House of Lords considers Right to Fair Hearing and Presumption of Innocence in Context of Confiscation Orders

R v Briggs-Price [2009] UKHL 19 (29 April 2009) The House of Lords has unanimously held that a confiscation order can be validly made on the basis of matters established by evidence at trial, but in relation to which a defendant has not been charged.  This practice does not infringe the defendant's right to the presumption of innocence or right to a fair trial under the European Convention on Human Rights.

Facts

The defendant, Mr Briggs-Price, was convicted of conspiracy to import heroin under the UK Drug Trafficking Act 1994.  At trial, the prosecution also led evidence that he had imported and distributed cannabis, although he was not charged with any offences relating to cannabis.

After his conviction, Briggs-Price was subject to confiscation proceedings and a subsequent confiscation order under the Drug Trafficking Act 1994.  Such orders permit the assets of a person convicted of a drug trafficking offence to be confiscated, to the extent that they benefited from the drug trafficking.

The judge in the confiscation proceedings based his assessment of the benefit Briggs-Price had received from trafficking on the proceeds of his cannabis importation and dealing (his plan to import heroin was never implemented), despite the fact that Briggs-Price had not been convicted of cannabis related offences.  The judge held that the evidence at trial established Briggs-Price had dealt in cannabis, and imposed a confiscation order totalling £2,628,490.

The defendant appealed, arguing that by basing the confiscation order on offences of which he had not been convicted, the Court had violated his right to a fair trial and the presumption of innocence afforded by arts 6(1) and 6(2) of the European Convention.

Decision

The House of Lords unanimously dismissed the appeal, ruling that the appellant's art 6 rights had not been infringed.

The majority held that confiscation orders did not involve bringing new criminal charges against the defendant and were merely a part of the sentencing process.  As a result, art 6(2) did not apply.  Art 6(1) was satisfied in this case, as the appellant had received a fair original trial.

In finding that confiscation proceedings do not constitute new charges, their Lordships relied heavily on English and European Court of Human Rights jurisprudence which had found that confiscation proceedings are analogous to the determination of a penalty, such as a fine or term of imprisonment. The Court also considered that the purpose of the confiscation proceedings were not to obtain a criminal conviction.

Lord Mance noted that the European Court had found that confiscation proceedings do not amount to a new charge because, among other factors:

• an application for a confiscation order can only be made if the accused is convicted, not if they have been acquitted;
• the proceedings form part of sentencing procedure;
• the proceedings are not governed by ordinary rules of criminal procedure, and are not initiated by indictment; and
• the proceedings do not result in a verdict being handed down.

Lord Neuberger took into account matters of public policy in considering whether the proceedings amounted to new charges, stating:

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.

Lord Brown alone found that art 6(2), which guarantees the presumption of innocence, applied to the confiscation proceedings.  However, his Lordship held that in this case the presumption had been satisfied.  His Lordship noted that the trial judge had been convinced that Briggs-Price had been dealing cannabis, based on the evidence which had been led.  Accordingly, the presumption of innocence had been satisfied.

The other Law Lords held that art 6(2) was not engaged as confiscation proceedings do not involve charging the defendant with a criminal offence, unless accusations raised during the initial sentencing are so serious as to amount to bringing a new charge.

Relevance to the Victorian Charter

The rights to a fair trial and the presumption of innocence are protected by ss 24 and 25 of the Victorian Charter of Human Rights and Responsibilities. The judgment in this case contains some principles on the nature of those rights and their application generally, as well as providing guidance on their possible interaction with confiscation provisions contained in the Confiscation Act 1997 (Vic) and Proceeds of Crime Act 2002 (Cth).

The decision is available at http://www.bailii.org/uk/cases/UKHL/2009/19.html.

Josh Underhill, Human Rights Law Group, Mallesons Stephen Jaques