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|Judgments - R v Briggs-Price (Appellant) (On appeal from the Court of Appeal (Criminal Division))
HOUSE OF LORDS
 UKHL 19
on appeal from: EWCA Crim 146
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
R v Briggs-Price (Appellant) (On appeal from the Court of Appeal (Criminal Division))
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
Lord Brown of Eaton-under Heywood
Lord Neuberger of Abbotsbury
Tim Owen QC
(Instructed by Henry Milner & Company )
Mark Lucraft QC
Mark Sutherland Williams
(Instructed by Revenue & Customs Prosecutions Office)
Hearing date :
5 FEBRUARY 2009
WEDNESDAY 29 APRIL 2009
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
R v Briggs-Price (Appellant) (On appeal from the Court of Appeal (Criminal Division))
 UKHL 19
LORD PHILLIPS OF WORTH MATRAVERS
1. Under the Drug Trafficking Act 1994 (the 1994 Act) the assets of a defendant convicted of a drug trafficking offence are liable to confiscation to the extent that he has benefited from drug trafficking. The benefit in question is not restricted to the benefit derived from the offence or offences in respect of which the defendant has been convicted. In confiscation proceedings the prosecution has to satisfy the court that the defendant has benefited from drug trafficking and the extent of such benefit. The normal way of doing this is to prove that the defendant possesses, or has possessed, property and to invite the court to assume that the property in question represents or represented benefit derived from drug trafficking. The Act expressly provides that the court must make this assumption unless it is shown to be incorrect or would involve a serious risk of injustice.
2. The appellant is subject to a confiscation order imposed under the 1994 Act in the sum of £2,628,490. He appealed unsuccessfully against that order to the Court of Appeal and now appeals against the order of that court dated 22 January 2008.
3. In this case the prosecution adopted an unusual approach to proving that the defendant had benefited from drug trafficking and the extent of that benefit. They proved that the defendant had committed drug trafficking offences other than that in respect of which he was convicted and invited the court to estimate the profit that he must have derived from these offences.
4. Mr Owen QC for the appellant submitted that this approach was not permitted on the true construction of the 1994 Act. He submitted that, if the relevant statutory provisions are given their natural meaning, they do not permit the prosecution, in confiscation proceedings, to establish that a defendant has benefited from drug trafficking by proving that he has committed drug offences and then inviting the court to infer the monies expended or received in relation to those offences. Alternatively, he submitted that such an approach is incompatible with the requirements of the European Convention on Human Rights, so that the relevant provisions of the 1994 Act have to be read down so as to preclude its adoption.
The statutory provisions
5. By section 2(1) of the 1994 Act where a defendant appears before the Crown Court to be sentenced in respect of one or more drug trafficking offences, and the prosecutor asks the court to proceed under section 2, or the court considers that it is appropriate to do so, the court is required to proceed as follows:
(2) The court shall first determine whether the defendant has benefited from drug trafficking.
(3) For the purposes of this Act, a person has benefited from drug trafficking if he has at any time (whether before or after the commencement of this Act) received any payment or other reward in connection with drug trafficking carried on by him or another person.
(4) If the court determines that the defendant has so benefited, the court shall, before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned, determine in accordance with section 5 of this Act the amount to be recovered in his case by virtue of this section.
(5) The court shall then, in respect of the offence or offences concerned -
(a) order the defendant to pay that amount;
(b) take account of the order before-
(i) imposing any fine on him;
(ii) making any order involving any payment by him; or
(iii) making any order under section 27 of the Misuse of Drugs Act 1971 (forfeiture orders) or section 43 of the Powers [1973 c. 62] of Criminal Courts Act 1973 (deprivation orders); and
(c) subject to paragraph (b) above, leave the order out of account in determining the appropriate sentence or other manner of dealing with him.
6. Section 5 restricts the amount to be recovered under a confiscation order to the amount that the court certifies is capable of being realised from the defendants assets at the time that the order is made. Subject to that limitation it provides that the amount to be recovered under the order shall be the amount that the court assesses to be the value of the defendants proceeds of drug trafficking. Section 4 makes provision for assessing the proceeds of drug trafficking. It provides:
4. - (1) For the purposes of this Act -
(a) any payments or other rewards received by a person at any time (whether before or after the commencement of this Act) in connection with drug trafficking carried on by him or another person are his proceeds of drug trafficking; and
(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards.
