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Cite as: [2011] ECHR 1885

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FOURTH SECTION

Application no. 59494/09
by Robert BRIGGS-PRICE
against the United Kingdom
lodged on 21 October 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Robert Briggs-Price, is a British national who was born on 26 September 1954 and is currently detained at HM Prison Whitemoor. He is represented before the Court by Mr H. Milner, a solicitor practising in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The background facts

The applicant was tried in the Crown Court on charges of conspiracy to evade the prohibition on the importation of heroin. He pleaded guilty to conspiracy to cheat the public revenue in relation to excise duty and tax payable on imported cigarettes. Further counts of conspiracy to cheat the public revenue and of being concerned in the supply of a Class B drug, namely cannabis, a count relating to a particular day in October 1999, were not proceeded with and were not placed before the jury. There was no charge against the applicant in relation to involvement in the distribution of cannabis.

The prosecution case at trial was that the applicant was a potential buyer and distributor of the heroin in the event of its being successfully imported into the United Kingdom. It was accepted, however, that no heroin was in fact imported and that the applicant had not in fact purchased the heroin. The prosecution alleged that he had been brought into the conspiracy because he already had a distribution network for the transportation and distribution of cannabis, something which the applicant disputed, and that this same network was to be used for the distribution of the heroin. The prosecution relied upon extracts from the conversations picked up by covert listening devices placed in the applicant’s car and in his home. It also relied on the evidence of undercover police officers.

The applicant gave evidence at the trial. It was the defence case that any smuggling activity under discussion with the undercover police officers was always in relation to cigarettes. The applicant gave evidence that he was a family man of considerable wealth. He had built up his wealth honestly and over many years, was involved only in cigarette smuggling and had never been involved in the trafficking of either heroin or cannabis. He explained that he was a terrible bragger and exaggerator, and called witnesses in support of this claim. He denied that there was any pre-existing cannabis distribution network. He explained to the jury that any reference by him to involvement in drugs in the conversations covertly recorded was nothing but typical exaggeration and lies by him.

The judge made clear to the jury in his summing-up that it was not necessary for them to resolve the cannabis distribution issue against the applicant in order to find him guilty in respect of the heroin conspiracy.

The applicant was convicted on 14 April 2003 and was sentenced to seventeen years’ imprisonment.

Applications for leave to appeal against conviction and sentence were dismissed by the Court of Appeal.

2. Confiscation proceedings in the Crown Court

Pursuant to section 2 of the Drug Trafficking Act 1994 (“the 1994 Act”), where a defendant appeared before the Crown Court to be sentenced in respect of one or more drug trafficking offences, the court had the power to make a confiscation order. The court was required to determine whether the defendant had benefited from drug trafficking and, if he had, the amount to be recovered.

Pursuant to section 4(3) of the 1994 Act, in order to determine whether a defendant had benefited from drug trafficking and, if so, to assess the value of his proceeds, the court was required to make certain assumptions, namely that any property held by the defendant at any time since his conviction or transferred to him since the beginning of a six-year period ending with the commencement of criminal proceedings against him was received by him as a payment in connection with drug trafficking; that any expenditure since the beginning of that period was made out of payments received by him in connection with drug trafficking; and that for the purposes of assessing the value of any property the property was received free of any other interests in it. The court was not to make the assumptions in relation to any particular property or expenditure if the assumption was shown to be incorrect or would result in serious injustice. Where the court did not make one of the specified assumptions, it was required to state its reasons.

The prosecution duly gave notice that it intended to seek confiscation orders in respect of the convictions. It was common ground between the parties that the applicant had substantial assets, including a large hotel and a portfolio of local properties, some of which generated a substantial income. The applicant did not accept that these represented the proceeds of drug trafficking and was prepared to challenge the statutory assumptions under section 4(3) of the 1994 Act. In order to avoid a protracted and expensive dispute on this matter, the prosecution agreed with the applicant that the statutory assumptions would not be made. The judge accepted this agreement, although he did not provide a written statement of his reasons. The prosecution did not seek to assert that the applicant had any hidden assets.

The applicant declined to give evidence in the confiscation proceedings.

On 25 April 2005 the judge handed down two rulings, one assessing the benefit in respect of the heroin conviction, the other dealing with the benefit as regards the cigarette smuggling conviction.

