R v Briggs-Price
| Jurisdiction | UK Non-devolved |
| Judge | LORD PHILLIPS OF WORTH MATRAVERS,LORD RODGER OF EARLSFERRY,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD MANCE,LORD NEUBERGER OF ABBOTSBURY |
| Judgment Date | 29 April 2009 |
| Neutral Citation | [2009] UKHL 19 |
| Date | 29 April 2009 |
| Court | House of Lords |
[2009] UKHL 19
HOUSE OF LORDS
Appellate Committee
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
Lord Brown of Eaton-under Heywood
Lord Mance
Lord Neuberger of Abbotsbury
Appellant's:
Tim Owen QC
Timothy Kendal
(Instructed by Henry Milner & Company)
Respondent:
Mark Lucraft QC
Thomas Payne
Mark Sutherland Williams
(Instructed by Revenue & Customs Prosecutions Office)
My Lords,
Under the Drug Trafficking Act 1994 ("the 1994 Act") the assets of a defendant convicted of a drug trafficking offence are liable to confiscation to the extent that he has benefited from drug trafficking. The benefit in question is not restricted to the benefit derived from the offence or offences in respect of which the defendant has been convicted. In confiscation proceedings the prosecution has to satisfy the court that the defendant has benefited from drug trafficking and the extent of such benefit. The normal way of doing this is to prove that the defendant possesses, or has possessed, property and to invite the court to assume that the property in question represents or represented benefit derived from drug trafficking. The Act expressly provides that the court must make this assumption unless it is shown to be incorrect or would involve a serious risk of injustice.
The appellant is subject to a confiscation order imposed under the 1994 Act in the sum of £2,628,490. He appealed unsuccessfully against that order to the Court of Appeal and now appeals against the order of that court dated 22 January 2008.
In this case the prosecution adopted an unusual approach to proving that the defendant had benefited from drug trafficking and the extent of that benefit. They proved that the defendant had committed drug trafficking offences other than that in respect of which he was convicted and invited the court to estimate the profit that he must have derived from these offences.
Mr Owen QC for the appellant submitted that this approach was not permitted on the true construction of the 1994 Act. He submitted that, if the relevant statutory provisions are given their natural meaning, they do not permit the prosecution, in confiscation proceedings, to establish that a defendant has benefited from drug trafficking by proving that he has committed drug offences and then inviting the court to infer the monies expended or received in relation to those offences. Alternatively, he submitted that such an approach is incompatible with the requirements of the European Convention on Human Rights, so that the relevant provisions of the 1994 Act have to be read down so as to preclude its adoption.
The statutory provisions
By section 2(1) of the 1994 Act where a defendant appears before the Crown Court to be sentenced in respect of one or more drug trafficking offences, and the prosecutor asks the court to proceed under section 2, or the court considers that it is appropriate to do so, the court is required to proceed as follows:
"(2) The court shall first determine whether the defendant has benefited from drug trafficking.
(3) For the purposes of this Act, a person has benefited from drug trafficking if he has at any time (whether before or after the commencement of this Act) received any payment or other reward in connection with drug trafficking carried on by him or another person.
(4) If the court determines that the defendant has so benefited, the court shall, before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned, determine in accordance with section 5 of this Act the amount to be recovered in his case by virtue of this section.
(5) The court shall then, in respect of the offence or offences concerned -
(a) order the defendant to pay that amount;
(b) take account of the order before-
(i) imposing any fine on him;
(ii) making any order involving any payment by him; or
(iii) making any order under section 27 of the Misuse of Drugs Act 1971 (forfeiture orders) or section 43 of the Powers [1973 c. 62] of Criminal Courts Act 1973 (deprivation orders); and
(c) subject to paragraph (b) above, leave the order out of account in determining the appropriate sentence or other manner of dealing with him."
Section 5 restricts the amount to be recovered under a confiscation order to the amount that the court certifies is capable of being realised from the defendant's assets at the time that the order is made. Subject to that limitation it provides that the amount to be recovered under the order shall be the amount that the court assesses to be the value of the defendant's proceeds of drug trafficking. Section 4 makes provision for assessing the proceeds of drug trafficking. It provides:
"4. - (1) For the purposes of this Act -
(a) any payments or other rewards received by a person at any time (whether before or after the commencement of this Act) in connection with drug trafficking carried on by him or another person are his proceeds of drug trafficking; and
(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards.
(2) Subject to subsections (4) and (5) below, the Crown Court shall, for the purpose -
(a) of determining whether the defendant has benefited from drug trafficking, and
(b) if he has, of assessing the value of his proceeds of drug trafficking, make the required assumptions.
(3) The required assumptions are -
(a) that any property appearing to the court -
(i) to have been held by the defendant at any time since his conviction, or
(ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him,
was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him;
(b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him; and
(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it.
(4) The court shall not make any required assumption in relation to any particular property or expenditure if -
(a) that assumption is shown to be incorrect in the defendant's case; or
(b) the court is satisfied that there would be a serious risk of injustice in the defendant's case if the assumption were to be made;
and where, by the virtue of this subsection, the court does not make one or more of the required assumptions, it shall state its reasons."
Section 2(8) provides that the standard of proof required to determine any questions in relation to whether a person has benefited from drug trafficking and the extent of such benefit arising under the Act is that applicable in civil proceedings.
The facts
The relevant facts are set out in detail and with clarity in the judgment of the Court of Appeal delivered by Richards LJ [2008] EWCA Crim 146. I propose to reduce them to the outline that is necessary to understand the issues raised by this appeal.
The confiscation order was consequential to the appellant's conviction on 14 April 2003 in the Crown Court at Nottingham of conspiracy to import heroin. It was the prosecution case that the role of the appellant in the conspiracy was that of the purchaser and distributor of the drugs. In the event the conspiracy was never implemented. No heroin was imported into the United Kingdom, no payment for heroin was made by the appellant and he derived no benefit from the conspiracy.
It was the prosecution case that the appellant had been selected by the other conspirators to take part in the trafficking because he had already created a network for the transportation and distribution of cannabis. The appellant denied that he had ever dealt in cannabis and the judge gave permission for evidence on this issue to be adduced at his trial. This consisted of admissions made by the appellant that had been recorded by covert surveillance or made to an undercover agent. It was the appellant's case that he had never had any involvement in dealing with any class of drugs. Insofar as his recorded conversations suggested to the contrary, this was bragging that was untrue.
No charge was pursued against the appellant in relation to dealing in cannabis and the jury was directed that it was not necessary for them to resolve the cannabis distribution issue in order to find the appellant guilty in relation to the conspiracy to distribute heroin.
The appellant's conviction was followed by confiscation proceedings, conducted by the trial judge, His Honour Judge Stokes QC. There was agreement as to the amount of the appellant's assets. These included a large hotel and a portfolio of properties, some of which produced a substantial income. The appellant did not, of course, accept that these represented the proceeds of drug trafficking and was prepared to challenge the statutory assumptions under section 4(3) of the 1994 Act. This raised the prospect of a protracted and expensive dispute and, in order to avoid this, the prosecution agreed with the appellant that the statutory assumptions would not be made. The judge accepted this agreement. The prosecution did not seek to assert that the appellant had any hidden assets.
The judge gave a detailed ruling setting out his conclusions as to the benefits that the appellant had obtained from drug trafficking. He started by remarking that the appellant had faced a single count of possession of one...
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