Joint Committee On Human Rights Eleventh Report

The Home Office Response on Confiscation Orders


5. In our Third Report, we provisionally took the view that the statutory assumptions under the Bill would not be intrinsically incompatible with the right to a fair hearing under ECHR Article 6(1), as long as the court did not make assumptions for which there is no evidence, and made due allowance for situations in which it would be impracticable for the defendant to satisfy the burden of disproving the assumption which the Bill places on him. We asked the Home Secretary whether there would be advantages in incorporating these considerations expressly in the Bill. In this connection, we drew attention to the remarks of Lord Woolf, the Lord Chief Justice, in the Court of Appeal in R. v. Benjafield.[9] The House of Lords has now held that the defendant was unable to rely on Convention rights, because the conviction occurred before the Human Rights Act 1998 came into force on 2 October 2000.[10] However, in that case and another raising similar issues,[11] their Lordships gave guidance to courts on the way in which the legislation should be interpreted and applied in later cases in order to avoid incompatibilities with the right to a fair hearing under ECHR Article 6. Lord Steyn, with whom the other Lords of Appeal agreed, took the view that courts should treat a serious risk of injustice as being equivalent to a real risk of injustice.[12] This is not surprising, since any risk of injustice in judicial proceedings is serious. It re-emphasizes the significance of the factors which Lord Woolf C.J., in the Court of Appeal, had identified as important to secure the compatibility of any confiscation order with ECHR Article 6(1).

6. In its response, the Government suggested that two safeguards already present in the Bill would be sufficient to ensure that the presumptions operate in a manner compatible with Article 6. The safeguards are—

-  the defendant's freedom to rebut the presumptions on the balance of probabilities, and

-  the prohibition against making statutory assumptions where making them would give rise to a serious risk of injustice.[13]

We are grateful to the Government for making it clear that the duty of the court to avoid making assumptions where they would give rise to a serious risk of injustice[14] is intended to encompass the situation where it would be impracticable for a defendant to rebut the assumption. In the light of this, we accept the Government's view[15] that it is acceptable to allow courts to decide flexibly, on a case by case basis, whether or not it would cause a serious risk of injustice to make an assumption, rather than to attempt to specify in the legislation the circumstances in which the assumptions will not apply. In reaching this conclusion, we take account of the duty on the court[16] to interpret 'serious risk of injustice' in such a way as to secure a fair hearing as required by ECHR Article 6(1), and we bear in mind the willingness of the Court of Appeal and the House of Lords[17] to ensure that the term is interpreted in such a way as to avoid any real risk of injustice. None the less, we remain of the view that it would be desirable, in seeking to ensure that laws which affect human rights are as certain and accessible as possible, to ensure that legislation imposing burdens on people, or conferring powers on officials, sets out as fully as possible the conditions under which the obligations arise or the powers may be exercised compatibly with the human rights of people who are likely to be affected. We take the view that it is right as a general principle that rights and powers should be express in legislation even though the effect of the Human Rights Act would be to imply compatible standards.


7. We are inclined to doubt the Government's assertion that 'there will always be evidence supporting the assumptions, namely the fact that the defendant has been convicted of an offence that is indicative of a criminal lifestyle.'[18] We draw attention to the fact that the evidential threshold for establishing a criminal lifestyle is low. Under clause 75, a person is treated as having a criminal lifestyle if—

-  the defendant's conviction is for one of a group of offences which are statutorily presumed to be committed by offenders on an habitual basis, or

-  the conviction is for an offence which is treated under the statute as forming part of a course of criminal activity, or

-  the conviction is for an offence committed over a period of at least six months.

It should not be forgotten that all these criteria go beyond identifying hallmarks of a criminal lifestyle, leaving courts to assess their significance on the facts of each case. Instead, they amount to statutory presumptions which cannot be rebutted. There may be some empirical evidence for the sociological assumptions which the criteria reflect. However, the Government has not provided any such evidence. Even if there is such evidence, it cannot amount to a satisfactory basis for preventing the defendant from rebutting the presumption of a criminal lifestyle.

8. We draw the attention of each House to the weakness of the evidence so far presented to support the proposition that it is proper to treat people as having a criminal lifestyle if the criteria in clause 75 are met. We think that the criteria are too widely drawn to be a satisfactory basis for imposing a very extensive confiscation order on a defendant, including the value of property which has not been shown to be derived from criminal conduct. Take, for example, the possibility that the offence might form part of a course of criminal activity. Under clause 75 of the Bill, it would be such an offence if it were one of three offences of which the defendant has been convicted and from which he or she has benefited in the previous six years. The offences need not be of the same type. To describe such a record as amounting to a criminal lifestyle, without regard to the nature of the offences or other factors, seems to us to be unsatisfactory. The proven benefit may be very small but its presence triggers the potential exposure of the defendant's entire estate to confiscation. Despite the Government's assertion,[19] we are not persuaded that it is reasonable to assume that all such offenders are living off the proceeds of crime, or that they are likely to have committed a number of other offences which have not come to light. Nor are we satisfied that people described by the Government as 'lifestyle criminals' in this very broad and over-inclusive sense 'are adept at destroying evidential links between proceeds and crimes', making it necessary to make statutory assumptions.[20] If there is evidence to support such sweeping generalizations, it should be possible to present it to Parliament. So far, we have been shown no such evidence.

