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Cite as: 2000 SCCR 1017, [2000] UKHRR 751, 2000 SLT 1280, [2000] ScotHC 97, 2000 GWD 33-1284, 2001 JC 78

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ROBERT McINTOSH v. HER MAJESTY'S ADVOCATE [2000] ScotHC 97 (13th October, 2000)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Prosser

Lord Kirkwood

Lord Allanbridge

Appeal No: Misc.77/2000

OPINION OF LORD PROSSER

PETITION

to the

nobile officium

ROBERT McINTOSH

Petitioner:

against

HER MAJESTY'S ADVOCATE

Respondent:

______

Petitioner: Shead, Devlin, Bennett & Robertson

First Respondent: Menzies, Q.C., A.D.; Crown Agent;

Second Respondent: L. Murphy cf. Advocate-General; H Macdiarmid

13 October 2000

[1] At a sitting of the High Court of Justiciary in Paisley, the petitioner Robert McIntosh was convicted on 30 June 1999 of an offence under section 4(3)(b) of the Misuse of Drugs Act 1971 during the period from 1 January to 6 March 1999. That offence is a "drug trafficking offence" for the purposes of the Proceeds of Crime (Scotland) Act 1995, in terms of section 49(5)(a)(ii) of that Act. The offence having been prosecuted on indictment was one to which, in terms of section 1(2), Part I of the Act applies; and in respect thereof, the court accordingly had power, in terms of section 1(1), on the application of the prosecutor, to make "an order (a 'confiscation order') requiring the accused to pay such sum as the court thinks fit". On the petitioner being convicted, the prosecutor applied for the making of a confiscation order.

[2] In terms of section 1(5) of the Act, it is provided that the sum which a confiscation order requires an accused to pay in the case of a drug trafficking offence shall be an amount not exceeding what the court assesses to be "the value of the proceeds" of the person's "drug trafficking", subject to a limit related to what may be realised. The expression "drug trafficking" is defined in section 49(2) of the Act as meaning, subject to subsections (3) and (4) of the section, doing or being concerned in any of a list of activities, each of which would constitute a contravention of a statutory provision relating to controlled drugs. "Drug trafficking" is an expression which, in terms of the statutory definitions, is quite separate and distinct from a "drug trafficking offence".

[3] Section 9(1) of the 1995 Act provides that where the prosecutor applies for the making of a confiscation order, he may lodge with the clerk of court a statement as to any matters relevant, in connection with a drug trafficking offence, to the assessment of the value of the accused's proceeds of drug trafficking. Such a statement was lodged: it concerns assets and expenditure, with no allegations of drug trafficking as such, but stating a figure for proceeds of drug trafficking. Thereafter the petitioner lodged (and subsequently adjusted) Answers to that Statement. Section 9 contains a number of further provisions bearing upon the assessment of the value of the proceeds of drug trafficking when a statement has been lodged; but these give rise to no specific point in the present proceedings. Without prejudice to section 9, however, in terms of section 3(2) of the Act,

"the court may, in making an assessment as regards a person under section 1(5) of this Act, make the following assumptions, except in so far as any of them may be shown to be incorrect in that person's case -

(a) that any property appearing to the court -

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

as the case may be,

(ii) to have been transferred to him at any time since a date six

years before his being indicted, or being served with the complaint,

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 the drug trafficking carried on by him;

(b) that any expenditure of his since the date mentioned in paragraph (a)

(ii) above was met out of payments received by him in connection with drug trafficking carried on by him, and

have been received by him at any time as such a reward, he received the property free of any other interests in it."

In terms of section 3(1), a person's "proceeds of drug trafficking" are defined as any payments or other rewards received by him at any time in connection with drug trafficking carried on by him or another; and the value of these proceeds of drug trafficking is the aggregate of the values of the payments or other awards. The figure for proceeds contained in the prosecutor's Statement apparently derives from an application of these assumptions.

[4] In his adjusted Answers to the Statement, the petitioner refers to the provisions of section 3(2) of the 1995 Act, and to Article 6(2) of the Convention for the protection of Human Rights and Fundamental Freedoms, which provides that "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." He avers that section 3(2) of the Act displaced this presumption of innocence by requiring the accused to prove that the assumptions were incorrect. Referring to section 57(2) of the Scotland Act 1998, he avers that by inviting the court to make the assumptions referred to, the Lord Advocate was seeking to act in a way which was incompatible with the accused's Convention rights. Such an invitation would therefore be ultra vires and incompetent. Upon the basis that the issue thus raised was a devolution issue, a diet of debate was fixed for 24 February 2000. The presiding judge was asked to pronounce a declarator that in the circumstances "the Crown has no power to invite the court to make the assumptions set out in section 3(2) of the Proceeds of Crime (Scotland) Act 1995". It was conceded on behalf of the Crown that if the submissions were otherwise well-founded, the "invitation" in question would constitute an "act" for the purposes of section 57(2) of the Scotland Act and that such a declarator could properly be pronounced. The court declined to pronounce the declarator sought. While the prayer of the present petition to the nobile officium does not express the matter in this way, the petitioner asks that the decision of the court below be reversed, and that the declarator sought be now granted. On behalf of the Crown, the same concessions were made: while it might have been argued that the application was premature, no invitation to make the assumptions having yet been made to the court, the Crown were content to proceed upon the basis that there was a relevant act by the Lord Advocate, and that if the declarator sought by the petitioner were otherwise thought to be well-founded, it could properly be pronounced. The Crown's position was, however, that the declarator was ill-founded, and that the petitioner's motion should be refused.

[5] It is apparent that at the debate on 24 February, the devolution issue raised in the petitioner's Answers to the Statement was not supported by any very closely argued submissions; and the submissions for the Crown, as narrated by the presiding judge, appear likewise to have been advanced in somewhat simple terms. The judge says that having weighed up the competing submissions of counsel as best he could, he reached the view that those advanced on behalf of the Crown should prevail. He does not discuss any particular considerations or set out his analysis of the matter. In these circumstances, in the submissions advanced to us, counsel for the petitioner was not attacking the judge's reasoning as such; nor was the advocate depute relying upon any such reasoning. In effect, the issue before us was approached, on both sides, as if this appeal hearing was for practical purposes a hearing at first instance. That being so, although some of the ground covered was of course the same, it is not necessary for us to refer further to the opinion issued by the judge at first instance.

[6] In terms of Article 6(2) of the Convention, it is "everyone charged with a criminal offence" who is to be presumed innocent until proved guilty. In claiming to be a person "charged" with a criminal offence, the petitioner is not of course referring to the charge under section 4(3)(b) of the Misuse of Drugs Act, which had been disposed of by conviction before the prosecutor applied for a confiscation order and lodged the Statement. Nor indeed was counsel for the petitioner contending that his client was a person "charged with a criminal offence" as that expression would be understood as a matter of Scots law. He took as his starting point the fact that Article 6(1) provides that in the determination of any criminal charge against a person the person charged is entitled to a fair and public hearing "within a reasonable time". Counsel referred to Foti v. Italy (1983) 5 EHRR 313. At paragraph 52 on page 325, the court observed that one must begin by ascertaining from which moment the person was "charged". And after quoting the definition of "charge" given in Eckle v. Germany (1982) 5 EHRR 1 at paragraph 73, the court in Foti went on to say that "it may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect." Counsel submitted that in construing the words "charged with a criminal offence" in Article 6(2), one must proceed not upon the basis of what these words would mean in Scots terminology, but upon the definition provided in Eckle - "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence" - as interpreted in Foti. I did not understand the advocate depute on behalf of the Crown to dispute this: the question was whether, upon application for a confiscation order and the lodging of the Statement, the petitioner was being "charged" in this sense with a criminal offence.

