Judgments - R v Briggs-Price (Appellant) (On appeal from the Court of Appeal (Criminal Division))

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60.  For these reasons, I have no doubt that, under English domestic law, Judge Stokes was entitled to use the evidence led at the trial, and the additional information as to the selling price of bulk cannabis, first, to determine that the appellant had benefited from trafficking in cannabis and, secondly, to assess the value of his proceeds of drug trafficking at £4 million.

61.  Mr Owen contended, however, that the appellant’s article 6 Convention rights had been breached because the making of the confiscation order involved the court in holding that the appellant had committed an offence - in effect, being concerned in the supplying of cannabis - with which he had not been charged. In making this submission, Mr Owen necessarily conceded that there would have been no breach if the appellant had been charged with, and convicted of, that offence and the court had made a confiscation order relating to it.

62.  In his written case, the appellant argued that there had been a violation of his article 6(2) Convention right, as a person charged with a criminal offence to be presumed innocent until proved guilty according to law. The decision of the Privy Council in McIntosh v Lord Advocate [2003] 1 AC 1078 is, however, authority that, for article 6(2) purposes, a person against whom an application for a confiscation order is made is not accused of any offence other than the trigger offence of which he has been convicted - even if the court is asked to apply assumptions similar to those in section 4(3) of the 1994 Act.

63.  In Phillips v United Kingdom (2001) 11 BHRC 280, the European Court of Human Rights endorsed that approach and held that article 6(2) can have no application to allegations made about the accused’s character and conduct as part of the sentencing process, unless they are of such a nature and degree as to amount to the bringing of a new “charge” within the autonomous Convention meaning. The Court held, at paras 31-35, that the procedure was analogous to the procedure for determining an appropriate fine or period of imprisonment. It was to be regarded as part of the sentencing process of a convicted person under domestic law. Therefore the purpose of the procedure was not the conviction or acquittal of the applicant for any other drug-related offence and so the procedure did not amount to the bringing of a new charge. Article 6(2) was accordingly not engaged. The European Court reasoned along the same lines in its admissibility decision in Van Offeren v The Netherlands (application no 19581/04), 5 July 2005.

64.  On that approach, apart from charges lying on the file, for the purposes of article 6(2), in the present case the appellant has only ever been “charged” with conspiring to contravene section 170(2) of the Customs and Excise Management Act 1979, contrary to section 1(1) of the Criminal Law Act 1977. Nothing said or done by the prosecution or the court in the course of the confiscation proceedings was designed to convict or acquit the appellant of any other drug-related offence. So article 6(2) was not engaged when the court was determining, as part of the sentencing procedure for the trigger offence, whether the appellant had benefited from drug trafficking, other than the drug trafficking comprising the trigger offence.

65.  That said, it is important to notice that, even though article 6(2) does not apply to confiscation proceedings, the presumption of innocence does. This is because it is implied into article 6(1), which does, of course, apply to those proceedings. That point was made by the European Court in Phillips v United Kingdom (2001) 11 BHRC 280, para 40. The position was conveniently summarised recently in the Court’s admissibility decision in Grayson and Barnham v United Kingdom (applications nos 19955/05 and 15085/06), 23 September 2008, where the applicant contended that the application of the statutory assumptions in his case had violated his right to the presumption of innocence under article 6(2). The Court said at para 39:

“The making of a confiscation order under the 1994 Act was different from the standard imposition of a sentence following conviction by a criminal court because the severity of the order - both in terms of the amount of money which must be paid and the length of imprisonment to be served in default - depended upon a finding of benefit from past criminal conduct in respect of which the defendant had not necessarily been convicted. For this reason, the Court in Phillips observed that, in addition to being specifically mentioned in Article 6(2), a person’s right in a criminal case to be presumed innocent and to require the prosecution to bear the onus of proving the allegations against him or her forms part of the general notion of a fair hearing under Article 6(1) (Phillips, para 40 and see, mutatis mutandis, Saunders v United Kingdom, judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, para 68).”

So, even though article 6(2) does not apply, the Crown must show that the convicted person benefited from drug trafficking. In discharging that onus, the Crown can, of course, invoke appropriate presumptions both of fact and law: Phillips, para 40.

66.  In both McIntosh and Phillips the relevant proceeds of drug trafficking comprised assets which the accused possessed. Here, however, the Crown accepts that it cannot show that the appellant’s known property and expenditure derived from drug trafficking. But the court found that the appellant had organised the cannabis network and it then went on to assess the value of the proceeds which, it inferred, he had derived from trafficking through that network. Mr Owen argued that, so far as article 6(2) was concerned, this constituted a crucial difference from McIntosh and Phillips where the court had been able to proceed on the basis of the statutory assumptions.

