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You are here: BAILII >> Databases >> European Court of Human Rights >> KOLI v. THE UNITED KINGDOM - 58671/12 - Communicated Case  ECHR 1409 (06 May 2014)
Cite as:  ECHR 1409
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Communicated on 6 May 2014
Application no. 58671/12
against the United Kingdom
lodged on 3 August 2012
STATEMENT OF FACTS
1. The applicant, Mr Raj Koli, is a British national born in 1976. He lives in London. He is represented before the Court by Mr D. Clarke, a lawyer practicing in Tonbridge, Kent, with Clarke Kiernan Solictors.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 6 March 2009 the applicant pleaded guilty to a single money laundering offence (conspiracy to conceal, disguise, convert, transfer or remove criminal property contrary to section 327 of the Proceeds of Crime Act 2002). In doing so, he admitted that he had acted as a courier for a package containing GBP 400,000. Although he was supposed to receive GBP 4,000 in payment for his services he claimed that this sum was not in fact paid to him.
4. The applicant was sentenced to five years’ imprisonment later reduced on appeal to three years and six months’ imprisonment. He was released on licence in June 2010. Pursuant to sections 1 and 19 of the Serious Crime Act 2007, a Serious Crime Prevention Order was made on 4 February 2011 which required him, inter alia, to notify the Serious Organised Crime Agency (“SOCA”) if he possessed any mobile telephones, computers or vehicles.
1. The confiscation proceedings
5. The offence to which the applicant had pleaded guilty was a “lifestyle offence”. Therefore, pursuant to the 2002 Act the burden of proof fell on him to prove that his money and assets over the previous six years had been obtained lawfully. He was advised that he would have to give evidence in the confiscation proceedings to account for the money going through his accounts and if he failed to discharge the burden of proof a confiscation order would be made with a further term of imprisonment in default of payment. He was further advised that under the 2002 Act the prosecution could use anything he said in oral evidence as evidence against him in future criminal proceedings.
6. The prosecution’s case was initially set out in its statement of information served pursuant to section 16 of the 2002 Act (“the section 16 statement”: see paragraph 27 below). This included the assertion that the applicant had been involved in various other money laundering and fraud offences; that he had benefited from that criminal conduct; and that the amount of that benefit (the benefit figure) was nearly GBP 3.3 million. In calculating the benefit figure the prosecution relied on three heads of income: (i) income paid into a bank account in the names of the applicant and his girlfriend; (ii) income in relation to a firm called P&S Motors; and (iii) income in relation to a Chelsea restaurant. The prosecution maintained that the vast bulk of the funds going through the bank accounts of the applicant and his girlfriend were the proceeds of fraud - which the applicant either participated in or knew about - and that the fraudsters were individuals known to him.
7. The court ordered the applicant to indicate the extent to which he accepted each allegation in the section 16 statement and, so far as he did not accept an allegation, to give particulars of any matters on which he proposed to rely. The court’s power to order such a response from a defendant in confiscation proceedings is contained in section 17 of the 2002 Act. Section 17(6) protects such a defendant from self-incrimination by providing that no acceptance under section 17 that he has benefited from criminal conduct is admissible in evidence in proceedings for an offence. Parallel provisions apply when, under section 18, the court orders the defendant to provide specified information (see paragraphs 28 and 29 below).
8. In his response the applicant indicated that none of the sums going through the accounts were the proceeds of crime and that all payments received were as a result of legitimate business interests or money received from his father via friends and business contacts.
9. By the time of the hearing it was accepted by the parties that the applicant had received no benefit from the offence for which he had been convicted. It was also accepted that the benefit figure in respect of the first and second heads was approximately GBP 2 million. The main dispute was in relation to the income from the Chelsea restaurant. Having heard evidence, the judge found the applicant had also benefited from this income. This was therefore added to the first two heads taking the total benefit figure to GBP 3.3 million.
10. In determining the recoverable amount the trial judge calculated the applicant’s known available assets to be over GBP 600,000. However, the main dispute concerned the existence or otherwise of hidden assets.
