Togher v Revenue and Customs Prosecutions Office & Anor

A confiscation order and imprisonment in default under the Drug Trafficking Act 1994 are assessed together as a penalty for Article 7(1) purposes. A regime permitting enforcement after the default term has been served can impose a heavier penalty than the Drug Trafficking Offences Act 1986 regime, even where the formal confiscation amount and default term are unchanged.

However, where incompatible primary legislation cannot be read compatibly with Convention rights, the Human Rights Act 1998 permits a court to give effect to it under section 6(2)(b). The court cannot use an enforcement discretion to circumvent the statutory scheme. The restraint order therefore remained in force, although interest could not be enforced separately from the confiscation order.

Mr Togher, a convicted drug trafficker, was subject to a confiscation order made under the Drug Trafficking Act 1994, later reduced to £800,000 with a four-year term of imprisonment in default. After serving the default term, he applied to discharge a restraint order over his assets.

Collins J dismissed the application in [2006] EWHC 1212 (Admin). On appeal, Mr Togher argued that continued enforcement would impose a retrospective and heavier penalty contrary to Article 7(1), because under the earlier Drug Trafficking Offences Act 1986 service of the default term extinguished the liability. The issues included the character of imprisonment in default, the comparative weight of the two regimes, interest, and whether the restraint order should be discharged.

The appeal was dismissed and the restraint order continued. Thomas LJ gave the principal judgment. Dyson LJ agreed, and Chadwick LJ agreed with the order and reasons.

1. Character of the confiscation regime. For Article 7(1), the confiscation order and the term of imprisonment in default had to be considered together. Both followed a criminal conviction, pursued punitive as well as preventive purposes, were imposed by a criminal court, and could have severe consequences. Imprisonment in default was therefore not merely a procedural means of enforcing the order. This conclusion was supported by Welch v United Kingdom (1995) 20 EHRR 247, Jamil v France (1996) 21 EHHR 65, R v Dickens [1990] 2 QB 102, R v Rezvi [2002] UKHL 1 and R v Clark & Bentham [1997] 2 Cr App (S) 99. The contrary observations in R v Malik were obiter and inconsistent with the European authorities.
2. Heavier penalty. The comparison required by Article 7(1) concerned the substance and overall effect of the penalty on the defendant. The penalties imposed had to be compared with those authorised when the offence was committed. The ordinary sentence and the confiscation penalty under the Misuse of Drugs Act 1971 were not to be aggregated. Under the later regime, the defendant risked serving the default term and remaining liable for the confiscation sum. That was a more far-reaching detriment than under the earlier regime. Utley was distinguishable because it concerned a materially different sentencing regime. The default term did not constitute a new penalty triggered by non-payment; it was part of the original confiscation proceedings.
3. Interest. Interest formed part of the amount recoverable under the confiscation order. It was enforceable only if the order itself could be enforced, and could not be recovered independently.
4. Human Rights Act 1998. The court could not avoid the express effect of section 9(5) of the Drug Trafficking Act 1994 by exercising its enforcement discretion contrary to Parliament’s intention. Since the provision could not be read compatibly with Article 7(1), section 6(2)(b) of the Human Rights Act 1998 permitted the court to give effect to it. The proper remedy for incompatibility was a declaration under section 4, not discretionary neutralisation of the primary legislation.
5. Restraint order. The power under section 31(2) of the 1994 Act presupposed an enforceable order. If enforcement would inevitably have been refused, a restraint order serving no useful purpose would have been discharged, consistently with Re Peters [1988] 1 QB 871. That premise was not established because the statutory scheme permitted enforcement under section 6(2)(b). Mr Doran’s late joinder application required no order.

• Court of Appeal (Civil Division): Appeal dismissed. The restraint order was continued.
• High Court, Administrative Court: Collins J dismissed the application to discharge the restraint order in [2006] EWHC 1212 (Admin).