Regina v Benjafield

Statutory assumptions attributing property and expenditure to drug trafficking are compatible with the right to a fair hearing. They pursue an important public-interest objective and form a rational, fair and proportionate means of recovering trafficking proceeds.

The essential safeguard is that a judge must refuse to make an assumption whenever it creates, or might create, a serious or real risk of injustice. A defendant need not prove such a risk on the balance of probabilities. Confiscation proceedings do not constitute a new criminal charge for the purposes of the presumption of innocence, although the general protection of a fair hearing applies.

The appellant pleaded guilty to conspiracies to supply class A and class B drugs. After sentencing, the Crown Court made a confiscation order for £327,971 under section 4 of the Drug Trafficking Act 1994, with three years’ imprisonment in default.

The Court of Appeal first considered the Convention issues in [2001] 3 WLR 75. At a later unreported hearing it dismissed the appeal on its merits. The appellant appealed to the House of Lords.

The issues were whether the Human Rights Act 1998 applied to the earlier proceedings; whether confiscation involved a criminal charge; whether the statutory assumptions were compatible with article 6 and article 1 of the First Protocol; and whether the order was just on the facts.

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 with it and with the proposed disposal.

2. Per Lord Steyn, the appellant could not rely in the appeal upon an alleged Convention breach by the trial court or prosecuting authority. His plea, sentence and confiscation order all preceded the commencement of sections 6 and 7(1)(b) of the Human Rights Act 1998. R v Kansal [2001] 3 WLR 1562 established that his Convention rights were therefore not engaged.

3. Per Lord Steyn, proceedings for a confiscation order under section 4 of the Drug Trafficking Act 1994 do not charge the defendant with a criminal offence for the purposes of article 6(2). The presumption of innocence in article 6(2) therefore does not apply to those proceedings. The defendant nevertheless receives the full protection of the fair-hearing guarantee in article 6(1).

4. Per Lord Steyn, the assumptions required by section 4 are compatible with article 6(1). The legislation pursues an important public-interest objective, and the assumptions are rationally connected to that objective. Parliament’s procedure is a fair and proportionate response to the need to protect that interest.

5. The decisive safeguard is section 4(4). Per Lord Steyn, a judge must be astute to avoid injustice and must not make a required assumption where there is, or might be, a serious or real risk of injustice. It is too demanding to require the defendant to show on the balance of probabilities that such a risk exists. Any interference with article 1 of the First Protocol was justified.

6. On the merits, Lord Steyn found no reason to disagree with the Court of Appeal’s assessment of the evidence concerning the properties and the likely duration of the appellant’s drug trafficking. Although the Crown Court judge misstated the risk-of-injustice standard, the Court of Appeal’s careful review demonstrated that the error caused no injustice or prejudice.

1. House of Lords: The appeal was dismissed unanimously. The House upheld the confiscation order.

2. Court of Appeal (Criminal Division): In [2001] 3 WLR 75, the court determined the application of articles 6(1) and 6(2) to the confiscation proceedings and adjourned the merits. At a later unreported hearing, it dismissed the appeal against the confiscation order.

3. Crown Court: Following the appellant’s guilty pleas and sentence, the court made a confiscation order for £327,971 under the Drug Trafficking Act 1994, with three years’ imprisonment in default.