11. The applicant maintains that he was advised by his legal representatives that the burden was on him to show that he had no hidden assets and that a failure to discharge that burden would result in a confiscation order for the benefit figure being made against him, with a period of imprisonment in default of payment. He was also advised that, although the written statement he had made under section 17 of the 2002 Act could not be relied on to found other proceedings, evidence given in court was not protected.
12. The applicant gave evidence that none of the money which had been identified by the prosecution as moving through his account remained and that it had all been dissipated. The picture he painted was one of a profligate son of an indulgent and wealthy family who had spent all his money and had nothing left to show for it. However, he did accept that, in respect of what he maintained were legitimate businesses, he had evaded income tax and VAT.
13. The judge rejected the applicant’s evidence, finding it to be completely unreliable and false, and found his hidden assets to be nearly GBP 960,000. Adding this figure to the known available assets, the recoverable amount was held to be GBP 1.6 million. A confiscation order was accordingly made for this sum with a sentence of seven years’ imprisonment fixed in default of payment.
14. The applicant appealed against the confiscation order to the Court of Appeal. He claimed that he had no hidden assets because he had used his bank accounts to launder the proceeds of frauds committed by others and the money passing through them was ultimately returned to the original owner. He had therefore been placed in an impossible position: had he told the truth in his oral evidence at the confiscation proceedings he would have risked prosecution for further offences. This was unfair because in order to avoid a finding of hidden assets (and thus a large confiscation order and a substantial prison sentence in default of payment of that order), he had to explain where the assets had come from and where they had gone. There had therefore been a breach of the right against self-incrimination.
15. The Court of Appeal dismissed the appeal on 6 March 2012. In respect of the applicant’s submission on self-incrimination, it found:
“18. In our judgment it matters not what the evidence was which was given by the applicant. What is important, and in our judgment fatal to his application for leave to appeal, is the fact that he gave oral evidence. In effect, the argument on behalf of the applicant can be summarised as being in two forms. The first is based on the premise that he gave oral evidence and was not inhibited from doing so by virtue of the prospect of incriminating himself. In those circumstances, whilst there may be an argument which he might subsequently rely on if that evidence were to be relied on in support of subsequent criminal proceedings, in our judgment it cannot affect the lawfulness of the orders made by the judge in the confiscation proceedings because he has not been inhibited by the fact that oral evidence given by him is not subject to the protection from self-incrimination but which the written response in answer to the court’s order would be.
19. If, however, the applicant had not given evidence because he was worried about incriminating himself, on the facts of this case he would only have been inhibited about giving evidence which, if given truthfully, would have rendered hopeless his position in respect of the issue of benefit, and would have left unaffected the finding in relation to hidden assets because that finding was substantially less than the total sums going through the accounts, being less that £1 million, as against £3 million going through the accounts.
20. The only argument which might conceivably be available to the applicant would be that, by virtue of the fact that he had been inhibited from giving any evidence, then the statutory scheme would bring into play presumptions which would be equally fatal to his case in respect of benefit.
21. The difficulty with that argument is that in R v Benjafield  1 AC 1099 [see paragraph 32 below] the House of Lords specifically considered whether the scheme, with its presumptions, was compliant with the European Convention on Human Rights, and in particular Article 6. In general terms the House of Lords concluded that it was. Of course, this was by no means a blanket conclusion which precluded an Article 6 argument. In the leading opinion Lord Steyn said (at page 1161A):
‘The 1994 Act pursues an important objective in the public interest and the legislative measures are rationally connected with the furtherance of this objective. The procedure devised by Parliament was a fair and proportionate response to the need to protect the public interest. The critical point is that under the 1994 Act, as under the 1988 Act, the judge must be astute to avoid injustice. If there is or might be a serious or real risk of injustice, he must not make a confiscation order.’
22. What is said by Mr Hodivala [counsel for the applicant] in essence is that wherever a defendant either gives no evidence, or gives evidence which is untruthful and does not reveal the nature or criminality involved in a particular account, and as a result an adverse finding against him or the presumption operates, then that must always be a case where there is a serious or real risk of injustice so as to preclude the making of a confiscation order. But if that were right, it would effectively nullify the statutory scheme which contains the presumptions which the House of Lords in Benjafield has concluded is ECHR compliant.