[7] Counsel for the petitioner, and subsequently the advocate depute, asked us to consider the essential nature of an application for a confiscation order, and the proceedings which followed on such an application. On behalf of the petitioner, counsel acknowledged that these confiscation procedures were not entirely separate or distinct from the proceedings on the indictment or the conviction. They were triggered by the conviction and could be described as natural sequelae of conviction. While they were a part, they were not merely a part, of imposing sentence in respect of that conviction. Although they did not involve any new charge or new offence in terms of Scots law, and were part of the original proceedings, they also constituted, within that context, a separate identifiable process, which began with the application and Statement, which were "measures" of the kind described in Foti, carrying the implication of an allegation that the petitioner had committed a criminal offence of the type envisaged in Eckle. The measures would moreover substantially affect the situation of the petitioner, with the possibility of a confiscation order and, if there was a failure in payment, possible imprisonment upon the same basis as if there were default in paying a fine. The obligation to make payment in terms of the confiscation order, and the liability to imprisonment in default of payment, were not to be seen merely as penalties for the specific proven drug trafficking offence under section 4(3)(b) of the Misuse of Drugs Act. That specific and proven offence afforded an opportunity to the prosecution to seek a confiscation order for payment of a sum of money. But Parliament had defined and quantified the sum which might be ordered to be paid upon the basis that the convicted person had proceeds derived from previous, unidentified and unproven crimes. The application for a confiscation order was a measure carrying the implication of an allegation that the petitioner had committed one or more of the criminal offences set out in section 49 of the 1995 Act. Only if, for the court's purpose, he had committed an offence or offences there specified could a confiscation order be made.

[8] These submissions were founded upon a closer consideration of the terms of that Act. As the short title to the Act showed, it was a statute concerned with proceeds of crime. The Act was a consolidation Act, following upon a number of previous enactments (contained in particular in the Criminal Justice (Scotland) Acts of 1987 and 1995) relating to the confiscation of the proceeds of crime - as was acknowledged in the long title of the present Act. That this was the nature and purpose of the Act was clear from all the relevant provisions. The order was referred to as a "confiscation order"; and while it took the form of a requirement to pay a sum of money, the amount was identified as the value of what were described as proceeds of drug trafficking. The Act of course provided for an assessment of these proceeds of drug trafficking. But it did so in terms of payments or other rewards received in connection with drug trafficking carried on by the person concerned. An order to pay a sum ascertained in this way was not merely pecuniary, but naturally and properly described as confiscatory. What the Act envisaged was indeed confiscation of the proceeds of drug trafficking. The provisions contained in section 1(4) and section 2 of the Act, which regulated confiscation orders following upon conviction of offences other than drug trafficking offences, confirmed that a confiscation order was indeed confiscatory.

[9] It was submitted that the proceeds of drug trafficking might of course be proceeds of drug trafficking which took the form of actual offences of which the individual had been convicted. But drug trafficking as defined in section 49(2) could arise without conviction of any such offence. Such drug trafficking was, however, criminal in all the instances set out in section 49(2). And an allegation that a person had received payments or other rewards in connection with drug trafficking, so as to constitute his proceeds of drug trafficking, was an allegation which amounted to charging him with a criminal offence - not in the ordinary Scots sense, but in the required sense for the purposes of Article 6(2). He was therefore entitled, in the proceedings which followed upon that implicit allegation, to a presumption that he was innocent of any offences of the types set out in section 49(2) and had not been engaged in drug trafficking in any of these ways.

[10] Upon the basis that he was thus entitled to the presumption of innocence, counsel turned to the question of whether there had been an act incompatible with those rights. In applying for a confiscation order, and lodging the Statement, the Crown were plainly inviting the court to make the assumptions set out in section 3(2): there was no suggestion that the Crown proposed to establish evidentially or otherwise any of the matters set out at section 3(2)(a), (b) or (c), and the Statement relied on the assumptions. These matters represented the factual basis for any confiscation order being made; and if they were not going to be established by evidence or otherwise, that crucial basis for any such order would come into existence only if the court made the assumptions which it was empowered to make under that subsection. It was clear that the Crown was inviting the court to do just that. To assume, without any evidence or other material pointing towards or even giving rise to a suspicion that the petitioner had in fact received any property as a payment or reward in connection with drug trafficking carried on by him, in terms of section 3(2)(a), or to make the further assumptions set out at (b) and (c) in the subsection, was totally inconsistent with the presumption of innocence.

[11] In submitting that the assumptions which the court was empowered to make might thus be totally baseless, counsel for the petitioner referred to Donnelly v. H.M. Advocate 1999 S.C.C.R. 508. At page 538, Lord Coulsfield, delivering the Opinion of the Court, had noted that section 1(4) specifically provided that in the case of non-drugs offences the court might make a confiscation order only if it was satisfied that the accused had benefited from the commission of the offence. There was no such restriction in relation to drugs offences, and that demonstrated that proof of actual benefit was not a necessary precondition to the exercise of the discretion to make a confiscation order in the case of a drug trafficking offence. His Lordship went on to say that

"There is, in our view, nothing in the legislation to suggest that it is necessary that the court should have some evidence, or ground of suspicion, that the accused has profited from drug-dealing before it can make the order. There is nothing in the wording of section 1 to suggest such a requirement. Section 3(2) similarly provides that the court 'may' make the assumptions there set out, but there is nothing in the wording of section 3 which suggests the court must have evidence or some ground of suspicion that the accused has profited from drug dealing before it can make those assumptions, and the structure of the legislation suggests the contrary. The only preconditions for the making of the assumptions which can be found in the statute are that the court must be satisfied that the accused has received payments or incurred expenditure, or both."

[12] Noting that section 3(2) referred to "assumptions", whereas Article 6(2) of the Convention referred to a "presumption", counsel suggested that the difference in words was of no real significance. Maintaining the distinction, for convenience, he submitted that the assumptions were incompatible with the presumption of innocence: each represented a starting point, so that there was an onus to take the first step towards displacing it. It was true that the Crown had to prove beyond reasonable doubt that the accused had received payments or incurred expenditure, or both, as the parties had agreed in Donnelly. But these facts in themselves took one nowhere towards raising a suspicion of guilt; and if the assumptions were made, in terms of section 3(2), in the absence of any ground for suspicion, the effect was to place an onus upon the person who had been found guilty of a specific drug trafficking offence to take the very first step in relation to the real (and quite distinct) question, of whether the matters set out in section 3(2)(a) to (c) should be regarded by the court as facts.

