DRA No. 12 of 2000
(1) Her Majesty's Advocate and Appellants
(2) Her Majesty's Advocate General for Scotland
Robert McIntosh Respondent
THE HIGH COURT OF JUSTICIARY
JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL
Delivered the 5th of February 2001
Present at the hearing:-
|Lord Bingham of Cornhill|
|Lord Hope of Craighead|
Lord Bingham of Cornhill
"1(1) Subject to the provisions of this Part, where in respect of any offence to which this Part applies -
(a) the accused is convicted, whether in solemn or summary proceedings; or
(b) in the case of summary proceedings (without proceeding to conviction) an order is made discharging him absolutely,
the court, on the application of the prosecutor, may make an order (a 'confiscation order') requiring the accused to pay such sum as the court thinks fit.
"(2) This Part applies to any offence which has been prosecuted -
(a) on indictment; or
(b) on summary complaint if the offence is punishable by a fine of an amount greater than the amount corresponding to level 5 on the standard scale or by imprisonment for a period longer than 3 months or by both such fine and imprisonment,
but it does not apply to an offence under Part III of the 1989 Act (financial assistance for terrorism).
"(3) A confiscation order shall not be made unless the court orders some other disposal (including an absolute discharge) in respect of the accused.
. . .
"(5) 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 -
(a) subject to paragraph (b) below, what the court assesses to be the value of the proceeds of the person's drug trafficking; or
(b) if the court is satisfied that the amount that might be realised in terms of this Act at the time the confiscation order is made has a value less than that of the proceeds of the person's drug trafficking, what it assesses to be that amount.
. . .
"(7) Any application under this section shall be made -
(a) in proceedings on indictment, when the prosecutor moves for sentence or, if the accused is remitted for sentence under section 195 of the 1995 Act, before sentence is pronounced; and
(b) in summary proceedings, following the conviction of the accused.
"(8) For the purposes of any appeal or review, a confiscation order is a sentence."
(1) In proceedings on indictment the making of a confiscation order is dependent on conviction of the accused.
(2) The conviction must be of a drug trafficking offence, as defined in section 49(5) of the Act to embrace offences of importing, producing and supplying controlled drugs.
(3) The sum confiscated need not be the profit made from the drug trafficking offence of which the accused has been convicted (in contrast with the ordinary procedure in relation to other offences).
(4) An order may be made only on the application of the prosecutor.
(5) Where such application is made the court has a discretion whether to make an order or not.
(6) The court is required to assess the value of the proceeds of the accused's drug trafficking.
(7) "Drug trafficking" has a meaning distinct from and wider than "drug trafficking offence": it is defined in section 49(2), (3) and (4) of the 1995 Act so as to include conduct which would, but also conduct which would not, give rise to criminal offences under Scots law.
(8) The assessment made by the court is not final, but may later be adjusted (under sections 11 and 12 of the 1995 Act) if new information comes to light.
(9) A confiscation order is regarded as a sentence, and is subject to appeal like any other sentence.
"3(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 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) Without prejudice to section 9 of this 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 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
(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.
"(3) Subsection (2) above does not apply if the only offence by virtue of which the assessment is being made is an offence under section 14 of the Criminal Justice (International Co-operation) Act 1990 or section 37 or 38 of the Criminal Law (Consolidation) (Scotland) Act 1995.
"(4) The court shall, in making an assessment as regards a person under section 1(5) of this Act, leave out of account any of his proceeds of drug trafficking that are shown to the court to have been taken into account in a case where a confiscation order (whether under this Act or under and within the meaning of -
(a) section 2 of the 1994 Act; or
(b) any corresponding provision in Northern Ireland),
has previously been made against him."
(1) The court has a discretion whether to make the statutory assumptions or not.
(2) The assumptions are rebuttable by the accused, on a balance of probabilities.
(3) The proceeds in question relate to drug trafficking and not the commission of drug trafficking offences.
(4) The assumptions relate to property which appears to the court to meet the conditions specified and to expenditure of the accused during the relevant period.
