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

HOUSE OF LORDS

SESSION 2008–09
[2009] UKHL 19

on appeal from:[2008] EWCA Crim 146

OPINIONS

OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE

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

Appellate Committee

Lord Phillips of Worth Matravers

Lord Rodger of Earlsferry
Lord Brown of Eaton-under Heywood
Lord Mance
Lord Neuberger of Abbotsbury

Counsel

Appellant’s: Respondent:

Tim Owen QC Mark Lucraft QC

Timothy Kendal Thomas Payne

(Instructed by Henry Milner & Company ) Mark Sutherland Williams

(Instructed by Revenue & Customs Prosecutions

Office)

Hearing date :

5 FEBRUARY 2009

ON
WEDNESDAY 29 APRIL 2009

HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE

R v Briggs-Price (Appellant) (On appeal from the Court of Appeal
(Criminal Division))
[2009] UKHL 19

LORD PHILLIPS OF WORTH MATRAVERS
My Lords,
1. Under the Drug Trafficking Act 1994 (“the 1994 Act”) the assets of a defendant convicted of a drug trafficking offence are liable to confiscation to the extent that he has benefited from drug trafficking. The benefit in question is not restricted to the benefit derived from the offence or offences in respect of which the defendant has been convicted. In confiscation proceedings the prosecution has to satisfy the court that the defendant has benefited from drug trafficking and the extent of such benefit. The normal way of doing this is to prove that the defendant possesses, or has possessed, property and to invite the court to assume that the property in question represents or represented benefit derived from drug trafficking. The Act expressly provides that the court must make this assumption unless it is shown to be incorrect or would involve a serious risk of injustice.
2. The appellant is subject to a confiscation order imposed under the 1994 Act in the sum of £2,628,490. He appealed unsuccessfully against that order to the Court of Appeal and now appeals against the order of that court dated 22 January 2008.
3. In this case the prosecution adopted an unusual approach to proving that the defendant had benefited from drug trafficking and the extent of that benefit. They proved that the defendant had committed drug trafficking offences other than that in respect of which he was convicted and invited the court to estimate the profit that he must have derived from these offences.

4. Mr Owen QC for the appellant submitted that this approach was not permitted on the true construction of the 1994 Act. He submitted that, if the relevant statutory provisions are given their natural meaning, they do not permit the prosecution, in confiscation proceedings, to establish that a defendant has benefited from drug trafficking by proving that he has committed drug offences and then inviting the court to infer the monies expended or received in relation to those offences. Alternatively, he submitted that such an approach is incompatible with the requirements of the European Convention on Human Rights, so that the relevant provisions of the 1994 Act have to be read down so as to preclude its adoption.

The statutory provisions

5. By section 2(1) of the 1994 Act where a defendant appears before the Crown Court to be sentenced in respect of one or more drug trafficking offences, and the prosecutor asks the court to proceed under section 2, or the court considers that it is appropriate to do so, the court is required to proceed 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, before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned, determine in accordance with section 5 of this Act the amount to be recovered in his case by virtue of this section.
(5) The court shall then, in respect of the offence or
offences concerned –
(a) order the defendant to pay that amount;
(b) take account of the order before–
(i) imposing any fine on him;
(ii) making any order involving any payment
by him; or
(iii) making any order under section 27 of
the Misuse of Drugs Act 1971 (forfeiture
orders) or section 43 of the Powers [1973 c.

62] of Criminal Courts Act 1973
(deprivation orders); and
(c) subject to paragraph (b) above, leave the order out of account in determining the appropriate sentence or other manner of dealing with him.”

6. Section 5 restricts the amount to be recovered under a confiscation order to the amount that the court certifies is capable of being realised from the defendant’s assets at the time that the order is made. Subject to that limitation it provides that the amount to be recovered under the order shall be the amount that the court assesses to be the value of the defendant’s proceeds of drug trafficking. Section 4 makes provision for assessing the proceeds of drug trafficking. It provides:
“4. – (1) For the purposes of this Act –
(a) any payments or other rewards received by a person at any time (whether before or after the commencement of this Act) in connection with drug trafficking carried on by him or another person are his proceeds of drug trafficking; and
(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards.

(2) 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 the virtue of this subsection, the court does not make one or more of the required assumptions, it shall state its reasons.”

7. Section 2(8) provides that the standard of proof required to determine any questions in relation to whether a person has benefited from drug trafficking and the extent of such benefit arising under the Act is that applicable in civil proceedings.

The facts

8. The relevant facts are set out in detail and with clarity in the judgment of the Court of Appeal delivered by Richards LJ [2008] EWCA Crim 146. I propose to reduce them to the outline that is necessary to understand the issues raised by this appeal.

9. The confiscation order was consequential to the appellant’s conviction on 14 April 2003 in the Crown Court at Nottingham of conspiracy to import heroin. It was the prosecution case that the role of the appellant in the conspiracy was that of the purchaser and distributor of the drugs. In the event the conspiracy was never implemented. No heroin was imported into the United Kingdom, no payment for heroin was made by the appellant and he derived no benefit from the conspiracy.
10. It was the prosecution case that the appellant had been selected by the other conspirators to take part in the trafficking because he had already created a network for the transportation and distribution of cannabis. The appellant denied that he had ever dealt in cannabis and the judge gave permission for evidence on this issue to be adduced at his trial. This consisted of admissions made by the appellant that had been recorded by covert surveillance or made to an undercover agent. It was the appellant’s case that he had never had any involvement in dealing with any class of drugs. Insofar as his recorded conversations suggested to the contrary, this was bragging that was untrue.
11. No charge was pursued against the appellant in relation to dealing in cannabis and the jury was directed that it was not necessary for them to resolve the cannabis distribution issue in order to find the appellant guilty in relation to the conspiracy to distribute heroin.
12. The appellant’s conviction was followed by confiscation proceedings, conducted by the trial judge, His Honour Judge Stokes QC. There was agreement as to the amount of the appellant’s assets. These included a large hotel and a portfolio of properties, some of which produced a substantial income. The appellant did not, of course, accept that these represented the proceeds of drug trafficking and was prepared to challenge the statutory assumptions under section 4(3) of the 1994 Act. This raised the prospect of a protracted and expensive dispute and, in order to avoid this, the prosecution agreed with the appellant that the statutory assumptions would not be made. The judge accepted this agreement. The prosecution did not seek to assert that the appellant had any hidden assets.
13. The judge gave a detailed ruling setting out his conclusions as to the benefits that the appellant had obtained from drug trafficking. He started by remarking that the appellant had faced a single count of

possession of one kilo of cannabis with intent to supply and that, while the prosecution had agreed that this would be left on the file, they had made it plain that they intended to pursue confiscation proceedings in relation to dealing in cannabis. He also remarked that he had afforded the appellant the opportunity to give evidence to rebut the Crown’s case in the confiscation proceedings but that the appellant had not availed himself of this.