[13] Turning to consider the meaning and effect of Article 6(2) in greater detail, counsel referred us to Salabiaku v. France (1988) 13 E.H.R.R. 379. That case was concerned with a presumption of criminal liability which was provided for in a Customs Code, to the effect that "the person in possession of contraband goods shall be deemed liable for the offence". The contention was that this placed upon the accused person an "almost irrebuttable presumption of guilt" in relation to the offence of smuggling prohibited goods. As the court pointed out at page 388, in paragraph 28, presumptions of fact or of law operate in every legal system and the Convention does not prohibit such presumptions in principle. But counsel submitted that in Salabiaku, it was clear that the onus lay upon the prosecution to prove the fact of possession of contraband goods, which was not merely suspicious but so highly suspicious as to come close to proof of guilt. Counsel did not dispute that there are many situations in which, once the prosecution have established some facts which point towards guilt, or from which an inference of guilt at least might be drawn, either a presumption of fact or a presumption of law may arise, shifting the onus of proof onto an accused person, without violating Article 6(2). But section 3(2) of the 1995 Act was quite different. It did not shift the onus at a point where the prosecution had gone some way towards indicating guilt. In a case such as the present, where the prosecution had not, and did not claim to have done that, it quite simply imposed an onus from the start, without any stage at which the prosecution had to do anything to indicate or even raise a suspicion of guilt. There was thus no stage, prior to the assumption becoming competent or being made, at which the presumption of innocence was operating, before an onus was imposed upon the person who was threatened with a confiscation order. Nothing in Salabiaku suggested that this was consistent with Article 6(2). Indeed, the court made it clear in paragraph 28 that Article 6(2) requires States to confine presumptions of fact or of law "within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence". If the Crown were obliged to establish facts which at least gave rise to suspicion, before any question of assumptions arose, so that the assumption, if made, would have that basis, it might well be that there would be room for presumptions or assumptions, transferring the onus, which could be said to fall within such reasonable limits. Counsel accepted that rebuttable presumptions that an accused was living knowingly off the earnings of a prostitute who was proved to be living with him or under his control (X. v. U.K. (No. 5124/71), 42 C.D. 135 (1972)), or that a company director was guilty of an offence committed by the company (G. v. Malta (No. 16641/90) (1991) unreported) were not inconsistent with Article 6(2). But the assumptions permitted by section 3(2), upon which alone the Crown was attempting to rely in the present case, required (and in this case had) no such basis for suspicion or inference, and could not be seen as falling within any reasonable limits, even in the grave context of attempts to control or limit drug trafficking and drug trafficking offences.

[14] In this connection, counsel for the petitioner referred us to R. v. D.P.P., ex parte Kebeline & Others [1999] 3 WLR 972, and in particular the speech of Lord Hope of Craighead. Having noted that the terms of Article 6(2), as a statement of fundamental principle, were wholly consistent with the common law of Scotland, Lord Hope at page 90 refers to Slater v. H.M. Advocate, 1928 J.C. 94, at page 105, where the court stated that the presumption of innocence "can be overcome only by evidence relevant to prove the crime...". As an example of shifting onus, his Lordship refers to the Scottish rule of evidence to the effect that if an accused is found in possession of recently stolen goods "in criminitive circumstances" he must "displace the inference of guilt raised by these circumstances". In the present case, as in Kebeline, it was not suggested that these common law evidential presumptions are incompatible with the presumption of innocence. They could properly oblige an accused to displace an inference of guilt raised by proved criminative circumstances.

[15] As his Lordship goes on to observe at page 991, the difficulty lies in the area of legislation by Parliament, and until now the only check on Parliament's freedom to legislate in this area has been political. His Lordship adds "All that will now change with the coming into force of the Human Rights Act 1998." Counsel submitted that we were now at that point. As Lord Hope had said under reference to Salabiaku, as a matter of general principle, a fair balance must be struck between the demands of the general interests of the community and the protection of the fundamental rights of the individual. The question was whether the inroad upon the presumption of innocence was within reasonable limits. And in considering where the balance lay, counsel was content to take as a starting point the questions suggested by counsel in Kebeline, and adopted by Lord Hope of Craighead:

"(1) What does the prosecution have to prove in order to transfer the onus to the defence?

(2) What is the burden on the accused - does it relate to something which is likely to be difficult for him to prove or does it relate to something which is likely to be within his knowledge or to which he readily has access?

(3) What is the nature of the threat faced by society which the provision is designed to combat?".

[16] In relation to the present case, counsel submitted that the Crown had to prove absolutely nothing, which even raised a suspicion. That was entirely different from Kebeline, in which not merely suspicion, but prima facie proof was required. Whether one started with suspicion or prima facie proof, most presumptions imposed by the law occurred where guilt might be inferred from the proven facts, and the law intervened to incorporate that inference as a rebuttable presumption - shifting the onus. As Lord Hope had said in Kebeline "It is not immediately obvious that it will be imposing an unreasonable burden on an accused who was in possession of articles from which an inference of involvement in terrorism could be drawn to provide an explanation for his possession of them which would displace that inference." That was in the context of terrorism. Counsel acknowledged that with a public threat of that kind, a transfer of onus was unsurprising and reasonable. The same was accepted to be true in relation to what has been called the "scourge of drug trafficking offences". But while such contexts were those in which special and perhaps draconian rules might be introduced, they were also the type of context where the courts should be particularly concerned to protect the fundamental rights of individuals against a possibly unreasonable scope in broadly reasonable measures which the Executive and legislature might see as justified.

[17] We were referred to The State v. Coetzee & Others [1997] 2 L.R.C. 593, in which the Constitutional Court of South Africa held certain sections of a statute unconstitutional. At page 677, Sachs J. said this:

"There is a paradox at the heart of all criminal procedure, in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing enquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences, massively outweighs the public interest in ensuring that a particular criminal is brought to book...Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system. Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise. The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug smuggling, corruption...the list is unfortunately almost endless and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases".

Counsel submitted that this was of importance in relation both to question 1 and question 3. It might well be that the nature of the threat faced by society justified unusual and special departures from the ordinary rules as to onus. But that did not mean that the prosecution should have to prove nothing, or that a person threatened with a confiscation order should have to accept an onus of raising doubt at the outset - far less the requirement imposed by section 3(2) of actually showing assumptions to be incorrect. As regards question (2) it was accepted that a person would have substantial knowledge as to the sources of amounts received or expended by him. If the person concerned had very large amounts of money, or had indulged in lavish expenditure, he might be expected to have sufficient knowledge to be able to show that the assumptions were incorrect. Indeed, such large amounts might be significant more fundamentally, as giving rise to a suspicion that they were derived from some illegal activity such as drug trafficking. But the power to make the assumption was not limited to cases which were suspicious in themselves, or to situations where assets or expenditure took a form which one would expect to be readily explicable. Receipts and expenditure might be many years into the past, so that their sources might be hard to recall or identify, or to identify sufficiently reliably actually to "show" that the assumption was incorrect. It was also to be borne in mind that the provisions as to implicative gifts meant both that there could be issues as to which the person concerned might have no real knowledge, and moreover that the order might indirectly affect third parties. Even with these various potential problems, the onus imposed by section 3(2) might be a reasonable one if it only arose once the Crown had taken matters some distance, so that there was something which, in ordinary lay terms, called for an explanation. But section 3(2) called for an explanation upon a basis which in ordinary terms did not call for any explanation. In carrying out the balancing exercise, and taking all three considerations into account, it could not be said that the onus imposed by section 3(2) was one which fell within the reasonable limits demanded by Article 6(2) of the Convention.