"6(1) In this Act references to an 'implicative gift' are references to a gift (whether made before or after the commencement of this Act) -
(a) made not more than six years before the date on which, in respect of a person suspected of, or charged with, a drug trafficking offence, the proceedings were commenced or a restraint order was made (whichever first occurs); or
(b) made at any time if the gift was of property -
(i) received by the giver in connection with drug trafficking carried on by him or another, or
(ii) which, in whole or in part, directly or indirectly represented in the giver's hands property received by him in that connection."
The section provides a defence for a person in innocent receipt of an implicative gift and a right of appeal for the recipient of an implicative gift. Section 8 provides that the court shall make its decision on the application for a confiscation order before imposing any other financial penalty on the accused.
"9(1) Where the prosecutor applies for the making of a confiscation order, the prosecutor may lodge with the clerk of court a statement as to any matters relevant -
(a) in connection with a drug trafficking offence, to the assessment of the value of the accused's proceeds of drug trafficking; ..."
The section goes on to provide for the service of the statement on the accused, the making of a response to the statement by the accused and the acceptance of the statement if the accused fails to respond to it. The attention of the Committee was drawn to subsections (7) and (8) of this section which provide:
"(7) Where the judge presiding at a hearing held under subsection (6) above is not the trial judge he may, on the application of either party, if he considers that it would be in the interests of justice to do so, adjourn the hearing to a date when the trial judge is available.
(8) No acceptance by a person under this section that any payment or other reward was received by him in connection with drug trafficking carried on by him or another shall be admissible in evidence in any proceedings, whether in Scotland or elsewhere, in respect of an offence."
It is evident that, although no reliance may be placed on evidence given by an accused during confiscation proceedings in any prosecution for a drug trafficking offence other than that of which he has just been convicted, there is no bar to a prosecution for such a drug trafficking offence which may have given rise to proceeds which form part of his assessed proceeds of drug trafficking. Section 10 permits the court to adjourn the confiscation proceedings for up to six months if it considers that it has received insufficient information.
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law . . ."
Article 6(2), with which the making of assumptions under section 3(2) of the 1995 Act is said to be incompatible, provides:
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
Article 6(3) guarantees to "Everyone charged with a criminal offence" certain specified minimum rights. Attention was also briefly drawn to Article 1 of the First Protocol to the Convention, entitled "Protection of property", which provides:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
The first issue
(1) The application is not initiated by complaint or indictment and is not governed by the ordinary rules of criminal procedure.
(2) The application may only be made if the accused is convicted, and cannot be pursued if he is acquitted.
(3) The application forms part of the sentencing procedure.
(4) The accused is at no time accused of committing any crime other than that which permits the application to be made.
(5) When, as is standard procedure in anything other than the simplest case, the prosecutor lodges an application under section 9, that application (usually supported by detailed schedules) is an accounting record and not an accusation.
(6) The sum ordered to be confiscated need not be the profit made from the drug trafficking offence of which the accused has been convicted, or any other drug trafficking offence.
(7) If the accused fails to pay the sum he is ordered to pay under the order, the term of imprisonment which he will be ordered to serve in default is imposed not for the commission of any drug trafficking offence but on his failure to pay the sum ordered and to procure compliance.
(8) The transactions of which account is taken in the confiscation proceedings may be the subject of a later prosecution, which would be repugnant to the rule against double jeopardy if the accused were charged with a criminal offence in the confiscation proceedings.
(9) The proceedings do not culminate in a verdict, which would (in proceedings on indictment) be a matter for the jury if the accused were charged with a criminal offence.
It is of course true that if, following conviction of the accused and application by the prosecutor for a confiscation order, the court chooses to make the assumptions specified in section 3(2) of the 1995 Act or either of them, an assumption is made (unless displaced) that the accused has been engaged in drug trafficking which, as defined in section 49(2), (3) and (4), may (but need not) have been criminal. But there is no assumption that he has been guilty of drug trafficking offences as defined in section 49(5). The process involves no inquiry into the commission of drug trafficking offences. Unless Strasbourg jurisprudence points towards a different result, I would not conclude that a person against whom application for a confiscation order is made is, by virtue of that application, a person charged with a criminal offence.