14. The judge accepted that it would not be right to infer from the appellant’s conviction of the heroin conspiracy that the jury had been satisfied that he had been dealing in cannabis, albeit that this was an important feature of the Crown’s case. He held, however, on the basis of his own appraisal of the evidence that he had heard, that he had no doubt that the appellant had been dealing in cannabis.

15. The judge restricted his assessment of the benefit that the appellant had derived from cannabis dealing to a period of six months. The prosecution submitted that the evidence established that in this period the appellant had dealt in 6 tons of cannabis, selling this for a total of approximately £8 million. The judge’s findings were set out in the following passage of his judgment.

“The fact that it is impossible to determine precisely the amount of cannabis this Defendant was trafficking does not mean that the court should not make any finding as to the amount of his benefit. If he had been involved with as much as 6 tons ie a ton every month for 6 months, I would be satisfied on the evidence of DC Hair that the amount of his benefit would have been £8.7 million. The absence of assets to this amount doe not deflect me from concluding that substantial profits were being made because I am by no means satisfied that the assets declared to the Receiver form the full extent of this defendant’s wealth, but I do not propose to involve myself with that aspect of the matter and will leave it, as I have previously indicated I would, to the Receiver to investigate such matters fully. However, I do not think that I can reach the conclusion which the Crown invites me to reach and say that I am sure on the balance of probabilities that Briggs-Price has benefited from drug trafficking to the extent of 8.7 million pounds. I have to give effect to my conclusions that while substantial profits have been made by him from drug trafficking, an appropriate deduction should be made to
take account of (1) the inconsistencies in his responses and statements on the covert tapes as to the amounts he was importing or otherwise obtaining, (2) the frequency of such importations and (3) the degree of exaggeration possibly present in some of the statements he makes on the covert tapes. Given the seriousness of the consequences of my findings, it seems to me that I should first reduce the Crown’s figure to £8 million then discount that sum by 50 per cent to 4 million pounds. This represents a fair conclusion bearing in mind the defendant’s own unguarded statements as to his activities and the value of the drugs he plainly admits he was dealing in.”

The Appellant’s case
16. Mr Owen QC submitted that, on its true construction, the Act restricts the approach that the court is permitted to adopt to determining whether a defendant has benefited from drug trafficking and assessing the value of the proceeds of such trafficking, if he has done so. The court must start by identifying property held or expenditure made by the defendant at any time. It must then, provided that the property was acquired or the expenditure made within six years of the commencement of proceedings against the defendant, apply to that property the assumptions in section 4(3) of the 1994 Act, subject to the safeguards in section 4(4). It is for the defendant to rebut those assumptions if he can. The same approach had to be adopted in respect of property acquired or expenditure made outside the six year period, save that in that case the burden of proving that the source of the property or the expenditure was drug trafficking fell on the prosecution. What was impermissible was for the court to deduce that the defendant had received property or incurred expenditure from evidence that he had committed drug trafficking offences.
17. Mr Owen accepted that the Act permitted one exception to this approach. The Act permitted the court to deduce that the defendant had benefited from drug trafficking, and the value of the benefit, from the fact that the defendant had committed the drug offence or offences of which he was convicted (“the index offences”) and the evidence relating directly to that offence or those offences.
The natural meaning of the 1994 Act
18. Mr Owen submitted that the Act required that the starting point for the determination of benefit should be identified property, past or present, of the defendant. The existence and value of benefit derived from drug trafficking had to be determined by applying the assumptions to such property He emphasised that the provisions of section 4(3) were mandatory, subject to the exceptions in section 4(4). So they are, but it does not follow that they are the only way in which the Act permits the court to determine the extent of the defendant’s benefit from drug trafficking. This is apparent from the fact that the assumptions do not apply to property received or payments made outside the six year period, albeit that, as Mr Owen conceded, the Act applies to benefit received outside that period. Nor is it possible to spell out from the wording of the Act the exception that Mr Owen accepted applied to his rule in relation to calculating the benefits received from or the payments made in respect of the index offences.
19. The origin of the mandatory assumptions is to be found in section 2 of the Drug Trafficking Offences Act 1986. The assumptions were not, however, mandatory at that stage. Plainly they were not then the exclusive route for determining benefit derived from drug trafficking. They were made mandatory by section 9 of the Criminal Justice Act 1993. This change was directed at making it more difficult for a defendant to avoid confiscation of his property. There is no basis for concluding that its effect was to restrict the evidence that could be relied upon to prove the benefit derived by the defendant from drug trafficking.
20. The construction that Mr Owen seeks to place on the 1994 Act would result in an anomaly. Section 4(4) assumes that defendants will seek to show that the statutory assumptions are incorrect, as indeed they do. Where an issue is raised as to the source of property held by a defendant, it would be strange if the prosecution were precluded from countering the defendant’s assertion that it had a legitimate source by relying on evidence that, at the time, the defendant was involved in drug trafficking. Mr Owen did not submit that any such restriction applied. Yet it is hard to see why evidence of the defendant’s criminal activities should be admissible for the purpose of proving the source of assets but not for the purpose of proving the existence of assets.
21. In summary it is impossible to deduce from the natural meaning of the relevant provisions of the 1994 Act the restrictions that Mr Owen submits that they impose on the manner in which the existence and value of benefit derived from drug trafficking is to be assessed. Mr Owen confronted this difficulty by arguing that, if the provisions did not naturally bear the meaning for which he contended, it was necessary to read them down so as to have that meaning in order to render them compatible with the Convention.
The requirements of the Convention
22. The European Court of Human Rights (“the Strasbourg Court”) has twice considered the legislation that is the subject of this appeal and twice similar legislation that forms part of the Dutch Criminal Code. These decisions demonstrate that where, in confiscation proceedings after a defendant’s conviction, the prosecution proves that the defendant possesses or has possessed property and invites the court to assume that this property represents or represented the benefit of criminal activity, this exercise does not involve charging the defendant with a criminal offence so as to engage article 6(2) of the Convention. Mr Owen submitted that this is not the position where the prosecution adopt the approach that they used in this case. He submitted that where the prosecution allege that the defendant has committed criminal offences in order to establish, by inference, the benefit flowing from those offences, this amounts to charging the defendant with criminal offences, so that article 6(2) is engaged. In so submitting he relied particularly on the decision of the Strasbourg Court in the second Dutch case, Geerings v Netherlands (2007) 46 EHRR 1222. Mr Owen did not spell out fully the implications of this submission. Before turning to consider the relevant authorities I propose to do so.
23. Article 6 of the Convention provides:

