If your car can be seized by the state for drink driving, can they demolish your house for getting into a fight? Kill your cat for tax evasion? Graham Walker looks deeper into the policy.

The festive drink and drug driving campaign forces lawyers, Sheriffs and citizens to consider the legitimisation of tough scare tactics used in the penal policies of Scotland against motorists and I would suggest it is a significant paradigm shift in crime control in Scotland. The festive anti-drink drive campaign heralded proposals to forfeit the motor vehicles of repeat drink drivers. Undoubtedly a headline grabber, and a tabloid pleaser but if we look behind the shock value we should consider whether this is a serious and workable solution to the problem of drink driving in Scotland. The foundations of our criminal justice system should feel stirred, if not shaken, by this policy change.

The demand that people should lose their property because they have been involved in a crime is a shift in our criminal justice model. The step to remove vehicles from motorists involved in a serious road traffic offence is a dangerous step in the direction of disproportionate retribution that seems to fly in the face of the first protocol of Article 1 of the European Convention of Human Rights.

Like puppies, legislative policy is not just for Christmas, and we have to assume that it is a serious attempt to reduce drink drive deaths and accidents. It provides us with some major challenges in the daily exercise of this policy. Whilst the Criminal Procedure Scotland Act Section 254 and the Road Traffic Offenders Act Section 33A have always provided the right to remove vehicles used in the commission of a crime, the Lord Advocate has generally exercised discretion by not insisting upon forfeiture, probably because the Lord Advocate’s office did not want to see the courts of Scotland tied up with endless multiple poinding actions or civil damage actions. The Road Traffic Offenders Act defines “Owner”, who is presumed to be the registered keeper of the vehicle at that time.

If a vehicle is contractually the property of a third party such as Hire Purchase Co or finance company and no title has passed to the driver then in effect the vehicle cannot be legitimately forfeited by the State. If the vehicle is leased or is the property of an employer then again a forfeiture order cannot be made. This narrows the scope of forfeiture to vehicles where title is wholly held by the driver at the time of the offence.

We can hear applause from the sidelines as Scotland gets tough on crime and the atrocity of road deaths and with it the destruction and sorrow caused at the hands of our nation’s drink drivers but when the applause dies down and we find our courts clogged with litigants fighting for their entitlement to enjoy their property without fear or threat from the State we have to question the price paid for those tabloid pleasing headlines.

Sufficient powers presently exist to deal with persistent drink drivers. Sheriffs have the right to impose custodial sentences where they regard the crime as meriting such a serious disposal and we should trust them to exercise this discretion in the certain knowledge that we have an appeal court to address concerns regarding the appropriateness of their sentences.

It would seem that we are embarking on a journey towards retributive and disproportionate crime control aimed particularly at the motorist.

For what purpose would vehicles be forfeited? Is it a new fines system? Should it be taken into account when imposing a fine? Will the funds recovered from car sales be used to reduce future crime? Or is it simply a cynical PR exercise to grab headlines and hopefully make the festive drink drivers think twice. Whatever the real motivation behind the new policy, it is sure to throw up some difficult decisions for those sitting on the bench.

If one offender was driving a Rolls Royce and the other a clapped out banger. Does the Sheriff forfeit the cars belonging to both drivers?

Where do we draw the line with this method of punishment? Does the State insist that your shiny new plasma TV will be forfeited if you don’t pay your TV licence?