"In reality, this clause does not have the scope ascribed to it by the two applicants. As its wording shows, it deals only with the proof of guilt and not with the kind or level of punishment. It thus does not prevent the national judge, when deciding upon the penalty to impose on an accused lawfully convicted of the offence submitted to his adjudication, from having regard to factors relating to the individual's personality.
Before the Supreme Military Court Mr Dona and Mr Schul were 'proved guilty according to law' as concerns the offences there alleged against them . . . It was for the sole purpose of determining their punishment in the light of their character and previous record that the said court also took into consideration certain similar, established facts the truth of which they did not challenge. The court did not punish them for these facts in themselves."
This statement of principle is plainly unhelpful to the respondent.
"As regards the end of the 'time', in criminal matters the period governed by Article 6(1) covers the whole of the proceedings in issue, including appeal proceedings."
In paragraph 77 of its judgment the Court continued:
"In the event of conviction, there is no 'determination . . . of any criminal charge', within the meaning of Article 6(1), as long as the sentence is not definitively fixed. Thus, in the Ringeisen judgment [(1971) 1 EHRR 455, paras. 48 and 110] the Court took as the close of the proceedings the date on which the trial court had decided, following appeal proceedings, that the entire period spent by the applicant in detention on remand should be reckoned as part of the sentence . . ."
It is thus plain that in the confiscation proceedings the respondent has the benefit of article 6(1), for anything it may add to his rights under the common law of Scotland, whether or not he has the benefit of article 6(2).
"The Court shares the view taken by the Government and the Commission that special supervision is not comparable to a criminal sanction because it is designed to prevent the commission of offences. It follows that proceedings concerning it did not involve 'the determination . . . of a criminal charge.'"
"28. The wording of Article 7(1), second sentence, indicates that the starting point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a 'criminal offence'. Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure in question; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity. "29. As regards the connection with a criminal offence, it is to be observed that before an order can be made under the 1986 Act the accused must have been convicted of one or more drug trafficking offences. This link is in no way diminished by the fact that, due to the operation of the statutory presumptions concerning the extent to which the applicant has benefited from trafficking, the court order may affect proceeds or property which are not directly related to the facts underlying the criminal conviction. While the reach of the measure may be necessary to the attainment of the aims of the 1986 Act, this does not alter the fact that its imposition is dependent on there having been a criminal conviction."30. In assessing the nature and purpose of the measure, the Court has had regard to the background of the 1986 Act, which was introduced to overcome the inadequacy of the existing powers of forfeiture and to confer on the courts the power to confiscate proceeds after they had been converted into other forms of assets. The preventive purpose of confiscating property that might be available for use in future drug trafficking operations as well as the purpose of ensuring that crime does not pay are evident from the ministerial statements that were made to Parliament at the time of the introduction of the legislation. However, it cannot be excluded that legislation which confers such broad powers of confiscation on the courts also pursues the aim of punishing the offender. Indeed, the aims of prevention and reparation are consistent with a punitive purpose and may be seen as constituent elements of the very notion of punishment."
"33. However, there are several aspects of the making of an order under the 1986 Act which are in keeping with the idea of a penalty as it is commonly understood even though they may also be considered as essential to the preventive scheme inherent in the 1986 Act. The sweeping statutory assumptions in section 2(3) of the 1986 Act 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; the fact that the confiscation order is directed to the proceeds involved in drug dealing and is not limited to actual enrichment or profit; the discretion of the trial judge, in fixing the amount of the order, to take into consideration the degree of culpability of the accused; and the possibility of imprisonment in default of payment by the offender – are all elements which, when considered together, provide a strong indication of inter alia a regime of punishment."34. Finally, looking behind appearances at the realities of the situation, whatever the characterisation of the measure of confiscation, the fact remains that the applicant faced more far-reaching detriment as a result of the order than that to which he was exposed at the time of the commission of the offences for which he was convicted."35. Taking into consideration the combination of punitive elements outlined above, the confiscation order amounted, in the circumstances of the present case, to a penalty. Accordingly, there has been a breach of Article 7(1). 36. The Court would stress, however, that this conclusion concerns 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."
