Benjafield & Ors, R v [2000] EWCA Crim 86

EWCA-Crim
Benjafield & Ors, R v
[2000] EWCA Crim 86 · 2000-12-21
[1]These appeals, which are otherwise wholly unconnected, raise the stark question whether the statutory provisions which govern the making of confiscation orders under the Drug Trafficking Act 1994 (the "1994 Act") and the Criminal Justice Act 1988, as amended by the Proceeds of Crime Act 1995 (the "1988 Act"), are compatible with the European Convention on Human Rights.[2]A further appeal, R v Milford , which raised the same question, was also listed for hearing. However Milford appealed against his conviction. That appeal has now been decided. The appeal against sentence, and in particular the confiscation order made against him, had been adjourned. The adjournment serves to illustrate one critical aspect of the domestic statutory code, which is that without a relevant conviction, there is nothing to trigger the confiscation process or to sustain a confiscation order. As Milford's appeal against conviction has now succeeded, the confiscation order against him cannot survive.[3]The appeals also raise a number of distinct issues in relation to the individual confiscation orders made in each case. These will be dealt with in later hearings. Karl Benjafield[4]The essential facts are straightforward. In the summer of 1997, the appellant conducted a business in drugs from his home in Norfolk. He was at the centre of a conspiracy to bring large quantities of heroin, cocaine, ecstasy, cannabis resin and amphetamines into the area, and then to distribute them to dealers for onward supply. A group of associates carried out the purchase and sale of drugs on his behalf. Many of them were subsequently convicted of drug trafficking offences. The appellant never used drugs personally, profit was his only motive, and his profit from this conspiracy was considerable.[5]On 8 September 1998, in the Crown Court at Norwich before His Honour Judge Downes, Benjafield pleaded guilty to one offence of conspiracy to supply class A controlled drugs and one offence of conspiracy to supply class B controlled drugs. The dates covered by the conspiracies were 6 May 1997 to 24 July 1997. On 9 October, Benjafield was sentenced to 14 years and 5 years imprisonment concurrent on the two counts.[6]Confiscation proceedings under s.2 of the 1994 Act were postponed on more than one occasion. For present purposes, the precise circumstances of these postponements are irrelevant. Therefore dealing with the facts briefly, the prosecutor's statement dated 8 October 1998 noted that Benjafield had not been in remunerative employment nor taken up any statutory benefits since 1995. He had been living with his partner, Mandy Keable, (who was convicted of conspiracy with him and received a suspended sentence), and their children at an address in Great Yarmouth which they bought on mortgage on 29 July 1996.[7]Shortly before that date, in May 1996, they had bought another residential but derelict bungalow in their joint names, in 1986 another property, "The Bentleys", was bought in the appellant's sole name. This was lived in by his parents. The appellant's remaining property interests were found in two addresses in Cobholm, the first bought in June 1992 in his father's name, but run by the appellant who received and dealt with all the income from the property, and the second, "Blackgates Farm", conveyed into the name of his mother in 1996, but again controlled by the appellant who obtained the necessary planning permission consents to erect a large building on the site. The appellant also held a property in Spain, originally purchased in 1987. The Crown alleged that this property was held in the joint names of the appellant and his mother, and also relied on a receipt in his name indicating payment for the property.[8]In addition to these properties, cash (approximately £10,000) and jewellery (valued at £35,000) was found at the appellant's home or the home of his "mother-in-law", and there was evidence to show that he had spent considerable sums on living, and that he had made impressive loans, totalling some £30,000.[9]The appellant had a number of bank accounts in joint names with Mandy Keable. Between 1991 and 1997, unidentified bankings totalling £52,355 were made into their account with Lloyds Bank, and between 1995 and 1997, £25,456 was deposited from unidentified sources into their account with the Halifax Building Society.[10]The total of the alleged benefit added up to £360,487. The traced realisable assets were calculated at £185,890.[11]The appellant sought to provide evidence to demonstrate that the inclusion of three of the properties in the calculation of his alleged benefit was erroneous. Dealing with the issues very briefly for present purposes, the property in Spain belonged to his father, but had been conveyed into his name for tax avoidance reasons. The person with the real interest in "The Bentleys" was his father. Tax, and health reasons, were given for the arrangement. Blackgates Farm belonged to his mother.[12]After a lengthy hearing into these issues, it was perfectly plain that the judge felt unable to accept the evidence of the appellant's father, and when the appellant eventually gave evidence, the appellant himself. The judge recorded his conclusion that the evidence of the appellant was "something of a joke" and that he could not be relied on "in any way whatever ..... He (was) quite incapable of belief".[13]Accordingly, on 1 July 1999, making allowance for a shortfall which represented "hidden assets", a confiscation order was made in the sum of £327,971, to be paid within two years, with a sentence of three years imprisonment in default to run consecutively to the sentence imposed on 9 October 1998. Manoj Leal[14]Leal, and three co-defendants, were the subject of a National Crime Squad surveillance operation carried out on two particular dates, 1 December and 10 December 1998. The Crown's case was that they were all involved in a major conspiracy to supply large quantities of controlled drugs to others. The appellant was the person in control of the enterprise. In due course the police seized drugs, including cannabis, cannabis resin, and cocaine, with a wholesale value approaching £1 million, which formed the organisations current stock in trade.[15]Leal was convicted on 28 July 1999 in the Crown Court at Harrow, before Her Honour Judge Freedman and a jury, of a number of offences under the Misuse of Drugs Act 1971. On the following day, he was sentenced to a total of twelve years imprisonment which, on 12 June 2000, was reduced by the Court of Appeal to nine years imprisonment.[16]The prosecutor's statement was largely, and convincingly, based on an "accounting" ledger. From this it was calculated that the "take" from the sale of unlawful trafficking in drugs was £1,879,504. Expenditure on drugs was calculated at £984,268. With a number of additional items, this produced a total benefit of £2,892,873. The realisable assets which the police could trace amounted to £24,793, but the Crown argued, and the court subsequently concluded, that a good deal of money remained hidden and untraced which was "awaiting the defendant's release from prison".[17]On 27 June 2000, Judge Freedman considered the defendant's statement and his oral evidence, together with that of his common law wife, and unhesitatingly rejected it. In calculating the confiscation order, the judge deducted the expenditure on drugs (£984,268) which left a balance of £1,908,605. She made a confiscation order in that sum, to be paid within two years, with four years imprisonment consecutive in default. Syed Rezvi[18]Rezvi was convicted of dishonesty, arising in the course of his employment as an assistant financial controller at a hotel in London. He worked there for some 9 years. By the time of his arrest, his annual salary was £23,000. In February 1999, the police were asked to investigate two thefts of £5,000 each from the hotel. When the appellant was arrested, he admitted stealing £10,000 by telling the cashiers to order two separate sums of £5,000 from the bank. The thefts took place on the 2 and 12 February respectively. Security consultants were called in. They discovered that between April 1997 and February 1999 losses totalling approximately £283,000 had taken place at the hotel. These losses were attributed to transactions conducted by the appellant.[19]When Rezvi appeared on 11 October 1999 in the Crown Court at Snaresbrook, the indictment against him included 14 specimen counts, 11 of theft, and three of obtaining a money transfer by deception. The total sums involved in the 14 counts was £35,105. None of the individual sums specified in the individual counts exceeded £5,000. On arraignment, before His Honour Judge Izzard-Davies, the appellant pleaded guilty to the last two counts, which related to the thefts on 2 and 12 February 1999. He pleaded not guilty to the remaining counts. The Crown indicated that it would be seeking a trial of the remaining counts, and the case was accordingly adjourned for trial on 24 January 2000.[20]By notice dated 21 January 2000, the prosecutor informed the court that it was considered appropriate for the court to proceed with confiscation proceedings under s.71(1)(a) of the 1988 Act. The case was one in which, in the prosecutor's opinion, it would be appropriate for the court to make the statutory assumptions under s.72(AA)(4) in determining the appellant's benefit. The prosecutor's statement made under s.73(1A) of the Act identified benefits in excess of £622,000. The substantial proportion (£465, 232) was based on the valuation of two properties, 19 Fell Walk and 1 Edgeworth Avenue, Hendon, which were respectively valued at £142,936 and £322,296.