R v Briggs-Price

The House held that Part I of the Drug Trafficking Act 1994 permits the Crown, when pursuing confiscation after conviction, to establish that a defendant has benefited from drug trafficking by adducing evidence of drug trafficking offences other than the index offence and inferring the payments or rewards received. The statutory assumptions in section 4(3) are an important, but not exclusive, means of proving benefit; they do not preclude the prosecution proving benefit by other evidence. The court must, however, have regard to section 4(4) so that assumptions are not applied where shown to be incorrect or where their application would involve a serious risk of injustice, and a judge who declines to make the assumptions should give reasons.

On Convention issues, the House concluded that confiscation proceedings of this kind are part of the sentencing process and do not of themselves engage Article 6(2) as the imposition of a new criminal charge, provided adequate procedural safeguards of Article 6(1) are observed. The appeal was dismissed.

This was an appeal by a defendant against a confiscation order under the Drug Trafficking Act 1994, following his conviction for conspiracy to import heroin. The trial judge made a confiscation order based on findings that the appellant had, in earlier uncharged or unprosecuted activity, organised significant cannabis distribution and had thereby received payments constituting proceeds of drug trafficking. The appellant argued that (i) section 4(3) of the 1994 Act prescribes an exclusive method for determining benefit such that benefit may only be inferred from identified property or expenditure and the mandatory assumptions; (ii) it was impermissible to rely on uncharged drug offences to infer benefit; and (iii) reliance on such uncharged offending in confiscation proceedings breached Article 6(2) European Convention on Human Rights (presumption of innocence) and Article 6(1) (fair trial).

The issues for the House were therefore (i) the proper construction of Part I of the 1994 Act, in particular the role and exclusivity of the section 4(3) assumptions and the interaction with section 4(4) and section 2(8); and (ii) whether the procedure adopted offended Articles 6(1) or 6(2) of the Convention.

The House analysed the statutory scheme and Strasbourg jurisprudence. It concluded that the statutory assumptions are a powerful evidential device but are not the sole mechanism for proving past benefit from drug trafficking; the Crown is free to prove benefit by other evidence (including evidence of specific drug trafficking not charged on the indictment) and to ask the court to infer the payments received. That conclusion was supported by the text and purpose of the Act and by the authorities (including McIntosh, Phillips, Van Offeren and Grayson & Barnham) which treat confiscation as part of sentencing rather than as a fresh criminal charge. The House rejected the submission that Article 6(2) required that the prosecution be precluded from relying on evidence of uncharged offences in confiscation proceedings, on the facts of this case, because the proceedings retained the safeguards of a judicial, adversarial process. There was, however, a noted difference of opinion among the Law Lords on the applicable standard of proof when benefit is inferred from uncharged offending: several Lords viewed the civil standard provided for by section 2(8) as applicable to the quantification of proceeds, while others considered that, where the Crown relies on findings that a defendant committed specific uncharged offences, the presumption of innocence implies a need for the criminal standard for that subsidiary factual finding. The House nevertheless dismissed the appeal because (a) the statutory scheme allowed the Crown's method of proof, (b) the judge had heard and assessed the evidence (admissions, covert recordings) and was satisfied the offending had occurred, and (c) Article 6(1) safeguards were met in the proceedings.

Procedural observations included that where the parties agree not to invoke the statutory assumptions the court should nonetheless consider whether section 4(4) applies and should state reasons if it declines to make the assumptions.

Appeal dismissed. The House held that (1) the statutory assumptions in section 4(3) of the Drug Trafficking Act 1994 are an important but non-exclusive method of proving that a defendant has benefited from drug trafficking; the Crown may instead prove drug trafficking (including offences not charged on the indictment) and infer the payments received; (2) confiscation proceedings of this kind are part of sentencing and do not of themselves engage Article 6(2) as the bringing of a new criminal charge, provided Article 6(1) safeguards are observed; and (3) where the statutory assumptions are not relied upon the court should consider section 4(4) and give reasons for not making assumptions. The judge's confiscation order was therefore upheld.

Conviction at Crown Court, Nottingham (14 April 2003) for conspiracy to import heroin; confiscation proceedings before HH Judge Stokes QC; appeal to the Court of Appeal (Criminal Division) [2008] EWCA Crim 146 (unsuccessful); further appeal to the House of Lords ([2009] UKHL 19) — appeal dismissed.