[18] On behalf of the Crown, the advocate depute advanced his submissions under three main heads. First, he submitted that confiscation proceedings were not a separate or "stand-alone" process. Nor were they concerned with establishing the guilt or innocence of the petitioner in respect of some offence or offences separate from that upon which he had been convicted. They were proceedings triggered by that conviction, and part of the sentencing process in relation to that conviction. Secondly, he submitted that the provisions of section 3(2) of the 1995 Act did not amount to such a transfer of the burden of proof to the accused as to be incompatible with Article 6(2) of the Convention. And thirdly, relying upon the court's observation in Salabiaku that presumptions of fact or of law operate in every legal system, and that the Convention does not prohibit such presumptions in principle, he submitted that the provisions of section 3(2) of the Act were within the reasonable limits required by Article 6(2), taking into account both the importance of deterring drug trafficking and the need to safeguard the position of the accused.

[19] In submitting that confiscation proceedings did not stand alone, and were in truth simply part of the sentencing stage of the proceedings under the original indictment, the advocate depute argued that Article 6(2) could not apply. The presumption of innocence, in this single criminal process, had had its place up to the time of conviction. But it had no place in relation to sentence. The confiscation order could be described as a penalty, but it was simply an additional penalty which the court, if it so chose, could impose, for the offence of which the petitioner had been convicted. Pointing out that such an order required an accused "to pay such sum as the court thinks fit", the advocate depute compared the order with other monetary penalties. That provision showed that it was like a fine, and all the subsequent provisions, relating to drug trafficking and proceeds, and payments, and rewards, and expenditure and the like were merely a mechanism for setting the upper limit of what would remain (however heavy or draconian) a monetary penalty for the offence of which the accused had been found guilty. Despite the language of the title, and of certain provisions of the Act, this was not in truth confiscation.

[20] In any event, however, it was submitted that the submissions for the petitioner were ill-founded, in treating the confiscation proceedings as bringing in any question as to the accused's guilt in respect of any separate offence or offences. The offence of which the petitioner had been convicted was a "drug trafficking offence" in terms of section 49(5), which brought section 1(5) into play. But thereafter, that subsection, and section 3, were concerned not with a drug trafficking offence or offences, but with "drug trafficking". It was accepted that the definition of that expression in section 49(2) did not appear to extend to anything which would not be an offence or crime. If that were the only relevant provision, to allege that someone had been drug trafficking would thus be to allege that he had committed a crime, although not any specific offence. But that was not the only relevant provision. The meaning given to "drug trafficking" by section 49(2) was subject to subsections (3) and (4). Subsection (4) provided that in certain paragraphs of subsection (2), "references to conduct in contravention of the enactments mentioned in those paragraphs include conduct which would contravene the enactments if it took place in Scotland." Drug trafficking therefore included conduct in other jurisdictions, which in those jurisdictions might not amount to a crime. An allegation that a person had been engaged in drug trafficking was thus merely an allegation that he had engaged in certain conduct which might or might not have amounted to a crime, depending on where it took place. Moreover, in terms of subsection (3), drug trafficking would also include, whether in Scotland or elsewhere, entering into or being otherwise concerned in any arrangement whereby "(a) the retention or control by or on behalf of another person of the other person's proceeds of drug trafficking is facilitated, or (b) the proceeds of drug trafficking by another person are used to secure that funds are placed at the other person's disposal or are used for the other person's benefit to acquire property by way of investment". Any conduct of the petitioner which might amount to drug trafficking by virtue of this provision would not per se give rise to any proceeds; but there could be proceeds of this form of drug trafficking if in terms of the arrangement the petitioner received any payment or reward. Drug trafficking of this type by the petitioner would be "drug trafficking carried on by him", although it would arise in the context of drug trafficking carried on by another. Any such payments or other awards received by him would thus not merely fall within the terms of section 3(1)(a), where drug trafficking "carried on by him or another" was in issue, but also within the terms of section 3(2)(a), and (b), each of which was concerned with "drug trafficking carried on by him" without reference to such trafficking carried on by "another". (It is worth noting at this point that there are also variations of language in other provisions as to whose drug trafficking and whose proceeds are in issue: see for example "his proceeds of drug trafficking" in section 3(1)(a), and the different expression "the proceeds of the person's drug trafficking" in section 1(5)(a). But no reliance was placed on these phrases). Again, such drug trafficking by the petitioner as arose by virtue of section 49(3) might amount to a crime - but it might not. It could thus be seen that taking subsections (2), (3) and (4) together, "drug trafficking" covered what was called a basket of different types of conduct, some of which would not be crimes, although others would.

[21] An allegation that a person had been drug trafficking, if left in those broad terms, would not therefore be an allegation that he had committed any crime. At the most, it would be an allegation that he might have done so. Only if the allegation were more specific (for example limiting the allegation to conduct as described in section 49(2) itself, and excluding any reliance on subsections (3) and (4)) might the allegation be seen as an allegation that the petitioner had committed a crime. While the Crown was not saying that there was any reason to suppose that the petitioner himself had engaged in any conduct of the kinds "caught" by subsections (3) or (4), the advocate depute emphasised that the Crown was making no specific allegation as to his past conduct, of any kind. It was not in a position to do so. That indeed was why a confiscation order would only be possible upon the basis of assumptions in terms of section 3(2), the Crown having no evidence to put before the court which would either substantiate a broad allegation of past drug trafficking or indeed exclude the possibility of any of the particular forms of drug trafficking such as those contained in subsections (3) and (4).

[22] It was accepted that the word "charge" would have the same meaning in relation to Article 6(2) as it would have in relation to Article 6(1), and that the meaning was that identified in Eckle and Foti. But even with that broad meaning, and even if, contrary to the Crown's submission, the application and lodging of the Statement could be treated as not merely part of the proceedings on indictment, but a new allegation of drug trafficking, it would not amount to charging the petitioner with a criminal offence.

[23] I should add that at one stage the advocate depute appeared to take the position that in the present case, there was no issue in relation to section 49(4), and no basis for saying that there was an issue in terms of section 49(3); and that that being so, any implicit allegation that the petitioner had been drug trafficking might be seen as an allegation that he had been engaged in criminal drug trafficking, in one or more of the ways set out in section 49(2). However, I think his overall position was that even if, contrary to his submission, there was any allegation implicit in the application for an order and the lodging of the Statement, it was indeed implicit. It was not related to the particular facts of the case. Any such implicit allegation was an allegation of conduct of any of the kinds comprised in the "basket", whatever the facts might be in the individual case. In any event, the Crown's fundamental position remained that this was not a separate "charge" even in the Eckle and Foti sense, and even if the conduct implicitly alleged was to be regarded as criminal. The application and Statement were merely a part of the sentencing process in the proceedings under the indictment. That was in effect what had been held by the Lord Ordinary. Moreover, it was what had been held and more fully discussed by Lord Carloway in H.M. Advocate v. Monaghan, 5 May 2000, unreported. It should be noted, in addition, that in terms of the Act, there was no requirement to serve a statement at all. The prosecutor could simply move for a confiscation order, without lodging any statement. He would have to supply the court with certain information and material, but as regards the Statement the position was that it was not necessary and did not contain any fresh allegations.

[24] (In considering whether what might otherwise amount to a "charge" in the requisite sense was a charge of a criminal offence, reference was made to Engel & Others v. The Netherlands, 1976 1 EHRR 647 and 706. The discussion in that case of the "autonomous" Convention meaning of the word "criminal" is of course important in many circumstances. But it does not appear to me to throw light upon the present case and I do not discuss that matter further).