[21]It was alleged that 19 Fell Walk was originally purchased in December 1991, in the name of the appellant and his first wife. Title was transferred into his sole name in March 1995. Between January 1997 and his arrest in February 1999, mortgage repayments totalling £36,770 were paid in cash. On 28 November 1997, a lump cash sum of £30,000 was made.[22]1 Edgeworth Avenue was bought in joint names with Ms Naqvi (the appellant's wife) in December 1998, with a down payment of £65,000. None of the appellant's bank accounts showed any debit which might be linked with this payment. Cash sums totalling £9835 were made against this mortgage debt between December 1998 and the date when the appellant was charged.[23]The appellant held a number of bank and building society accounts in his sole name. Regular injections of cash were made into them from untraced resources, but no debits relating to mortgage repayments could be traced to the bank account into which the appellant's annual salary from his employment was made: similarly, with payments in cash to settle his credit card liabilities. The full details of all the cash payments made by the appellant between 1997 and the date of charge need no further analysis, with the exception of a series of refunds apparently made to his account from the hotel at which he worked. Between September 1997 and March 1998, these refunds amounted to £5,763.[24]The realisable assets were valued at £353,742, and the prosecutor's statement concluded that "the court is in a position to make a confiscation order" in this sum.[25]On 24 January 2000, the case was re-listed before His Honour Judge Ader. Counsel for the Crown informed the judge that the appropriate notices under the 1988 Act had been served on the appellant, and that the Crown had decided not to proceed to trial on the outstanding counts. The Crown considered that in view of the appellant's pleas to counts 13 and 14, he fell within the confiscation provisions of the 1988 Act. The Crown, he said, "are entitled to assert that there has been a benefit from criminal activities in a specified sum ..... It is for the defendant to show, putting it shortly, that those proceeds have not come to him from criminal activity". He then indicated to the judge that having considered "the whole matter, questions of expense and so on and so forth ..... the Crown have decided to proceed with the matter in this way". Counsel asked that the confiscation issue should be adjourned until 1 April.[26]Having heard Counsel for the appellant, the judge ordered that counts 1 to 12 should lie on the file in the usual terms, that is, not to be proceeded with without leave of the court or the Court of Appeal Criminal Division. He did not enter verdicts of "Not Guilty" under s.17 of the Criminal Justice Act 1967.[27]In due course the defence statement was served and the explanation for apparent prosperity of the appellant, with his relatively modest earnings, and his wife, who had none, was that they were the fortunate recipients of considerable financial assistance from wealthy parents. They had also been forced to dispose of valuable wedding gifts. The prosecution challenged this explanation.[28]On 10 April, Judge Ader conducted the hearing into the confiscation issue. Both sides were represented by counsel. Having heard the evidence given by the appellant and his wife "in an attempt to rebut the assumptions made and evidence called by the prosecution", the judge considered that the defendant's evidence was noteworthy for the absence of support which could easily have been forthcoming. He noted the appellant's account that many of his actions which involved him in responsibility for taking money from the hotel "were in the main at the behest of his superior", and noted in particular that "no explanation was ever forthcoming for refunds paid to (the appellant's) account from the hotel to which he was not entitled". He concluded that he was "unable to accept the defendant's accounts where they are unsupported", but added that he found some support in the evidence of his wife, despite its variance from the appellant's evidence in some respects. He then applied the assumptions required by the legislation. He concluded that the total benefit should be assessed at £539,734, and the total realisable assets should be reduced to £214,839.[29]On 10 April 2000, the appellant was sentenced to 15 months imprisonment concurrent on each count to which he had pleaded guilty. A confiscation order was made under the Criminal Justice Act 1988 in the sum of £214,839. The appellant was allowed six months in which to pay, with three years imprisonment, consecutive, in default.[30]Leave to appeal against the confiscation order was granted during the course of the hearing before us, some five months out of time.[31]We were persuaded that an important issue of considerable practical significance was raised in the application, and that in view of the decision in McIntosh v HM Advocate , (unreported, 13 October 2000) in Scotland, it should be resolved as quickly as possible in this jurisdiction, preferably together with the same issue of principle which arises in relation to drug trafficking offences. S.2 Confiscation Orders[32]The jurisdiction to make confiscation orders in this jurisdiction involves two separate statutory schemes. The 1994 Act represents the consolidated form of the Drug Trafficking Offences Act 1986, as amended by the Criminal Justice Act 1993. The confiscation arrangements for offences other than drug trafficking offences as defined in s.1 of the 1994 Act, are governed by the 1988 Act, as amended by the Criminal Justice Act 1993, further amended by the Criminal Justice and Public Order Act 1994, and yet further amended by the Proceeds of Crime Act 1995.[33]Section 2 of the 1994 Act provides: "(1) Subject to subsection (7) below, where a defendant appears before the Crown Court to be sentenced in respect of one or more drug trafficking offences (and has not previously been sentenced or otherwise dealt with in respect of his conviction for the offence or, as the case may be, any of the offences concerned), then-(a) if the prosecutor asks the court to proceed under this section, or(b) if the court considers that, even though the prosecutor has not asked it to do so, it is appropriate for it to proceed under this section, it shall act as follows. (2) The court shall first determine whether the defendant has benefited from drug trafficking. (3) For the purposes of this Act, a person has benefited from drug trafficking if he has at any time (whether before or after the commencement of this Act) received any payment or other reward in connection with drug trafficking carried on by him or another person. (4) If the court determines that the defendant has so benefited, the court shall....determine in accordance with section 5 of this Act the amount to be recovered in his case by virtue of this section. (8) The standard of proof required to determine any question arising under this Act as to- (a) whether a person has benefited from drug trafficking, or (b) the amount to be recovered in his case by virtue of this section, shall be that applicable in civil proceedings".[34]Section 4 of the 1994 Act provides for the assessment of the proceeds of drug trafficking: "(2) Subject to subsections (4) and (5) below, the Crown Court shall, for the purpose-(a) of determining whether the defendant has benefited from drug trafficking, and(b) if he has, of assessing the value of his proceeds of drug trafficking, make the required assumptions. (3) The required assumptions are- (a) that any property appearing to the court- (i) to have been held by the defendant at any time since his conviction, or (ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him, 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 beginning of that period 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. (4) The court shall not make any required assumption in relation to any particular property or expenditure if- (a) that assumption is shown to be incorrect in the defendant's case; or (b) the court is satisfied that there would be a serious risk of injustice in the defendant's case if the assumption were to be made; and where, by virtue of this subsection, the court does not make one or more of the required assumptions, it shall state its reasons".[35]The making of confiscation orders other than in drug trafficking offences is governed by s.71 of the 1988 Act, which provides: "(1) Where an offender is convicted, in any proceedings before the Crown Court or a magistrates' court, of any offence of a relevant description, it shall be the duty of the court-(a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or(b) if the court considers, even though it has not been given such notice, that is would be appropriate for it so to proceed, to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct. (1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct. (1B) Subject to (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then- (a) determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and (b) make an order under this section ordering the offender to pay that amount. (1D) In this part of this Act "relevant criminal conduct", in relation to a person convicted of an offence in any proceedings before a court, means (subject to section 72AA(6) below) that offence taken together with any other offences of a relevant description which are either- (a) offences of which he is convicted in the same proceedings, or (b) offences which the court will be taking into consideration in determining his sentence for the offence in question. (4) For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained. (7A) The standard of proof required to determine any question arising under this Part of this Act as to- (a) whether a person has benefited from any offence; or (b) [...](c) the amount to be recovered in his case shall be that applicable in civil proceedings".