(2) Subject to subsections (4) and (5) below, the Crown Court shall, for the purpose -
(a) of determining whether the defendant has benefited from drug trafficking, and
(b) if he has, of assessing the value of his proceeds of drug trafficking, make the required assumptions.
(3) The required assumptions are -
(a) that any property appearing to the court -
(i) to have been held by the defendant at any time since his conviction, or
(ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him,
was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him;
(b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him; and
(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it.
(4) The court shall not make any required assumption in relation to any particular property or expenditure if -
(a) that assumption is shown to be incorrect in the defendants case; or
(b) the court is satisfied that there would be a serious risk of injustice in the defendants case if the assumption were to be made;
and where, by the virtue of this subsection, the court does not make one or more of the required assumptions, it shall state its reasons.
7. Section 2(8) provides that the standard of proof required to determine any questions in relation to whether a person has benefited from drug trafficking and the extent of such benefit arising under the Act is that applicable in civil proceedings.
8. The relevant facts are set out in detail and with clarity in the judgment of the Court of Appeal delivered by Richards LJ  EWCA Crim 146. I propose to reduce them to the outline that is necessary to understand the issues raised by this appeal.
9. The confiscation order was consequential to the appellants conviction on 14 April 2003 in the Crown Court at Nottingham of conspiracy to import heroin. It was the prosecution case that the role of the appellant in the conspiracy was that of the purchaser and distributor of the drugs. In the event the conspiracy was never implemented. No heroin was imported into the United Kingdom, no payment for heroin was made by the appellant and he derived no benefit from the conspiracy.
10. It was the prosecution case that the appellant had been selected by the other conspirators to take part in the trafficking because he had already created a network for the transportation and distribution of cannabis. The appellant denied that he had ever dealt in cannabis and the judge gave permission for evidence on this issue to be adduced at his trial. This consisted of admissions made by the appellant that had been recorded by covert surveillance or made to an undercover agent. It was the appellants case that he had never had any involvement in dealing with any class of drugs. Insofar as his recorded conversations suggested to the contrary, this was bragging that was untrue.
11. No charge was pursued against the appellant in relation to dealing in cannabis and the jury was directed that it was not necessary for them to resolve the cannabis distribution issue in order to find the appellant guilty in relation to the conspiracy to distribute heroin.
12. The appellants conviction was followed by confiscation proceedings, conducted by the trial judge, His Honour Judge Stokes QC. There was agreement as to the amount of the appellants assets. These included a large hotel and a portfolio of properties, some of which produced a substantial income. The appellant did not, of course, accept that these represented the proceeds of drug trafficking and was prepared to challenge the statutory assumptions under section 4(3) of the 1994 Act. This raised the prospect of a protracted and expensive dispute and, in order to avoid this, the prosecution agreed with the appellant that the statutory assumptions would not be made. The judge accepted this agreement. The prosecution did not seek to assert that the appellant had any hidden assets.
13. The judge gave a detailed ruling setting out his conclusions as to the benefits that the appellant had obtained from drug trafficking. He started by remarking that the appellant had faced a single count of possession of one kilo of cannabis with intent to supply and that, while the prosecution had agreed that this would be left on the file, they had made it plain that they intended to pursue confiscation proceedings in relation to dealing in cannabis. He also remarked that he had afforded the appellant the opportunity to give evidence to rebut the Crowns case in the confiscation proceedings but that the appellant had not availed himself of this.
14. The judge accepted that it would not be right to infer from the appellants conviction of the heroin conspiracy that the jury had been satisfied that he had been dealing in cannabis, albeit that this was an important feature of the Crowns case. He held, however, on the basis of his own appraisal of the evidence that he had heard, that he had no doubt that the appellant had been dealing in cannabis.
15. The judge restricted his assessment of the benefit that the appellant had derived from cannabis dealing to a period of six months. The prosecution submitted that the evidence established that in this period the appellant had dealt in 6 tons of cannabis, selling this for a total of approximately £8 million. The judges findings were set out in the following passage of his judgment.