“Right to a fair trial
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.
Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the
interests of morals, public order or national security in a

democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

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 under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

24. Article 6(2) does not spell out the standard of proof that has to be applied in discharging the burden of proving that a defendant is guilty of a criminal offence. It does, however, provide that he has to be proved guilty “according to law”. This requirement will not be satisfied unless the defendant is proved to be guilty in accordance with the domestic law of the State concerned. English law draws a clear distinction between the criminal and the civil standard of proof. The criminal standard requires proof beyond reasonable doubt. Section 2(8) of the Act provides that the standard of proof required to determine any questions in relation to whether a person has benefited from drug trafficking and the extent of such benefit arising under the Act is the civil standard. It is at least arguable that this will bring the Act into conflict with Article 6(2) if the prosecution adopt an approach to proving benefit that involves charging the defendant with a criminal offence. If so, the Act must be read down so as to prohibit such an approach.

25. A similar issue arises in relation to article 6(3). English law has specific procedural requirements that satisfy this article in relation to a criminal prosecution. They were not applied in this case in relation to the cannabis offences. If the approach adopted by the prosecution amounted to charging the defendant with those offences, it is arguable that this was in conflict with article 6(3).
The relevant jurisprudence
26. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Mance. He has referred in detail to the seminal decision on whether article 6(2) of the Convention applies to confiscation proceedings given by the Privy Council in McIntosh v Lord Advocate [2001] UKPC D1; [2003] 1 AC 1078 and to the relevant Strasbourg cases dealing with this issue. I do not propose to repeat that exercise but to set out my own conclusions on the effect of this jurisprudence.
27. In McIntosh v Lord Advocate Lord Bingham of Cornhill delivered the leading speech. He gave a number of reasons for concluding that article 6(2) did not apply to confiscation proceedings. He did so however on the premise that those proceedings involved determining whether identified property represented the benefit of drug trafficking. Thus he said in para 14:
“The accused is at no time accused of committing any crime other than that which permits the application to be made…When, as is standard procedure in anything other than the simplest case, the prosecutor lodges a statement under section 9, that statement (usually supported by detailed schedules) is an accounting record and not an accusation…The process involves no inquiry into the commission of drug trafficking offences.”

Lord Hope of Craighead, concurring with Lord Bingham in the only other substantive speech, said at para 43:
“The assumptions on which the court is being asked to proceed do not require the court to hold that [the defendant] has been engaged in criminal conduct. They have much more to do with the civil process of tracing (a restitutionary remedy)…”

These comments cannot be applied to confiscation proceedings in which the prosecution found their case that the defendant has benefited from drug trafficking on allegations that he has committed drug trafficking offences.
28. In Phillips v United Kingdom (2001) 11 BHRC 280 the issue in confiscation proceedings had been whether identified property that had been proved to be or have been in the possession of the defendant represented benefits from drug trafficking. The court had determined that they were by applying the statutory assumptions. The relevant issue before the Strasbourg Court was whether the application of these assumptions infringed the presumption of innocence required by article 6(2). The Court decided that it did not because article 6(2) did not apply to the confiscation proceedings. In so finding the Court was influenced by the purpose of the proceedings. This was not to obtain a criminal conviction but was analogous to the determination of the penalty that should be imposed as a consequence of a conviction that had already been recorded. In these circumstances the defendant to confiscation proceedings could not be said to be “charged with a criminal offence”. The Court held, at para 35, that Article 6(2) did not apply to the sentencing process unless this involved accusations “of such a nature and degree as to amount to the bringing of a new ‘charge’ within the autonomous Convention meaning” as defined in Engel v The Netherlands (1976) 1 EHRR 647.
29. The Strasbourg Court reached the same decision for the same reasons in an application that related to confiscation proceedings in the Netherlands in Van Offeren v The Netherlands (Application No 19581/04) decided 5 July 2005.
30. These two decisions establish that confiscation proceedings fall to be treated as part of the process of sentencing after conviction and do not, of themselves, involve charging the offender with offences other than that or those of which he has been convicted and which have given rise to the sentencing process. Thus they do not engage article 6(2) of the Convention. The decisions also establish that applying a reverse burden of proof to the source of identified assets is compatible with article 6(1). This was made clear by the decision in relation to two further applications against the United Kingdom that were heard together.
31. In Grayson & Barnham v United Kingdom (Application Nos 19955/05 and 15085/06) each applicant had been held in confiscation proceedings to have benefited from drug trafficking to a specified amount. It is noteworthy that in the case of Barnham this amount was largely based on inference of the amounts that he must have paid to purchase two consignments of cannabis which he had mentioned to an undercover police officer but which had not formed the subject of the charges against him (para 14). The Court recorded that neither applicant seriously complained about the first stage of the confiscation procedure under which the benefit from drug trafficking was calculated (para 46).
32. The Court identified the following safeguards that were built into the system. In each case 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. Each applicant was represented by the counsel of his choice. The burden was on the prosecution to establish that the applicant had held the assets in question during the relevant period and that he had the opportunity to rebut the assumption that these represented benefit from drug trafficking (para 45). The Court held that, given the existence of these safeguards, it was not incompatible with the concept of a fair trial under article 6 to place the onus on the applicant, once he had been convicted of a major drug dealing offence, to establish that the source of money or assets that he had been shown to have possessed was legitimate (para 46).
33. What was particularly challenged in these cases was the fact that, in the absence of evidence that the applicants still possessed the benefits that they had derived from trafficking, the courts had held that the burden was on the applicants to establish to the civil standard of proof that the amount that could be realised from their assets was less than the amount assessed as benefit. This also the Court ruled to be compatible with article 6(1). It held that it was not unreasonable to expect the applicants to explain what had happened to all the money shown by the prosecution to have been in their possession, any more than it was unreasonable at the first stage of the procedure to expect them to show the legitimacy of the source of such money or assets. Such matters fell within the applicants’ particular knowledge (para 49).
34. In this decision the Court followed its own decision in Phillips. It observed that in that case the judge had been satisfied, on the basis either of the applicant’s admissions or of evidence adduced by the prosecution, in respect of every item taken into account, that the applicant had owned the property or spent the money and the obvious inference was that it had come from an illegitimate source. Thus
“...the applicant demonstrably held assets whose provenance could not be established; …these assets were reasonably presumed to have been obtained through illegal activity; and…the applicant had failed to provide a satisfactory alternative explanation” (para 41)