23. It is obvious that in the present case this argument cannot apply because this is not a case where the applicant declined to give evidence because of his concern about self-incrimination. He gave evidence. It was for the judge to consider and adjudicate upon that evidence. As we have indicated, the judge concluded that his evidence was an untruthful denial of the case which the Crown had asserted, namely that the monies in the account were the proceeds of fraud. As it turns out, and as we have been informed, that case was a true bill because that was indeed the source of the vast preponderance of the monies going through the account.
24. In our judgment, therefore, there is no arguable case that there has been any serious or real risk of injustice. The conclusions on benefit to which the learned judge came were conclusions to which he was bound to come, whether by operation of the presumption or on the facts of the case as now revealed to us on behalf of the applicant. As we have indicated, his judgment in respect of hidden assets was, if anything, unduly generous to the applicant, as recognised by his then counsel.
25. Accordingly, notwithstanding the fact that Mr Hodivala may conceivably have a technical argument in respect of section 17 and the parallel provisions in section 18, in the context of this case they are wholly theoretical. We refuse this application [for leave to appeal] without in any way offering any opinion as to whether or not those technical arguments are good.”
2. The failure to comply with a serious crime prevention order
16. The applicant was released on licence from his original sentence for money laundering in June 2010. A Serious Crime Prevention Order was made on 4 February 2011. Both the applicant’s condition of release and the Serious Crime Prevention Order included a duty not to own more than one mobile telephone and to notify his offender manager of the details of his telephone.
17. The applicant was subsequently recalled to prison for breach of the terms of his licence. He was also tried and convicted for two counts of breach of the serious crime prevention order and sentenced to two years’ imprisonment, to run consecutively to the sentence being served (after his recall to prison) for the original money laundering offence. He appealed against his conviction and sentence.
18. In the appeal against conviction he submitted that the trial judge’s handling of the sickness of one of the jurors meant that the jury came under pressure to return their verdict earlier than it might have wished. That ground of appeal was rejected by the Court of Appeal and is not pursued before this Court.
19. In respect of the appeal against sentence the applicant argued that, given that he had already been recalled to prison for breach of his licence, and the terms of the licence and the order were similar, no further punishment was warranted for breach of the order. The Court of Appeal rejected that argument, stating:
“The whole point was the necessity, as the original judge saw it, of not merely leaving it to those responsible for the sentence in the Ministry of Justice to decide whether the licence conditions should contain obligations of notification, but that more was required, namely the imposition of the order we have identified. In those circumstances should there, as there was in this case, be a failure to notify, the consequences had to be twofold: not only recall, but also punishment.”
20. The Court of Appeal did, however, reduce the sentence for breach of the order from two years’ to one year’s imprisonment, with the effect that the applicant would be required to serve an additional four months’ imprisonment after the expiry of the original sentence.
B. Relevant domestic law and practice
1. The Proceeds of Crime Act 2002
21. Confiscation proceedings are governed by the Proceeds of Crime Act 2002 (“the 2002 Act”). Section 6(4) sets out the approach to be followed by the court:
“(a) it must decide whether the defendant has a criminal lifestyle;
(b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;
(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.”
22. Section 6(5) provides that where the court decides that the defendant has benefited from the conduct referred to, it must decide the recoverable amount and make a confiscation order requiring him to pay that amount. Section 6(7) requires any question arising under subsections (4) or (5) to be decided on a balance of probabilities.
23. Section 10 provides for the making of four assumptions for the purpose of deciding whether a defendant has benefited from his general criminal conduct and deciding his benefit from that conduct. Where relevant, it provides:
“(1) If the court decides under section 6 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of -
(a) deciding whether he has benefited from his general criminal conduct, and
(b) deciding his benefit from the conduct.
(2) The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him -
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(3) The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him -
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(4) The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.
(5) The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.
(6) But the court must not make a required assumption in relation to particular property or expenditure if -
(a) the assumption is shown to be incorrect, or
(b) there would be a serious risk of injustice if the assumption were made.