Regarding the heroin conviction, the judge noted at the outset the prosecution concession that as no heroin was actually imported it was inappropriate to make a confiscation order in relation to any benefit accruing to the applicant from his acquisition of heroin, which he considered was plainly right. He continued:

“2. The Crown nevertheless submit that ... the Act oblige[s] the Court to determine whether Briggs-Price has benefited from drug trafficking. This is not limited to the particular prohibited drug in respect of which he has been convicted. There was a considerable amount of evidence before the Court that Briggs-Price was involved in other criminal activity including trafficking on a substantial scale in cannabis. He was originally indicted with an offence of possession with to supply approximately one kilo of cannabis but this matter was not proceeded with following his conviction on the heroin indictment ... The Crown made it clear when inviting the Court to lay that indictment on the file that it intended to pursue confiscation proceedings in relation to trafficking in cannabis. Further, it was part of the Crown’s case on the heroin indictment that [B.] combined with Briggs-Price in relation to the heroin in order to take advantage of Briggs-Price’s existing distribution network for cannabis and I ruled on the admissibility of such evidence and gave the jury directions as to the use they could properly make of such evidence in reaching their verdicts on the heroin allegation. It cannot therefore be sensibly suggested that this is a ‘new’ allegation, nor can I proceed in these confiscation proceedings on the basis that such evidence along with the Defendant’s response to it has not already been ventilated and there must be a possibility of appropriate inferences having been drawn by the jury.”

The judge considered the applicable legislation and human rights issues. He indicated that he was required to inquire into whether the applicant had benefited from drug trafficking and to give him the opportunity to give evidence. The judge then had to reach a conclusion supported by evidence given in public, on a civil standard of proof, namely on a balance of probabilities.

The judge then turned to examine the evidence heard at trial relating to the applicant’s participation in cannabis trafficking. He noted that much of the evidence came from the applicant’s own mouth and was recorded on the covert tapes. He further noted that he had had the opportunity during the trial to form his own impression of the applicant’s character. He observed:

“7. ... Although many of these matters were ventilated before the jury in the trial, the guilty verdict cannot in itself be determinative of all such matters. The jury’s verdict does not tell me anything as to their findings on the particular decisions I have to make ...”

Noting that the already existing cannabis distribution network was an important feature of the prosecution case at trial, the judge found that he could reach no other conclusion than that the applicant was involved in the distribution of cannabis. He indicated that he had “no doubt that this was the case”.

As to the scale and extent of the applicant’s trafficking in cannabis, the judge accepted that the applicant had a legitimate source of income from his hotel and its activities but continued:

“... but there is a very strong inference that he was dealing in substantial amounts of cannabis over a not inconsiderable period, that he determined this lucrative business was too risky and that is why he decided to combine with [B.] on the very high risk but much more profitable enterprise of heroin importation. It seems to me that no other rational explanation is possible from the evidence of the covert tapes as placed before the jury in the heroin trial ... The absence of additional evidence or the failure to discover substantial amounts of cannabis in his possession or under his control does not deflect me from such a conclusion given the well established method of proceedings by Briggs-Price ...”

The judge therefore concluded that the applicant had benefited from drug trafficking and took the period of the benefit to be six months (the period to which the covert tapes referred). As to the amount of the benefit, the judge noted:

“... I do not pretend that this is an easy decision to reach given the degree of certainty required and rightly required in such proceedings ...”

The prosecution submitted that the evidence established that during this period the appellant had dealt in 6 tons of cannabis, selling this for a total of approximately GBP 8.7 million. The judge considered that the fact that it was impossible to determine precisely the amount of cannabis which the applicant was trafficking did not mean that the court should make no finding as to the amount of his benefit. He continued:

