|Judgments - Regina v Rezvi
20. The thrust of the final argument of counsel for the appellant was that in making the confiscation order the court took into account counts which were undetermined. The premise of this argument is wrong: the judge rightly relied on the evidence before him in relation to confiscation and not on any undetermined counts. The confiscation regime is a fair procedure which takes account of the offender's rights as well as the public interest. In McIntosh v Lord Advocate  3 WLR 107, 121, Lord Bingham observed (paragraph 35):
The same reasoning applies in the present case. The application by the Crown to apply primary legislation (subject to control by the court and subject to a full right of appeal on the part of a convicted defendant) could not amount to an abuse of the process of the court. The procedure is fair inasmuch as the sentencing court is duty bound not to make the assumptions if it might be unfair to do so. There was therefore no abuse of the process of the court.
21. The judge had to determine disputed issues of fact. The appellant and his wife testified. He rejected their evidence. That was a decision open to him on the evidence. On the evidence before the judge the order of confiscation was properly made.
22. For these reasons as well as the reasons given by Lord Hope of Craighead I would dismiss the appeal.
LORD HOPE OF CRAIGHEAD
23. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. I agree with it, and for reasons which he has given I too would dismiss this appeal. I should like however to add these observations.
24. The confiscation order to which the appellant was made subject was made before section 7(1)(b) of the Human Rights Act 1998 came into force. Nevertheless he seeks to rely on section 22(4) of that Act, which provides that section 7(1)(b) applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place. His appeal is based in part on the proposition that the legislation under which the order was made is incompatible with his rights under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and that, for this reason, the prosecutor's act in applying for the making of the order was unlawful within the meaning of section 6(1) of that Act.
25. The Court of Appeal  3 WLR 75, 93D-E held that, as his appeal was part of the proceedings to which section 7(1)(b) of the 1998 Act applied, the appellant was entitled to rely in this appeal on his Convention rights. It also held, at p 94A, that section 3(1) of the 1998 Act had to be given retrospective effect if section 7(1)(b) was to be applied retrospectively, with the result that for the purposes of this appeal that the Criminal Justice 1988 Act had to be read and given effect in a way which was compatible with his Convention rights.
26. Since the date of that decision your Lordships have delivered judgments on the issue of retrospectivity which has had the effect of overruling the decision reached on it by the Court of Appeal. In R v Kansal  3 WLR 1562 your Lordships decided not to depart from the reasoning of the majority in R v Lambert  3 WLR 206. Those were cases where the defendant was appealing against his conviction. In this case your Lordships are concerned not with an appeal against conviction but with an appeal which is to be treated as an appeal against sentence. But the reasoning of the majority in R v Lambert applies to all appeals whatever their subject matter. In this situation I agree that it must be applied in this case also. I would hold that it is not open to the appellant in this appeal to rely on section 7(1)(b) of the 1998 Act in regard to the pre-commencement act of the prosecutor in asking the court to make the confiscation order.
27. As Lord Woolf CJ observed at p 94A, however, the ability of the court to give guidance in future cases is an important consideration. I agree with Lord Steyn that it would be sensible for your Lordships to take the opportunity of considering the potential impact of the Convention on confiscation proceedings under Part VI of the Criminal Justice Act 1988 as amended. With that in mind, I add these comments on article 6 of the Convention in the light of the decision of the European Court of Human Rights in Phillips v United Kingdom (Application No 41087/98) 5 July 2001;  Crim L.R. 817. I should also like to add a few words on the issue of abuse of process.
Article 6 of the Convention
28. The decision of the Judicial Committee of the Privy Council in McIntosh v Lord Advocate  3 WLR 107 was, as Lord Steyn has observed, concerned with confiscation proceedings under the Proceeds of Crime (Scotland) Act 1995 following a conviction for a drug trafficking offence. There is a close similarity between the provisions with which that case was concerned and those in the present case, and I agree that much of the reasoning in that case can be applied here too. There are however two points about it that are worth mentioning in view of the comments on that decision by the European Court in Phillips v United Kingdom.
29. The first point is that the Scottish legislation, as applied to cases where there is a conviction for drug trafficking, does not require the assessment of the value of the accused's proceeds from drug trafficking to be based on assumptions that he has been engaged on other conduct which would be treated as criminal. As Lord Bingham of Cornhill said in McIntosh v Lord Advocate, at p 111, paragraph 6(7), the expression "drug trafficking" in the 1995 Act has a meaning distinct from and wider than that of the expression "drug trafficking offence". It includes conduct which would, but also conduct which would not, give rise to criminal offences under Scots law. This made it a little easier in that case to hold that article 6(2) of the Convention was not engaged than it perhaps would have been in this case.
30. But the activity of drug trafficking is in general an essentially criminal activity, and it seems likely that the purpose of the definition was to enable conduct falling within that description to be brought into account even if it could not have been prosecuted in a criminal court in Scotland. So I do not think that this difference between the two legislative regimes provides a reason for not applying the decision in McIntosh v Lord Advocate to this case. The important point is that the procedure which section 72AA of the 1988 Act lays down does not involve the bringing of a fresh charge or charges against the defendant. The process cannot begin until he has been convicted of the qualifying offences, and it is only those offences that may be taken into account in determining his sentence. The process which then follows is based upon the assumption that the criminal charges against the defendant in the indictment have been proved. I continue to think that article 6(2) is not directly engaged in these circumstances.