24. The “relevant day” referred to in subsections (2) and (4) is normally the day six years before proceedings were started against the defendant (section 10(8)). Thus, any property transferred to the defendant at any time in the six years before his conviction will be assumed to have been obtained by him as a result of his general criminal conduct.
25. Section 7 provides guidance on fixing the recoverable amount:
“(1) The recoverable amount for the purposes of section 6 is an amount equal to the defendant’s benefit from the conduct concerned.
(2) But if the defendant shows that the available amount is less than that benefit the recoverable amount is-
(a) the available amount, or
(b) a nominal amount, if the available amount is nil.”
26. Under section 76(4), a person benefits from conduct if he obtains property as a result of or in connection with the conduct. Section 76(7) provides that if a person benefits from conduct, his benefit is the value of the property obtained.
27. As regards the conduct of confiscation hearings, section 16 of the Act provides that the court may order the prosecution to give it a statement of information. Section 16(3)-(5) defines the statement of information in these terms:
“(3) If the prosecutor ... believes the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor ... believes are relevant in connection with deciding these issues-
(a) whether the defendant has a criminal lifestyle;
(b) whether he has benefited from his general criminal conduct;
(c) his benefit from the conduct.
(4) A statement under subsection (3) must include information the prosecutor ... believes is relevant-
(a) in connection with the making by the court of a required assumption under section 10;
(b) for the purpose of enabling the court to decide if the circumstances are such that it must not make such an assumption. .
(5) If the prosecutor ... does not believe the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor ... believes are relevant in connection with deciding these issues-
(a) whether the defendant has benefited from his particular criminal conduct;
(b) his benefit from the conduct.”
28. The court may order that a defendant respond to a section 16 statement of information. Section 17 governs the response and, where relevant, provides:
“(1) If the prosecutor ... gives the court a statement of information and a copy is served on the defendant, the court may order the defendant-
(a) to indicate (within the period it orders) the extent to which he accepts each allegation in the statement, and
(b) so far as he does not accept such an allegation, to give particulars of any matters he proposes to rely on.
... ... ...
(6) No acceptance under this section that the defendant has benefited from conduct is admissible in evidence in proceedings for an offence.”
29. Section 18 permits the court to order a defendant to provide information in terms which mirror those set out in section 17.
2. Case-law in respect of confiscation
a. HM Advocate v. McIntosh
30. In this case the Scottish High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”) held, by a majority of two to one, that a confiscation procedure similar to that applied in the present case was incompatible with Article 6 § 2 of the Convention. In particular, it found that in asking the court to make a confiscation order the prosecutor was in fact asking it to conclude that the defendant had committed a criminal offence, even though there had been no indictment or complaint, and no conviction. Moreover, as the allegation against him was unspecific and based on no evidence, his need for the presumption of innocence was all the greater. In such a case the statutory assumptions offended against the presumption of innocence.
31. However, on 5 February 2001 the Judicial Committee of the Privy Council held unanimously that Article 6 § 2 did not apply, since during the confiscation proceedings the accused was not “charged with a criminal offence” but was instead faced with a sentencing procedure in respect of the offence of which he had been convicted ( 1 AC 1078). Moreover, the Privy Council held that even if Article 6 § 2 could be said to apply, the assumption involved in the making of the confiscation order was not unreasonable or oppressive.
b. R v. Rezvi and R v. Benjafield and Others
32. In R. v. Rezvi  UKHL 1 the House of Lords unanimously held that the confiscation scheme under the Criminal Justice Act 1988 was compatible with Article 6 § 1 of the Convention. Lord Steyn, with whom the other Law Lords agreed, observed:
“It is a notorious fact that professional and habitual criminals frequently take steps to conceal their profits from crime. Effective but fair powers of confiscating the proceeds of crime are therefore essential. The provisions of the 1988 Act are aimed at depriving such offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to deter the commission of further offences and to reduce the profits available to fund further criminal enterprises.
... ... ...