[36]Section 72AA provides for confiscation proceedings arising from a "course of criminal conduct". "(1) This section applies in a case where an offender is convicted, in any proceedings before the Crown Court or a magistrates' court, of a qualifying offence which is an offence of a relevant description, if-(a) the prosecutor gives written notice for the purposes of subsection (1a) of section 71...;(b) that notice contains a declaration that it is the prosecutor's opinion that the case is one in which it is appropriate for the provisions of this section to be applied; and(c) the offender- (i) is convicted in those proceedings of at least two qualifying offences (including the offence in question); or (ii) has been convicted of a qualifying offence on at least one previous occasion during the relevant period. (2) [- definition of "qualifying offence" ie one to which Part VI of the Act applies, which was committed after the commencement of s.2 Proceeds of Crime Act 1995 and the court is satisfied that it is an offence from which the defendant has benefited]. (3) When proceedings under section 71....the court may, if it thinks fit, determine that (subject to subsection (5) below) the assumptions specified in subsection (4) below are to be made for the purpose- (a) of determining whether the defendant has benefited from relevant criminal conduct; and (b) if he has, of assessing the value of the defendant's benefit from such conduct. (4) Those assumptions are-(d) that any property appearing to the court- (i) to be held by the defendant at the date of conviction or at any time in the period between that date and the determination in question, or (ii) to have been transferred to him at any time since the beginning of the relevant period, was received by him, at the earliest time when he appears to the court to have held it, as a result of or in connection with the commission of offences to which this Part of this Act applies, (b) that any expenditure of his since the beginning of the relevant period was met out of payments received by him as a result of or in connection with the commission of offences to which this Part of this Act applies; and (c) that, for the purposes of valuing any benefit which he had or which he is assumed to have had at any time, he received the benefit free of any other interests in it. (5) Where the court has determined that the assumptions specified in subsection (4) above are to be made in any case it shall not in that case make any such assumption in relation to any particular property or expenditure if- (a) that assumption, so far as it relates to that property or expenditure, is shown to be incorrect in the defendant's case; (b) that assumption, so far as it so relates, is shown to be correct in relation to an offence the defendant's benefit from which has been the subject of a previous confiscation order; or (c) the court is satisfied that there would (for any other reason) be a serious risk of injustice in the defendant's case if the assumption were to be made in relation to that property or expenditure. (7) ["the relevant period" is defined as the period of six years ending when the proceedings in question were instituted against the defendant.][37]Rule 25A of the Crown Court Rules 1982, recently substituted by the Crown Court (Amendment) Rules 1995, makes further provision relating to any statement tendered by the prosecution for the purpose of confiscation proceedings, whether arising under the 1994 Act or the 1988 Act. "(2) Any statement tendered to the Crown Court by the prosecutor under s.11(1) of the said Act of 1994 or s.73(1A) of the said Act of 1988 shall include the following particulars, namely(a) the name of the defendant;(b) the name of the person by whom the statement is made and the date on which it was made;(c) where the statement is not tendered immediately after the defendant has been convicted, the date on which and the place where the relevant conviction occurred;(d) such information known to the prosecutor as is relevant to the determination as to whether or not the defendant has benefited from drug trafficking or relevant criminal conduct and to the assessment of the value of his proceeds of drug trafficking or, as the case may be, benefit from the relevant criminal conduct."[38]Before turning to consider the European Convention of Human Rights, we must note the relevant statutory provisions in the Human Rights Act 1998. "s.3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights." s.4(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right". s.4(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility".[39]Article 6 of the European Convention of Human Rights provides:
"1. In the determination 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. Judgment shall be pronounced publicly ...... 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; (b) To have adequate time and facilities for the preparation of his defence; (c) To defend himself in person or through legal assistance of his own choosing, or if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf ..... (e) To have the free assistance of an interpreter if he cannot understand or speak the language used in court."
[40]The First Protocol provides in Article 1 that:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possession 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."
[41]Examining the provisions of the 1988 Act and the 1994 Act, it is apparent that they have certain important features in common. These features are:(1) There have to be the relevant convictions before a confiscation order can be made. The convictions therefore provide a gateway to the confiscation process. Without a relevant conviction, there is nothing to trigger this process or to sustain a confiscation order. However, once the defendant has been convicted of the relevant offences, a confiscation order may be made in relation to the benefits of crime, irrespective of whether they can be proved to be linked to the original convictions or to any other specific or individual crime. Without these pre-conditions, a confiscation order cannot be made over the defendant's assets and property.(2) The standard of proof in determining whether a person has benefited from an offence, and for determining the amount in which a confiscation order is to be made, is that which is applicable to civil proceedings.(3) The confiscation process does not commence unless, following the relevant convictions, either the prosecutor has initiated the process or the court considers that the process would be appropriate (s.71 (1) 1988 Act and s.2 (1) the 1994 Act). The language of the relevant provisions clearly confers a discretion initially on the prosecutor, and then on the court, as to whether to initiate the confiscation process. This discretion will have to be exercised taking into account all relevant considerations, so as to avoid the risk of injustice.(4) In particular, while a defendant is required to show that an assumption in his case in incorrect, if he fails to do this, the court must still not apply an assumption where there would be a "serious risk of injustice in the defendants case if the assumption were to be made" (s.72AA(5) of the 1988 Act and s.4 (4) of the 1994 Act.) As to the weight that has to be given to the word "serious", any real as opposed to a fanciful risk of injustice can be appropriately described as serious. The court, at the end of the confiscation process, has therefore a responsibility not to make a confiscation which could create injustice. (5) In addition, under the 1988 Act s.72AA (3), the court "may, if it thinks fit" apply the assumptions, but it is not required to do so.[42]The statutory assumptions can very significantly increase the amount that a defendant is to be treated as having benefited from crime. A defendant does, however, have an additional protection against an order being made in an excessive sum. This arises from the distinction under both Acts between the benefits received to which the assumptions apply and benefits that can be realised . Although a defendant is unable or chooses not to rebut an assumption, he can still reduce his liability by showing that the amount which can be realised is less than the amount by which he is assumed to have benefited. (See s.71 (6) of the 1988 Act and s.5 (3) of the 1994 Act.).