67.  In principle, I am unable to see how the use of evidence rather than assumptions could make the decisions in McIntosh and Phillips inapplicable, since the reasoning of the European Court in Phillips is not based on the assumptions or evidence relied on by the court when considering confiscation but on the very nature and purpose of confiscation proceedings.

68.  In making his submission, Mr Owen relied, however, on a more recent judgment of the Strasbourg court in Geerings v Netherlands (2007) 46 EHRR 1222. In that case, the defendant had been convicted of a number of offences of theft, handling stolen goods and membership of a criminal gang. He appealed and the Court of Appeal quashed his convictions for most of the offences. The result was that he remained convicted of having participated in the theft of a lorry and trailer containing 120 laundry dryers, of having stolen a lorry combination and a number of printers and of handling a piece of clothing and a video camera, knowing that they had been obtained through crime.

69.  The prosecutor sought an order from the Regional Court for the confiscation of illegally obtained advantage from the offences. The legislation allowed such an order to be made in respect not only of offences for which the defendant had been convicted, but of similar offences or certain other offences “in connection with which there exist sufficient indications that they were committed by him.” The Regional Court made an order, the amount of which showed that it related only to the offences of which the defendant remained convicted after his appeal. He appealed. The Court of Appeal not only dismissed his appeal, but quashed the ruling of the Regional Court and replaced it with an order for a much higher sum by way of confiscation. It did so on the basis that, even though the defendant’s convictions of other offences had been quashed, the defendant had illegally obtained advantage from the offences of which he had been acquitted on appeal, “in connection with which [offences] there exist sufficient indications that they were committed by him.”

70.  The European Court held that there had been a violation of article 6(2). This is scarcely surprising since the Dutch Court of Appeal’s decision involved the clearest possible imputation that Mr Geerings had actually been guilty of offences with which he had been charged but of which he had been duly acquitted. At paras 48-51, the European Court applied the approach identified in Asan Rushiti v Austria (2001) 33 EHRR 1331, 1339, para 31:

“The Court cannot but affirm the general rule stated in the Sekanina judgment that, following a final acquittal, even the voicing of suspicions regarding an accused’s innocence is no longer admissible. The Court, thus, considers that once an acquittal has become final - be it an acquittal giving the accused the benefit of the doubt in accordance with Article 6(2) - the voicing of any suspicions of guilt, including those expressed in the reasons for the acquittal, is incompatible with the presumption of innocence.”

Like the Austrian court in Sekina v Austria Ser A, No 266-A, 25 August 1993, the Dutch Court of Appeal had done much more than merely voice suspicions about Mr Geerings’ innocence of the charges of which he had been acquitted: they had proceeded on the basis that he had committed the offences in question. In the present case, by contrast, the appellant never stood trial for any offence arising out of the cannabis network. So there is no verdict of acquittal which the making of the confiscation order based on the cannabis network would contradict and so violate article 6(2). It follows that this aspect of the European Court’s ruling in Geerings has no relevance to the appellant’s case.

71.  In Geerings the European Court also considered, at para 47, that confiscation, following on from a conviction, was a measure inappropriate to assets which are not known to have been in the possession of the person affected,

“the more so if the measure concerned relates to a criminal act of which the person affected has not actually been found guilty. If it is not found beyond a reasonable doubt that the person affected has actually committed the crime, and if it cannot be established as fact that any advantage, illegal or otherwise, was actually obtained, such a measure can only be based on a presumption of guilt. This can hardly be considered compatible with article 6(2).”

72.  The essence of the European Court’s reasoning is to be found at the end of the penultimate sentence: the Court concluded that what the Dutch court had done could only be based on a presumption of guilt - so what it had done was incompatible with article 6(2). The Court reached that conclusion because, in their view, it had not been shown either that the applicant had committed the crimes in question or that he had derived any advantage from them. That being so, what other basis, apart from a presumption of guilt, was there for saying that the applicant had illegally obtained an advantage?

73.  In the particular context of an order made in respect of offences of which the applicant had been acquitted, the reasoning causes no particular difficulty. But, if it were applied more generally, as my noble and learned friend, Lord Mance, shows, it would run counter to the Court’s approach in Phillips and Van Offeren. In any event, in my view, it does not assist the appellant in the present case.

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.

