The applicant, was convicted on 27 June 1996, in the UK of being involved in the importation in November 1995 of a large quantity of cannabis resin. On 12 July 1996 he was sentenced to nine years’ imprisonment. He had previous convictions, but none concerning a drugs-related offense. At the confiscation hearing before the Crown Court, the judge applied section 4(3) of the 1994 Drugs Act, which empowers a court to assume that all property held by a person convicted of a drug-trafficking offense within the preceding six years represented the proceeds of drug trafficking. On this basis, the applicant was assessed to have received, as the proceeds of drug trafficking, 91,400 pounds sterling (GBP) and a confiscation order was made for this amount. If the applicant failed to pay, he was to serve an extra two years’ imprisonment, consecutive to the nine-year term. The applicant complained that the statutory assumption under the 1994 Act violated his right to be presumed innocent, guaranteed under Article 6 § 2. He also complained that the confiscation order was in breach of Article 1 of Protocol No. 1 to the Convention.
The European Court of Human Rights (the Court) recalled the test applied by the referring court (the Crown Court). It noted the prosecution gave no direct evidence but invited the Crown Court to assume that on the balance of probabilities the applicant e has benefited from drug trafficking, unless either he shows on a balance of probabilities that the assumption is incorrect, or that there would be a serious risk of injustice if the assumption was made. The assumption invites a court sentencing a person convicted of a drug-trafficking offence to assume that any property appearing to have been held by him at any time since his conviction, or during the period of six years before the date on which the criminal proceedings were commenced, was received as a payment or reward in connection with drug trafficking, and that any expenditure incurred by him during the same period was paid for out of the proceeds of drug trafficking. The Crown Court had noted the applicant had failed to take obvious, ordinary and simple steps which would clearly have been taken if his account of the facts had been true. Instead there are real indications on the civil basis of proof that the applicant and X was complicit in the crime of which the accused was convicted. They traveled to Jamaica together to that end. The transfers of property was a sham such that particular property is still owned by the accused. The Crown Court stated for example ''Even within a family... the purchase of a share of a business for GBP 50,000 entirely without documentation simply unbelievable. Again, on the balance of probabilities it is a device to conceal the true reason for the payment ... for drug trafficking.” It was noted the Crown Court allowed him three years to pay the confiscation order, with a period of two years’ imprisonment to be served in default of payment. His application to renew leave to appeal against conviction and sentence was refused on 22 January 1998 after a full hearing before the Court of Appeal.
A. Applicability of Article 6 § 2
The Government submitted that the confiscation order should be regarded as a penalty and the confiscation proceedings did not amount to his being charged with any additional offence -accordingly Article 6 § 2 did not, apply. The applicant contended that, rather than simply forming part of the sentence for the crime of which he had been convicted, the proceedings leading to the setting of the confiscation order were a discrete judicial process which involved his being “charged with a criminal offence” within the meaning of Article 6 § 2 of the Convention. The Court considered the applicant’s complaint that the statutory assumption applied by the Crown Court breached his right to the presumption of innocence under Article 6 § 2 of the Convention. The relevant parts of Article 6 provide:
“1. 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. ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
The Court stated the questions were: firstly, whether the prosecutor’s application for a confiscation order following the applicant’s conviction amounted to the bringing of a new “charge” within the meaning of Article 6 § 2, and secondly, even if that question must be answered in the negative, whether Article 6 § 2 should nonetheless have some application to protect the applicant from assumptions made during the confiscation proceedings. The Court had regard to three criteria: the classification of the proceedings under national law; their essential nature; and the type and severity of the penalty that the applicant risked incurring. As regards the classification of the proceedings under domestic law and while cases go both ways the Court stated it was clear that such an application does not involve any new charge. Rather in English domestic law, confiscation orders are part of the sentencing process. Turning to the second and third relevant criteria – the nature of the proceedings and the type and severity of the penalty at stake – it is true that the assumption required the national court to assume that he had been involved in other unlawful drug-related activities is in contrast to the usual obligation on the prosecution to prove the elements of the allegations - the burden was on the applicant to prove, on the balance of probabilities, that he acquired the property in question other than through drug trafficking. The Court noted following the national judge’s inquiry, a substantial confiscation order – in the amount of GBP 91,400– was imposed. If the applicant failed to pay this amount he was to serve an extra two years’ imprisonment, consecutive to the nine-year term he had already received in respect of the November 1995 offence. However, the Court agreed the purpose of this procedure was not the conviction or acquittal of the applicant for any other drug-related offence. Although the Crown Court assumed that he had benefited from drug trafficking in the past, this was not, for example, reflected in his criminal record, to which was added only his conviction for the November 1995 offence. It cannot be said that the applicant was “charged with a criminal offence”. Instead, the purpose of the procedure under the 1994 Act was to enable the national court to assess the amount at which the confiscation order should properly be fixed. The Court considers this was analogous to the determination of a fine or period of imprisonment. The Court also stated whilst it is clear that Article 6 § 2 governs criminal proceedings in their entirety, and not solely the examination of the merits, it considered the right to be presumed innocent under Article 6 § 2 arises only in connection with the particular offence “charged”. Once an accused has properly been proved guilty of that offence, Article 6 § 2 can have no application as part of the sentencing process, unless such accusations are of such a nature and degree as to amount to the bringing of a new “charge” (here the Court referred to Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, pp. 37-38, § 90). The Court concluded Article 6 § 2 is not applicable.