[43]The reason the legislation gives the courts the power to make confiscation orders and the reason why it creates statutory assumptions which interfere with the onus and burden of proof which normally exist in criminal proceedings is obvious and illustrated by the facts of these appeals. The provisions of the 1988 Act are aimed at depriving repeat offenders of the fruits of their crimes. The 1994 Act is aimed at achieving the same objective in relation to those who profit from drug trafficking. Both in the case of repeat offenders and drug traffickers, it is very much in the public interest that they are not able to profit from their crimes. If offenders are likely to lose their ill-gotten benefits, then this in itself will be a significant deterrent to the commission of further offences. In particular in relation to drug trafficking, justice requires that the profits made by the commission of those especially anti-social offences should be confiscated. Their profits are usually achieved at immense cost to those to whom the drugs are ultimately supplied. It is notoriously difficult to combat the traffickers' activities and the dangers that they create for society provide a justification for action out of the ordinary. In addition those at whom the legislation is aimed, whether repeat offenders or drug traffickers, are usually adept at concealing their profits and unless they are called upon to explain the source of their assets, it will be frequently difficult and often impossible to identify the proceeds of their crimes.[44]The 1988 Act only requires two offences of the specified description. It is argued by Mr Owen that you can commit two offences without being a repeat offender. However, in the case of Mr Rezvi (the only appellant to which the 1988 Act applies) there are substantial reasons for concluding that he has benefited substantially from crime. In cases where the position is not so clear, both the prosecution and the court should use the discretions to which reference has already been made to prevent s.72AA being misused. If there is a risk of injustice, the defendant is entitled to appeal against the confiscation order alone, without reference to any other aspect of the sentencing decision.[45]Mr Mitchell helpfully identifies six ECHR issues raised on this appeal. They are:(1) Whether an appellant should be granted leave to appeal out of time in reliance on rights secured from 2 October 2000 by the Human Rights Act 1998.(2) Whether in determining an appeal against a confiscation order the court should apply the law as it was when the confiscation order was made or, assuming the law has been modified by the HRA, as it now is in its modified form.(3) Whether a person against whom confiscation order is sought under s.2 of the Drug Trafficking Act 1994 / s.71 of the Criminal Justice Act 1988 is charged with a criminal offence within the meaning of Article 6 of the European Convention on Human Rights.(4) If such a person is charged with a criminal offence, whether the assumptions in s.4 of the Drug Trafficking Act 1994 / s.72AA of the Criminal Justice Act 1988 are compatible with Article 6 (2) of the ECHR.(5) The extent to which the confiscation provisions of the DTA / CJA are compatible with rights conferred by Article 1 of Protocol 1 of the ECHR.(6) Whether the provisions of s.11 of the DTA (prosecutor's statements) are compatible with Article 6 of the ECHR. We will consider these issues in turn. Leave to Appeal Out of Time[46]This is of importance to Mr. Rezvi because his appeal was five months out of time. It is desirable that the court should be in a position to deal with his grounds of appeal since the other appellants do not involve the 1988 Act. It is not usual to grant leave to appeal out of time where the grounds of appeal are based on post-trial changes in the law. This practice has been reaffirmed in relation to applications based on the coming into force of the HRA 1998. (See R v Lambert and Others [2000] The Times 5 September 2000.) The court would not wish in this case to do other than confirm the existing practice. However, we are satisfied that the issues raised by Mr Owen on Mr Rezvi's behalf are of considerable general interest and for that reason we extend time. Retrospectivity[47]Mr. Mitchell has submitted that section 3(1) itself is not stated to be retrospective and so the normal rules of construction should apply and it should not be treated as retrospective. He submits that statutory provisions which were properly relied on at the time of the decision under appeal should not have their meaning changed retrospectively, because to do so would introduce radical uncertainty into the legal system. It would, in an appropriate case, undermine the vires for subordinate legislation and might enable an appeal to succeed when there was no error of law at the trial. He has sought to pray in aid observations of the Attorney-General in the House of Lords when resisting an attempt to include a specific provision in Section 10 of the Act that it should not be retrospective; that the specific provision for retrospectivity in what became s.22(4) of the Act implied "that, in the absence of express provision to the contrary, the Bill should not have retrospective effect". He also relies on observations of Lord Hobhouse in Ex. p . Kebilene [1999] 3 WLR 972 at p.1008 where he said:- "Lord Lester submitted that once the Human Rights Act comes into force, an additional and more potent principle of statutory construction will come into play ...... He submits that [s.3(1)] will enable s.16A to be construed so as not to impose any burden of proof upon the applicants. This, he submits, will retrospectively render invalid any conviction based upon a direction to the jury that s.16A does impose such a burden and that any convictions would then have to be set aside. Whether this argument materially advances his submission is clearly open to contrary argument. Neither s.6 nor s.7 is retrospective nor is, for that matter, s.3, as Lord Lester's argument recognises. It is therefore difficult to maintain that the prosecution and trial of the applicants in accordance with s.16A has involved any unlawful conduct or will do so or will provide them with any ground for having any convictions resulting from their trial quashed."[48]Section 3(1) cannot be considered in isolation. Sections 6 and 7 are material. Section 6(1) provides:- "It is unlawful for a public authority to act in a way which is incompatible with a Convention right". `Public authority' includes both a court and the D.P.P. or the relevant Crown Prosecutor (s.6(3)). The remedy for any action which is incompatible with a Convention right lies in s.7 which, so far as material, provides:- "(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may ... (b) rely on the Convention right or rights concerned in any legal proceedings" Section 7(6) provides:- "In subsection (1)(b) `legal proceedings' includes-(a) proceedings brought by or at the instigation of a public authority; and(b) an appeal against the decision of a Court or tribunal." Finally, s.22(4) provides;- "Paragraph (b) of subsection (1) of Section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section".[49]Accordingly, and contrary to the general observations of Lord Hobhouse, the Act does provide for a limited retrospectivity. The prosecutions of all the appellants before us were clearly `proceedings brought by or at the instigation of a public authority'. Indeed, the vast majority of criminal proceedings will be within s.22(4). These considerations led Lord Bingham, C.J. to say in ex. p Kebilene in the Divisional Court ( [1999] 3 WLR 175 at p.187B):- "If, at the time of the appeal hearing, the central provisions of the Act of 1998 had been brought into force, the applicants would on appeal be entitle to rely on sections 7(1)(b) and 22(4) of the Act and the convictions (on the hypothesis of inconsistency between s.16A and the Convention) would in all probability be quashed, at some not inconsiderable cost to the public purse and no obvious advantage to the public....". Lord Bingham did, however, at the end of his judgment, refer to s.3(1) in this way (at p.192C):- "I think it undesirable to express any opinion, authoritatively, on whether, if section 3 of the Act of 1998 were in force, it would be possible to read and give effect to sections 16A and 16B in a way which is compatible with Convention rights. This is a matter which in my view deserves attention, particularly in relation to Section 16A". We do not understand Lord Bingham to have been calling in question the Court of Appeal's power to apply s.3, but to have been referring to the question whether s.16A could be construed in accordance with s.3 so as to be compatible with the Convention.[50]In the House of Lords, a majority (Lord Slynn of Hadley, Lord Steyn and Lord Cooke of Thorndon) accepted Lord Bingham, C.J's views of the effect of ss.7(1)(b) and 22(4). Lord Steyn specifically dealt with and rejected an argument put on behalf of the D.P.P. that ss.7(1)(b) and 22(4) only applied to a trial and not to an appeal. He said ([1999] 3 W.L.R. at p.984C):- "On appeal to the House, but not in the Divisional Court, Mr. Pannick argued that s.22(4) read with s.7(1)(b) is apt only to extend to the trial. It was an argument of some technicality. The language of the statute does not compel its adoption and a construction which treats the trial and the appeal as parts of one process is more in keeping with the purpose of the Convention and the Act of 1998. It is the sensible and just construction. I would reject the argument advanced on behalf of the Director on this point".