76.  Nevertheless, there is a division of opinion among your Lordships as to the standard of proof which article 6 requires in a case like the present where the judge is considering whether a convicted person has benefited from some specific drug trafficking offence with which he has not been charged. My noble and learned friends, Lord Phillips of Worth Matravers and Lord Mance, consider that proof on the balance of probabilities is all that article 6(1) would require, while Lord Brown considers that, since article 6(2) applies, proof beyond reasonable doubt is required, because that is how people are “proved guilty according to law” in this country.

77.  Although I do not share his view that article 6(2) applies, I have none the less reached the same conclusion as Lord Brown on the standard of proof. If a presumption of innocence is implied into article 6(1), then it, too, must require that the person be proved guilty according to law. In the context of a criminal trial, the standard of proof, according to our law, is beyond reasonable doubt. Indeed, if that were not the position, the Crown could ask the court to make a confiscation order on the basis of an alleged benefit from a specific offence of which the defendant would have been acquitted if he had been prosecuted for it.

78.  Lord Mance points out that, in Phillips, the European Court refers to the terms of section 2(8) of the 1994 Act and does not suggest that the civil standard of proof violates article 6(1). The force of that observation is blunted, however, by the fact that, as is clear from para 41, the Court was concerned only with the assumptions in section 4(3) of the 1994 Act and, in particular, with whether the way they were applied in the applicant’s case offended the basic principles of a fair procedure in article 6(1). So the compatibility of proving criminal offending on the balance of probability for the purpose of a confiscation order was simply never considered. For what it is worth, the fact that the European Court seems to envisage the use of the criminal standard in Geerings, para 47, suggests that it would have favoured that standard in the present situation.

79.  By virtue of section 3 of the Human Rights Act 1998, I would accordingly read section 2(8)(a) of the 1994 Act as applying the civil standard of proof to any question as to whether a person has benefited from drug trafficking, but not to any question as to whether a person has committed a specific drug trafficking offence.

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

81.  In short, nothing in the European Court’s judgment in Geerings suggests that what the judge did in this case involved a violation of any of the appellant’s article 6 Convention rights. More particularly, when making the confiscation order as part of the sentencing process, the judge did not proceed on the basis of any presumption as to the appellant’s guilt. There was accordingly no violation of the presumption of innocence as contained in either article 6(1) or 6(2).

82.  For these reasons I would dismiss the appeal.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

83.  This appellant was convicted of conspiracy to import heroin from which it is accepted that he derived no benefit. (It is an oddity of our law, although irrelevant to the appeal, that had he in fact paid for the heroin which he was conspiring to import he would be treated, not as being out of pocket, but rather as having to that extent benefited from the offence.) As part and parcel of the case against him was evidence, largely in the form of covertly recorded admissions, that for some years he had been engaged in distributing cannabis. From this, uncharged, drug-trafficking offence, the Crown contended in post-conviction confiscation proceedings, the appellant had benefited—to the extent of £8.7m as calculated by the Crown, £4m as found by the judge. In the event, confiscation orders were made against the appellant (i) uncontentiously, for £510,000 under the Criminal Justice Act 1988 in respect of benefit from the evasion of duty on the importation of cigarettes (an offence to which the appellant had pleaded guilty), and (ii) for £2,628,000 under the Drug Trafficking Act 1994, with eight years’ imprisonment in default, the order now under appeal. The two orders together amount to £3,138,000—the total of the appellant’s realisable assets and thus the ceiling for such orders as provided by legislation.

84.  There was no dispute that the appellant owned a large hotel and a number of other properties which generated a very substantial income and it may well be that his entire realisable assets could have derived from legitimate income. No doubt with that in mind, both sides were content not to apply the statutory assumptions ordinarily required to be made under section 4(3) of the 1994 Act.

85.  The point of law of general public importance certified for your Lordships’ decision on this appeal is:

“In determining the value of a defendant’s proceeds of drug trafficking under section 4 of the Drug Trafficking Act 1994, is it compatible with article 6(2) of the European Convention on Human Rights to take into account drug trafficking that the judge has found proved to the criminal standard on the evidence given at the defendant’s trial, in circumstances where (a) such conduct was not itself the subject of a charge against the defendant and was not a necessary basis for the jury’s verdict convicting him on the charge he did face at trial, (b) the Court had not made the assumptions contained in section 4(3) in relation to the defendant’s known property and expenditure, and (c) there is no finding or allegation that the defendant had hidden assets?”

Although the question as certified is confined to compatibility with article 6(2), it was agreed that compatibility with article 6(1) is also in issue.