35. This quote was from the decision of the Court in Geerings 46 EHRR 1222, para 44. The Court was there describing the facts of Phillips in order to distinguish them from those before it. I now turn to the decision in Geerings. In the Court of Appeal Richards LJ, at para 43, remarked that the decision had to be approached with some care and I agree with that observation.
36. Article 36(e) of the Dutch criminal code provides in paragraph 1 that any person who has been convicted of a criminal offence may be ordered in a separate judicial decision to pay a sum of money to the State so as to deprive him of any illegally obtained advantage. Paragraph 2 provides that the advantage in question is that obtained “by means of or from the proceeds of the criminal offence in question or similar offences or offences…in connection with which there exist sufficient indications that they were committed by him”. The confiscation proceedings were based on estimated benefits obtained by the defendant from a series of offences with which he had been charged. He had been acquitted of a number of those offences. The Court of Appeal held that confiscation could none the less be founded on estimated benefits from these offences on the basis that there existed “sufficient indications that they were committed by him”.
37. Lord Mance has set out the relevant passage of the reasoning of

the Strasbourg Court in para 124 of his opinion. Mr Owen’s submissions
as to the effect of this passage were set out in his Case as follows:

“So long as the extended benefit is referable to assets clearly shown to have been in the possession of the accused in circumstances where the accused fails to establish their lawful origin, then the fact that any confiscation order is based on a finding of criminal conduct beyond the index offence will not offend either Art 6(1) or 6(2). Where however no suspicious assets are capable of being identified so as to require an explanation from the accused, then an order which necessarily assumes the existence of suspicious hidden assets going beyond those obtained by the index offence will violate Art 6”
38. This reads too much into the passage in question. There are two ways of proving, with the aid of assumptions, the existence of benefit derived from drug trafficking. The first is to prove the existence of property and to make a reasonable assumption that it was derived from drug trafficking. The second is to prove the existence of drug trafficking and to make a reasonable assumption as to the benefit that must have been derived from it. In Geerings the prosecution attempted to adopt the latter approach. They sought to prove the existence of offences by charging the applicant with them. Article 6(2) applied. The offences had to be proved to the criminal standard, ‘beyond reasonable doubt’. The prosecution failed to prove a number of offences but none the less successfully contended that there were “sufficient indications that they were committed by [the applicant]” and that the benefit derived from them could be inferred. What the Court found objectionable was that neither the commission of the offences nor the alleged benefits had been proved. In these circumstances the findings against the applicant had been based on a “conjectural extrapolation” and “a presumption of guilt” which was in conflict with article 6(2) (paras 46 and 47).
39. The passage in question supports two propositions. The first is that where a defendant is charged with criminal offences from which the prosecution seek to infer the derivation of benefit, article 6(2) applies, so that the defendant is presumed innocent of those offences. The second is that, if the defendant is acquitted of offences with which he is charged, it is not legitimate to infer that he has benefited from those offences. What one cannot deduce from the passage is that, if the prosecution seek to rely on proof of offences other than those with which the defendant is charged in order to prove the derivation of benefit, he is to be deemed to be charged with those offences also, so that article 6(2) applies in their case also. Geerings does not decide that question one way or another.
40. Your Lordships were not referred to other Strasbourg jurisprudence bearing on the question of whether the allegations of the cannabis offences that were advanced by the prosecution in this case constituted “criminal charges”. There is authority that establishes that both the adjective “criminal” and the noun “charge” are autonomous concepts but that the Strasbourg Court attaches significance to the way in which they are treated in domestic law and looks to the substance rather than to the form. Not without hesitation, I have concluded that the allegations that were made in relation to the cannabis offences did not constitute “criminal charges”. First they were not so treated under our law. Secondly, they could not and did not lead to criminal convictions. Thirdly, and most significantly, their consequence, the confiscation of the property of a convicted drug dealer, is precisely the same as that in Phillips and Grayson & Barnham. Those cases required a finding that the property confiscated was derived from criminal offending, albeit that the precise offences did not have to be specified but could be inferred. The Strasbourg Court accepted that the safeguards of article 6(2) did not apply in such circumstances. It would seem illogical to impose them where the details of the offending are alleged with more particularity.
41. Although I have concluded that the requirements of article 6(2) and 6(3) did not apply in this case, those of article 6(1) were none the less applicable. The requirements of a fair trial in confiscation proceedings are not poles apart from those imposed by article 6(2) and 6(3). Where, as here, the prosecution rely on criminal offending to prove the existence of benefit, they have to prove that offending. The defendant is presumed innocent until proved guilty, albeit by the civil standard of proof. When, in Grayson & Barnham, the Strasbourg Court set out the safeguards in our system that had led it to conclude that our procedure satisfied article 6(1) it might well have been carrying out a check list of the relevant requirements of article 6(3).
42. The facts of this case are unusual. The prosecution, as part of their case on the conspiracy to import heroin, gave the defence particulars of evidence that they intended to adduce of other drug offences. The appellant challenged these at his trial and could have challenged them again in the confiscation proceedings. The judge was sure on the evidence that the relevant offences were proved. He deduced the benefit from the proved offending. In the Court of Appeal Richards LJ held that the procedure adopted was compatible with article 6(2). There is no basis for suggesting that the fair trial requirements of article 6(1) were not satisfied.
43. For these reasons I reject the interpretation of section 4 of the 1994 Act advanced by Mr Owen. It is open to the prosecution to prove the derivation of benefit from drug trafficking by proving the commission of drug trafficking not charged on the indictment. In this case they did so. For these reasons this appeal should be dismissed.
LORD RODGER OF EARLSFERRY
My Lords,
44. The appellant stood trial on an indictment on which he appeared with three co-defendants. Two of them were acquitted. The fourth, John Barton, absconded and was tried in his absence. Both he and the appellant were convicted of a count of conspiracy to contravene section 170(2) of the Customs and Excise Management Act 1979, contrary to section 1(1) of the Criminal Law Act 1977. The offence covered a period from 1 September 1999 to 21 June 2000 and concerned a conspiracy to evade the prohibition on the importation of diamorphine, contrary to section 3(1) of the Misuse of Drugs Act 1971.
45. The general thrust of the prosecution case at trial was that the appellant had a pre-existing network for the supply of cannabis and was going to use it to distribute the diamorphine which Barton was going to import. So, much of the most important evidence was designed to prove that the appellant was indeed engaged in distributing cannabis through this network. That evidence tended to show – at the least - that the appellant had been concerned in the supplying of cannabis contrary to section 4(3)(b) of the 1971 Act. Despite this, for reasons which Mr Lucraft QC – who had not been instructed at that stage - understandably had difficulty in identifying, far less explaining, the indictment contained no section 4(3)(b) count. This is the first unsatisfactory aspect of the case.
46. In Scotland, the absence of a section 4(3)(b) charge would have rendered the evidence relating to the cannabis distribution network inadmissible, as being evidence of a crime not charged. In this case, however, the evidence was led at the trial and, on an application to the Full Court for leave to appeal on the basis that the judge should not have admitted evidence showing that the network was for the distribution of cannabis, the Court of Appeal (Thomas LJ, Jack J and HH Judge Radford) [2005] EWCA Crim 368 were unable to see that there was an arguable ground of appeal.
47. Plainly, the evidence relating to the cannabis network was very relevant to the Crown’s case. And, if the indictment had included a count relating to that matter, all would have been well. The absence of such a count means, however, that the appellant was never charged with an offence relating to the cannabis network. And, although the evidence about the network formed an important part of the prosecution case at trial, the judge, HH Judge Stokes QC, directed the jury that, even if they rejected that evidence, they could still convict the appellant of the count on the indictment. It is, accordingly, impossible to tell whether the jury were satisfied that the appellant was involved in the network. Putting the matter another way – and in the way that Mr Owen QC put it on behalf of the appellant - the approach adopted by the Crown meant that the jury were not given the opportunity, if so advised, to declare the appellant’s innocence of any involvement in a cannabis network by acquitting him of a count relating to it.
48. Following the appellant’s conviction on the conspiracy charge, the prosecutor asked Judge Stokes to proceed under section 2 of the Drug Trafficking Act 1994 (“the 1994 Act”) – in other words, to consider whether to make a confiscation order. The judge was then obliged to do so. In terms of section 2(2) he had first to determine whether the appellant had benefited from drug trafficking. To determine that, subject to section 4(4) and (5), a court “shall… make the required assumptions” which are set out in subsection (3): see section 4(2).