It is clear that the 1988 Act was passed in furtherance of a legitimate aim and that the measures are rationally connected with that aim ... The only question is whether the statutory means adopted are wider than is necessary to accomplish the objective. Counsel for the appellant submitted that the means adopted are disproportionate to the objective inasmuch as a persuasive burden is placed on the defendant. The Court of Appeal  3 WLR 75, 103 carefully considered this argument and ruled:
‘The onus which is placed upon the defendant is not an evidential one but a persuasive one, so that the defendant will be required to discharge the burden of proof: see Lord Hope’s third category of provisions in R v Director of Public Prosecutions, Ex Kebilene,  2 AC 326, 379. This is therefore a situation where it is necessary carefully to consider whether the public interest in being able to confiscate the ill-gotten gains of criminals justifies the interference with the normal presumption of innocence. While the extent of the interference is substantial, Parliament has clearly made efforts to balance the interest of the defendant against that of the public in the following respects:
(a) It is only after the necessary convictions that any question of confiscation arises. This is of significance, because the trial which results in the conviction or convictions will be one where the usual burden and standard of proof rests upon the prosecution. In addition, a defendant who is convicted of the necessary offence or offences can be taken to be aware that if he committed the offences of which he has been convicted, he would not only be liable to imprisonment or another sentence, but he would also be liable to confiscation proceedings.
(b) The prosecution has the responsibility for initiating the confiscation proceedings unless the court regards them as inappropriate...
(c) There is also the responsibility placed upon the court not to make a confiscation order when there is a serious risk of injustice. As already indicated, this will involve the court, before it makes a confiscation order, standing back and deciding whether there is a risk of injustice. If the court decides there is, then the confiscation order will not be made.
(d) There is the role of this court on appeal to ensure there is no unfairness.
... [I]n 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.’ (Emphasis supplied)
For my part I think that this reasoning is correct, notably in explaining the role of the court in standing back and deciding whether there is or might be a risk of serious or real injustice and, if there is, or might be, in emphasising that a confiscation order ought not be made.
... ... ...
In agreement with the unanimous views of the Court of Human Rights in Phillips v United Kingdom (Application No 41087/98) 5 July 2001 I would hold that Part VI of the 1988 Act is a proportionate response to the problem which it addresses.”
33. In R. v. Benjafield  UKHL 2 the House of Lords unanimously held that the confiscation scheme under the 1994 Act was also compatible with Article 6 § 1 of the Convention.
c. R v. Briggs-Price
34. The case of Briggs-Price concerned a defendant who was convicted of conspiracy to import heroin. In the course of that trial evidence had been led of the applicant’s involvement in trafficking in cannabis (to support the heroin trafficking charges), although he was not charged with that offence. In the confiscation proceedings which followed it was agreed by all parties that no heroin was ever imported and that there were no proceeds of that offence. Although the applicant owned properties (which he claimed had been funded from a legitimate source), the prosecution did not allege hidden assets. Consequently, the parties agreed not to apply the statutory assumption that the applicant’s property and expenditure during the relevant period were the proceeds of crime. However, based on the evidence he had heard at trial the judge was satisfied that the applicant had been involved in cannabis trafficking. He therefore made an order for around GBP 2.5 million based on an estimate of the applicant’s proceeds from that offence. That approach was upheld by the Court of Appeal and, on the defendant’s further appeal, by the House of Lords ( UKHL 19). Their Lordships unanimously dismissed the defendant’s appeal but for different reasons.
35. Lord Phillips of Worth Matravers found that the allegations made in relation to the cannabis offences did not constitute criminal charges because they were not so treated under domestic law; they could not and did not lead to criminal convictions; and, most significantly, their consequence, the confiscation of the property of a convicted drug dealer, was precisely the same as that in Phillips and Grayson & Barnham [nos. 19955/05 and 15085/06, 23 September 2008], in which this Court accepted that the safeguards of Article 6 § 2 did not apply.