The Court was not here considering whether a defendant was entitled to rely on the presumption of innocence guaranteed by article 6(2) when meeting an application for a confiscation order. But it is plain that the court considered in detail the provisions of the Drug Trafficking Offences Act 1986, applicable to England and Wales, which was in terms similar although not identical to the 1995 Act, and perceived no apparent incompatibility with article 6(2).
"the Commission cannot find that the making of the confiscation order against the applicant raises any issues regarding the principle of presumption of innocence guaranteed by Article 6 para. 2 of the Convention."
On 30 November 2000 the Court held admissible a complaint made against a confiscation order under article 6(2) in Phillips v United Kingdom (Application No 41087/98), observing that:
"it raises a serious question under Article 6(2) of such complexity that its determination should depend on an examination of the merits."
This application awaits final determination.
The second issue
"Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence."
As Lord Hope of Craighead put it in Ex parte Kebilene at page 384:
"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: see also Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52, para. 69."
"Each Party may consider ensuring that the onus of proof be reversed regarding the lawful origin of alleged proceeds or other property liable to confiscation, to the extent that such action is consistent with the principles of its domestic law and with the nature of the judicial and other proceedings."
In a 1991 report on "The Confiscation of the Proceeds of Crime" (LRC 35–1991) the Irish Law Reform Commission recommended the adoption of such a presumption (see page 75 of the report; and, as made clear on page 55, paragraph 32, it regarded the presumption of innocence as inapplicable following conviction).
(1) The starting point of the confiscation order procedure is proof beyond reasonable doubt that the accused has committed a drug trafficking offence: section 1(1) of the 1995 Act.
(2) It is open to the accused to rebut the assumptions on a balance of probabilities.
(3) The facts upon which the accused will rely to rebut the assumptions are peculiarly within his personal knowledge.
(4) The proceedings are fully adversarial and the accused has every opportunity to challenge evidence against him and call witnesses: section 9(6).
(5) It is necessary for the prosecutor to prove the possession of property by and the expenditure of the accused under section 3(2).
(6) The court has a discretion whether to make an order and whether to make the assumptions and will order the accused to pay such sum as it thinks fit: sections 1(1), 3(2).
(7) The accused has a full right of appeal: section 1(8).
(8) The liability of the accused is limited to the sum which may be realised from him, which if over-estimated at first may be later reduced: section 12.
(9) The answers of the accused in the confiscation order proceedings cannot be relied upon against him in any later prosecution: section 9(8).
"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 that 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."
At page 539 Lord Coulsfield added:
"In all the circumstances, in our opinion, it is not necessary that there should be either evidence that the accused has benefited from drug dealing or grounds for suspicion that he has so profited before the court can make the assumptions set out in section 3(2), and we therefore reject the main argument in principle advanced on behalf of the appellants."
Lord Prosser (in paragraph 31 of his judgment) and Lord Allanbridge (in paragraph 5 of his judgment) accepted Mr Targowski's submission. The Court of Appeal Criminal Division in R v Benjafield reached a different conclusion.
"It is very much a matter of personal judgment as to whether a proper balance has been struck between the conflicting interests. Into the balance there must be placed the interests of the defendant as against the interests of the public, that those who have offended should not profit from their offending and should not use their criminal conduct to fund further offending. However, in our judgment, if the discretions which are given to the prosecution and the court are properly exercised, the solution which Parliament has adopted is a reasonable and proportionate response to a substantial public interest, and therefore justifiable."
The third issue
Lord Hope of Craighead