86.  Others of your Lordships have already set out the relevant legislation and made extensive reference to both the domestic and Strasbourg authorities in point and none of this material do I propose to repeat. With regard to the position under domestic law, I am in full agreement with all your Lordships that the appellant is certainly wrong to contend that the only way of determining the benefit from drug trafficking (except, of course, in respect of an offence of which the defendant has been convicted) is on the basis of the section 4(3) assumptions, and I am content to assume that the course adopted in the present case is consistent with our legislation—notwithstanding the obvious discordance between the judge’s finding of cannabis dealing to the criminal standard of proof and section 2(8) of the 1994 Act which provides that it is the civil standard of proof which is to apply to the determination of any question arising as to whether a person has benefited from drug trafficking.

87.  I confess, however, to somewhat greater difficulty regarding the compatibility of the confiscation proceedings here with article 6(2). I cannot regard Phillips v United Kingdom (2001) 11 BHRC 280 (which endorsed the Privy Council’s decision in McIntosh v Lord Advocate [2003] 1 AC 1078) as conclusive of the article 6(2) argument. McIntosh, as my noble and learned friend Lord Phillips of Worth Matravers points out at para 27, was based squarely on confiscation proceedings where the benefit of drug trafficking was determined by reference to identified property (a process, as Lord Hope put it at para 43, akin rather to tracing than to finding the defendant to have been engaged in criminal conduct). And Phillips too was concerned with the statutory assumptions under which benefits are calculated by reference to identifiable property.

88.  It is true that the core reasoning in Phillips is that the confiscation procedure, being for the purpose of fixing the amount of the order, is “analogous to the determination by a court of the amount of a fine or the length of a period of imprisonment to be imposed on a properly convicted offender” (para 34). And in para 35 the Court drew a distinction between “allegations made about the accused’s character and conduct as part of the sentencing process” and “accusations . . . of such a nature and degree as to amount to the bringing of a new ‘charge’”— article 6(2) of course, applying only to the latter.

89.  That reasoning was later repeated in Van Offeren v The Netherlands (Application No. 19581/04) and Grayson & Barnham v United Kingdom (Applications 19955/05 and 15085/06), both of which, as my Lords have demonstrated, appear on their facts to have taken the Phillips approach yet further. The Court in Van Offeren, declaring the application inadmissible, appears actually to have sanctioned the calculation of the applicant’s benefit from drug trafficking by reference to an offence of which he had actually been acquitted. And, as Lord Phillips points out, the Court in Grayson & Barnham (notably in Barnham’s case) appears to have approved the calculation of benefit by reference to specific uncharged offences.

90.  The one Strasbourg decision going the other way—the decision understandably relied upon by Mr Owen QC—is Geerings v Netherlands (2007) 46 EHRR 1222, the substance of which is set out by Lord Mance at para 124. It is, as others of your Lordships have pointed out, in certain respects a difficult decision. However it clearly stands for one proposition at least: whatever may have been decided in Van Offeren (as Lord Mance points out, by an almost identically constituted chamber), benefit is not to be calculated by reference to an offence with which the defendant was charged and of which he has been acquitted. That, the Court held (para 50), “amounts to a determination of the applicant’s guilt without the applicant having been ‘found guilty according to law’” and thus violates article 6(2). Is that, however, the only limitation imposed by Strasbourg upon the calculation of benefit in confiscation proceedings following a drug trafficking conviction? Are there no circumstances in which reliance on offences other than those of which the defendant has been convicted will amount to the bringing of a new charge for article 6(2) purposes? (I say “the only limitation". It is, of course, plain—and repeatedly noted by the ECtHR—that even were confiscation proceedings to be regarded merely as part of the sentencing process, article 6(1) applies to them and requires that the proceedings be in all respects fair. That, however, is not a problem arising here or indeed in any of the cases discussed above: the critical question in all these cases is rather whether or not article 6(2)’s presumption of innocence has been breached.)

91.  As I understand it, some at least of your Lordships would answer the questions posed above in the affirmative, albeit on Lord Phillips’ part “not without hesitation". With no less hesitation I have come to a different conclusion. Geerings seems to me to stand for more than merely the prohibition against reliance on criminality of which the defendant has actually been acquitted. That was separately identified as the second of the two reasons given by the Court for distinguishing Phillips and (rightly or wrongly) Van Offeren—the subject of paras 48-50 of the Court’s judgment. The first reason is that contained in paras 46 and 47 of the Court’s judgment, to be read in the context of para 44 which identifies as common features of Phillips and Van Offeren “that the applicant demonstrably held assets whose provenance could not be established; that these assets were reasonably presumed to have been obtained through illegal activity; and that the applicant had failed to provide a satisfactory alternative explanation.”

 
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