The fact that it is impossible to determine precisely the amount of cannabis this Defendant was trafficking does not mean that the court should not make any finding as to the amount of his benefit. If he had been involved with as much as 6 tons ie a ton every month for 6 months, I would be satisfied on the evidence of DC Hair that the amount of his benefit would have been £8.7 million. The absence of assets to this amount doe not deflect me from concluding that substantial profits were being made because I am by no means satisfied that the assets declared to the Receiver form the full extent of this defendants wealth, but I do not propose to involve myself with that aspect of the matter and will leave it, as I have previously indicated I would, to the Receiver to investigate such matters fully. However, I do not think that I can reach the conclusion which the Crown invites me to reach and say that I am sure on the balance of probabilities that Briggs-Price has benefited from drug trafficking to the extent of 8.7 million pounds. I have to give effect to my conclusions that while substantial profits have been made by him from drug trafficking, an appropriate deduction should be made to take account of (1) the inconsistencies in his responses and statements on the covert tapes as to the amounts he was importing or otherwise obtaining, (2) the frequency of such importations and (3) the degree of exaggeration possibly present in some of the statements he makes on the covert tapes. Given the seriousness of the consequences of my findings, it seems to me that I should first reduce the Crowns figure to £8 million then discount that sum by 50 per cent to 4 million pounds. This represents a fair conclusion bearing in mind the defendants own unguarded statements as to his activities and the value of the drugs he plainly admits he was dealing in.
The Appellants case
16. Mr Owen QC submitted that, on its true construction, the Act restricts the approach that the court is permitted to adopt to determining whether a defendant has benefited from drug trafficking and assessing the value of the proceeds of such trafficking, if he has done so. The court must start by identifying property held or expenditure made by the defendant at any time. It must then, provided that the property was acquired or the expenditure made within six years of the commencement of proceedings against the defendant, apply to that property the assumptions in section 4(3) of the 1994 Act, subject to the safeguards in section 4(4). It is for the defendant to rebut those assumptions if he can. The same approach had to be adopted in respect of property acquired or expenditure made outside the six year period, save that in that case the burden of proving that the source of the property or the expenditure was drug trafficking fell on the prosecution. What was impermissible was for the court to deduce that the defendant had received property or incurred expenditure from evidence that he had committed drug trafficking offences.
17. Mr Owen accepted that the Act permitted one exception to this approach. The Act permitted the court to deduce that the defendant had benefited from drug trafficking, and the value of the benefit, from the fact that the defendant had committed the drug offence or offences of which he was convicted (the index offences) and the evidence relating directly to that offence or those offences.
The natural meaning of the 1994 Act
18. Mr Owen submitted that the Act required that the starting point for the determination of benefit should be identified property, past or present, of the defendant. The existence and value of benefit derived from drug trafficking had to be determined by applying the assumptions to such property He emphasised that the provisions of section 4(3) were mandatory, subject to the exceptions in section 4(4). So they are, but it does not follow that they are the only way in which the Act permits the court to determine the extent of the defendants benefit from drug trafficking. This is apparent from the fact that the assumptions do not apply to property received or payments made outside the six year period, albeit that, as Mr Owen conceded, the Act applies to benefit received outside that period. Nor is it possible to spell out from the wording of the Act the exception that Mr Owen accepted applied to his rule in relation to calculating the benefits received from or the payments made in respect of the index offences.
19. The origin of the mandatory assumptions is to be found in section 2 of the Drug Trafficking Offences Act 1986. The assumptions were not, however, mandatory at that stage. Plainly they were not then the exclusive route for determining benefit derived from drug trafficking. They were made mandatory by section 9 of the Criminal Justice Act 1993. This change was directed at making it more difficult for a defendant to avoid confiscation of his property. There is no basis for concluding that its effect was to restrict the evidence that could be relied upon to prove the benefit derived by the defendant from drug trafficking.
20. The construction that Mr Owen seeks to place on the 1994 Act would result in an anomaly. Section 4(4) assumes that defendants will seek to show that the statutory assumptions are incorrect, as indeed they do. Where an issue is raised as to the source of property held by a defendant, it would be strange if the prosecution were precluded from countering the defendants assertion that it had a legitimate source by relying on evidence that, at the time, the defendant was involved in drug trafficking. Mr Owen did not submit that any such restriction applied. Yet it is hard to see why evidence of the defendants criminal activities should be admissible for the purpose of proving the source of assets but not for the purpose of proving the existence of assets.
