R v Benjafield

The House of Lords dismissed the appellant's challenge to a confiscation order made under section 4 of the Drug Trafficking Act 1994. The court held that the appellant could not rely, retrospectively, on the Human Rights Act 1998 to challenge proceedings which were commenced and in large part completed before sections 6 and 7(1)(b) came into force. The court further held that confiscation proceedings under the 1994 Act are not a "criminal charge" for the purposes of article 6(2) of the European Convention on Human Rights, although article 6(1) protections apply. The reverse burden assumptions in section 4 were held to be compatible with article 6(1) given the public interest and the safeguards in the scheme, including the judge's duty to avoid any real risk of injustice. The House also held that any interference with article 1 of the First Protocol was justified.

On the facts the trial judge's findings about the appellant's central role in a large-scale drug organisation, the rejection of the father's evidence and the appellant's failure to give evidence supported the confiscation order relating to two properties; a misdirection using the phrase "balance of probabilities" rather than the correct test of avoiding a "real risk of injustice" was held to be harmless in the circumstances.

Background and procedure:

• The appellant pleaded guilty in September 1998 to conspiracy to supply class A and B drugs and was sentenced in October 1998. A preliminary hearing to determine benefit from drug trafficking was held in March 1999 and on 1 July 1999 a confiscation order for 327,971 (with a three-year default term) was made under the Drug Trafficking Act 1994. Leave to appeal was granted in October 1999. The Court of Appeal considered issues of Convention compatibility in December 2000 ([2001] 3 WLR 75) and, after an adjourned hearing, dismissed the merit appeal in March 2001 (unreported). The appeal to the House of Lords was heard together with R v Rezvi and decided on 24 January 2002.

Nature of the application: The appellant appealed against the confiscation order and sought to challenge its compatibility with the European Convention on Human Rights (as incorporated by the Human Rights Act 1998) and the correctness of the factual and legal basis of the confiscation.

Issues framed by the court:

1. Whether a defendant in proceedings begun before sections 6 and 7(1)(b) of the Human Rights Act 1998 may, on appeal after those provisions came into force, rely on alleged Convention breaches by the trial court or prosecuting authority.
2. Whether a person subject to confiscation under section 4 of the 1994 Act is "charged" with a criminal offence for the purposes of article 6(1) and article 6(2) of the Convention.
3. Whether the reverse burden assumptions in section 4 of the 1994 Act are compatible with article 6(2) and/or article 1 of the First Protocol.
4. Whether, on the merits, it was appropriate and just to make the confiscation order in the appellant's case.

Reasoning and conclusions:

• On retrospectivity the House followed the approach in R v Kansal and held the respondent could not rely on the Human Rights Act to challenge proceedings which were effectively concluded before sections 6 and 7(1)(b) took effect. On that basis the appellant's Convention rights were not engaged; the court nevertheless addressed the issues on an assumed applicability and reached the same conclusions.
• Relying on authorities including McIntosh v Lord Advocate and Phillips v United Kingdom, and the court's reasoning in R v Rezvi, the House held that confiscation proceedings under the 1994 Act are not a "criminal charge" for the purposes of article 6(2). Article 6(1) procedural protections, however, do apply to such proceedings.
• The reverse burden provisions in section 4 were upheld as rational and proportionate in pursuit of an important public interest objective. The statutory scheme includes necessary safeguards because the judge must not make assumptions where they are shown to be incorrect or where making them would create a serious risk of injustice; accordingly the reverse burden was compatible with article 6(1).
• On the facts, the judge's findings that the appellant headed a substantial trafficking organisation, coupled with the appellant's failure to give evidence and the rejection of the father's evidence about funding the properties, supported the confiscation order. A misdirection by the trial judge in phrasing the test as "balance of probabilities" rather than avoiding a "real risk of injustice" was held to be harmless given the careful appellate review.

Wider context: The House noted the parallels with R v Rezvi and affirmed that, within the statutory safeguards, confiscation regimes containing reverse burdens may be compatible with Convention rights where the public interest and proportionality are established.

The appeal was dismissed. The House held (i) the appellant could not rely retrospectively on the Human Rights Act 1998 because the proceedings were commenced and largely completed before sections 6 and 7(1)(b) came into force; (ii) confiscation proceedings under the Drug Trafficking Act 1994 are not a criminal charge for article 6(2) purposes, though article 6(1) applies; (iii) the reverse burden assumptions in section 4 are compatible with article 6(1) and any interference with article 1 of the First Protocol was justified; and (iv) on the evidence the confiscation order was properly made and any trial misdirection was harmless.

Convicted and sentenced in the Crown Court (October 1998). Preliminary hearing March 1999. Confiscation order made 1 July 1999. Leave to appeal granted by High Court 5 October 1999. Court of Appeal considered Convention issues and gave judgment on articles 6(1) and 6(2) on 20 December 2000 ([2001] 3 WLR 75) and, after an adjourned hearing, dismissed the merits appeal (8 March 2001, unreported). Appeal to the House of Lords dismissed on 24 January 2002 ([2002] UKHL 2).