[51]While we have not been presented with an argument which raises the technicalities which Mr. Pannick developed before the House of Lords, we feel we should adopt Lord Steyn's approach, so the appellants are entitled to rely on s.7(1)(b) and s.22(4) in an appeal which takes place after 2 October 2000. In our judgment, where the original proceedings are brought by, or at the instigation of, a public authority, as is the case with a prosecution, an appeal by the defendant is part of the proceedings to which s.22 (4) applies. There cannot be a different position on an appeal from that of the trial so far as the issue of the retrospectivity of the Human Rights Act is concerned. Any other construction would mean that in criminal cases, the Court of Appeal could not give the required protection to the individual (who would clearly be a victim of any unlawful act) so that there would be a need for an otherwise unnecessary but time-consuming and expensive trip to Strasbourg. In addition, otherwise s.7(1)(b) will apply where appeal is by a public authority, but not when the appeal is made by the defendant.[52]In cases where primary legislation has not required the trial court to make a decision which is incompatible with a Convention right, there is no difficulty. The Appeal Court will be able to apply the Convention and determine whether any relief should result. But if the decision below was based on a provision of primary legislation, s.6(2)(a) will apply. This provides:- "Subsection (1) does not apply to an act if - (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently;" This means that the prosecution and the court below, if unable to apply the approach required by s.3(1), would have been unable to decide differently, so that s.6(1) and consequently s.7 could not apply to them. But s.6(1) does apply to the Court of Appeal, and s.7(1) covers not only a past, but a proposed act.[53]It would, in those circumstances, be curious if the Court were unable to apply s.3(1). Then, if satisfied that there was an incompatibility, the Court would be unable to remedy it by applying a compatible construction of the relevant provision. Furthermore, and equally importantly, the Court would be unable to give the guidance needed for future application of the relevant provisions. This is not the position and s.3(1) has retrospective effect if s.22(4) and 7(1)(b) apply.[54]Mr. Mitchell deployed a further argument based on s.11(3) of the Criminal Appeal Act 1968. This enables the Court of Appeal to quash any sentence or order which is the subject matter of the appeal and "in place of it to pass such sentence or make such order as they think appropriate for the case as the Court below had power to pass or make when dealing with him for the offence". It is submitted that where a statutory provision require a particular sentence or order to be made, the Court of Appeal cannot intervene. That submission flies in the face of the decisions in a number of cases heard in this Court ( R v Lambert (s.28 of the Misuse of Drugs Act), R v Fulcher (s.34 of the Criminal and Public Order Act) and R v Offen (mandatory life sentences)). In any event, in the instant cases the trial judges had power to make whatever order the Court of Appeal considers appropriate and so the argument could not apply to any of these cases.[55]Any legal system is entitled to impose time limits and, if reasonable, they can apply to disable an individual from alleging a breach of the Convention. Criminal Charge[56]It is not in issue that Article 6 (2) applies to the trial of the offences which, if proved, provide the gateway for the confiscation orders. In general, the language of Article 6 (2) would be expected to apply to the trial process only and not generally to the sentencing process. (There is, however, the exceptional situation of a Newton hearing to which Article 6(2) would apply.) In English domestic law, confiscation orders are part of the sentencing process which follow upon the conviction of the defendant of the criminal offences with which he is charged. There are, however, two arguments advanced on behalf of the appellants as to why Article 6 (2) should apply to the process involved in the making of a confiscation order. The first argument depends upon the mechanics involved in the making of a confiscation order. The order can and will usually be based upon benefits not directly attributable to the offences with which the defendant has been convicted. It is therefore argued that the confiscation procedure is in itself implicitly a trial of other offences to which the presumption of innocence should be applied. The second argument is that the confiscation process is so connected to the trial process that it should be considered part of that process.[57]In support of the first argument, strong reliance is placed upon the decision of the majority of the High Court of Justiciary in McIntosh v HM Advocate (October 2000). In that case, similar arguments were advanced to those that arise here but in relation to the Proceeds of Crime (Scotland) Act 1995 ("the 1995 Act"). The 1995 Act contains similar provisions to s.72AA of the 1988 Act and s.4 of the 1994 Act. The relevant provisions of the 1995 Act are helpfully summarised by Lord Prosser in the following terms:
"[2] In terms of section 1 (5) of the Act, it is provided that the sum which a confiscation order requires an accused to pay in the case of a drug trafficking offence shall be an amount not exceeding what the court assesses to be "the value of the proceeds" of the person's "drug trafficking", subject to a limit related to what may be realised. The expression "drug trafficking" is defined in s.49(2) of the Act as meaning, subject to subsections (3) and (4) of the section, doing or being concerned in any of a list of activities, each of which would constitute a contravention of a statutory provision relating to controlled drugs. "
Drug trafficking" is an expression which, in terms of the statutory definitions, is quite separate and distinct from a "drug trafficking offence". [3] Section 9(1) of the 1995 Act provides that where the prosecutor applies for the making of a confiscation order, he may lodge with the clerk of court a statement as to any matters relevant, in connection with a drug trafficking offence, to the assessment of the value of the accused's proceeds of drug trafficking. Such a statement was lodged: it concerns assets and expenditure, with no allegations of drug trafficking as such, but stating a figure for proceeds of drug trafficking. Thereafter the petitioner lodged (and subsequently adjusted) Answers to that Statement. Section 9 contains a number of further provisions bearing upon the assessment of the value of the proceeds of drug trafficking when a statement has been lodged; but these give rise to no specific point in the present proceedings. Without prejudice to s.9, however, in terms of s.3 (2) of the Act, "the court may, in making an assessment as regards a person under s.1 (5) of this Act, make the following assumptions, except in so far as any of them may be shown to be incorrect in that person's case - (a) that any property appearing to the court - (i) to have been held by him at any time since his conviction; or, as the case may be, (ii) to have been transferred to him at any time since a date six years before his being indicted, or being served with the complaint, was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with the drug trafficking carried on by him; (b) that any expenditure of his since the date mentioned in paragraph (a) (ii) above was met out of payments received by him in connection with drug trafficking carried on by him, and (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." In terms of section 3(1), a person's "proceeds of drug trafficking" are defined as any payments or other rewards received by him at any time in connection with drug trafficking carried on by him or another; and the value of these proceeds of drug trafficking is the aggregate of the values of the payments or other awards. The figure for proceeds contained in the prosecutor's Statement apparently derives from an application of these assumptions."[58]S.3 (2) of the 1995 Act only states that the court "may" make any of a number of listed assumptions except insofar as any of them may be shown to be incorrect in the accused's case. To that extent, it is closer to s.72AA than s.4 of the 1994 Act. The 1995 Act does not, however, give the court a residual discretion to disapply the assumptions if there is a serious risk of injustice. However, the difference in the statutory provisions are not significant, having regard to the approach adopted by Lord Prosser, with which Lord Allanbridge agreed.[59]Lord Prosser (para. 6) referred to the decisions of the ECHR in Foti v Italy (1983) 5 EHRR 313 (para. 52) and Eckle v Germany (1982) 5 EHRR 1 (para. 73). He cited, with apparent approval, the statement in Foti that the charge: "may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect".[60]Lord Prosser indicated that both the petitioner and the advocate depute had asked the court to consider the essential nature of an application for a confiscation order, and the proceedings which followed such an application. As to this Lord Prosser said:
"They were triggered by the conviction and could be described as natural sequelae of conviction. While they were a part, they were not merely a part of imposing sentence in respect of that conviction. Although they did not involve any new charge or new offence in terms of Scots Law, and were part of the original proceedings, they also constituted within that context, a separate identifiable process, which began with the application and Statement, which were "measures" of the kind described in Foti carrying the implication of an allegation that the petitioner had committed a criminal offence of the type envisaged in Eckle ."
