Regina v Rezvi

The Human Rights Act 1998 does not apply to the outcome of criminal proceedings concluded before its commencement merely because an appeal is heard afterwards.

Confiscation proceedings under Part VI of the Criminal Justice Act 1988 form part of sentencing and do not bring a fresh criminal charge for article 6(2) purposes. Its statutory assumptions are proportionate when the court respects the rights of the defence and refuses to make an assumption wherever there is, or might be, a serious risk of injustice.

A prosecutor may seek confiscation by reference to those assumptions after qualifying convictions, despite other counts being left on the file. The court must decide the application from the evidence and must not treat undetermined counts as proved.

The appellant pleaded guilty to two counts of theft. Twelve other counts were ordered to lie on the file. The Crown Court sentenced him to imprisonment and, applying the statutory assumptions in section 72AA of the Criminal Justice Act 1988, made a confiscation order for £214,839.

The Court of Appeal dismissed his appeal in a decision reported at [2001] 3 WLR 75. It held that the confiscation regimes under the 1988 Act and the Drug Trafficking Act 1994 were compatible with the Convention.

The issues before the House were whether the Human Rights Act 1998 applied retrospectively; whether confiscation involved a criminal charge and whether the statutory assumptions were compatible with article 6 and article 1 of the First Protocol; and whether seeking confiscation in circumstances involving undetermined counts was an abuse of process.

1. Appeal dismissed unanimously. Lord Steyn delivered the leading speech. Lord Slynn of Hadley, Lord Browne-Wilkinson, Lord Hope of Craighead and Lord Hutton agreed that the appeal should be dismissed. The decision in R v Kansal [2001] 3 WLR 1562 established that the Human Rights Act 1998 did not apply to criminal proceedings concluded before its commencement merely because an appeal was heard afterwards. The appellant's Convention rights were therefore not engaged.

2. Per Lord Steyn and Lord Hope, giving guidance for future cases, confiscation proceedings under Part VI of the Criminal Justice Act 1988 formed part of sentencing following conviction. They did not involve a fresh criminal charge. Article 6(2) was consequently not directly engaged, although article 6(1) continued to protect the defendant throughout the confiscation process.

3. Per Lord Steyn, the confiscation regime pursued the legitimate aims of punishment, deterrence, depriving offenders of criminal proceeds and reducing funds available for further crime. Its provisions were rationally connected with those aims and were no wider than necessary. Although section 72AA placed a persuasive burden on the defendant, its safeguards maintained a fair balance.

4. Per Lord Steyn and Lord Hope, the court must stand back before making an order. It must refuse to make a statutory assumption if there is, or might be, a serious or real risk of injustice. Subject to that safeguard, the procedure remained within reasonable limits, respected the rights of the defence and was compatible with article 6. The interference with possessions was also justified under article 1 of the First Protocol.

5. Per Lord Steyn, the domestic principle that ambiguous or general statutory language does not override fundamental rights had no application. The legislation was explicit and struck a fair balance between individual and community interests.

6. Per Lord Steyn and Lord Hope, seeking the confiscation order was not an abuse of process. The prosecutor relied on the two qualifying convictions and the statutory assumptions, not on the twelve undetermined counts. Section 72AA did not require other offences to be specified. The Crown Court was entitled to reject the appellant's unsupported explanations, and the confiscation order was properly made.

1. House of Lords: The appeal was dismissed unanimously. The confiscation order was upheld: [2002] UKHL 1.

2. Court of Appeal (Criminal Division): The appellant's appeal against the confiscation order was dismissed. The court held that the relevant confiscation regimes were compatible with the Convention: [2001] 3 WLR 75.

3. Crown Court at Snaresbrook: Following guilty pleas to two theft counts, the appellant received concurrent sentences of 15 months' imprisonment. The court made a confiscation order for £214,839 under the Criminal Justice Act 1988.