Saggar, Re Drug Trafficing Act 1994

A statutory application to increase the amount recoverable under an existing confiscation order engages the reasonable-time guarantee in article 6(1). That guarantee runs throughout the confiscation process, including the period before a reopening application under section 16 of the Drug Trafficking Act 1994, even though domestic law treats the original proceedings as concluded once the original order is satisfied.

The absence of a statutory limitation period for section 16 does not permit unreasonable or unfair delay. However, the High Court’s certification function is mandatory and limited. Questions of delay, abuse of process and the appropriate remedy should ordinarily be determined by the Crown Court when exercising its discretion on the substantive reassessment. Quashing or staying proceedings is exceptional and requires unfairness that no lesser remedy can cure.

Following convictions for drug-trafficking offences, Mr Saggar was made subject to a confiscation order for £1,370, although his benefit from drug trafficking was assessed at over £724,000. The order was paid in 1996.

In 2003 the Commissioners applied under section 16 of the Drug Trafficking Act 1994 for a certificate that the amount then realisable from him was greater than that originally taken into account. Owen J granted the certificate, holding that article 6(1) did not apply to the certification stage and that there had in any event been no unreasonable delay: [2004] EWHC 1011 (Admin).

The appeal concerned whether article 6(1) applied across the whole confiscation process and, if delay were established, whether the certificate should be quashed rather than the issue being addressed by the Crown Court.

Appeal dismissed. Rix LJ, with whom Carnwath and Mummery LJJ agreed, rejected the judge’s conclusion that article 6(1) was inapplicable. Nevertheless, the section 16 certificate had to be issued because the delay and remedy issues could not properly be resolved at the preliminary certification stage.

1. Under section 41 of the Drug Trafficking Act 1994, the original drug-trafficking proceedings ended when the original confiscation order was satisfied. A section 16 application was, in domestic statutory terms, a separate proceeding and could be commenced after that point.

2. That domestic classification did not determine the Convention question. Confiscation formed part of sentencing, and the state’s statutory power to reopen the amount recoverable meant that article 6(1) applied throughout the relevant process. Time was therefore not confined to the period after the 2003 section 16 application. This was consistent with Phillips v United Kingdom [2001] 11 BHRC 280.

3. Section 16 contained no statutory limitation period, but that did not exempt the Commissioners from the reasonable-time requirement. Section 25, which restricts restraint orders where there has been undue delay, reinforced the conclusion that the state could not avoid scrutiny by delaying before making a section 16 application.

4. The High Court was required by section 16(2) to issue a certificate once satisfied that the amount realisable was greater than that originally taken into account. By contrast, the Crown Court had a discretionary power under section 16(4) to substitute an amount that appeared appropriate. The delay issue could not be separated from the reserved abuse-of-process issue, including the alleged assurance that no further confiscation action would be taken.

5. Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68 showed that a reasonable-time breach required a remedy tailored to the circumstances. A stay or quashing was appropriate only exceptionally, where continuing would be unfair and a lesser remedy could not adequately vindicate Convention rights. The certificate was therefore to issue, leaving all those matters for the Crown Court.

The judge’s alternative observation that there had been no article 6(1) breach was superseded. There was no order as to costs.

• Court of Appeal (Civil Division): Appeal dismissed. The court held that article 6(1) applied throughout the confiscation process, but that the section 16 certificate had to issue and delay, abuse and remedy were for the Crown Court.
• High Court, Queen’s Bench Division (Administrative Court): Owen J granted a section 16 certificate and held that article 6(1) did not apply to certification proceedings; alternatively, there had been no unreasonable delay: [2004] EWHC 1011 (Admin).