[25] In turning to his second main submission, to the effect that there was no such transference of the burden of proof as to be incompatible with Article 6(2), the advocate depute referred to Kebeline, and in particular Lord Hope's discussion of shifting evidential or persuasive burdens. He submitted that in a case such as the present, the Crown had been under a burden of proving guilt of the section 4(3)(b) charge beyond reasonable doubt. They would also have to prove beyond reasonable doubt that property had been held by him or transferred to him in terms of section 3(2)(a). Only if the court were otherwise minded to make the assumptions was there any transfer of any burden to the petitioner, to show that the assumptions were incorrect. Even then, one should note the contrast between that requirement, to show the assumptions to be incorrect, and the apparently heavier burden imposed in section 2(2), where the court was empowered to make assumptions except in so far as the accused actually proved them, on the balance of probabilities, to be incorrect. As Lord Hope had indicated, classification was not an exact science, but it was submitted that in so far as the provisions of section 3(2) could be seen as imposing any burden upon the petitioner, it was a burden of the kind which was generally acknowledged to involve no violation of the fundamental or initial presumption of innocence with which Article 6(2) was concerned. The petitioner was being asked to explain unexplained assets: the practice of the Crown was to seek confiscation orders only in respect of unexplained assets.

[26] In advancing his third main submission, and considering whether the provisions of section 3(2) fell within the required "reasonable limits" the advocate depute accepted that the issue could properly be considered in terms of the three questions identified by Lord Hope in Kebeline. Before turning to these questions, he observed that one was not here concerned with an irrebuttable presumption: the fact that the assumptions could be rebutted represented a safeguard of the petitioner's interests, which in the balancing process might point to the provisions not being incompatible with Article 6(2). Moreover, it was important to remember that these were not assumptions which would automatically be made, in terms of the statute, unless shown to be incorrect: they were merely assumptions which the court "may" make, and the fact that the matter was one of discretion for the court was a major protection or safeguard to the petitioner.

[27] In addition, in considering what was at stake in the public interest, it was important to bear in mind what the court had said in Welch v. The United Kingdom, [1995] 20 EHRR 247, in paragraph 36 at page 263. Although in that case the court had held that there had been a breach of Article 7(1) of the Convention, they went on to stress that their conclusion was concerned only with the fact that the relevant legislation was retrospective. Their conclusion "does not call into question in any respect the powers of confiscation conferred on the courts as a weapon in the fight against the scourge of drug trafficking". That should weigh heavily in any balancing process.

[28] Turning to the particular questions, the advocate depute conceded that on the first question, the Crown was "not at its strongest": the matters which it required to prove were not of a kind which created suspicion or formed a basis for inferences of possible guilt. As regards the second question, while there might on occasion be problems, it was submitted that there would normally be no difficulty in a person showing the assumptions to be incorrect, if they were incorrect. And as regards the third question, it was to be noted that in Elton v. The United Kingdom Application No. 32344/96, the Commission had not merely repeated what had been said in Welch as to the use of confiscation powers as a weapon in the fight against the scourge of drug trafficking. It had noted that the assumptions were not to be made where they were shown to be incorrect, and was not satisfied that the applicant was unable to argue that the assumptions in his case were incorrect. They had gone on to describe the complaint as "manifestly ill-founded". In general, it was wholly unsurprising that Parliament had taken the view that severe or even draconian measures were necessary in order to combat drug trafficking. That being the will of Parliament, the court should not readily hold that it must give way to what was an over-extended interpretation of the presumption of innocence.

[29] It is convenient to discuss these questions of incompatibility and reasonableness, on the hypothesis that the petitioner became a person "charged with a criminal offence" by the prosecutor's application and lodging of a statement, before returning to the problems inherent in that underlying issue. But even if one assumes for the moment that the application and Statement are to be regarded as charging the petitioner with a criminal offence, in the appropriate Convention sense, I would make certain observations at this stage as to how, in my opinion, Article 6(2) applies to the subsequent proceedings. Such proceedings are intended by the prosecutor to culminate in a confiscation order. It is true that that order is an order to pay a sum of money. It is also true, in my opinion, that such an order to pay a sum of money is a form of additional penalty for the offence of which the petitioner has been convicted. But I am not persuaded that it is only or merely an order to pay a sum of money, or that the various statutory provisions dealing with drug trafficking and its proceeds and their valuation are merely a mechanism for fixing a ceiling, casting no light upon the essential nature of the order to pay money. Such a proposition appears to me to fly in the face of the quite elaborate provisions of the statute dealing with these matters, as confirmed by the title of the Act. In particular, they fly in the face of the fact that if the assumptions are shown to be incorrect, and nothing has been resolved by evidence or admission, no confiscation order can be made. The court can make such an order only if, by one means or another, it has reached the position of being able to say that there are proceeds of drug trafficking. How it reaches that position - by making assumptions or otherwise - is another matter entirely. But the payment is a payment reflecting the value of the whole or part of proceeds of drug trafficking. The use of the word "confiscation" seems to me to be perfectly appropriate as a way of describing such an order; but whether it is so or not does not seem to me to matter. Nor does the fact that this is part of the sentencing process. The point is that such an order can only be made if there are, for this purpose, proceeds of drug trafficking, with an assessed value. Since that is a point which has to be reached, on a route towards the making of an order, the application is in my opinion properly to be seen as inter alia an assertion that there has been drug trafficking, and an invitation to the court to proceed on that basis. If an order is made, the petitioner will be significantly affected. And the requirements of Eckle and Foti, if one proceeds on the hypothesis that drug trafficking is criminal, will be met.

[30] I see little or no substance in the Crown's second and third submissions. By asking the court to make a confiscation order, the prosecutor is asking it to assess the value of the proceeds of the petitioner's drug trafficking. It is therefore asking the court to reach the stage of saying that he has trafficked in drugs. If that is criminal, that seems to me to be closely analogous to an actual charge of an actual crime, in Scottish terms. There is of course no indictment or complaint, and no conviction. And the advocate depute pointed out a further difference, that a Scottish complaint or indictment would have to be specific, and would require evidence, whereas this particular allegation was inspecific and based upon no evidence. But the suggestion that there is less need for a presumption of innocence in the latter situation appears to me to be somewhat Kafkaesque, and to portray a vice as a virtue. With no notice of what he is supposed to have done, or of any basis which there might be for treating him as having done it, the accused's need for the presumption of innocence is in my opinion all the greater. Certainly, if one thinks in terms of a Scottish charge in relation to a particular offence, I can see no basis upon which it could be said that assumptions such as are contained in section 3(2) would not offend against the presumption of innocence, leaving it to the accused to show that these assumptions were incorrect. And I can see no basis upon which, in such a context, it could be said that an assumption of the kind permitted by the provisions of that subsection, with no foundation in suspicion or the like, falls within "reasonable limits". Confiscation proceedings are different; but within the Convention meaning of a "charge", they are not in my opinion significantly different.