21. In summary it is impossible to deduce from the natural meaning of the relevant provisions of the 1994 Act the restrictions that Mr Owen submits that they impose on the manner in which the existence and value of benefit derived from drug trafficking is to be assessed. Mr Owen confronted this difficulty by arguing that, if the provisions did not naturally bear the meaning for which he contended, it was necessary to read them down so as to have that meaning in order to render them compatible with the Convention.
The requirements of the Convention
22. The European Court of Human Rights (the Strasbourg Court) has twice considered the legislation that is the subject of this appeal and twice similar legislation that forms part of the Dutch Criminal Code. These decisions demonstrate that where, in confiscation proceedings after a defendants conviction, the prosecution proves that the defendant possesses or has possessed property and invites the court to assume that this property represents or represented the benefit of criminal activity, this exercise does not involve charging the defendant with a criminal offence so as to engage article 6(2) of the Convention. Mr Owen submitted that this is not the position where the prosecution adopt the approach that they used in this case. He submitted that where the prosecution allege that the defendant has committed criminal offences in order to establish, by inference, the benefit flowing from those offences, this amounts to charging the defendant with criminal offences, so that article 6(2) is engaged. In so submitting he relied particularly on the decision of the Strasbourg Court in the second Dutch case, Geerings v Netherlands (2007) 46 EHRR 1222. Mr Owen did not spell out fully the implications of this submission. Before turning to consider the relevant authorities I propose to do so.
23. Article 6 of the Convention provides:
Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
24. Article 6(2) does not spell out the standard of proof that has to be applied in discharging the burden of proving that a defendant is guilty of a criminal offence. It does, however, provide that he has to be proved guilty according to law". This requirement will not be satisfied unless the defendant is proved to be guilty in accordance with the domestic law of the State concerned. English law draws a clear distinction between the criminal and the civil standard of proof. The criminal standard requires proof beyond reasonable doubt. Section 2(8) of the Act provides that the standard of proof required to determine any questions in relation to whether a person has benefited from drug trafficking and the extent of such benefit arising under the Act is the civil standard. It is at least arguable that this will bring the Act into conflict with Article 6(2) if the prosecution adopt an approach to proving benefit that involves charging the defendant with a criminal offence. If so, the Act must be read down so as to prohibit such an approach.
25. A similar issue arises in relation to article 6(3). English law has specific procedural requirements that satisfy this article in relation to a criminal prosecution. They were not applied in this case in relation to the cannabis offences. If the approach adopted by the prosecution amounted to charging the defendant with those offences, it is arguable that this was in conflict with article 6(3).
The relevant jurisprudence
26. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Mance. He has referred in detail to the seminal decision on whether article 6(2) of the Convention applies to confiscation proceedings given by the Privy Council in McIntosh v Lord Advocate  UKPC D1;  1 AC 1078 and to the relevant Strasbourg cases dealing with this issue. I do not propose to repeat that exercise but to set out my own conclusions on the effect of this jurisprudence.
27. In McIntosh v Lord Advocate Lord Bingham of Cornhill delivered the leading speech. He gave a number of reasons for concluding that article 6(2) did not apply to confiscation proceedings. He did so however on the premise that those proceedings involved determining whether identified property represented the benefit of drug trafficking. Thus he said in para 14:
The accused is at no time accused of committing any crime other than that which permits the application to be made When, as is standard procedure in anything other than the simplest case, the prosecutor lodges a statement under section 9, that statement (usually supported by detailed schedules) is an accounting record and not an accusation The process involves no inquiry into the commission of drug trafficking offences.
Lord Hope of Craighead, concurring with Lord Bingham in the only other substantive speech, said at para 43:
The assumptions on which the court is being asked to proceed do not require the court to hold that [the defendant] has been engaged in criminal conduct. They have much more to do with the civil process of tracing (a restitutionary remedy)
These comments cannot be applied to confiscation proceedings in which the prosecution found their case that the defendant has benefited from drug trafficking on allegations that he has committed drug trafficking offences.