49. The second unsatisfactory feature of the case emerges at this point. Those representing the prosecution and the appellant simply agreed to proceed with the confiscation proceedings on the basis that the assumptions in section 4(3) of the 1994 Act should not be applied. The prosecution, at least, seems to have considered that the presentation of a case based on the assumptions would have involved extremely difficult accountancy issues and would have been lengthy and expensive. Plainly, if the position had been explained to the judge by counsel and he had then made his own decision that, for a reason covered by section 4(4), the assumptions should not be applied, there would have been no problem. Here, however, while apparently accepting that the assumptions should not be applied, the judge did not make any determination in terms of section 4(4).
50. In my view, the matter was mishandled. The requirement in section 4(2) to apply the assumptions binds the court. That is consistent with the wider position that it is the court which acts under section 2 - and which can indeed do so, even though the prosecutor has not asked it to. No unilateral action by the prosecution, or joint action by the parties, can relieve the court of its obligation under section 4(2) to apply the assumptions. But suppose that the prosecutor had indeed realised that, so far as the actual expenditure and property which the prosecution could identify were concerned, the appellant could show that they derived from his legitimate business as a hotelier etc. In that event, if the position had been explained to the court, in all probability the judge would indeed have disapplied the presumptions, on the ground that they had been shown to be incorrect (subsection (4)(a)). So the failure to observe the provisions of section 4(2) and (4) was probably one of form rather than of substance.
51. The statutory assumptions are fairly draconian – and are intended to be. Contrary to Mr Owen’s submission, they are not conceived in favour of the defendant and a failure to apply them cannot be regarded as any kind of detriment to him. On the contrary, because the judge did not apply the assumptions in this case, the appellant enjoyed the (probably, fully justified) advantage of not having his hotel and other property, and all his expenditure over the preceding six years, deemed to be derived from drug trafficking.
52. What led to the confiscation order being made against the appellant was not the failure to apply the assumptions. Rather, it was the fact that, even without the help of those assumptions, the judge was satisfied that the appellant had benefited from drug trafficking. The judge’s conclusion to that effect was based on the evidence which he had heard during the trial about the quantities of cannabis which were being bought for, and distributed through, the cannabis network. So far as the appellant’s involvement in the distribution of cannabis was concerned, the judge had “no doubt that this was the case.” The judge based his calculation of the benefit which the appellant had received from that involvement on two matters: first, police evidence about the value of various quantities of cannabis and, secondly, his estimate of the quantities of the drug in which – the evidence showed - the appellant had been trafficking over a six-month period. On these matters the judge applied the civil standard of proof, in accordance with section 2(8) of the 1994 Act. There is no appeal against the calculation which the judge made and so I need say no more about it, save that it worked out at £4 million.
53. Mr Owen accepted that, if the appellant had been convicted of a drug trafficking offence, then – even without the assistance of the presumptions – the court could consider evidence that he had benefited from that trafficking. So, for instance, if a defendant were convicted of an offence of supplying a bulk quantity of diamorphine and the supply had taken place, say, ten years before the proceedings began, the court could consider evidence as to the price which he could have been expected to receive for that quantity. Equally, the court could consider evidence of the purchase of an Aston Martin by the defendant the day after the supply. But, said Mr Owen, where the court was considering an alleged benefit not deriving from an offence of which the defendant had been convicted, the structure of the 1994 Act meant that it could proceed only on the basis of the assumptions in section 4(3).
54. That is an impossible contention. The mere fact that the assumptions are not applicable does not mean that the defendant has not benefited from drug trafficking: it merely means that the court cannot use the assumptions to determine either that he has benefited, or that he has benefited to a particular extent. If there is evidence to show the benefit, then the court can use it. If that were not so, as my noble and learned friend, Lord Mance, points out, it would mean, for instance, that, if the defendant had no property, there would be no way for a court to determine if he had received a benefit from drug trafficking offences committed more than six years before proceedings began. It would also mean that there was no way of determining whether a defendant had benefited from drug trafficking which did not constitute an offence. Yet both eventualities are contemplated by section 2(2) and (3).
55. Similarly, there is nothing in the provisions relating to prosecution statements in section 11 or the provision of information by defendants in section 12 to restrict their application to benefit derived from the offence of which the defendant has been convicted. On the contrary, as would be expected - given that the court is concerned with benefit from “drug trafficking” rather than from drug trafficking offences - section 11(1) envisages that the prosecutor’s statement will concern matters which are relevant to determining whether the defendant has benefited from “drug trafficking” or to “assessing the value of his proceeds of drug trafficking”. In the same way, under section 12(2) the court may order the defendant to give it specific information for “the purpose of obtaining information to assist it in carrying out its functions”.
56. There is a more fundamental objection to Mr Owen’s submission. As the definition in section 2(3) shows, a person has benefited from drug trafficking “if he has at any time ... received any payment or other reward in connection with drug trafficking carried on by him or another person.” In other words, the benefit comprises any payment or other reward, irrespective of whether the recipient has actually made a profit from his trafficking. The law does not draw up an account of the defendant’s income and expenditure on drug trafficking: it is concerned only with the payments and rewards which he receives. Lord Lane LCJ explained the position succinctly in R v Smith (Ian) [1989] 1 WLR 765, 769A-C:
“The words ‘any payments’ are on the face of them clear. They must mean, indeed it is clear from the wording, any payment in money or in kind. It does not mean, in the judgment of this court, net profit derived from the payment after the deduction of expenses, whether the expenses are those of purchase, travelling, entertainment or otherwise. The same consideration applies to the words ‘other rewards.’ They also have to be valued.”