B. Applicability of Article 6 § 1
Although the applicant did not rely on the right to a fair trial under Article 6 § 1 in his original application, his counsel submitted before the Court that this provision was also applicable and had been violated. The Government did not deny that Article 6 § 1 applied, although they disputed that there had been a breach. In any event, the Court reiterates that it is master of the characterization to be given in law to the facts of a case and is not bound by the approach taken by an applicant or Government. It considers that, given the nature of the proceedings in question, it is appropriate to examine the facts of the present case from the standpoint of the right to a fair hearing under Article 6 § 1 of the Convention. Article 6 § 1 applies throughout the entirety of proceedings for “the determination of ... any criminal charge”, including proceedings whereby a sentence is fixed. However the Court recalled its above finding that the making of the confiscation order was analogous to a sentencing procedure. It followed, therefore, that Article 6 § 1 of the Convention applies to the proceedings in question.
C. Compliance with Article 6 § 1
The Court considered 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. This right is not, however, absolute, since presumptions of fact or of law operate in every criminal-law system and are not prohibited in principle by the Convention, as long as States remain within certain limits. The Court is not called upon to examine in abstracto the compatibility with the Convention of the provisions of the UK Act and the statutory assumption. Instead, the Court must determine whether the way in which this assumption was applied in the applicant’s case offended the basic principles of a fair procedure inherent in Article 6 § 1.The Court’s starting-point in this examination is to repeat its above observation that the statutory assumption was not applied in order to facilitate finding the applicant guilty of an offence, but instead to enable the national court to assess the amount at which the confiscation order should properly be fixed. Thus, although the confiscation order calculated by way of the statutory assumption was considerable –GBP 91,400 and although the applicant risked a further term of two years’ imprisonment if he failed to make the payment, his conviction of an additional drug-trafficking offence was not at stake.
Further, whilst the assumption was mandatory when the sentencing court was assessing whether and to what extent the applicant had benefited from the proceeds of drug trafficking, the system was not without safeguards. Thus, the assessment was carried out by a court with a judicial procedure including a public hearing, advance disclosure of the prosecution case and the opportunity for the applicant to adduce documentary and oral evidence. The court was empowered to make a confiscation order of a smaller amount if satisfied, on the balance of probabilities, that only a lesser sum could be realised. The principal safeguard, however, was that the assumption made by the 1994 Act could have been rebutted if the applicant had shown, again on the balance of probabilities, that he had acquired the property other than through drug trafficking. Furthermore, the judge had a discretion not to apply the assumption if he considered that applying it would give rise to a serious risk of injustice.
The Court notes that there was no direct evidence that the applicant had engaged in drug trafficking prior to the events which led to his conviction. Notwithstanding the assumption the Court noted that in respect of every item taken into account the domestic judge was satisfied, on the basis either of the applicant’s admissions or of evidence adduced by the prosecution, that the applicant owned the property or had spent the money, and that the obvious inference was that it had come from an illegitimate source. Thus, the judge found “real indications on the civil basis of proof” that (for example) the sale of the house to X had not been genuine and was instead a cover for the transfer of drug money. As for the additional GBP 28,000 which the applicant admitted receiving in cash from X, the judge said: “No sensible explanation for the involvement of [X] … was given". Similarly, when assessing the amount of the applicant’s expenditure on cars, the judge based himself on the lowest of the applicant’s estimates and noted no explanation was given explaining the source of this money: on the basis of the judge’s findings, there could have been no objection to including the matters in a schedule of the applicant’s assets for the purpose of sentencing, even if the statutory assumption had not applied.
Finally, when calculating the value of the realisable assets available to the applicant, it is significant that the judge took into account only the house and the applicant’s one-third share of the family business: the Court considers that an issue relating to the fairness of the procedure might arise in circumstances where the amount of a confiscation order was based on the value of assumed hidden assets, this was far from being the case as regards the present applicant. Overall, therefore, the Court finds that the application to the applicant of the relevant provisions of the 1994 Act was confined within reasonable limits given the importance of what was at stake and that the rights of the defence were fully respected. It follows that the Court does not find that the operation of the statutory assumption deprived the applicant of a fair hearing in the confiscation procedure. In conclusion, there has been no violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1European Court of Human Rights
In this case the Court agrees to link confiscation proceedings to the prior criminal proceedings, insofar as it is analogous to the process of sentencing rather than establishing a criminal charge. It is for this reason that the claim was found to be not subject to article 6(2) and presumption of innocence was not directly at issue. It reason essentially that the applicant was convicted of drugs offences; 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.
The Court also paid attention to procedural safeguards were in place, which accompanied the assumptions that the property had been derived from criminal activities. It noted a public hearing occurred, there was advance disclosure of the prosecution case and the opportunity for the applicant to adduce documentary and oral evidence. The assumption was rebuttable and the judge had discretion not to apply the assumption if he considered that applying it would give rise to a serious risk of injustice.
Finally the Court agreed that given the importance of the aim to be pursued the action taken was not disproportionate.
However the partly dissenting judgements argued that Article 6 should apply at every stage in the criminal process. Specifically the view that Article 6(2) does not apply to confiscation because it is seen as part of sentencing did not have unanimous support. Two of the five judges partly dissented on the grounds that the majority had taken too narrow a view of the scope of Article 6(2), and that where the “sentencing” process involved disputed facts that went to the heart of the case (not merely to assess general character), such as whether certain property was the proceeds of drug trafficking, Article 6(2) did apply. It was argued the jurisprudence of the Court showed that Article 6 applied to all stage of criminal proceedings, including sentencing, and further, that the other paragraphs of Article 6 should be seen as specific parts of the guarantee of a fair trial in paragraph one. But the dissenting judges did share the conclusion of the majority that the specific use of reverse burdens and the restriction on the rights of the defendant was not serious enough to merit a violation of Article 6(1) or (2).