R v Briggs-Price (Appellant) (on appeal from the Court of Appeal (Criminal Division))

Once a person has been convicted of a drug-trafficking offence, the prosecution may prove benefit from other drug trafficking by direct evidence. The statutory assumptions in the Drug Trafficking Act 1994 are evidential tools, not the exclusive means of proving benefit.

Confiscation forms part of the sentencing process. Article 6(2) is not engaged merely because the court considers specific uncharged offending. Article 6(1) nevertheless requires a fair procedure and respect for the presumption of innocence. A majority held that the commission of a specific uncharged offence must be proved beyond reasonable doubt, although the resulting benefit is assessed on the civil standard. Benefit means gross payments or rewards received, not net profit.

The appellant was convicted of conspiracy to import heroin, an unimplemented conspiracy from which he obtained no benefit. Evidence admitted at trial indicated that he had operated a cannabis-distribution network, although no cannabis-trafficking charge was tried.

In subsequent confiscation proceedings under the Drug Trafficking Act 1994, the parties agreed that the statutory assumptions concerning the appellant's known assets and expenditure would not be used. The judge nevertheless found, on the trial evidence, that the appellant had trafficked in cannabis and assessed his benefit at £4 million. A confiscation order for £2,628,490 was made by reference to his realisable assets.

The Court of Appeal dismissed his appeal in [2008] EWCA Crim 146. The issues before the House were whether direct proof of uncharged trafficking was permissible under the Act and whether that procedure complied with article 6 of the Convention.

1. Appeal dismissed unanimously. All five Law Lords agreed that Part I of the Drug Trafficking Act 1994 did not confine proof of benefit to the statutory assumptions or to benefit derived from the offence of conviction.

2. Per Lord Phillips, Lord Rodger, Lord Mance and Lord Neuberger, the assumptions in section 4 are evidential means of proving benefit and proceeds. The prosecution may instead prove other drug trafficking directly and invite the court to infer the payments or rewards received. The Act's references to benefit received “at any time” and to trafficking carried on by the defendant or another person are inconsistent with an exclusive assets-based method.

3. Per Lord Rodger, benefit consists of any payment or reward received in connection with trafficking. It is the gross receipt rather than net profit. A court satisfied that drugs were sold in particular quantities at particular prices may infer the aggregate receipts even where no corresponding profit or suspicious asset is identified.

4. Lord Rodger considered that section 4(2) bound the court to make the assumptions unless it determined that section 4(4) applied. Lord Neuberger similarly considered that the court should satisfy itself that the statutory ground for disapplication existed and state its reasons. The procedural omissions did not invalidate this order or prejudice the appellant because the assumptions operated against him. Lord Mance considered that the prosecution could waive their benefit.

5. On the Convention issue, Lord Phillips, Lord Rodger, Lord Mance and Lord Neuberger concluded that confiscation remained part of sentencing and did not bring a new criminal charge merely because specific uncharged trafficking was examined. Article 6(2) was therefore not engaged. Lord Brown considered that it was engaged, but that its requirements had been satisfied because the offending was proved beyond reasonable doubt.

6. Article 6(1) applied and required a fair hearing. Lord Rodger, with Lord Neuberger agreeing, held that its implied presumption of innocence required a specific uncharged drug-trafficking offence to be proved beyond reasonable doubt. Lord Brown reached the same standard through article 6(2). Lord Phillips and Lord Mance considered the civil standard sufficient. The majority nevertheless agreed that the amount of benefit could be assessed on the civil standard.

7. The appellant had advance notice of the cannabis evidence, was represented, could cross-examine witnesses and could adduce evidence at trial and during confiscation. The judge was sure that the trafficking occurred and made a cautious assessment of the receipts. The proceedings were fair and the confiscation order stood.

1. House of Lords: The appeal was dismissed unanimously and the confiscation order was upheld: [2009] UKHL 19.
2. Court of Appeal (Criminal Division): The appellant's appeal against the confiscation order was dismissed: [2008] EWCA Crim 146.
3. Court of Appeal (Criminal Division): The court had previously refused leave to challenge the admission at trial of evidence concerning the cannabis-distribution network: [2005] EWCA Crim 368.
4. Crown Court at Nottingham: The appellant was convicted of conspiracy to import heroin. The trial judge later found that he had benefited from cannabis trafficking, assessed the benefit at £4 million and made the disputed confiscation order for £2,628,490.