The passage was cited with approval in this House in R v Smith (David)
[2002] 1 WLR 54, 61-62, para 24.
57. Suppose, therefore, that someone buys a large quantity of cannabis which he intends to sell through his network of dealers. A rival distributor floods the market, with the result that prices collapse and the first distributor has to sell his cannabis at a loss. Despite this, by receiving the payments for the cannabis, the distributor has “benefited” from drug trafficking. The same applies to a distributor who deliberately sells his drugs at a loss in order to drive a rival from the market. In calculating the amount to be recovered under any confiscation order under section 5(1) and 4(1), the defendant’s proceeds of drug trafficking comprise the sums he receives, even if he has never made a profit which he could spend on other things.
58. In such cases, the assumptions in section 4(3) have no role to play since (apart from expenditure on drugs etc) they presuppose that the drug trafficker has made a profit which he has used to finance his lifestyle and to purchase property. The legislation is designed, however, to strip even an unsuccessful drug trafficker of any money or other reward which he receives in connection with his trafficking. If, therefore, the court is satisfied in any case that a defendant was selling quantities of drugs at a particular price, it may also infer that the value of the proceeds of his trafficking, for the purposes of section 5(1), was the aggregate of the sums he must have received for those drugs.
59. Of course, usually, there will be no point in making a confiscation order in such cases since the defendant will have no assets from which to extract the payment. So, usually, a confiscation order will be made only in cases where the defendant has been successful and has used his profits to buy assets which can be confiscated. Then the assumptions in section 4(3) are the obvious starting point. But, if the defendant’s ownership of other assets actually makes it worthwhile, a confiscation order can properly be made simply on the basis of the payments or rewards which the defendant must have received from drug trafficking, even if he made no profit, or – whether due to concealment or otherwise - any profit cannot be identified. So the statutory assumptions are certainly not the only basis for confiscation proceedings under the Act.
60. For these reasons, I have no doubt that, under English domestic law, Judge Stokes was entitled to use the evidence led at the trial, and the additional information as to the selling price of bulk cannabis, first, to determine that the appellant had benefited from trafficking in cannabis and, secondly, to assess the value of his proceeds of drug trafficking at £4 million.
61. Mr Owen contended, however, that the appellant’s article 6 Convention rights had been breached because the making of the confiscation order involved the court in holding that the appellant had committed an offence - in effect, being concerned in the supplying of cannabis - with which he had not been charged. In making this submission, Mr Owen necessarily conceded that there would have been no breach if the appellant had been charged with, and convicted of, that offence and the court had made a confiscation order relating to it.
62. In his written case, the appellant argued that there had been a violation of his article 6(2) Convention right, as a person charged with a criminal offence to be presumed innocent until proved guilty according to law. The decision of the Privy Council in McIntosh v Lord Advocate [2003] 1 AC 1078 is, however, authority that, for article 6(2) purposes, a person against whom an application for a confiscation order is made is not accused of any offence other than the trigger offence of which he has been convicted – even if the court is asked to apply assumptions similar to those in section 4(3) of the 1994 Act.
63. In Phillips v United Kingdom (2001) 11 BHRC 280, the European Court of Human Rights endorsed that approach and held that article 6(2) can have no application to allegations made about the accused’s character and conduct as part of the sentencing process, unless they are of such a nature and degree as to amount to the bringing of a new “charge” within the autonomous Convention meaning. The Court held, at paras 31-35, that the procedure was analogous to the procedure for determining an appropriate fine or period of imprisonment. It was to be regarded as part of the sentencing process of a convicted person under domestic law. Therefore the purpose of the procedure was not the conviction or acquittal of the applicant for any other drug-related offence and so the procedure did not amount to the bringing of a new charge. Article 6(2) was accordingly not engaged. The European Court reasoned along the same lines in its admissibility decision in Van Offeren v The Netherlands (application no 19581/04), 5 July 2005.
64. On that approach, apart from charges lying on the file, for the purposes of article 6(2), in the present case the appellant has only ever been “charged” with conspiring to contravene section 170(2) of the Customs and Excise Management Act 1979, contrary to section 1(1) of the Criminal Law Act 1977. Nothing said or done by the prosecution or the court in the course of the confiscation proceedings was designed to convict or acquit the appellant of any other drug-related offence. So article 6(2) was not engaged when the court was determining, as part of the sentencing procedure for the trigger offence, whether the appellant had benefited from drug trafficking, other than the drug trafficking comprising the trigger offence.
65. That said, it is important to notice that, even though article 6(2) does not apply to confiscation proceedings, the presumption of innocence does. This is because it is implied into article 6(1), which does, of course, apply to those proceedings. That point was made by the European Court in Phillips v United Kingdom (2001) 11 BHRC 280, para 40. The position was conveniently summarised recently in the Court’s admissibility decision in Grayson and Barnham v United Kingdom (applications nos 19955/05 and 15085/06), 23 September 2008, where the applicant contended that the application of the statutory assumptions in his case had violated his right to the presumption of innocence under article 6(2). The Court said at para 39:

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

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

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

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

68. In making his submission, Mr Owen relied, however, on a more recent judgment of the Strasbourg court in Geerings v Netherlands (2007) 46 EHRR 1222. In that case, the defendant had been convicted of a number of offences of theft, handling stolen goods and membership of a criminal gang. He appealed and the Court of Appeal quashed his convictions for most of the offences. The result was that he remained convicted of having participated in the theft of a lorry and trailer containing 120 laundry dryers, of having stolen a lorry combination and a number of printers and of handling a piece of clothing and a video camera, knowing that they had been obtained through crime.
69. The prosecutor sought an order from the Regional Court for the confiscation of illegally obtained advantage from the offences. The legislation allowed such an order to be made in respect not only of offences for which the defendant had been convicted, but of similar offences or certain other offences “in connection with which there exist sufficient indications that they were committed by him.” The Regional Court made an order, the amount of which showed that it related only to the offences of which the defendant remained convicted after his appeal. He appealed. The Court of Appeal not only dismissed his appeal, but quashed the ruling of the Regional Court and replaced it with an order for a much higher sum by way of confiscation. It did so on the basis that, even though the defendant’s convictions of other offences had been quashed, the defendant had illegally obtained advantage from the offences of which he had been acquitted on appeal, “in connection with which [offences] there exist sufficient indications that they were committed by him.”
70. The European Court held that there had been a violation of article 6(2). This is scarcely surprising since the Dutch Court of Appeal’s decision involved the clearest possible imputation that Mr Geerings had actually been guilty of offences with which he had been charged but of which he had been duly acquitted. At paras 48-51, the European Court applied the approach identified in Asan Rushiti v Austria (2001) 33 EHRR 1331, 1339, para 31:
“The Court cannot but affirm the general rule stated in the Sekanina judgment that, following a final acquittal, even the voicing of suspicions regarding an accused’s innocence is no longer admissible. The Court, thus, considers that once an acquittal has become final - be it an acquittal giving the accused the benefit of the doubt in accordance with Article 6(2) - the voicing of any suspicions of guilt, including those expressed in the reasons for the acquittal, is incompatible with the presumption of innocence.”

Like the Austrian court in Sekina v Austria Ser A, No 266-A, 25 August 1993, the Dutch Court of Appeal had done much more than merely voice suspicions about Mr Geerings’ innocence of the charges of which he had been acquitted: they had proceeded on the basis that he had committed the offences in question. In the present case, by contrast, the appellant never stood trial for any offence arising out of the cannabis network. So there is no verdict of acquittal which the making of the confiscation order based on the cannabis network would contradict and so violate article 6(2). It follows that this aspect of the European Court’s ruling in Geerings has no relevance to the appellant’s case.
71. In Geerings the European Court also considered, at para 47, that confiscation, following on from a conviction, was a measure inappropriate to assets which are not known to have been in the possession of the person affected,
“the more so if the measure concerned relates to a criminal act of which the person affected has not actually been found guilty. If it is not found beyond a reasonable doubt that the person affected has actually committed the crime, and if it cannot be established as fact that any advantage, illegal or otherwise, was actually obtained, such a measure can only be based on a presumption of guilt. This can hardly be considered compatible with article 6(2).”