36. Lord Phillips noted, however, that the guarantees of Article 6 § 1 nonetheless applied to the confiscation proceedings. That being said, he found that the prosecution, as part of their case on the conspiracy to import heroin, had given the defence particulars of evidence that they intended to adduce of other drug offences. The appellant had challenged these at his trial and could have challenged them again in the confiscation proceedings. The judge had been sure on the evidence that the relevant offences were proved and he had deduced the benefit from the proved offending. Moreover, the Court of Appeal had held that the procedure adopted was compatible with Article 6 § 1. There was therefore no basis for suggesting that the fair trial requirements of Article 6 § 1 were not satisfied.
37. Lord Mance adopted a broadly similar position to that of Lord Phillips. He agreed that Article 6 § 2 did not apply to the confiscation proceedings in the appellant’s case. He also agreed that the standard of proof required from the prosecution in proving any relevant drug trafficking was the civil standard. He concluded that no breach of Article 6 § 1 was made out in the present case.
38. Lord Rodger of Earlsferry also agreed that Article 6 § 2 did not apply to the confiscation proceedings, as nothing said or done by the prosecution or the court in the course of those proceedings was designed to convict or acquit the appellant of any other drug-related offence.
39. He accepted that the presumption of innocence nonetheless applied as part of the guarantees inherent in Article 6 § 1 of the Convention, but considered that the Article was satisfied, noting:
“74. Although the appellant was not ‘charged’ with the cannabis network offence, evidence of his involvement in the network was led by the prosecution at his trial for the conspiracy count. The appellant was represented by counsel. Before trial, he would have been supplied with police statements and other material from which it would have been clear that the prosecution was intending to lead evidence about his involvement in the cannabis distribution network at his trial. The appellant has never suggested otherwise. The trial judge held that that evidence was admissible and the Court of Appeal held that there was no arguable appeal against that ruling. Counsel for the appellant had every opportunity to cross-examine the relevant witnesses and to lead evidence to counter the prosecution evidence relating to the cannabis distribution network. At the trial, accordingly, any requirements of Article 6(1) and (3) were surely satisfied in respect of the allegations relating to his involvement in that network.
75. In the context of the confiscation proceedings the judge had regard to this evidence which had been led at the trial and, on that basis, had ‘no doubt’ that the appellant had indeed been involved in running the network. So, in this case, there is no question of the judge proceeding on a presumption that the appellant had been involved in the cannabis network - indeed, the judge plainly thought that the appellant’s involvement had been proved to the criminal standard, beyond a reasonable doubt. On any view, therefore, the presumption of innocence in article 6(1) was fully respected in the confiscation proceedings.”
40. However, unlike Lords Phillips and Mance, Lord Rodger considered that the relevant standard of proof was “beyond reasonable doubt” because otherwise the Crown could ask the court to make a confiscation order on the basis of an alleged benefit from a specific offence of which the defendant would have been acquitted if he had been prosecuted for it. He accepted that that standard had been satisfied in the present case because the court’s conclusions as to the benefit derived by the appellant from drug trafficking were based on evidence - rather than a presumption - of guilt.”
41. Lord Neuberger of Abbotsbury agreed fully with Lord Rodger as regards the Convention issues arising in the appeal.
42. Lord Brown of Eaton-under-Heywood alone found that Article 6 § 2 did apply in the circumstances of the case. He considered the position of this Court to be that the prosecution must either demonstrate that the defendant holds or has held assets the provenance of which he cannot satisfactorily explain, or must establish beyond reasonable doubt that the defendant has committed some other offence (or offences) from which it can be presumed that he obtained advantage. In the latter case, he considered, Article 6 § 2 applied but was satisfied.
43. In the appellant’s case, the fact that the cannabis offence was not treated under domestic law as a criminal charge and did not lead to a criminal conviction was not a sufficient basis for holding it not to be a charge within the autonomous Convention meaning. Lord Brown observed that, unlike in Geerings v. the Netherlands, no. 30810/03, 1 March 2007, so far from having been acquitted of the cannabis offence, the appellant was found by the judge beyond reasonable doubt to have committed it. On this basis and on this basis alone he regarded Geerings as distinguishable and Article 6 § 2, albeit engaged, to be satisfied.