“...If he had been involved with as much as 6 tons i.e. a ton every month for 6 months, I would be satisfied on the evidence of [a police officer] that the amount of his benefit would have been £8.7 million. The absence of assets to this amount does not deflect me from concluding that substantial profits were being made because I am by no means satisfied that the assets declared to the Receiver form the full extent of this defendant’s wealth, but I do not propose to involve myself with that aspect of the matter and will leave it ... to the Receiver to investigate such matters fully. However, I do not think that I can reach the conclusion which the Crown invites me to reach and say that I am sure on the balance of probabilities that Briggs-Price has benefited from drug trafficking to the extent of 8.7 million pounds. I have to give effect to my conclusions that while substantial profits have been made by him from drug trafficking, an appropriate deduction should be made to take account of (1) the inconsistencies in his responses and statements on the covert tapes as to the amounts he was importing or otherwise obtaining, (2) the frequency of such importations and (3) the degree of exaggeration possibly present in some of the statements he makes on the covert tapes. Given the seriousness of the consequences of my findings, it seems to me that I should first reduce the Crown’s figure to £8 million then discount that sum by 50 per cent to 4 million pounds. This represents a fair conclusion bearing in mind the defendant’s own unguarded statements as to his activities and the value of the drugs he plainly admits he was dealing in.”

The judge further observed that in certain cases it was appropriate to make a percentage discount to guard against possible injustice or inflation and explained that, given that his finding of benefit did not have the additional support of the discovery of either substantial amounts of drugs or cash, he had carefully considered whether a further discount was appropriate in the applicant’s case. However, he concluded that the reduction he had already made took account of these considerations.

In a separate ruling, the judge found the benefit from the cigarette smuggling to be GBP 510,734.

On 30 June 2006 a further hearing took place to determine the recoverable amount which was to be the sum stipulated in the confiscation orders. In the context of these proceedings, the judge had regard to a report by the receiver setting out the extent of the applicant’s realisable assets. The applicant’s total assets were calculated to be GBP 3,139,224. The judge accordingly made a confiscation order in respect of the cigarette smuggling conviction for GBP 510,734 and a confiscation order in respect of the heroin conviction for GBP 2,628,490, which represented the value of the remainder of the applicant’s realisable assets after the cigarette smuggling order had been satisfied.

The heroin conviction confiscation order was to be paid by 31 October 2007 and in the event of non-payment a consecutive sentence of eight years’ imprisonment was imposed.

3. Proceedings before the Court of Appeal

The applicant sought leave to appeal the confiscation orders to the Court of Appeal. He was granted leave to appeal against the heroin conviction confiscation order on the ground that the way in which the benefit had been assessed, namely by reference to alleged payments connected to uncharged and unproven cannabis smuggling allegations, resulted in a violation of his rights under Article 6 § 2 of the Convention.

The Court of Appeal’s judgment was delivered by Lord Justice Richards on 22 January 2008. The court found the procedure adopted for the determination of the benefit to the applicant from drug trafficking to be compatible with Article 6 § 2. It noted that the core of the Court’s judgment in Phillips v. the United Kingdom, no. 41087/98, ECHR 2001 VII was that the confiscation procedure did not generally engage Article 6 § 2 at all since it was part of the sentencing process following conviction. In this regard, it observed:

“... The fact that benefit arising from other offences can be taken into account (indeed, under the operation of the statutory assumptions, that assets are assumed to derive from other offending) does not mean that the defendant is being charged with another criminal offence or is presumed to be guilty of another criminal offence.”

As to the applicant’s reliance on the Court’s judgment in Geerings v. the Netherlands, no. 30810/03, 1 March 2007, in which the Court found a violation of Article 6 § 2 where the domestic court had made a confiscation order based on offences of which the applicant in that case had been acquitted, the Court of Appeal noted:

“43. It seems to us that the decision in Geerings needs to be approached with some care. The court gave two reasons for distinguishing the previous case law, notably Phillips. The second reason, namely that the confiscation order related to offences of which the applicant had actually been acquitted, plainly has no application to the present case but serves to underline how different Geerings was on its facts. The Dutch court’s order was in truth inconsistent with the acquittals and it is not in the least surprising that it was found for that reason to be in violation of Article 6(2).

44. The first reason given for distinguishing the earlier cases is that in the instant case the Dutch court had found the applicant to have obtained unlawful benefit from the crimes in question, although he was never shown to be in possession of any assets for whose provenance he could not give an adequate explanation and that the court reached this finding ‘by accepting a conjectural extrapolation based on a mixture of fact and estimate contained in a police report.’ As the Strasbourg Court went on to say:

‘If it is not found beyond a reasonable doubt that the person affected has actually committed the crime, and if it cannot be established as fact that any advantage, illegal or otherwise, was actually obtained, such a measure can only be based on a presumption of guilt.’