[61]Basing himself on these arguments, Lord Prosser went on to state:
"...even if one assumes for the moment that the application and Statement are to be regarded as charging a petitioner with a criminal offence, in the appropriate Convention sense, I would make certain observations at this stage as to how, in my opinion, Article 6 (2) applies to the subsequent proceedings. Such proceedings are intended by the prosecutor to culminate in a confiscation order. It is true that the order is an order to pay a sum of money. It is also true, in my opinion, that such an order to pay a sum of money is a form of additional penalty for the offence of which the petitioner has been convicted. But I am not persuaded that it is only or merely an order to pay a sum of money, or that the various statutory provisions dealing with drug trafficking and its proceeds and their valuation are merely a mechanism for fixing a ceiling, casting no light upon the essential nature of the order to pay money. Such a proposition appears to me to fly in the face of the quite elaborate provisions of the statute dealing with these matters, as confirmed by the title of the Act. In particular, they fly in the face of the fact that if the assumptions are shown to be incorrect, and nothing has been resolved by evidence or admission, no confiscation order can be made. The court can make such an order only if, by one means or another, it has reached the position of being able to say that there are proceeds of drug trafficking. How it reaches that position - by making assumptions or otherwise - is another matter entirely. But the payment is a payment reflecting the value of the whole or part of proceeds of drug trafficking. The use of the word "confiscation" seems to me to be perfectly appropriate as a way of describing such an order; but whether it is so or not does not seem to me to matter. Nor does the fact that this is part of the sentencing process. The point is that such an order can only be made if there are, for this purpose, proceeds of drug trafficking, with an assessed value. Since that is a point which has to be reached, on a route towards the making of an order, the application is in my opinion properly to be seen as inter alia an assertion that there has been drug trafficking, and an invitation to the court to proceed on that basis. If an order is made, the petitioner will be significantly affected. And the requirements of Eckle and Foti , if one proceeds on the hypothesis that drug trafficking is criminal, will be met. (Para. 29)"
[62]Lord Prosser added; "It is therefore asking the court to reach the stage of saying that he has trafficked in drugs. If that is criminal, that seems to me to be closely analogous to an actual charge of an actual crime under Scottish terms. There is of course no indictment or complaint, and no conviction. And the advocate depute pointed out a further difference, that a Scottish complaint or indictment would have to be specific, and would require evidence, whereas this particular allegation was inspecific and based upon no evidence. But the suggestion that there is less need for a presumption of innocence in the latter situation appears to me to be somewhat Kafkaesque, and to portray a vice as a virtue. With no notice of what he is supposed to have done or any basis which there might be for treating him as having done it, the accused's need for the presumption of innocence is in my opinion all the greater." (Para. 30)[63]Lord Prosser continued by indicating that he was not suggesting that draconian penalties were inappropriate in combating drug trafficking. Furthermore, he indicated that it was perfectly understandable and appropriate for Parliament to incorporate in the law transfers of the burden of proof. In addition, he acknowledged "without hesitation that such a burden could readily and properly be regarded as within reasonable limits" and indicated that it was his impression that if the section had only been slightly differently worded, the Crown could have achieved its objective. None the less, he was of the view that the assumptions could not be regarded as reasonable, apparently because they could be "baseless assumptions".[64]Lord Kirkwood, on the other hand, considered that a confiscation order is no more than an additional penalty:
"which the court has been given the power to impose in appropriate circumstances in respect of the drug trafficking offence of which the accused had already been convicted"
. He added, "However, it is important to note that the confiscation order relates to the proceeds of drug trafficking, not the proceeds of drug trafficking offences".[65]He therefore accepted the submission that "drug trafficking" covered what could be called "a basket of different types of conduct, some of which would not be criminal although others would. Accordingly, an allegation that an accused had been engaged in trafficking would not necessarily involve an allegation that he had committed a drug trafficking offence".[66]We are not convinced that this last point is correct in the case of drug trafficking under the 1994 Act and we would refer to the definition of drug trafficking in s.1 and the language of s.49, s.50 and s.51.[67]Turning to the alternative contention, Mr Owen relies strongly on Minelli v Switzerland (1983) 5 EHRR554 . In Minelli , the ECtHR decided that Article 6 (2) could be contravened by making an order for costs when a private prosecution for criminal defamation was determined before judgement on the ground that the limitation period had expired. This meant Minelli was never convicted of anything and the ECtHR upheld the contention of the defendant that an award of costs against him presumed his guilt in violation of the presumption of innocence required by Article 6 (2).[68]In its judgment the Court stated:
"In the Court's opinion, Article 6 (2) governs criminal proceedings in their entirety, irrespective of the outcome of the prosecution, and not solely the examination of the merits of the charge." (Para. 30) Later ECtHR added the important point that: "
In conformity with its established jurisprudence that in proceedings originated in an individual application, the Court has to confine itself, as far as possible, to an examination of the concrete case before it. Accordingly, it has to give a ruling not on the Zurich legislation and practice in abstracto but solely on the manner in which they were applied to the application." (Para. 35) The ECtHR concluded its opinion by stating: "The presumption of innocence will be violated if, without the accused having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal findings; it suffices that there is some reasoning suggesting that the court regards an accused as guilty." (Para. 37)[69]Having carefully considered the judgments in McIntosh and the arguments of the parties, we regard Article 6 (2) as being a specific example of the application of the more general obligations contained in Article 6 (1) which sets out the right to a fair trial. It is to be noted that Article 6 (1) commences by stating:
"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."
