Joint Committee On Human Rights Appendices to the Minutes of Evidence


Letter from the Clerk of the Committee to the Home Office


  The Joint Committee on Human Rights has recently considered the Proceeds of Crime Bill. Its report of these preliminary considerations will be published early next week. In the meantime, the Committee has instructed me to seek answers to the following questions which arise from its examination of the Bill with respect to its compliance with Convention rights.

1.   Statutory assumptions, fair trial, and the presumption of innocence

  Clause 11 of the Bill as introduced incorporated four statutory assumptions which courts are required to make when assessing a defendant's benefit from crime following conviction. The court would have to make these assumptions unless satisfied on a balance of probabilities that they are wrong or that making them would cause injustice. The process assumes that certain defendants have benefited from criminal conduct of which they have not been convicted, in addition to that of which they have been convicted. The Committee's provisional view is that the requirement to make the assumptions does not engage the right to be presumed innocent until proved guilty under Article 6(2) of the ECHR. The Committee also provisionally considers that the requirement is not intrinsically incompatible with the right to a fair hearing under Article 6(1), as long as the court does not make assumptions for which there is no supporting evidence, and makes due allowance for situations in which it would be impracticable for the defendant to satisfy the burden of proof which the legislation places on him or her.[1]

  However, the Committee considers that there may be advantages, in terms of legal certainty, if the statutory assumptions were to be drafted in a way that incorporated those considerations expressly in the duties of the courts under the legislation. It invites the Home Office to respond to this view.

2.   Compatibility of the confiscation order regime with the right to the enjoyment of property

  There would normally be no doubt that a defendant is entitled to the property subject to a confiscation order. The order will therefore usually constitute an interference with the right to enjoy property under Article 1 of Protocol No. 1 to the ECHR.[2] The interference may be justified under that Article if it is "in the public interest and subject to the conditions provided for by law and by the general principles of international law." The state has the right "to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." A confiscation order is such a penalty, but the imposition of the penalty must still meet the condition that it is in the public interest and subject to the conditions provided for by law and by the general principles of international law.[3] This requires that there be "a reasonable relationship of proportionality between the means sought to be employed and the aim sought to be achieved".[4] A proper balance must be struck between the public interest and the rights of the property owner.

  In Phillips v United Kingdom, the European Court of Human Rights unanimously decided that confiscation orders in drug trafficking cases satisfy these tests. However, it is arguable that the Bill, like the current legislation applying to confiscation orders, makes it possible to impose confiscation orders on defendants whose level of criminality differs widely, particularly when the prosecution relies on a course of criminal conduct or a "criminal lifestyle".

  The Committee seeks a further explanation of the grounds on which Ministers are satisfied that the requirement of proportionality is likely to be met, in all cases not involving drug trafficking, in which a court would have a duty to make a confiscation order after applying the statutory assumptions under the procedures proposed in the Bill.

3.   Protecting the interests of members of a defendant's family in the family home

  In relation to Scotland, clause 101 of the Bill as introduced makes special provision to protect the interests of members of the defendant's family in the family home where it forms realisable property (as part of the defendant's assets) but the prosecution has not satisfied the court that the home was acquired as a benefit of criminal conduct. In the Committee's view this would appear to provide valuable additional protection for the right to respect for the home of the defendant's family under Article 8 of the ECHR.

  The Committee seeks an explanation as to why no similar express provision is made in respect of England and Wales or Northern Ireland.

4.   The right to legal representation in civil recovery proceedings under the Bill.

  The Committee has provisionally formed the view that civil recovery actions under Part 5 of the Bill might fall to be regarded as involving a "criminal charge" for the purposes of Article 6 of the ECHR, in view of the autonomous meaning given to that term by the European Court of Human Rights. This makes it possible that the respondent in such proceedings would be entitled to rely on the rights under Article 6(2) and (3), as well as the right to a fair hearing under Article 6(1).