44. Lord Brown concluded with the following remark:
“97. At one stage in the preparation of this opinion I wondered whether, assuming for Convention purposes the appellant was indeed to be regarded as charged with a criminal offence, he can properly be said to have been ‘proved guilty according to law’, not least having regard to the terms of section 2(8). Given, however, the obvious overall fairness of the confiscation proceedings here ... I cannot think that Strasbourg would regard the procedure in fact adopted as unlawful. Having swallowed the camel of accepting that our confiscation proceedings generally are compliant with article 6, the European Court of Human Rights is in my opinion unlikely to strain at this gnat.”
45. Both Lord Rodger and Lord Mance expressed a critical view of the prosecution’s decision not to prosecute the appellant for cannabis trafficking but nonetheless to lead extensive evidence relating to such trafficking at his trial. Lord Rodger observed that the approach adopted by the Crown meant that the jury was not given the opportunity, if so advised, to declare the appellant’s innocence of any involvement in a cannabis network by acquitting him of a count relating to it.
46. Lord Mance agreed that it was undesirable that a defendant should be charged only with an offence of conspiring to import heroin, but that the Crown should in order to prove that offence adduce extensive evidence of his having a pre-existing distribution network for the transportation and distribution of cannabis, and that the judge should then be invited to make a confiscation order on the basis of the benefit made and proceeds received from the cannabis dealings proved to his satisfaction by such evidence.
47. Lord Rodger further criticised the judge’s decision not to apply the statutory assumptions in the appellant’s case as the requirement in section 4(2) to apply the assumptions bound the court. However, he concluded that the failure to observe the provisions of section 4(2) and (4) was probably one of form rather than of substance.
48. After the dismissal of his appeal by the House of Lords, Briggs-Price lodged an application with this Court on 21 October 2009 under Article 34 of the Convention, no. 59494/09. Notice was given of that application to the respondent Government on 21 October 2011. Further questions were put to the parties on 9 July 2013. The case is still pending before the Court.
49. First, the applicant alleges that the confiscation proceedings violated his right against self-incrimination because the 2002 Act only provided protection for section 17 statements and not for oral evidence given in the course of the confiscation hearing. He further submits that the presumption of innocence under Article 6 § 2 of the Convention was violated because the prosecution were able to allege that he had committed a series of crimes with which he had not been charged.
50. Secondly, he alleges that the custodial sentence imposed for breach of the serious crime prevention order was unfair and amounted to double jeopardy when he had already been recalled to prison for breach of the terms of his licence, which were similar to the terms of the order. He further complains that the term of imprisonment was in breach of the prohibition on ill-treatment contained in Article 3 of the Convention.
QUESTIONS TO THE PARTIES
1. Did Article 6 § 2 apply to the confiscation proceedings (see Phillips v. the United Kingdom, no. 41087/98, §§ 31-36, ECHR 2001-VII; Van Offeren v. the Netherlands (dec.), no. 19581/04, 5 July 2005; and Geerings v. the Netherlands, no. 30810/03, §§ 41-50, 1 March 2007)?
2. Are the assumptions set out in section 10 of the Proceeds of Crime Act 2002 compatible with Article 6 §§ 1 and 2 of the Convention insofar as the references to a “criminal lifestyle” and “general criminal conduct” would allow confiscation to take place on the basis of benefit derived from conduct possibly constituting offences for which a defendant had not been charged or convicted?
3. Further to questions 1 and 2 above, has there been a violation of Article 6 §§ 1 or 2 of the Convention on account of the fact that the confiscation order imposed on the applicant was not based on an estimate of the proceeds derived from the offence for which he was actually convicted but on an assessment of the likely proceeds of VAT fraud offences, when he had never been charged with or convicted of such other offences (see Phillips, cited above, §§ 44-45; Van Offeren, cited above; and Geerings, cited above, §§ 44-47; Grayson and Barnham v. the United Kingdom, nos. 19955/05 and 15085/06, §§ 41 and 46, 23 September 2008 and, mutatis mutandis, Allen v. the United Kingdom [GC], no. 25424/09 [GC], 12 July 2013)?