We do not read the relevant passage... as holding that only an assets-based approach of the kind for which Mr Owen has contended can be compatible with Article 6(2). Had that been the Court’s intention, we would have expected some clearer indication that the relevant provisions of the Dutch criminal code, which did not depend on an assets-based approach, were themselves incompatible with Article 6(2). It seems to us ... that the court’s concern was as to the absence of any proper factual basis in the particular case, whether by reference to assets or otherwise, for finding benefit from other offences ...”

The Court of Appeal found no corresponding problem in the applicant’s case, observing that the judge’s assessment of the benefit was based on a clear finding, reached in practice on the criminal standard of proof, that the applicant had engaged in the trafficking of cannabis. The Court of Appeal further noted that the finding was clearly reasoned and based on the evidence that the judge had heard during the trial, at which the allegation concerning the applicant’s cannabis distribution network formed a central part of the case against him in relation to the heroin conspiracy and was addressed in evidence by the applicant as well as in the prosecution evidence. The judge had also given detailed reasons, again based on the evidence, for assessing the level of benefit as he did, making discounts favourable to the applicant in order to avoid any unfairness. The court concluded:

“... As it seems to us, there is no problem in principle in finding in this way that benefit has been derived from drug trafficking, even if the [applicant’s] known assets are not assumed or shown to be derived from unlawful activity. We do not accept that the way in which the matter was approached involved a fresh or new charge against the [applicant] for Article 6 purposes. Everything fell within the scope of the normal confiscation procedure following on from the [applicant’s] conviction on the heroin count, and as such it was part of the sentencing process and Article 6(2) did not apply to it. In any event we do not consider that what happened involved in any way the application of a presumption of guilt, or a violation of the appellant’s rights under Article 6(2). We should perhaps add that although we do not consider that Article 6(1) is strictly before us, we see nothing in [counsel for the applicant’s] submissions to cause us any concern about the compatibility with Article 6(1) of the procedure that was adopted in this case.”

The appeal was accordingly dismissed.

4. Proceedings before the House of Lords

On 15 April 2008 the Court of Appeal certified a point of law of general public importance but refused leave to appeal to the House of Lords. Leave to appeal was subsequently granted by the House of Lords.

On 29 April 2009 their Lordships unanimously dismissed the applicant’s appeal, for different reasons.

Lord Phillips of Worth Matravers considered in some detail relevant domestic and Strasbourg jurisprudence regarding confiscation proceedings and the presumption of innocence. As to the applicability of Article 6 § 2 in the circumstances of the applicant’s case, he found:

“40. There is authority that establishes that both the adjective ‘criminal’ and the noun ‘charge’ are autonomous concepts but that the Strasbourg Court attaches significance to the way in which they are treated in domestic law and looks to the substance rather than to the form. Not without hesitation, I have concluded that the allegations that were made in relation to the cannabis offences did not constitute ‘criminal charges’. First they were not so treated under our law. Secondly, they could not and did not lead to criminal convictions. Thirdly, and most significantly, their consequence, the confiscation of the property of a convicted drug dealer, is precisely the same as that in Phillips and Grayson & Barnham. Those cases required a finding that the property confiscated was derived from criminal offending, albeit that the precise offences did not have to be specified but could be inferred. The Strasbourg Court accepted that the safeguards of article 6(2) did not apply in such circumstances. It would seem illogical to impose them where the details of the offending are alleged with more particularity.”

Lord Phillips noted, however, that the guarantees of Article 6 § 1 nonetheless applied to the confiscation proceedings. As to whether there had been a violation of this Article in the circumstances of the case, he found:

“41. ... The requirements of a fair trial in confiscation proceedings are not poles apart from those imposed by Article 6(2) and 6(3). Where, as here, the prosecution rely on criminal offending to prove the existence of benefit, they have to prove that offending. The defendant is presumed innocent until proved guilty, albeit by the civil standard of proof. When, in Grayson and Barnham, the Strasbourg court set out the safeguards in our system that had led it to conclude that our procedure satisfied Article 6(1) it might well have been carrying out a check list of the relevant requirements of Article 6(3).

42. The facts of this case are unusual. The prosecution, as part of their case on the conspiracy to import heroin, gave the defence particulars of evidence that they intended to adduce of other drug offences. The [applicant] challenged these at his trial and could have challenged them again in the confiscation proceedings. The judge was sure on the evidence that the relevant offences were proved. He deduced the benefit from the proved offending. In the Court of Appeal Richards LJ held that the procedure adopted was compatible with article 6(2). There is no basis for suggesting that the fair trial requirements of article 6(1) were not satisfied.