9. In the light of this, we do not feel confident that the Bill as currently drafted will ensure that the application of the statutory assumptions can be relied on to operate in a proportionate manner. We draw this matter to the attention of each House.


10. The Government has included special protection in the Bill for the interests of members of the family of a defendant in Scotland in the family home which might form a realisable asset for the purpose of a confiscation order. No equivalent provisions are included for England and Wales or for Northern Ireland. The Government explains this as reflecting the previous law in Scotland, but asserts that 'the provision is not necessary in order to safeguard the rights and interests of members of the defendant's family'.[21] The Government refers particularly to the duties of receivers to allow third parties to retain their interests, and the duty of courts to allow third parties to make representations before making orders which give receivers power to deal with property in which third parties have an interest.[22]

11. We are not persuaded that these safeguards are sufficient to ensure that the Convention rights of innocent third parties under ECHR Article 8 will be adequately respected. The provisions to which the Government refers offer some protection to people with interests (that is property interests) in the assets, but do not protect members of the family who have no property interest in them.[23] Not all spouses have property interests in the family home, and few young children are likely to have them. We consider that there is a gap in the protection for innocent members of the family against losing the family home.

12. The Government observes that other sentences of a criminal court may also impose financial hardship leading to the loss of the family home, and comments—

However, the public interest in preventing and detecting crime outweighs the loss suffered by the family. The Department can see no reason why confiscation provisions should be treated differently.

We disagree, for three reasons.

13. First, we are now in an era in which public authorities, including sentencing courts, have a duty to act compatibly with Convention rights generally, not just those of the defendant before the court. Under ECHR Article 8(1), the other people who live in the family home have a right to respect for their home. We ought now to be looking at ways of ensuring that protecting the family home is taken seriously as part of the process of imposing all sentences on offenders. It is not satisfactory to treat the absence of adequate protection in relation to some sentences as a reason for refusing to introduce safeguards to sentences under new legislation.

14. Second, the Government's assertion that 'the public interest in preventing and detecting crime outweighs the loss suffered by the family' is very generalized. There may be many cases in which the assertion would be correct, although the Government has not offered any examples or referred us to empirical studies to support their claim as a general sociological proposition. Under ECHR Article 8, more than an unsupported assertion of this kind is required to justify authorizing an interference with the family home. Besides serving a legitimate aim under Article 8(2), the public authority seeking to interfere must show that the interference is necessary in a democratic society for that purpose, that is that it is a proportionate response to a pressing social need for action. In our view, the Government has offered no relevant or compelling evidence to support their claim that the interference would be justified.

15. Third, it appears to have been accepted that there is a good reason for having special protection for the family home in Scotland. If the interference with the right of members of a defendant's family under ECHR Article 8(1) to have their family home respected is less well protected in England and Wales and Northern Ireland than in Scotland, there may be a further risk that families of defendants in England and Wales and Northern Ireland will suffer discrimination in the enjoyment of their Convention rights, violating ECHR Article 14 taken together with ECHR Article 8. The different legal rules may be explicable on the basis that there are three different legal systems, but it might well be necessary to show that any difference in treatment is objectively and rationally justified in order to secure compatibility with ECHR Article 14.

16. We have reached the conclusion that we cannot be satisfied that the risk of interference with rights under ECHR Article 8 in England and Wales and Northern Ireland, and the difference of approach to the family home under the legislation between Scotland and other parts of the United Kingdom, are justifiable on human rights grounds. We accordingly draw the matter to the attention of each House.

9   [2001] 3 WLR 75, CA Back

10   [2002] UKHL 2, judgment of 24 January 2002 Back

11   [2002] UKHL 1, judgment of 24 January 2002 Back

12   R v. Rezvi [2002] UKHL 1 at para. 15 of the judgment; R. v. Benjafield [2002] UKHL 2 at para. 8 of the judgment: '...the judge must be astute to avoid injustice. If there is or might be a serious or real risk of injustice, he must not make a confiscation order. In these circumstances a challenge to the compatibility of the legislation must fail.' Back

13   Memorandum, para. 3 Back

14   Clause 11(6)(b) of the Bill Back

15   Memorandum, paras 6 and 7 Back

16   See Human Rights Act 1998, ss. 3 and 6 Back

17   This is revealed by the decisions in R. v. Benjafield [2001] 3 WLR 75, CA; [2002] UKHL 2, HL, and R. v. Rezvi [2001] 3 WLR 75, CA; [2002] UKHL 1, HL Back

18   Memorandum, para 3 Back

19   ibid., para 11 Back

20   ibid., para 8 Back

21   ibid., para 17 Back

22   ibid., para 21 Back

23   We note that many other people with legitimate interests may also be affected, including the employees and creditors of any business of the defendant which ceases to operate as a result of the order being made; but, unlike interests in the family home, these interests are not protected by ECHR Article 8 Back

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