138. First, by section 2(1), when a defendant falls to be sentenced for a “drug trafficking offence”, then, if (a) the prosecution asks or (b) even if the prosecution does not ask, the court considers it appropriate, the court must follow the procedure under that section. Secondly, by section 2(2), if the court proceeds under section 2, it must determine whether the defendant has “benefited” from “drug trafficking”. Section 2(3) provides that a person has so benefited if “at any time” he has received “any payment or other reward” in connection with drug trafficking. Thirdly, if the defendant has so benefited, section 2(4) requires the court to “determine in accordance with section 5 …. the amount to be recovered …”. Section 5(1) provides that that amount is to be “the value of the defendant’s proceeds of drug trafficking”, as assessed by the court, albeit that, by section 5(3), this is to be adjusted if the defendant’s realisable assets are less than that that amount. Fourthly, by section 2(5)(a), the defendant is to be required to pay “that amount” “in respect of the offence or offences” for which he is to be sentenced. Fifthly, by section 2(8), the civil burden of proof is to be applied to the questions to be determined under the section.
139. It is also appropriate to refer to sections 3 and 4 of the 1994 Act. Section 3(1) provides that where the court needs further information, it may postpone the determination of whether the defendant has benefited from drug trafficking or the amount to be recovered “for the purpose of enabling the information to be obtained”. Section 4(1) states that “any payments or other rewards received by a person at any time” in connection with drug trafficking are “his proceeds of drug trafficking”. When determining whether a person has benefited from drug trafficking, and, if so, the value of his proceeds there from, section 4(2) requires the court to make the assumptions set out in section 4(3), subject to section 4(4). There are two principal assumptions in section 4(3). First, by paragraph (a), any property held by the defendant since his conviction or transferred to him within the period beginning six years before the institution of the proceedings are assumed to be proceeds of drug trafficking. Secondly, section 4(3)(b) provides that any expenditure by the defendant in that period is assumed to be from such proceeds. However, by section 4(4), those assumptions are not to be adopted (a) if the defendant shows them to be incorrect or (b) if making them would involve “a serious risk of injustice in the defendant’s case”.
The 1994 Act disregarding section 3 of the 1998 Act
140. Three arguments were raised by the appellant. First, that section 4 represents the exclusive basis upon which the court must assess whether a defendant has benefited from drug trafficking, and, if so, the amount he should be ordered to pay, so that the failure in this case to invoke that “mandatory regime” invalidates the confiscation order. The appellant’s second argument was that, even if section 4 does not have to be invoked in every case in which the court makes a confiscation order, there was a failure of procedure in this case in not proceeding under section 4, which vitiated the confiscation order. The third argument was that the procedure adopted in this case was unfair, as the confiscation order was based on alleged drug trafficking which was the subject of evidence, but not of any charge, in the criminal proceedings which led to the conviction which triggered the confiscation procedure.
141. I do not accept the contention that section 4 represents an exclusive code governing the exercise to be carried out by the court under section 2. Such a contention flies in the face of the general words of subsections (2) to (5) of section 2, which make it clear that the purpose of Part I of the 1994 Act is to confiscate any sums which represent the proceeds of drug trafficking. In other words, once a defendant is convicted of a drug trafficking offence, section 2 envisages that the court should ascertain whether, and if so to what extent, he has profited from drug trafficking generally, as it were, as opposed to ascertaining merely whether he had profited from the specific offence of which he has just been convicted. This is a potentially wide-ranging enquiry, and, if section 4 was intended to be the sole statutory basis upon which the payment under section 2(5)(a) was to be assessed, much of sections 2 and 5 would be otiose. In contrast with section 5, which is an integral part of the exercise mandated by section 2 and hence its incorporation in section 2(4), section 4 merely introduces a presumption (albeit a rebuttable one) which is to be made when carrying out that exercise.
142. The appellant’s case is also in conflict with his concession that the court can assess the extent of any benefits received by the defendant from the drug trafficking offence(s) for which he is to be sentenced. That (plainly correct) concession is logically irreconcilable with the notion that section 4 contains an exclusive formula for the purposes of subsections (2) and (4) of section 2. The appellant’s case runs into further problems with the temporal limits in section 4(3) – (a) since conviction and (b) from six years before institution of proceedings – given that sections 2(3) and 4(1) apply to drug trafficking “at any time”. Finally, it would appear little short of absurd if a defendant could escape liability under section 2(5)(a) by relying on section 4(4), which would be the consequence of section 4 representing an exclusive method of assessing a defendant’s proceeds of drug trafficking.
143. In my opinion, therefore, section 4 is a tool, which is presumptively to be used, but is neither mandatory nor exclusive for assessing whether, and if so to what extent, a defendant has benefited from drug trafficking. Having said that I agree with the view of my noble and learned friend Lord Rodger of Earlsferry, whose opinion I have seen in draft, that it should only be in exceptional cases that the section 4(3) assumptions are not pressed by the prosecution, at least where it is apparent that the defendant has assets. This opinion seems to be plainly consistent with the terms of sections 4(2) and 4(4) of the 1994 Act.
144. As to the appellant’s second argument, I do not consider that a defendant can challenge a confiscation order on the ground that section 4 ought to have been relied on by the court, but was not. It seems plain that the purpose of section 4(2) and (3) is to require the court to make certain assumptions against a defendant when considering whether, and if so to what extent, he has received, or currently retains, any proceeds from drug trafficking. It would therefore seem little short of absurd if a defendant could object to a confiscation order on the ground that those assumptions were not made against him. The effect of the prosecution’s approach in this case was as if it had been determined that section 4(4) applied. If section 4(4) would have applied after evidence and argument, then the concession was rightly made. If it would not have applied, then the appellant would not have been better off, as the figures produced by making the assumptions would not have been the only permissible basis for assessing the sum to be confiscated.
145. Given the provisions of section 4(4), I do not consider that there was any failure in the procedure adopted by the prosecution in relation to section 4. In their skeleton argument in the confiscation procedure, prosecution counsel specifically accepted Mr Briggs-Price’s submission that “the presentation of a case based on the assumptions would involve extremely difficult accountancy issues and would be lengthy and expensive”. In practice, that meant that the prosecution (a) was not prepared to incur the cost and risk of meeting Mr Briggs-Price’s case that he had evidence which enabled him to rebut the assumptions, and/or (b) considered that it would be disproportionate to put Mr Briggs-Price to the expense and effort of rebutting the assumptions. In other words, the prosecution accepted that section 4(4)(a) and/or section 4(4)(b) applied. In those circumstances, the court was, at least on the face of it, entitled not to make the assumptions required by section 4(3).
146. However, a mistake was made in that, in the light of the closing words of section 4(4), it ought to have pointed out to the Judge that he was obliged to state his reasons for not making the assumptions. I suspect that another, connected and more significant, mistake was made: even where the prosecution concedes that section 4(4) applies and the assumptions need not be made, the court should satisfy itself of the correctness of that concession, and it does not appear that the Judge investigated the concession in this case. Section 4(4) has the important effect of emphasising that it is the court, rather than the prosecution, which is to decide whether to disapply the assumptions. That is consistent with the provisions of section 2(1)(b), and, indeed, with the notion that a confiscation order is part of the sentencing process. However, for the reasons already given, these mistakes did not invalidate the confiscation order.
147. I turn to the appellant’s third argument. As already mentioned, it is plain that a confiscation order under Part I of the 1994 Act is not to be limited to the proceeds obtained by the defendant from the drug trafficking offence(s) for which he is to be sentenced: it can, indeed it must, be based on any drug trafficking proceeds which the defendant has obtained. Accordingly, it is hard to see why, when proceeding under Part I of the 1994 Act, the court should not be able to rely on evidence given during the trial, even if it related to alleged drug trafficking activities of the defendant which were not the subject of any charge.
148. However, that does not mean that, where such evidence has been given at trial, the Judge must take it into account in the confiscation procedure without giving the defendant any opportunity to rebut that evidence, or any inference which may be drawn from it. The court must plainly conduct the confiscation procedure in a manner which is fair to the defendant, and in many cases that may well include giving him an opportunity, or a further opportunity, to deal with evidence given at the trial which is relevant in the confiscation issue. That is no doubt one of the principal reasons for including section 3(1) and section 4(4)(b).
149. In this case, there was evidence given at the trial relating to the appellant’s alleged trafficking in cannabis, although he was only charged and convicted for conspiring to import diamorphine. The Judge was entitled, indeed, I think, required, to take into account the evidence relating to the trafficking in cannabis. However, he would have been obliged to consider any application by the appellant for an opportunity to deal further with that allegation: the fact that the appellant had had a chance to deal with the allegation at trial would by no means automatically mean that he should not have a further opportunity to deal with it during the confiscation procedure. Whether to accord a defendant such an opportunity, and if so the nature of the opportunity and the terms on which it is accorded, must depend very much on the facts of the particular case.
150. I have some sympathy with the argument, developed more fully by Lord Rodger, that it was surprising that the prosecuting authorities decided to charge the appellant only with the diamorphine conspiracy if evidence of his cannabis trafficking was intended to be given at trial, and then invoked for the purposes of any subsequent confiscation order. However, I would not want to say much about that aspect, as the detailed facts and implications of that issue were not debated before your Lordships. Indictments should not be overloaded, and it would be more than unfortunate if any criticism of the course taken in this case led to the prosecuting authorities feeling obliged to charge a defendant with every conceivable drug-trafficking offence they might be relying on in any contingent confiscation proceedings. Such a course would be inappropriate and inconsistent with the purpose of the 1994 Act. All I would say is that, without suggesting that I think that there would have been anything in the argument, it would have been open to Mr Briggs- Price to argue either that he should be charged with cannabis trafficking if it was to be relied on in any subsequent confiscation procedure, or that the cannabis trafficking should not be relied on in any such procedure. If such an argument had been raised, the Judge no doubt would have considered it on its merits.
Part I of the 1994 Act and article 6 of the Convention
151. Having ascertained the meaning and effect of Part I of the 1994 Act disregarding section 3 of the 1998 Act, it is necessary to consider whether its provisions, as so interpreted conflict with article 6 of the Convention, as the appellant has suggested. His argument amounts to this, that his article 6 rights were infringed by his assets being confiscated by reference to a crime of which he had not been convicted, namely trafficking in cannabis. The approach adopted by the Crown Court in this case in relation to the confiscation procedure is said by the appellant to amount to inappropriately convicting him of a fresh charge, upon which the confiscation order was based.
152. On this aspect of the appeal, I had prepared some observations of my own to explain why I do not accept the appellant’s case. However, having read what Lord Rodger says, I do not think there is anything I can usefully add to what he says in paras 62 to 81 of his opinion, with which I fully agree.

Conclusion

153. In these circumstances, I agree that this appeal should be
dismissed.

(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 under the same conditions as witnesses against him;
(e)	to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

[2009] UKHL 19

29 April 2009