43. ... It is open to the prosecution to prove the derivation of benefit from drug trafficking by proving the commission of drug trafficking not charged on the indictment ...”

Lord Mance adopted a broadly similar position to that of Lord Phillips. He too found that Article 6 § 2 did not apply to the confiscation proceedings in the applicant’s case. He also agreed with Lord Phillips that the standard of proof required from the prosecution in proving any relevant drug trafficking was the civil standard. He further considered that no breach of Article 6 § 1 was made out in the present case.

Lord Rodger of Earlsferry also agreed that Article 6 § 2 did not apply to the confiscation proceedings, noting:

“64. ... Nothing said or done by the prosecution or the court in the course of the confiscation proceedings was designed to convict or acquit the [applicant] of any other drug-related offence. So article 6(2) was not engaged when the court was determining, as part of the sentencing procedure for the trigger offence, whether the [applicant] had benefited from drug trafficking, other than the drug trafficking comprising the trigger offence.”

He accepted that the presumption of innocence nonetheless applied as part of the guarantees inherent in Article 6 § 1 of the Convention, but considered that the Article was satisfied, noting:

“74. Although the [applicant] was not ‘charged’ with the cannabis network offence, evidence of his involvement in the network was led by the prosecution at his trial for the conspiracy count. The [applicant] was represented by counsel. Before trial, he would have been supplied with police statements and other material from which it would have been clear that the prosecution was intending to lead evidence about his involvement in the cannabis distribution network at his trial. The [applicant] has never suggested otherwise. The trial judge held that that evidence was admissible and the Court of Appeal held that there was no arguable appeal against that ruling. Counsel for the [applicant] had every opportunity to cross-examine the relevant witnesses and to lead evidence to counter the prosecution evidence relating to the cannabis distribution network. At the trial, accordingly, any requirements of Article 6(1) and (3) were surely satisfied in respect of the allegations relating to his involvement in that network.

75. In the context of the confiscation proceedings the judge had regard to this evidence which had been led at the trial and, on that basis, had ‘no doubt’ that the [applicant] had indeed been involved in running the network. So, in this case, there is no question of the judge proceeding on a presumption that the [applicant] had been involved in the cannabis network – indeed, the judge plainly thought that the [applicant’s] involvement had been proved to the criminal standard, beyond a reasonable doubt. On any view, therefore, the presumption of innocence in article 6(1) was fully respected in the confiscation proceedings.”

However, unlike Lords Phillips and Mance, Lord Rodger considered that the relevant standard of proof was “beyond reasonable doubt”, observing:

“77. ... If a presumption of innocence is implied into article 6(1), then it, too, must require that the person be proved guilty according to law. In the context of a criminal trial, the standard of proof, according to our law, is beyond reasonable doubt. Indeed, if that were not the position, the Crown could ask the court to make a confiscation order on the basis of an alleged benefit from a specific offence of which the defendant would have been acquitted if he had been prosecuted for it.”

On whether that standard had been satisfied in the present case, Lord Rodger noted:

“80. Admittedly, Judge Stokes could not point to any assets or expenditure of the [applicant] which were directly linked to the trafficking through the cannabis distribution network. But, as I have explained, expenditure and assets are only the likely indicia of profitable drug trafficking. What the judge had to determine was not whether the [applicant] had profited from drug trafficking, but whether the [applicant] had benefited from drug trafficking, within the meaning of section 2(3). Even in the absence of such indicia, it was open to the judge, on the available evidence, to find that the [applicant] must have benefited from drug trafficking – in the sense that he had received payments or rewards from his involvement. Such a finding involves no violation of Article 6(1) or (2). So far as the amount of the benefit is concerned, the judge was careful to reduce his estimate so as to allow for any margin of error in that calculation. Again, it is hard to see how that calculation could possibly give rise to a violation of Article 6(1) or (2), especially given that the [applicant] does not criticise the judge’s estimate or the way that it was arrived at. In no sense can it be said, in this case, that the court’s conclusions as to the benefit derived by the [applicant] from drug trafficking were based on a presumption of guilt: they were based on evidence.”