[70]English domestic law certainly does not regard a decision under the legislation we are considering as being a "determination of" "civil rights and obligations". We would expect the ECtHR to take the same view. Yet undoubtedly, Article 6(1) would apply to the process leading up to the making of a confiscation order. The confiscation order is made in criminal proceedings. It is accepted by all the parties that it is penal. It must therefore be regarded for the purposes of Article 6(1) as at least part of the determination of a criminal charge since there is no other option for which Article 6(1) provides. The fact that a defendant who does not comply with a confiscation order, which may not be based on criminal conduct proved at the trial, may be ordered to serve a substantial sentence in default underlines this fact. A defendant threatened with consequences of this nature would be expected to be entitled to protection equivalent to that provided by Article 6(2) even if that paragraph did not exist under Article 6 (1), unless there was objective justification for not applying the presumption of innocence.[71]It is true, that as a matter of domestic law, the manner in which s. 72AA of the 1988 Act and s.4 of the 1994 Act are drafted means that there is nothing in the nature of what in this jurisdiction would normally be regarded as a "charge". Using the term "charge" in its domestic sense, it is the finding of a defendant guilty of the charge which renders him liable to a confiscation order. What is being confiscated is, however, either the proceeds of crime or trafficking in drugs. Under the legislation, if the defendant can show that the property is not the proceeds of crime then no confiscation order is made. The legislation is after all directed at a person who is alleged to have benefited from the proceeds of crime.[72]A decision of the ECtHR which explains our approach is Hoang v France (1992) 6 EHRR 53. In that case, a defendant charged and convicted under French drugs legislation with unlawful importation of narcotics and Customs evasion complained that the Customs Code violated his right to a fair trial and his right to be presumed innocent until proved otherwise. In its judgment, the Courts stated:
"As was pointed out in the Salabiaku judgment of 7 October 1988, (1988) 13 EHRR 379, Article 6 requires States to confine presumptions of fact or of law provided for in their criminal law within reasonable limits which take into account the importance of what is at stake and maintain the rights of defence. However, the Court is not called upon to consider in the abstract whether ... the Customs Code conforms to the Convention. Its task is to determine whether they were applied in the instant case in a manner compatible with the presumption of innocence and, more generally with the concept of a fair trial." (Para. 33) Later the Court added: "
It therefore appears that the Court of Appeal duly weighed the evidence before it, assessed it carefully and based its finding of guilt on it. It refrained from any automatic reliance on the presumptions created in the relevant provisions of the Customs Code and did not apply them in a manner incompatible with Articles 6 (1) and (2) of the Convention."[73]As these passages from the judgment illustrate, the Court was not adopting a technical approach to very similar issues to those which arise here. It was adopting a broad approach which fully recognised the importance of justice being done not only to a defendant but also to the legitimate interests of society. This is, of course, subject to the defendant receiving a fair trial. That is essential (see Lord Hope's opinion in Montgomery v H.M. Advocate General and Anr (The Times 6 December 2000)).[74]Since the decision in McIntosh , the Privy Council has given its decision in R v Brown , (5 December 2000). This was a case involving the presumption of innocence in different circumstances from here. However, in giving their opinions, the members of the Privy Council provide very valuable guidance as to the correct approach to Article 6. Each of the opinions of their Lordships contain helpful statements of principle. Their collective approach is reflected in the following passages from the opinion of Lord Bingham of Cornhill: "What a fair trial requires cannot, however, be the subject of a single, unvarying rule or collection of rules. It is proper to take account of the facts and circumstances of particular cases, as the European Court has consistently done. Before considering the right not to incriminate oneself with which this appeal is specifically concerned, it is helpful to review the way in which the European Court has treated other rights held to be comprised within Article 6. The presumption of innocence[75]The right to be presumed innocent of a criminal offence until proved guilty according to law is expressed in Article 6 (2). This appears on its face to be an absolute requirement. But it has been held that it does not prohibit rules which transfer the burden to the accused to establish a defence, providing the overall burden of proof remains on the prosecution, nor does it necessarily prohibit presumptions of law or fact provided that these are within reasonable limits. In Salabiaku v France (1988) 13 EHRR 379 the Court held, in para. 28 of its judgment:
"Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions and principles. It does however, require the Contracting States to remain within certain limits in this respect as regards criminal law... 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 with reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence. The court proposes to consider whether such limits were exceeded to the detriment of Mr. Salabiaku."
[76]Towards the end of his opinion, in Brown Lord Bingham adds:
"The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressed or implicitly, within Article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the Court throughout its history. The case law shows that the Court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree."
[77]This broad and flexible approach emphasised in the various opinions in Brown has to be applied not only to the issue of whether Article 6(1) has been complied with but also to the question of whether the various sub-paragraphs of Article 6 apply here. When the importance of this approach is recognised, we conclude that the proper approach on the present appeals is to examine the confiscation process on the basis that Article 6 as a whole including Article 6(2) applies. This does not mean however that the 1988 Act or the 1994 Act are incompatible with Article 6. This is a question which we will have to consider later.[78]Before we do so, it is necessary to refer shortly to additional arguments relied on by Mr Mitchell on behalf of the Crown. He prays in aid the decision of the ECtHR in Welch v United Kingdom (1995) 20 EHRR 247 . The Welch decision was concerned with Article 7 and not Article 6. Article 7 (1) prevents a person being found guilty of a criminal offence which did not constitute a criminal offence under national or international law at the time when it was committed. It also prevents "a heavier penalty" being imposed than that which was applicable at the time that the criminal offence was committed. The issue was therefore different from that which is being considered here. Welch had complained to the ECtHR that the Drug Trafficking Offences Act 1986 (the predecessor of the 1994 Act) constituted a retrospective criminal penalty contrary to Article 7. This application was upheld. But Article 6 was not in issue. As appears from the headnote, the ECtHR decided that: "The concept of a penalty in Article 7 (1) is like the notions of "civil rights and obligations" and "criminal charge" in Article 6 (1), an autonomous Convention concept. To render the protection offered by Article 7 effective, the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a penalty within the meaning of this provision." (See para 27.)[79]We regard our approach to the interpretation of Article 6 as reflecting this approach of the ECtHR in Welch . An additional illustration of this approach is provided by Deweer v Belgium (1980) 2 EHRR 439. In that case, the Court recognised that in deciding the nature of proceedings, "the Court is compelled to look behind the appearances to investigate the realities of the procedure in question" (para. 44). The Court added that in that case there existed: "... a combination of concordant factors conclusively demonstrating that the case had a criminal character under the Convention. The "charge" could, for the purposes of Article 6 (1) be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence." (Para. 46)[80]These statements appear highly relevant here. Mr Mitchell however, relies on the comment of the ECtHR in Welch in para. 36 where the court stated: "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." (Para. 36)[81]In Elton v UK (application no. 32344/96) the Commission applied the decision in Welch to an application which raised the issue as to whether s.2 of the Drugs Trafficking Offences Act 1986 was compatible with Article 6 (2) of the Convention. The Commission unanimously concluded that the application was manifestly ill founded. Decisions of the Commission are always entitled to respect, but the decision like that in Welch did not relate to the 1994 Act but the less stringent provisions of its predecessor and we do not find its limited reasoning convincing. In addition, since the hearing, we have been referred to the decision in Phillips v UK November 2000 (41087/98) involving the 1994 Act, where the ECtHR found an application based on a confiscation order being made in breach of article 6 (2) admissible notwithstanding the UK government's arguments as to the absence of a charge.[82]We accept, as the Crown submits, that a confiscation order while penal, is not a penalty for the qualifying offence or offences in respect of which the defendant has already been charged and convicted. We also accept under English Law that the confiscation order which a penalty does not involve a conviction for some additional unparticularised offence. The conviction only places the defendant at risk of being subject to a confiscation order. But this does not mean Article 6 (2) is not capable of applying to the confiscation process. In determining whether Article 6 (2) can properly be applied to that process, it is the character of that process as a whole which is important. It is a mistake to focus only on the word "charge". What is critical is that Article 6(2) is only an application of the broad principle contained in Article 6(1) and, in the absence of any justification for a different approach, the process is one to which the presumption of innocence should apply.