[31] I am in no way suggesting that draconian penalties are inappropriate in combating drug trafficking. But Draco was concerned with the severity of penalties, not with imposing them without establishing or even suggesting facts which are prerequisites of liability to particular penalties. (Aristotle says that there was nothing noteworthy in Draco's laws except the severity of the punishments). And however seriously Parliament, and indeed the courts, take the scourge of drug trafficking, the observations of Sachs J. in Coetzee seem to me to be important. Quite apart from the severity of penalties, however, I would also emphasise that I entirely accept that the importance of combating the scourge of drug trafficking is such that it is perfectly understandable and appropriate for Parliament to incorporate in the law transfers of the burden of proof at a stage, and in a way, and upon a basis which go against the normal law. And I acknowledge without hesitation that such a burden could readily and properly be regarded as within reasonable limits, even if it means that the Crown has to do much less than would be usual, and the accused has to do much more, in order to achieve, or avert, a verdict of guilty. My impression is that if section 3(2) had been in only slightly different terms this might have been achieved. If, for example, the provisions in relation to drug trafficking had contained some equivalent of section 2(2), or had allowed rebuttable assumptions to be made once the Crown had established matters which gave rise to reasonable suspicion or justified inferences of guilt, the question would have been quite different. Such provisions might well fall within "reasonable limits", applying the tests identified by Lord Hope. But such facts as the Crown have to establish, in terms of the actual enactment, are not of that kind. They do not relate to the assumptions. The assumptions are not matters which could be inferred from what has to be proved. They are in a quite literal sense baseless. It does not appear to me that it would have been difficult to devise quite demanding special rules, transferring an onus to the accused where there is some basis (in the offence he has been convicted of, or the sheer amount of his property, or otherwise in any way) for thinking that he may have been involved in past drug trafficking. To take an extreme example, the mere fact of a single conviction for a perhaps very minor offence, involving a minimal quantity of a class B or class C drug, by an adolescent first offender, is not in my opinion any basis for inferences as to past conduct. And if one alters the hypothesis, to one which provides a better basis for such inferences or suspicions, that is not a justification for the scope of the statutory provision contained in section 3(2): it is in my opinion a first step towards identifying the matters which the Crown should reasonably have to establish before the assumptions are permitted. What was said as to Crown practice appeared to me to confirm that a somewhat narrower provision would meet the Crown's perceived requirements; and if the provision of section 3(2) as it stands is not enforced in its full rigour, I find it hard to regard it as "reasonable" or justifying baseless assumptions. The existing provisions would, in my opinion, plainly be in violation of Article 6(2) if they were applied to ordinary criminal proceedings. They are in my opinion equally in violation of the Article when applied to confiscation proceedings - on the vital hypothesis that these constitute a charge of a criminal offence.

[32] I would add one further comment. The views which I have expressed are not affected by the fact that the assumptions are at the discretion of the court. Given that the statute provides that the court may make the assumptions, once the matters specified at section 3(2)(a)(i) and (ii) have been resolved, there is force in what was said in Donnelly v. H.M. Advocate at page 539, that no question of the judge "making assumptions capriciously or without reason" seems to arise. Such language would be inappropriate to describe what Parliament has permitted. Nonetheless, unless further grounds for suspicion were available, the assumptions themselves would still in my opinion be baseless assumptions; and as such, assumptions which no reasonable judge could make in the absence of the power given to him by statute. Indeed, unless such further material had emerged, I find it difficult to see how a reasonable judge could make the assumptions, even with the power given to him by Parliament. Donnelly was not concerned with whether what Parliament had done met the Convention's standards. And while I agree that the suggestion in R. v. Redbourne [1992] 1 W.L.R. 1182 that there was a requirement that there should be "some ground for suspicion, at least" is not borne out by the terms of the statute, it is nonetheless in my opinion a suggestion which identifies the fundamental unreasonableness, for the purposes of Article 6(2), of the statutory provision for making these assumptions, even at the judge's discretion, even if they have no such basis as grounds for suspicion.

[33] I return to the fundamental question of whether the petitioner is a person charged with a criminal offence, by virtue of the application for a confiscation order and the lodging of the Statement. It did not eventually appear to me that there was any real significance in the dispute as to whether the confiscation proceedings were a part of the proceedings under the indictment or a separate proceeding. In my opinion they can be, and are, both part of the sentencing stage in the original process and a distinct exercise, initiated by the application. And it is the application, rather than any Statement, which in my opinion constitutes a measure meeting the Eckle and Foti test if (and only if) the drug trafficking which in my opinion it implicitly alleges is criminal. If Article 49(2) stood alone, without the provisions contained in subsections (3) and (4), the allegation would in my opinion be an allegation that there had been drug trafficking as there defined, which would necessarily be criminal. That would in my opinion be an allegation of a criminal offence. And liability to a confiscation order arises only if there are proceeds of drug trafficking, established either by proof or by assumption. The fact that this does not take the form of a "conviction" does not appear to me, in the context of the autonomous meaning of "criminal" for the purposes of the Convention, to allow the Crown to by-pass Article 6(2) when alleging a criminal offence as the basis for possibly draconian penalties.

[34] As regards subsections (3) and (4), I have had some difficulty in reaching a firm conclusion. There is undoubtedly some force in the advocate depute's submission, which Lord Kirkwood accepts, that these create the possibility of conduct which is drug trafficking, but is not criminal, and that thus any allegation, and perhaps particularly an implicit allegation, that there has been drug trafficking falls short of an allegation that there has been criminal drug trafficking. And while, in the context of the Convention, the word "criminal" has an autonomous meaning, which enables the court to treat as "criminal" conduct which domestic courts treat as non-criminal, that does not in my view enable one to treat the conduct described in subsection (3), read in isolation, as criminal. And with some hesitation I have come to the same view in regard to the conduct described in subsection (4).

[35] I am, however, perturbed by the Crown's submission that the presence of these two subsections excludes Article 6(2). One must ask whether the overall "criminal" nature of what is implicitly alleged, having regard to section 49(2), is perhaps not deprived of its overall criminal characteristic by the mere fact that in subsection (3), or perhaps subsections (3) and (4), supplementary provision is apparently made for conduct which at least might be non-criminal. I find it hard to accept that provisions which are apparently intended to be merely supplementary, and which in most cases will not in realistic terms have any relevance, could have the effect of turning what broadly speaking looks like an allegation of criminal activity into something which, because of these minor qualifications, could not be so described. The result would be deprivation of an important right which ought to be available in relation to any allegation of conduct covered by the primary definition contained in section 49(2). I find it hard to believe that that was what Parliament intended. Any doubt should in my view be resolved in favour of those affected, not in favour of the Crown. An intention to bring in non-criminal conduct could and should be made very clear. And in that position of doubt, I have come to the view that it is legitimate and necessary to have regard to the terms of the title and long title of the Act, which indicate exactly the opposite. What the statute had in view was the proceeds of crime - not the proceeds of non-criminal conduct. Reading subsections (3) and (4) of section 49 in the context of the whole Act, it seems to me that in subsection (3) it is implicit that there is sufficient mens rea in the "arrangement" to make the accused's conduct criminal; and that in subsection (4), the conduct is seen by Parliament as criminal, regardless of where it occurs. Even if these individual subsections were not to be so interpreted, I have come to the view that they are not of sufficient clarity, significance and weight, when read along with subsection (2), to make an allegation of drug trafficking, in broad terms, anything other than an allegation of criminal drug trafficking.

