CRIME ? Sentence ? Confiscation order ? Evidence of drug trafficking arising during trial but not subject of indictment ? Judge accepting evidence and making order ? Whether contrary to presumption of innocence and right to fair trial ? Drug Trafficking Act 1994, s 2(8)(a) ? Human Rights Act 1998, Sch 1, Pt I, art 6

HL(E): Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood, Lord Mance, Lord Neuberger of Abbotsbury: 29 April 2009

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A confiscation order could be made under the Drug Trafficking Act 1994 in respect of benefit derived from drug trafficking other than that of which the defendant had been convicted which had been established by evidence during the trial.

The House of Lords so held in dismissing an appeal by the defendant, Robert Briggs-Price, from the order of the Court of Appeal (Criminal Division) (Richards LJ, Royce J and Judge Beaumont QC) [2008] EWCA Crim 146 dismissing his appeal against a confiscation order following his conviction of conspiracy to import heroin.

Although no heroin had in fact been imported, evidence arose at trial that the defendant had run a cannabis distribution network and it was on that basis that the judge made the order. The defendant argued, inter alia, that the taking into account of trafficking which had not been the subject of a charge amounted to the bringing of a new charge against him in violation of the right to be presumed innocent unless proved guilty according to law in art 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms and the art 6(1) right to a fair trial.

LORD PHILLIPS said confiscation proceedings did not engage art 6(2), since they fell to be treated as part of the process of sentencing after conviction and did not of themselves involve charging the offender with offences other than those of which he had been convicted. Although the requirements of art 6(2) did not apply, those in art 6(1) were applicable. It followed that where, as here, the prosecution relied on criminal offending to prove the existence of benefit, they had to prove that offending. The defendant was presumed innocent until proved guilty, albeit (in his Lordship?s opinion) by the civil standard of proof as provided by s 2(8)(a) of the 1994 Act. Here the defence had been given particulars of evidence which the prosecution had intended to adduce of the cannabis offences. The defendant challenged those at trial and could have challenged them again in the confiscation proceedings. The judge was sure on the evidence that the relevant offences had been proved. The fair trial requirements of art 6(1) had been satisfied.

LORD MANCE delivered a concurring opinion.

LORD RODGER, LORD BROWN and LORD NEUBERGER held that s 2(8)(a) had to be read as applying the civil standard of proof only to questions as to whether a person had benefited from drug trafficking, and the criminal standard to any question as to whether a person had committed a specific drug trafficking offence, but agreed in dismissing the appeal as the judge had made his finding to the criminal standard.

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Appearances: Tim Owen QC and Timothy Kendal (Henry Milner & Co) for the defendant; Mark Lucraft QC, Thomas Payne and Mark Sutherland Williams (Revenue and Customs Prosecutions Office, Salford) for the Crown.

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Reported by: C T Beresford, barrister