

Wendy Cockcroft (profile) says:

Re: Re: Re: Perhaps a tad over concerned about the UK one

Most of that is either land rental and income (Prince Charles is also the Duke of Cornwall. The products made from the farms he owns had their own brand (Duchy Oroginals) and were available for sale in the chain stores like Tesco. The brand "Duchy Originals" is now owned by high-end supermarket Waitrose) or gifts from foreign dignitaries.

Other income is from the Civil List, which is funded by our taxes. It’s basically their salary for working foreign dignitaries and keeping the public happy by visiting them in their towns, etc., or at special events. They also make money by shilling their various palaces, etc. (complete with gift shops), to tourists.

The Royals do pay taxes.

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That One Guy (profile) says:

Re: Seems justified concern to me

The onus is on the individual to explain it.

Making the accused prove their innocence certainly sounds problematic to me. It would be one thing if the government had some actual evidence that money/property was the result of illegal actions, demonstrated that in court and then the accused could challenge the evidence, but if the government is able to foist the burden or proof on the accused then I could all too easily see someone that actually was innocent losing money/property because they simply didn’t keep the relevant records, or because admitting to how they got something would require them to admit to something legal but embarrassing(‘Oh, this car? Yeah, I got it from a married [man/woman] I was sleeping with without their spouses’ knowledge.’)

Caleb (profile) says:

Re: Perhaps a tad over concerned about the UK one

When the US first instituted the federal income tax (Revenue Act of 1913) the lowest tier of taxed income was $3000 per year at 1% and the highest was 6% on $500,000 per year. The average annual salary in 1913 was $1296. Thus the federal income tax was only targeted at the wealthy (double or greater the average annual income). By 1918 the top rate had increased to 77% from 6%.

What does the above have to do with unexplained wealth? Governments, once granted a new ability, will never fail to extend that ability to the maximum limit. An argument that this is only about wealthy sounds a lot like the arguments made for civil forfeiture in the US as part of the "War on Drugs". We will only seize those cars, houses, and bank accounts of drug runners… etc. Thirty years later the average amount seized in civil forfeiture is something like $3k and the average person so accosted is generally earning below the median (ie, unable to afford to mount a defense). Techdirt has written several articles on this in the past.

I would be careful of believing that "this will never happen to me" because sooner or later, it will.

Anonymous Coward says:

Re: Perhaps a tad over concerned about the UK one

We’ve a problem in the UK historically with money laundering

There are many reasons for that, one of the big ones being that it’s absurdly simple to form shell companies without providing any accurate information about owners, and often not even working contact information, combined with the global financial flows through London and the perceived legitimacy of UK companies. If you actually wanted to combat that, give your company register the authority to verify the accuracy of information provided to it and require it to actually do so. Harassing people for a couple million pounds isn’t going to touch the 100 billion pounds worth of money laundering that flows through your Island every year.

It is not equivalent to the US rules.

It appears to be pretty much equivalent. That you have (so far) used it differently does not actually make it different.

James Burkhardt (profile) says:

Re: Perhaps a tad over concerned about the UK one

GIft taxes, as far as I can tell, operate differently in the UK from the US. However the burden for any gift taxes owed is assigned similarly in the UK, in that the recipient doesn’t owe the taxes, the giver does.

But while the onus is on the giver to report those gifts, it would appear the remedy for such a failure is to seize those gifts or the products thereof, and require the recipient to prove, while devoid of what may be important assets to, say, pay for a solicitor to assist in readying documentation and presenting your evidence to the court, to prove the tax-free nature of those assets. Seems a bit backward to me.

Anon says:

No Surprise

Canada’s had an income tax provision for decades that can require a person to explain their assets and lifestyle if they do not have enough declared income to cover their lifestyle. At least (AFAIK) it was limited to doing an asset valuation and calculating an imputed income – if you have these things and live this lifestyle, you must be making this much a year.

It wasn’t so much to catch drug dealers, as a way to catch types like home renovation contractors doing work under the table. Don’t report enough income to justify that fancy truck, the mortgage, and groceries – "we think you made this much and we want taxes for this much income". It doesn’t go as far as asset forfeiture unless the person fails to cough up the income tax.

To my mind, the most important part of any asset forfeiture law is – follow the money. If the assets go into general revenue, the incentive is far less than if they are used, for example, to swell the local police budget or give pay bonuses – in that case, it’s just theft.

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Anonymous Anonymous Coward (profile) says:

Impossible expectations, totally expected.

I would like to see if anyone in the Trinidad and Tobago government has receipts for every cash expenditure they ever made. Even leaving out food and drink, do they have a receipt for the shirt they are wearing? How about that 12 year old watch. Oh, those shoes look expensive, how expensive were they? Can you prove that?

Without the government having to prove their allegations to begin with, this is merely a witch hunt, I mean money hunt. The piece above doesn’t say what the seized equity will be used for, but I bet they don’t want an audit of the disbursement.