Lord Neuberger of Abbotsbury agreed fully with Lord Rodger as regards the Convention issues arising in the appeal.

Lord Brown of Eaton-under-Heywood alone found that Article 6 § 2 did apply in the circumstances of the case. He noted:

“87. I confess, however, to somewhat greater difficulty regarding the compatibility of the confiscation proceedings here with article 6(2). I cannot regard Phillips v United Kingdom (2001) 11 BHRC 280 (which endorsed the Privy Council’s decision in McIntosh v Lord Advocate [2003] 1 AC 1078) as conclusive of the article 6(2) argument. McIntosh ... was based squarely on confiscation proceedings where the benefit of drug trafficking was determined by reference to identified property (a process ... akin rather to tracing than to finding the defendant to have been engaged in criminal conduct). And Phillips too was concerned with the statutory assumptions under which benefits are calculated by reference to identifiable property.”

He then reviewed subsequent case-law of this Court and concluded:

“91. ... With no less hesitation I have come to a different conclusion [from that of Lord Phillips]. Geerings seems to me to stand for more than merely the prohibition against reliance on criminality of which the defendant has actually been acquitted. That was separately identified as the second of the two reasons given by the Court for distinguishing Phillips and (rightly or wrongly) Van Offeren ... The first reason is that contained in paras 46 and 47 of the Court’s judgment ... ‘that the applicant [in Phillips and Van Offeren] demonstrably held assets whose provenance could not be established; that these assets were reasonably presumed to have been obtained through illegal activity; and that the applicant had failed to provide a satisfactory alternative explanation.

92. ... [T]he Court stated what was objectionable in the Dutch court’s findings in Geerings which distinguished it from Phillips and Van Offeren: ‘that the applicant had obtained unlawful benefits from the crimes in question although [he] was never shown to hold any assets for whose provenance he could not give an adequate explanation, [such finding having been reached] by accepting a conjectural extrapolation based on a mixture of fact and estimate contained in a police report’.

93. That seems to me to describe the present case precisely. Then ... the court ruled out the confiscation of benefit calculated by reference to assets which are not known to have been in the possession of the person affected, the more so if the measure concerned relates to a criminal act of which the person affected has not actually been found guilty... The Court continued, ‘If it is not found beyond a reasonable doubt that the person affected has actually committed the crime, and if it cannot be established as fact that any advantage, illegal or otherwise, was actually obtained, such a measure can only be based on a presumption of guilt. This can hardly be considered compatible with article 6(2).’

94. That again (with one important exception, the standard of proof, to which I shall return) seems to me to describe this case ...”

Lord Brown considered the position of this Court to be that the prosecution must either demonstrate that the defendant holds or has held assets the provenance of which he cannot satisfactorily explain, or must establish beyond reasonable doubt that the defendant has committed some other offence (or offences) from which it can be presumed that he obtained advantage. In the latter case, he considered, Article 6(2) applied but was satisfied.

In the applicant’s case, Lord Brown observed that, unlike in Geerings, so far from having been acquitted of the cannabis offence, the applicant was found by the judge beyond reasonable doubt to have committed it. On this basis and on this basis alone he regarded Geerings as distinguishable and Article 6(2), albeit engaged, to be satisfied. He added:

“... The fact that the cannabis offence was not treated under domestic law as a criminal charge and did not lead to a criminal conviction is not in my judgment a sufficient basis for holding it not to be a charge within the autonomous Convention meaning.”

Lord Brown concluded with the following remark:

“97. At one stage in the preparation of this opinion I wondered whether, assuming for Convention purposes the [applicant] was indeed to be regarded as charged with a criminal offence, he can properly be said to have been ‘proved guilty according to law’, not least having regard to the terms of section 2(8). Given, however, the obvious overall fairness of the confiscation proceedings here ... I cannot think that Strasbourg would regard the procedure in fact adopted as unlawful. Having swallowed the camel of accepting that our confiscation proceedings generally are compliant with article 6, the European Court of Human Rights is in my opinion unlikely to strain at this gnat.”