[36] I have considered all that is said by Lord Kirkwood, and regret that we cannot agree. But I conclude that Article 6(2) applies, and that accordingly the petitioner has the Convention right conferred by that Article. The assumptions permitted by section 3(2) are not in my opinion compatible with that right. Having regard to the Crown's concession that the "invitation" to make the assumptions could be regarded as an "act" for the purposes of section 57(2) of the Scotland Act 1988, I am satisfied that the Lord Advocate in seeking those assumptions, and an order with no other foundation, has acted in contravention of section 57(2). I would allow the appeal, and grant the declarator sought.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Prosser

Lord Kirkwood

Lord Allanbridge

Appeal No: Misc.77/2000

OPINION OF LORD KIRKWOOD

PETITION

to the

nobile officium

ROBERT McINTOSH

Petitioner:

against

HER MAJESTY'S ADVOCATE

Respondent:

______

Petitioner: Shead, Devlin, Bennett & Robertson

First Respondent: Menzies, Q.C., A.D.; Crown Agent;

Second Respondent: L. Murphy cf. Advocate-General; H Macdiarmid

13 October 2000

[1] Your Lordship in the Chair has set out the facts of the case, the statutory framework and the submissions of the parties and accordingly I can state the conclusion which I have reached, and my reasons therefor, quite shortly.

[2] At the outset it is important to appreciate the reasons for the provisions contained in the Proceeds of Crime (Scotland) Act 1995 and the evil which they are intended to combat. The dangers involved in trafficking in illegal drugs are well known and Parliament has repeatedly endeavoured to protect the public from the evils of the trade. It is also well known that substantial profits can be, and are, made as a result of drug trafficking and it has been seen as important to take steps to prevent those who are engaged in such activities from benefiting therefrom and to interrupt the profits generated by drugs. At the same time, as Lord Hope of Craighead observed in R. v Director of Public Prosecutions ex parte Kebiline and Others [1999] 3 WLR 972 (at page 997):

"As a matter of general principle therefore a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual."

[3] Article 6(2) of the Convention is in the following terms:

"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

[4] On behalf of the petitioner it was contended that when the Crown makes an application for a confiscation order in terms of section 1 of the Proceeds of Crime (Scotland) Act 1995 and then, as is the normal practice, lodges a statement in terms of section 9, the person who has been convicted is thereby being charged with a criminal offence, over and above the offence of which he has already been convicted, in the sense that the application amounts to "official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence" (Eckle v Germany (1982) 5 EHRR 1 at para.73). That being so, the Crown has no power to invite the court to make the assumptions set out in section 3(2) of the 1995 Act as if these assumptions were to be made there would be a breach of Article 6(2).

[5] The petitioner was charged on indictment with a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 involving Diamorphine, a Class A drug. He was convicted in June 1999 and sentenced to four years' imprisonment. In relation to that charge he was clearly entitled to the presumption of innocence which has long been part of our law and which is enshrined in Article 6(2) of the Convention. However, once he was convicted of that drug trafficking offence the court then passed to the sentencing phase of the proceedings and section 1(8) of the 1995 Act provides that, for the purposes of any appeal or review, a confiscation order is a sentence. In terms of section 1(1) the court may make a confiscation order "requiring the accused to pay such sum as the court thinks fit". In the case of a drug trafficking offence the sum which the confiscation order may require the accused to pay is an amount not exceeding what the court assesses to be the value of the proceeds of the accused's drug trafficking or the value of his realisable property, whichever is the less. In the present case, the petitioner having been convicted on indictment of a contravention of section 4(3)(b) involving a Class A drug, the court has power inter alia to impose a fine of an unlimited amount subject to the provisions of section 8.

[6] The first question for consideration is whether the Crown's application for a confiscation order, and the lodging of a statement, has the effect of charging the person who has already been convicted of a drug trafficking offence with a further criminal offence or offences. As I have said, the application for a confiscation order is made only after the accused has been convicted and the court is going on to consider sentence. In the circumstances the making of a confiscation order is an additional penalty which the court is given the power to impose in appropriate circumstances in respect of the drug trafficking offence of which the accused has already been convicted. It is common ground that the Crown does not require, when applying for a confiscation order, to give any particulars of drug trafficking alleged to have been carried on by the accused prior to the service of the original indictment. In the normal case it is accepted that the Crown will be unable to do so and will simply invite the court to make the assumptions set out in section 3(2) of the Act. However, it is important to note that the confiscation order relates to the proceeds of drug trafficking, not the proceeds of drug trafficking offences, and the meaning to be given to "drug trafficking" by section 49(2) of the Act is subject to sub-sections (3) and (4). In the circumstances it seems to me that the advocate depute was well-founded in his submission that "drug trafficking" covered what could be called a basket of different types of conduct, some of which would not be crimes although others would. Accordingly, an allegation that an accused had been engaged in drug trafficking would not necessarily involve an allegation that he had committed a drug trafficking offence. On the basis that the application for a confiscation order carries with it the implication that the accused may have committed a crime, the accused cannot, in my view, properly be regarded as having been "charged" with a criminal offence and, of course, if a confiscation order is made it does not go into the accused's record as a conviction. On this matter I have not been persuaded that by virtue of the application for a confiscation order, and the lodging of a statement, the petitioner has been charged with a criminal offence within the meaning of Article 6(2).

[7] If, however, the petitioner has shown that the application for a confiscation order, and the lodging of a statement by the Crown, constituted an allegation that he had been engaged in criminal drug trafficking and he is thus entitled to the presumption of innocence in terms of Article 6(2), the question then arises as to whether the making of the assumptions set out in section 3(2) would constitute a breach of Article 6(2). In this connection the application for a confiscation order can relate to any property held by the accused since his conviction or transferred to him at any time since a date six years before he was indicted. In terms of section 4 the property realisable in satisfaction of a confiscation order includes the whole estate of the person who has been convicted. The Crown, in inviting the court to make the assumptions, does not require to provide any information in relation to drug trafficking carried on by the accused prior to the service of the indictment and in Donnelly v H.M. Advocate 1999 S.C.C.R. 508 it was held that it was not necessary that there should be evidence that the accused had profited from drug dealing, or even grounds for suspicion that he had done so, before the court could make the assumptions set out in section 3(2).

[8] In Salabaiku v France (1988) 13 E.H.R.R. 379 it was observed that presumptions of fact or of law operate in every legal system and are not contrary to the Convention in principle but that Contracting States are under an obligation "to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence". In the circumstances the question arises as to whether the provisions of section 3(2) relating to the power of the court to make assumptions exceed reasonable limits. It is clear that what is at stake in cases of this nature is the public interest in the fight against the evils of drug trafficking. Convention jurisprudence suggests that account may legitimately be taken, in striking the right balance between the interests of society and those of the individual, of the problems which the legislation was designed to address (Kebiline, supra, per Lord Hope of Craighead at page 997). In this case I consider that regard must be had to the special nature of drug trafficking crime and the threat which it poses to a democratic society (c.f. Murray v United Kingdom (1995) 19 EHRR 193; Welch v United Kingdom (1995) 20 EHRR 247). In considering whether the rights of the defence have been maintained it is, in my opinion, important to recognise that the possibility of making a confiscation order (a) does not arise at all unless the accused has already been convicted of a drug trafficking offence or offences and (b) can only arise at the stage when the court is considering what sentence should be imposed in respect of that offence or those offences. It is also, in my opinion, important to examine in some detail the provisions of sections 1 and 3. In terms of section 1(1) the court is effectively given a discretion whether or not to make a confiscation order. Before the assumptions contained in section 3(2) can be made, the Crown must prove beyond reasonable doubt that there was property held by the accused or transferred to him during the six year period and expenditure made by him during that period, and that is a burden which it should be relatively easy for the Crown to discharge. That having been done, section 3(2) provides that the court may make the assumptions therein set out, two of which are that the property was received by him "as a payment or reward in connection with drug trafficking carried on by him" and that any expenditure by him "was met out of payments received by him in connection with drug trafficking carried on by him". However, these are not assumptions which the court is bound to make. The court has a discretion whether or not to make these assumptions and in exercising that discretion the court will have regard to the circumstances of each individual case. Further, the assumptions cannot be made if the accused shows them, on a balance of probabilities, to be incorrect. It is, in my opinion, clear that the purpose of these statutory provisions is to require an accused, who has been convicted of a drug trafficking offence or offences, to account for any significant unexplained property which he has received, or expenditure which he has made, and the accused should be in the best position to give any explanation which is available. In practice, the Crown will not seek a confiscation order unless it is aware of significant sums having been received, or expenditure having been made, by the person who has been convicted which prima facie call for an explanation, and in the absence of any unusual receipts or expenditure, the court will be less likely, in the exercise of its discretion, to make the assumptions set out in section 3(2), although, as I have said, each case must depend on its own particular circumstances. Further, if the court decides to make a confiscation order it has a discretion as to the amount of the order subje