[83]Mr. Mitchell also relies on certain United Kingdom authorities, but those authorities are not binding upon us. In our view, they take the situation no further. The courts did not have the benefit of full argument or the decision in Brown .[84]We would therefore summarise our conclusions by saying that the compatibility of the confiscation procedure has to be considered on the assumption that it is subject to the requirements of both Article 6(1) and (2) taken together. Compatibility With Article 6[85]Under both the 1988 and the 1994 Acts, the confiscation proceedings include an express reversal of the onus of proof. In both cases, if the court makes the statutory assumptions, the process will involve a burden being imposed upon a defendant which, if he does not rebut it, will mean he will be at risk of having a confiscation order made against him. It is therefore necessary to consider whether, notwithstanding this, the statutory confiscation processes are capable of complying with Article 6 and, if so, whether in any particular case the manner in which the statutory provisions have been applied complies with Article 6.[86]When considering the first question, it is appropriate to show a degree of deference to the policy which the legislature considered was in the public interest. This is made clear by the Privy Council in Brown . Lord Steyn's opinion refers both to the speech of Lord Hope of Craighead in R v Director of Public Prosecutions exparte Kebilene (1999) 3 WLR 972 and Lester & Pannick Human Rights Law & Practice , (1999), p.74. It is incontrovertible that both Acts deal with a serious social problem which should be addressed. It is also clear that while in the majority of situations, it will be difficult for the prosecution to establish that any particular assets of a defendant were the proceeds of crime or drug trafficking, it will be far easier for a defendant, in the majority of circumstances, to establish, on the balance of probabilities, that the assets in dispute have an innocent source. After all, usually a defendant will know what the origin of his assets is. He will also be likely to be aware of his financial obligations which have to be set against his assets.[87]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 Kebilene (at p.992)). This is therefore a situation where it is necessary to carefully 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. In both cases there is a discretion to be exercised and the manner in which the discretion is exercised is capable of being reviewed by this court. 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.[88]It is very much a matter of personal judgement 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.[89]The appellants point to the fact that a new approach to confiscation is being contemplated by the Government. This approach does not involve a criminal process. Instead it adopts a civil process. This was relied on by the appellants for suggesting that an appropriate alternative to the present procedures is capable of being devised. If the civil procedure is introduced and is successful, this does not mean that the present procedure is unjustified. On the contrary the fact that the present procedures take place within the criminal context, may well provide additional protection to the defendant.[90]In the different context of Article 1 of Protocol 1 of the ECHR, the ECtHR has itself been prepared to regard as justified very significant interference with Article 6. For example, this has occurred in cases involving those who are merely alleged to be members of the mafia. (See the case of Raimondo v Italy (1994) A281/AP3.)[91]The jurisprudence of the ECtHR makes clear that it is the application of the statutory provisions to the facts in a particular case which will be critical to the Court's determination as to whether Article 6 has been contravened. The courts have been given the responsibility of not making orders if there is a serious risk of injustice. The courts will be astute to avoid injustice. In performing their responsibility, the court's will be mindful of the structure of the legislation. This does not require any direct connection between an offence of which a defendant has been convicted and the resources of the defendant which are to be confiscated. However, the scale of the offending actually proved may be significant in the court determining whether it is safe to make the confiscation order. The court should be alert to make allowance for situations which make it impractical for a defendant to satisfy the burden of proof which the legislation places upon him.[92]In McIntosh, the majority took a different view of the legislation there being considered. It is not any part of our task to review their decision. However, we would not apply their approach to the legislation with which we are concerned. We appreciate that we have the advantage of the opinions given in Brown which were not available at the time that MackIntosh was decided. On the information before us, we reject the suggestions that either Acts are incompatible with Article 6. Compatibility With Article 1 of Protocol 1 of the EctHR[93]We do not see any reason for our coming to a different conclusion as to Article 1 of Protocol 1 to that to which we have come to in relation to Article 6 of the Convention. It appears to us that virtually the same considerations are in issue. We regard the legislation as being a proportionate response to the need to protect the public, the interference which confiscation involves with Article 1 is therefore justified. The burden on the convicted person is not to prove his innocence of any particular charge but as a consequence of his conviction simply to explain the source of his assets, income and expenditure. Having regard to the scale of the threat to society constituted by drugs and other serious crimes, as to which the evidence place before us is eloquent, we do not regard the results as being disproportionate. As the Vienna Convention confirms, the need for States to take action is not confined to this country. Whether the provisions of section 11 of the 1994 Act & Section 73 of the 1988 Act are compatible with Article 6.[94]Mr Milford's conviction has subsequent to the hearing been quashed and a retrial ordered. This confiscation order is no longer relevant. This is an issue raised only in the appeal by Mr. Milford. However, it appears to us that this ground of appeal, which was not canvassed in oral argument, is misconceived. We deal with it briefly. The Statement provided does not constitute a contravention of Article 6. In fact, it is an example of the legislation seeking to protect the position of a defendant. A statement serves the useful purpose of forewarning the defendant of the case of the prosecution which he will have to meet as to his assets. It should assist a defendant by making it clear the matters with which he has to be prepared to deal. It is right that, as the rules require, the prosecution should identify any information which would assist the defendant. Conclusion[95]The judgment which we have given so far has focussed on the general principles raised by the appeal. We have held that, if the statutory provisions giving the courts the power to make confiscation orders are properly applied by courts, they will not contravene Article 6. It is, however, the application of Article 6 to the facts of a particular case which are all important. As the Appellate Committee in R v Forbes (14 December 2000) stated: "references were made in argument to the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights. That is an absolute right. But as the Judicial Committee of the Privy Council has very recently held in Procurator Fiscal (Dunfermline) & Anr. v Brown (unreported, 5 December 2000), the subsidiary rights comprised within that Article are not absolute, and it is always necessary to consider all the facts and the whole history of the proceedings in a particular case to judge whether a defendant's right to a fair trial has been infringed or not. If on such consideration it is concluded that a defendant's right to a fair trial has been infringed, a conviction will be held to be unsafe within the meaning of s.2 of the Criminal Appeal Act 1968." (Para. 24)[96]Apart from the appeal by Mr. Rezvi, the exercise of applying this judgment to the facts of the individual cases will be left to further arguments. In the case of Rezvi , the argument which was advanced by Mr. Owen depended on the fact that apart from the two offences to which he pleaded guilty, the other offences were not proceeded with. Mr. Owen submitted that the convictions could not justify the confiscation order which was made. He argues that the scale of the confiscation order indicates that Mr. Rezvi was in effect being found guilty of offences for which he had not been tried because the counts had been ordered to lie on the file. This argument misapplies the statutory structure of the confiscation process. The confiscation order is not made in relation to the offences for which Mr. Rezvi has not been tried. The counts on which he has been found guilty only enable the investigation as to the extent to which he has benefited from his criminal conduct to take place. The order is in relation to the benefit which he has obtained in consequence of "any relevant criminal conduct". It is not necessary to connect the benefit to any specific crime. The Court must however, exercise the discretions to which we have already made reference.[97]The number of convictions is all-important in determining the punishment of a defendant. Under the legislation, the object of confiscation is not punishment but the forfeiture of an illicit profit. Clearly, the greater the number of convictions the greater the likelihood of benefit, but the statutory minimum of convictions is all that is required for the confiscation process to be put in motion. In the course of that process, the court can take into account the number of offences proved because they are probative either of the likelihood of the defendant having benefited or not benefited from his offences.[98]There is on the facts of Mr. Rezvi's case no reason to think that the conclusion which the court came to was other than appropriate and in accordance with Article 6. In his case, we would dismiss the appeal.[99]Arrangements will be made to hear further argument in the case of the other appeals. The following question was certified as a point of law of general public importance:
"Are the provisions of Section 72AA of the Criminal Justices Act 1988 as amended and section 4 Drug Trafficking Act 1994 incompatible with Article 6 of the European Convention on human rights and/or protocol 1"
Leave to appeal to the House of Lords was refused.

Cited in 1 later judgment