R v Rezvi

The House of Lords dismissed the appellant's challenge to a confiscation order made under Part VI of the Criminal Justice Act 1988. The court held that the Human Rights Act 1998 did not apply retrospectively to proceedings concluded before its commencement (following R v Kansal), so the appellant could not rely on Convention rights in respect of the prosecutor's pre-commencement act; but, even if Convention rights had been engaged, the confiscation scheme in sections 71 and 72AA is compatible with Article 6(1) and Article 1 of the First Protocol. The court treated confiscation proceedings under Part VI as part of the sentencing process following conviction, not as a fresh criminal charge for the purposes of Article 6(2). The statutory assumptions in section 72AA were held to be a proportionate measure, subject to the judges duty to avoid a serious risk of injustice and to the appellate courts supervisory role. The appellants abuse of process argument (that the Crown relied on undetermined counts) failed because the prosecutor and judge proceeded fairly within the statutory scheme.

The appellant (Rezvi) appealed against a confiscation order made under Part VI of the Criminal Justice Act 1988 following guilty pleas to two specimen counts of theft. The Crown had served a prosecutor's statement under section 71(1)(a) and proceeded under the "course of criminal conduct" assumptions in section 72AA, fixing benefit and realisable assets and making a confiscation order. The appellant argued that (i) a person subject to confiscation proceedings under section 71 is "charged with a criminal offence" within Article 6(2) ECHR so that the statutory assumptions breach the presumption of innocence; (ii) the assumptions in section 72AA are incompatible with Convention rights and disproportionate; and (iii) it was an abuse of process for the Crown to rely on assumptions relating to conduct overlapping with undetermined charges.

The case reached the House of Lords from the Court of Appeal (Criminal Division) [2001] 3 WLR 75. The House applied its decision in R v Kansal on the non-retrospectivity of the Human Rights Act 1998 and held that the appellant could not invoke Convention rights in respect of acts concluded before the Acts commencement. Nonetheless, the Lords examined the Convention issues: relying on McIntosh v Lord Advocate and the European Courts decision in Phillips v United Kingdom, they treated confiscation as part of sentencing, not a fresh criminal charge for Article 6(2) purposes. On proportionality, the court held the statutory scheme pursues legitimate aims (punishment, deterrence, recovery of proceeds) and that the persuasive burden placed on a convicted defendant by the assumptions in section 72AA is within reasonable limits given safeguards (courts duty to refuse to make assumptions where there is a serious risk of injustice, prosecutorial discretion, appeal). The abuse of process complaint failed because the prosecutor modified his position when counts were not proceeded with and the judge correctly relied on the evidence and statutory assumptions. The appellants factual challenges were matters for the trial judge and his findings were open on the evidence. Relief sought: overturning the confiscation order; outcome: appeal dismissed.

Appeal dismissed. The House held that the Human Rights Act 1998 did not apply retrospectively to permit reliance on Convention rights in respect of the pre-commencement prosecutor's act (per R v Kansal), but that even if Convention rights had been engaged the confiscation provisions in Part VI (notably section 72AA) are compatible with Article 6 and Article 1 of the First Protocol because confiscation is part of sentencing, the statutory assumptions are proportionate and the court must refuse to make assumptions where there would be a serious risk of injustice. The judges factual findings and exercise of discretion were open on the evidence and the abuse of process argument failed.

Appeal from the Court of Appeal (Criminal Division), which dismissed the appellant's challenge and certified a point of law ([2001] 3 WLR 75). The House of Lords heard the appeal and dismissed it ([2002] UKHL 1).