[9] For the reasons which I have endeavoured to give I consider that Lord Marnoch reached the correct conclusion and I also agree in general with the views on this matter expressed by Lady Cosgrove in H.M. Advocate v McSalley, 10 April 2000, unreported and by Lord Carloway in H.M. Advocate v Monaghan, 5 May 2000, unreported. In Welch v United Kingdom, supra, at page 263 the court made reference to:

"the sweeping statutory assumptions...that all property passing through the offender's hands over a six-year period is the fruit of drug trafficking unless he can prove otherwise."

After holding that there had been a breach of Article 7(1) of the Convention, in respect that the confiscation order there being considered constituted a retrospective criminal penalty, the court made a point of stressing that their conclusion concerned

"only the retrospective application of the relevant legislation and does not call into question in any respect the powers of confiscation conferred on the courts as a weapon in the fight against the scourge of drug trafficking."

I would refuse the appeal.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Prosser

Lord Kirkwood

Lord Allanbridge

Appeal No: Misc.77/2000

OPINION OF LORD ALLANBRIDGE

PETITION

to the

nobile officium

ROBERT McINTOSH

Petitioner:

against

HER MAJESTY'S ADVOCATE

Respondent:

______

Petitioner: Shead, Devlin, Bennett & Robertson

First Respondent: Menzies, Q.C., A.D.; Crown Agent;

Second Respondent: L. Murphy cf. Advocate-General; H Macdiarmid

13 October 2000

[1] I have read both the opinion of your Lordship in the chair and that of Lord Kirkwood. I have found this to be a complicated and difficult case. However, I agree with your Lordship in the chair that the petitioner in this case became a person "charged with a criminal offence", within the meaning of that expression, when an application for a confiscation order was made by the prosecutor in terms of section 1(1) of the 1995 Act, for the reasons outlined in your Lordship's opinion. That being so, the petitioner would normally be entitled to the presumption of innocence in terms of Article 6(2) of the Convention.

[2] As regards the argument in favour of the proposition that the dangers involved in trafficking in illegal drugs justified dispensing with the presumption of innocence, I refer to the case of R. v. Director of Public Prosecutions ex parte Kebeline and Others [1999] 3 WLR 972. This is the case where Lord Hope of Craighead adopted the approach of asking three questions in a situation where the court required to consider how to strike a fair balance between the public interest and the presumption of innocence. The salient facts in that case were that three Algerian nationals were arrested in 1997 by officers of the anti-terrorist squad. They were charged with offences under section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989 which provided inter alia that a person was guilty of an offence if he had any article in his possession in circumstances giving rise to "a reasonable suspicion" that he had the article in his possession for a purpose connected with acts of terrorism to which the section applied. In December 1998 the three defendants, applied, after sundry procedure in the trial, for leave to move for judicial review seeking relief against the decision of the Director of Public Prosecutions to give his consent to the continuing prosecution against them. In January 1999 Turner J. granted leave to move for such a judicial review. In March 1999 the Divisional Court granted a declaration that the DPP's decision to proceed with the prosecution was unlawful. The Lord Chief Justice took the view that section 16A of the 1989 Act undermined in a blatant and obvious way the presumption of innocence. In October 1999 the House of Lords allowed an appeal against this judgment of the Divisional Court. As explained, for example, in the opinion of Lord Hope of Craighead, there were a number of reasons for this decision in the House of Lords which were related to the question of moving for a judicial review during the course of criminal proceedings. Lord Hope, however, took the opportunity of commenting on the impact of Article 6(2) of the Convention upon so many of the statutory provisions which are to be found in the criminal law.

[3] Lord Hope stated that the Divisional Court had held that the provisions of section 16A of the 1989 Act, as amended, violated the presumption of innocence and that they were thus repugnant to Article 6(2) of the Convention. He pointed out that statutory presumptions which placed an "evidential" burden on the accused, requiring the accused to do no more than raise a reasonable doubt on the matter with which they deal, do not breach the presumption of innocence. They are not incompatible with Article 6(2) of the Convention. However, statutory presumptions which transfer the "persuasive" burden to the accused required further examination. During that examination Lord Hope stated that as a "matter of general principle a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual". In this connection he had referred to the guidance given in Salabiaku v. France (1988) 13 E.H.R.R. 379, that the Convention does require the Contracting States to confine "within reasonable limits" presumptions of fact or of law. The question of where this balance lies, when answered, will determine whether any particular presumption has gone so far as to violate the presumption of innocence.

[4] Lord Hope adopted the three questions proposed in argument by counsel, as providing a convenient way of breaking down the broad issue of balance into its essential components. These were (1) what does the prosecution have to prove in order to transfer the onus to the defence? (2) what is the burden of the accused - does it relate to something which is likely to be difficult for him to prove, or does it relate to something which is likely to be within his knowledge or to which he readily has access? and (3) what is the nature of the threat faced by society which the provision is designed to combat?

[5] In this case I have little difficulty in answering both the second and third questions in a manner favourable to the respondent. It is the first question that causes me concern. As pointed out by your Lordship in the chair, the advocate depute, as respondent, conceded in dealing with this first question that the Crown was "not at its strongest". Lord Coulsfield in that part of his opinion in the case of Donnelly v. H.M. Advocate 1999 S.C.C.R. 508 quoted in your Lordship's opinion at page 9, said that there was nothing in the wording of section 3(2) of the 1995 Act, to suggest that it was necessary that the court should have some evidence, or ground of suspicion, that the accused had profited from drugs dealing before it can make the confiscation order based on the assumptions outlined in section 3(2). Counsel for the appellant, correctly in my view, pointed out that the Crown did not require to prove anything at all, which even raised a suspicion, before the relevant assumptions would apply so as to shift the onus to the accused and thus require him to lead evidence to rebut these assumptions. That being so I do not find it possible to answer the first question in a manner favourable to the respondent. I am satisfied that such a result demonstrates that the wording of section 3(2) has, on balance, gone so far as to violate the presumption of innocence without sufficient justification.

[6] As indicated by your Lordship in the chair, the Lord Advocate has accordingly acted in contravention of section 57(2) of the Scotland Act 1998. I, too, would allow the appeal, and grant the declarator sought.