Both Lord Rodger and Lord Mance expressed a critical view of the approach adopted by the prosecution in the present case. As to the decision not to prosecute the applicant for cannabis trafficking but nonetheless to lead extensive evidence relating to such trafficking at his trial, Lord Rodger observed:

“45. The general thrust of the prosecution case at trial was that the [applicant] had a pre-existing network for the supply of cannabis and was going to use it to distribute the diamorphine which [B.] was going to import. So, much of the most important evidence was designed to prove that the [applicant] was indeed engaged in distributing cannabis through this network. That evidence tended to show – at the least – that the applicant had been concerned in the supplying of cannabis contrary to section 4(3)(b) of the [Misuse of Drugs Act 1971]. Despite this, for reasons which [counsel for the prosecution] – who had not been instructed at that stage –understandably had difficulty in identifying, far less explaining, the indictment contained no section 4(3)(b) count. This is the first unsatisfactory aspect of the case.

46. In Scotland, the absence of a section 4(3)(b) charge would have rendered the evidence relating to the cannabis distribution network inadmissible, as being evidence of a crime not charged. In this case, however, the evidence was led at the trial and, on an application to the Full Court for leave to appeal on the basis that the judge should not have admitted evidence showing that the network was for the distribution of cannabis, the Court of Appeal ... were unable to see that there was an arguable ground of appeal.

47. Plainly, the evidence relating to the cannabis network was very relevant to the Crown’s case. And, if the indictment had included a count relating to that matter, all would have been well. The absence of such a count means, however, that the [applicant] was never charged with an offence relating to the cannabis network. And, although the evidence about the network formed an important part of the prosecution case at trial, the judge ... directed the jury that, even if they rejected that evidence, they could still convict the [applicant] of the count on the indictment. It is, accordingly, impossible to tell whether the jury were satisfied that the [applicant] was involved in the network. Putting the matter another way ... the approach adopted by the Crown meant that the jury were not given the opportunity, if so advised, to declare the [applicant’s] innocence of any involvement in a cannabis network by acquitting him of a count relating to it.”

Lord Mance noted:

“108. In the present case, I share the feeling that it is undesirable that a defendant should be charged only with an offence of conspiring to import heroin, that the Crown should in order to prove that offence adduce extensive evidence (in the form of covertly taped admissions) of the defendant having a pre-existing distribution network for the transportation and distribution of cannabis, in order to show why the defendant was approached to import heroin, and that the judge should then be invited to make a confiscation order on the basis of the benefit made and proceeds received from the cannabis dealings proved to his satisfaction by such evidence. I understand that, in the absence of any charge relating to the cannabis dealings, the evidence of the [applicant’s] admissions of such dealings would not have been admissible in Scotland. But criminal law and procedure vary widely among European countries, and, within the parameters of the European Convention on Human Rights and of the common principles governing proper prosecutorial conduct (neither of which it has been suggested were exceeded in this particular respect), it is not for us to proceed on the basis of some instinctive preference for an approach different from that here actually adopted ...”

Lord Rodger further criticised the judge’s decision not to apply the statutory assumptions in the applicant’s case:

“48. Following the [applicant’s] conviction on the conspiracy charge, the prosecutor asked Judge Stokes ... to consider whether to make a confiscation order. The judge was then obliged to do so. In terms of section 2(2) he had first to determine whether the [applicant] had benefited from drug trafficking. To determine that, subject to section 4(4) and (5), a court ‘shall... make the required assumptions’ which are set out in subsection (3): see section 4(2).

49. The second unsatisfactory feature of the case emerges at this point. Those representing the prosecution and the [applicant] simply agreed to proceed with the confiscation proceedings on the basis that the assumptions in section 4(3) of the 1994 Act should not be applied. The prosecution, at least, seems to have considered that the presentation of a case based on the assumptions would have involved extremely difficult accountancy issues and would have been lengthy and expensive. Plainly, if the position had been explained to the judge by counsel and he had then made his own decision that, for a reason covered by section 4(4), the assumptions should not be applied, there would have been no problem. Here, however, while apparently accepting that the assumptions should not be applied, the judge did not make any determination in terms of section 4(4).

50. In my view, the matter was mishandled. The requirement in section 4(2) to apply the assumptions binds the court ... No unilateral action by the prosecution, or joint action by the parties, can relieve the court of its obligation under section 4(2) to apply the assumptions. But suppose that the prosecutor had indeed realised that, so far as the actual expenditure and property which the prosecution could identify were concerned, the [applicant] could show that they derived from his legitimate business as a hotelier etc. In that event, if the position had been explained to the court, in all probability the judge would indeed have disapplied the presumptions, on the ground that they had been shown to be incorrect ... So the failure to observe the provisions of section 4(2) and (4) was probably one of form rather than of substance.”