31. The second point is that counsel for the respondent in McIntosh v Lord Advocate made it clear at the outset of his argument that he was not seeking to rely to any extent on article 6(1). He relied exclusively on article 6(2) and did not attempt to argue that there was any breach of article 6(1). Nevertheless the Board did not overlook article 6(1), as Lord Bingham made clear in paragraph 28, at p 119. As he said, the conclusion that article 6(2) did not apply did not leave the accused unprotected, as he was entitled to all the protection afforded to him by article 6(1). In my opinion that observation applies with equal force where a confiscation order is sought under Part VI of the 1988 Act. This means that the defendant is entitled to the benefit of all the general requirements of article 6 to which Judge Bratza and Judge Vajic referred in their partly dissenting opinion in Phillips v United Kingdom (Application No 41087/98) 5 July 2001, at p 17.
32. The critical question in the present case therefore is that on which the European Court in Phillips v United Kingdom were unanimous. That is the question whether, as applied to the appellant in this case, the provisions of section 72AA exceeded the reasonable limits within which they are required to be confined by article 6(1) as regards the general implied right under that article in a criminal case to be presumed innocent: see paragraph 40 of the judgment in that case. On that issue, I would apply the test indicated in paragraph 47 of that judgment. The question is whether the application of the procedure to the appellant was confined within reasonable limits given the importance of what was at stake, and whether his rights were fully respected. No criticism has been made in this case of the approach which the judge took to the facts when he was calculating the amount of the confiscation order. Having regard to that fact, to what was said in paragraphs 40 to 43 of the judgment in Phillips v United Kingdom and to the whole structure of the procedure which the section lays down including the discretion which is given to the court and the duty which is placed on it to avoid a serious risk of injustice, I would hold that this test is satisfied.
Abuse of process
33. This argument is not affected by the decision in R v Kansal  3 WLR 1562, as it depends upon common law principles and is not founded on an alleged breach of any Convention right. The essence of the appellant's point is that the section 72AA confiscation procedure was intended to be used against life-style criminals. It was appropriate for use in cases where the Crown had established a course of criminal conduct, as the sidenote to section 72AA indicates. In this case the appellant had been charged with 14 counts spanning a 22-month period from April 1997 to February 1999. It was accepted that if convictions had been obtained on all 14 counts, that would have been sufficient to make it appropriate to resort to section 72AA. But it was submitted that, by accepting the appellant's pleas of guilty to two offences only relating to a 10-day period in February 1999, the Crown came nowhere near establishing a course of criminal conduct.
34. There is no doubt that the initial requirements for the making of a confiscation order under section 72AA were satisfied. Section 72AA(1)(a) provides that that section applies in a case where an offender is convicted of a qualifying offence which is an offence of a relevant description if the prosecutor gives written notice to the court that he considers that the case is one in which it is appropriate for the provisions of that section to be applied and the offender is convicted in those proceedings of at least two qualifying offences. The definition of "qualifying offence" in section 72AA(2) provides, among other things, that the court must be satisfied that it is an offence from which the defendant has benefited. In this case the requisite notice was given and the appellant pled guilty in the same proceedings to two offences which were offences from which he had benefited. They were offences of theft contrary to section 1(1) of the Theft Act 1968 in which the sum involved was said in each case to be £5,000.
35. The alleged abuse is directed to the fact that the 12 other offences in the indictment, which comprised nine offences of theft contrary to section 1(1) of the 1968 Act and three offences of obtaining money transfers by deception contrary to section 15A of that Act, had not been proceeded with. The prosecutor's notice was given after the appellant had pled guilty to the last two counts of theft but not guilty to the other 12, which pleas had not been acceptable to the prosecutor. This statement referred to the fact that the appellant was due to appear at the Crown Court in respect of 11 charges of theft and three charges of deception totalling £35,105. It also stated that an examination of the accounts of the hotel where the appellant had been employed as assistant financial controller had identified £283,000 of losses since April 1997 attributable to transactions conducted by him and that the 14 charges were specimen counts of theft and deception. It would clearly have been unfair for the prosecutor to rely on everything that was said in that statement once he had decided, as he did when the case came up for trial, to accept pleas of guilty to the last two charges only and not to proceed with the other 12.
36. In the event the prosecutor did not do this. He produced a further statement in which he referred in terms to the fact that counts 1 to 12 were not proceeded with. Under reference to the provisions of the statute he then explained the approach which he invited the court to take, based on the fact that the appellant had been convicted only of two qualifying offences and on the assumptions which the court was entitled to make under section 72AA(4). It has not been suggested that anything that he said in this later statement was misleading or inaccurate. In these circumstances I consider that he dealt correctly with the situation which arose when the case came up for trial. I do not think that his act in asking the court to make the assumptions which it was entitled to make in the event of the appellant's conviction of two qualifying offences only can be described as an abuse of the process.
37. Furthermore, as the prosecutor correctly said in his second notice, section 72AA does not require the prosecutor to specify any offences other than the qualifying offences. The matter proceeds from then on upon assumptions which the court makes if it thinks fit. It is the offences from which in accordance with those assumptions the defendant is assumed to have benefited that are treated under section 72AA(6) as relevant criminal conduct. But the whole exercise is subject to the provision in section 72AA(5)(c) that the court shall not make an assumption if it is satisfied that there would be serious risk of injustice in the defendant's case. In the whole context I do not think that the prosecutor can be said to have acted unfairly in this case.