Anonymous Coward says:

The IRS in america have given up on getting more tax from most rich people ,
theres loads of ways for high wealth citizens to avoid paying tax, they mostly audit people who earn less than 100k.
theres lots of ways to avoid paying tax ,or reducing your tax bill,
eg
https://www.theguardian.com/news/2017/nov/08/paradise-papers-schemes-avoid-tax-uk-property-deals-chiswick-park-blackstone
Cab in ireland, crinimal assets bureau is usually used to seize assets from
convicted criminals and drug dealers .
i think it will be used in theory to go after people who have no obvious legal source for their income and the possessions like house,s ,expensive cars, boats , but it could be used against anyone .
drug dealers and certain criminals do not tend to pay tax on the money they earn.

omnipact (profile) says:

Interesting to see the UK mentioned here

Several years ago I was in my City centre where the Police had an ‘Exhibition’: One was an expensive German car.
I spoke to the police blokey and he explained that this was taken from a ‘drug dealer’. ‘How long did he get? What did he do?’ were my immediate questions. ‘Erm, this vehicle does not come from a convicted criminal." Wow.
I asked him about innocent until proven guilty, and he could/would not explain…
It seems the UK (or England at least) have been doing this for a while now

Anonymous Coward says:

Re: Interesting to see the UK mentioned here

The UK is just as corrupt. Houses have been taken off people WITH PROOF OF OWNERSHIP and given to Saudi and Qatari officials in exchange for trade deals.

There isn’t a single country in the world now without a totally corrupt government that openly steals from its citizens, and dares them with threats of imprisonment to make so much as a squeak in complaint.

Anonymous Coward says:

Re: Re: Re: Interesting to see the UK mentioned here

America knows for a fact that houses and property have been stolen by federal and local, state through emminent domain. One of the worst I heard was a family whose land surrounding a beautiful lake that had been in their family for many generations was taken by a municipality for purposes of a park they planned to develope, citing that property as beautiful as their’s should be enjoyed by all, not just a single family. I believe it was in Wisconsin or Iowa. I can’t recall, but this ain’t communist Russia you fuckers.

ECA (profile) says:

Long ago..

I was having a conversation with a person in India, online.
And he explained that the nation was so crocked that by the time a building was built, even Homes.. it cost 4-5 times as much..
I pointed out to him that it was almost as bad here.
He contested that..
And I pointed out, that by the time the Corps get money for the building materials the price could double, the inspectors generally know nothing about Building and only the books they learned from, so any innovation tends to get removed for the basic construction, and COST to revamp everything, and we Pay $100+ to get inspections, plumbing, electrical, gas, and then the city/state come in and looks at thing…In some states you have to goto a Architect First and pay them to design it to Code,(more money) Then the land Taxes go up and up ONCE you build a NEW home, as land improvement(almost double), and this has little to do with a HOA that might have some ODD control over building in this area, and you have to redo everything, because you dont have the Proper roof style or Paint job.. And if anything happens the insurance company wont even cover 1/2 the value of your home. Or will disallow everything, say you have Water protection, but not wind, and declare that the Wind did the damage, not the Flood from Hurricane DITTO..
Then for all of this we tax/regulate/and charge for all this under the law.
the person shut up..
(PS. there is a backdoor to this.. OWN the house, OWN the property, and BE the contractor.)(then you are considered responsible for all of it)

Anonymous Coward says:

Remember this IS trinidad and tobago. Where the government will happily murder tourists and literally steal their suitcases and money.

A dangerous risky shithole where having more than $50 on you constitutes an offence of "not giving it to the cops".

A place where cops are allowed to shoot people and there’s NO investigation, not even paperwork.

L Gray says:

A bit late here. I am actually from Trinidad and Tobago. The thing is this; T&T (Trinidad and Tobago) isn’t exactly the US or the UK.

Corruption and gains from criminal activities is huge business. We are talking about drugs, gun running, human trafficking, prostitution etc. Our proximity to the Venezuela cost and the problems there are not helping either.

I’ll admit that the bill is a bit draconian, but less draconian than the original. The current government is on a trajectory to a more hardline stance and it isn’t playing well with some parts of the society.
That said, I am not sure how well this bill is going to go in terms of getting convictions. The current government and its agencies don’t really have a good record of winning cases and quite often cases like these get discharged for lack of evidence.

One thing you need to understand is that justice is very, very slow in T&T. Criminality is widespread and the murder rate is spiralling as you might note.
The irony is that this legislation may backfire and it would be the politicians themselves that have to end up before the same courts to explain their unexplained wealth.
General elections are in 2020 and its gonna be interesting, cheers.

Jason says:

It’s the same in Canada. A police officer can seize any possessions or any amount of money they find on you, as most provinces have civil forfeiture laws now which allow for this. The officer only needs to "believe" in his heart of hearts (or claim to) that it is likely proceeds of crime. Note, he doesn’t have to prove a thing. Only "believe" it.

And it costs money to try and get those things back from the government, often more than the value of the items seized. And this doesn’t qualify for legal aid. Naturally, they won’t be exercising this sort of abuse with people who have the means to fight back and hire a lawyer. They will save that for the underprivileged, who have practically no rights in Canada anymore.

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