  The first question to arise from this relates to the right to defend oneself through legal assistance of one's own choosing (Article 6(3)). Where an interim receivership order is made pending trial of the action, to preserve assets which might become subject to a recovery order, clause 255(4) of the Bill as introduced expressly forbids any exclusion to enable any person to meet any legal expenses in respect of proceedings in relation to the application for the recovery order. Where a large part of the respondent's assets is subject to the interim receivership order, this may effectively deprive the respondent of the right to choose his own legal representative. It would interfere significantly with the rights of the defence (as well as potentially placing a significant additional burden on the legal aid fund). It contrasts in a notable way with the treatment of people subject to restraint orders under the confiscation legislation (Parts 2-4 of the Bill), which can be subject to exceptions for reasonable legal expenses.[5] A threat to rights under Article 6(3)(c) might only be thought to be justified under the recovery order procedure if it is assumed that the proceedings do not involve a criminal charge. As noted above, this assumption, if it is being made, is in the Committee's view, questionable.

  Additionally, the Committee considers that even if Article 6(3) were not applicable, Article 6(1) would be, because the recovery of assets involves a determination of the respondent's civil rights and obligations.[6] Article 6(1) includes a right of access to a court, which the Committee believes is potentially compromised by denying a respondent the right to use his or her own property (albeit property which is suspected of having been obtained as a result of criminal conduct) to secure legal representation to defend his or her rights. There may be circumstances in which refusing to permit reasonable legal expenses to be paid for out of the property would necessitate granting legal aid at public expense in order to comply with Article 6(1).[7]

  In the light of the need to secure compatibility with Article 6 of the ECHR, the Committee seeks an explanation from the Home Office as to why clause 255(4) is thought to be appropriate.

5.   Retrospectivity

  If the Committee's provisional view that civil recovery proceedings might be criminal for the purpose of Article 6, it would follow that the right not to be retrospectively subject to a criminal penalty under Article 7 is engaged. A recovery order is likely to be regarded as a penalty under Article 7 of the ECHR, because (like the confiscation order in Welch v United Kingdom) it has no compensatory role, is a consequence of criminal conduct having been established, and potentially subjects the respondent to an order of considerable severity.

  This causes the Committee some concern. The civil recovery regime would apply to property obtained before the Bill, if passed, would come into force. This retrospective operation would be unlimited as to time, because the Bill provides that the normal statutory rules on limitation of actions will not apply to applications for recovery orders.[8] The unlawful conduct which would make a person liable to have property taken away could therefore have occurred at any time in the past, when he or she would have had no knowledge of potential liability to a recovery order.

  The Committee seeks a further explanation as to why Ministers believe that the retrospective operation of the proposed recovery order regime would be compatible with Article 7 of the ECHR.

6.   Other representations relating to compliance with Convention rights, etc.

  The Committee also wishes to be informed of other representations the Home Office has received relating to the compatibility of provisions of the Bill as introduced with human rights obligations.

7.   Undertakings

  The Committee would also be grateful for details of any undertakings given so far by Ministers to Parliament to consider, or bring forward, amendments to the Bill in relation to the above questions or related matters.

  The Committee would be grateful for your responses to the above questions by Monday 8 January 2002. It may thereafter wish to make a further report to each House on issues which, in its view, have been satisfactorily dealt with or remain unresolved

27 November 2001

1   See R. v Benjafield [2001] 3 WLR 75, CA, at paragraphs 90 and 96 of the judgment. Back

2   Phillips v United Kingdom, above. Back

3   Ibid., at paragraph 51 of the judgment. Back

4   See, eg, Allan Jacobsson v Sweden (No. 1), Judgment of 25 October 1989, Series A, No. 163, at paragraph 55. Back

5   See, eg, cl. 42(3)(a). Back

6   Raimondo v Italy, Eur. Ct. HR, Judgment of 22 February 1994, Series A, No. 281-A, involving the confiscation of the assets of a person suspected of involvement with the Mafia. Back

7   Airey v Ireland, Eur. Ct. HR, Judgment of 9 October 1979, Series A, No. 32. Back

8   Cl. 287 would amend the Limitation Act 1980, the Prescription and Limitation (Scotland) Act 1973, and the Limitation (Northern Ireland) Order 1989, SI 1989 No. 1339 (NI 11), to produce this effect. Back

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