B. Relevant domestic law

As noted above, the applicable legislation at the time was the Drug Trafficking Act 1994. This Act was subsequently replaced by the Proceeds of Crime Act 2002.

Pursuant to section 2 of the 1994 Act where a defendant appeared before the Crown Court to be sentenced in respect of one or more drug trafficking offences, and the prosecutor asked the court to proceed under section 2 or the court considered that it was appropriate to do so, the court was required to first determine whether the defendant had benefited from drug trafficking. Section 1 of the Act defined “drug trafficking” and “drug trafficking offence” in wide terms.

Pursuant to section 2(3):

“(3) For the purposes of this Act, a person has benefited from drug trafficking if he has at any time (whether before or after the commencement of this Act) received any payment or other reward in connection with drug trafficking carried on by him or another person.”

Section 2(4) provided that if the court determined that the defendant had benefited from drug trafficking, it was required, before sentencing or otherwise dealing with him in respect of the offences concerned, to determine the amount to be recovered in his case in accordance with section 5. Section 5 restricted the amount to be recovered under a confiscation order to the amount that the court certified was capable of being realised from the defendant’s assets at the time that the order was made. Subject to that limitation it provided that the amount to be recovered under the order was to be the amount that the court assessed to be the value of the defendant’s proceeds of drug trafficking.

Pursuant to section 2(5), the court was then required, in respect of the offences concerned, to order the defendant to pay that amount.

Section 4 made provision for assessing the proceeds of drug trafficking. It provided:

“4(1) For the purposes of this Act–

(a) any payments or other rewards received by a person at any time (whether before or after the commencement of this Act) in connection with drug trafficking carried on by him or another person are his proceeds of drug trafficking; and

(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards.

(2) Subject to subsections (4) and (5) below, the Crown Court shall, for the purpose

(a) of determining whether the defendant has benefited from drug trafficking, and

(b) if he has, of assessing the value of his proceeds of drug trafficking,

make the required assumptions.”

The assumptions were set out in section 4(3):

“The required assumptions are–

(a) that any property appearing to the court–

(i) to have been held by the defendant at any time since his conviction, or

(ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him,

was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him;

(b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him; and

(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it.”

Section 4(4) provided that the court could not make any required assumption in relation to any particular property or expenditure if:

“(a) that assumption is shown to be incorrect in the defendant’s case; or

(b) the court is satisfied that there would be a serious risk of injustice in the defendant’s case if the assumption were to be made ...”

It further stipulated that where the court did not make one or more of the required assumptions, it was required to state its reasons.

Section 2(8) provided that the standard of proof required to determine any questions in relation to whether a person had benefited from drug trafficking and the extent of such benefit arising under the Act was that applicable in civil proceedings (i.e. on a “balance of probabilities”, rather than the criminal standard of “beyond reasonable doubt”).

COMPLAINT

The applicant complains under Article 6 §§ 1 and 2 of the Convention of a violation of his right to be presumed innocent until proven guilty according to law because the confiscation order was made on the basis of his estimated benefit from trafficking in cannabis despite the fact he was never convicted of any offence of cannabis trafficking.

QUESTIONS TO THE PARTIES

Did Article 6 § 2 apply to the confiscation proceedings (see Phillips v. the United Kingdom, no. 41087/98, §§ 31-36, ECHR 2001 VII; Van Offeren v. the Netherlands (dec.), no. 19581/04, 5 July 2005; and Geerings v. the Netherlands, no. 30810/03, §§ 41-50, 1 March 2007)?

Has there been a violation of Article 6 §§ 1 or 2 of the Convention on account of the fact that a confiscation order in the sum of GBP 2,628,490 imposed on the applicant was not based on assets held by him which had untraceable or unexplained origins or on an estimate of the proceeds derived from the offence for which he was actually convicted but on an assessment of the likely proceeds of trafficking in cannabis, when he had never been charged with or convicted of trafficking in cannabis (see Phillips, cited above, §§ 44-45 ; Van Offeren, cited above; and Geerings, cited above, §§ 44-47; and Grayson and Barnham v. the United Kingdom, nos. 19955/05 and 15085/06, §§ 41 and 46, 23 September 2008)?