FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7618/07
by Yakiya MINHAS
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 10 November 2009 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 2 February 2007,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Yakiya Minhas, is a British national who lives in London. He is represented before the Court by Mr E. McKiernan, a lawyer practising in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

Shortly after 9 a.m. on 18 December 2003, two males entered a jewellery shop in Nuneaton. Both had T-shirts wrapped around their faces as masks and both were wearing dark clothing and gloves. The first male brandished a black handgun. The second was carrying a bat. After taking a quantity of diamond rings, watches and other jewellery, they left the shop. Outside the shop, a witness saw a third man wearing a balaclava and black clothing. He was standing next to a black sports car which was later found to have been stolen at gunpoint the previous month. The two males who left the shop got into the black car together with the third male and the car drove off at speed. The third male was driving. The total value of the property stolen from the jewellery shop was GBP 580,112.

The applicant’s DNA was found on clothing later recovered with the car and some items of the stolen jewellery. The applicant and another man, L.C., were charged with robbery and possession of an imitation firearm. The prosecution case was that the robbers could be identified using a combination of imagery analysis and circumstantial evidence. It was their case that the applicant was the gunman. The defence case was denial. It was the applicant’s position that he was not present at the robbery. He alleged that a bag of his clothes had been stolen during a burglary at his brother’s home in late 2003, which explained why his DNA had been found on the clothing.

Prior to the commencement of trial, counsel were advised of ongoing inquiries into L.C.’s activities. One operation consisted of a general investigation into the criminal behaviour of L.C. and his associates between the mid-1990s and 2004. That inquiry involved armed robberies with the possible use of T-shirts as masks. Another operation related to arms importation.

When he gave evidence at trial, L.C. introduced evidence of his bad character, consisting of minor offences. His case was put to the jury on the basis that he was a petty criminal. The applicant had a number of previous convictions for a range of offences between 1997 and 2003 and he chose not to disclose his character in evidence.

On 19 April 2005, the applicant was convicted in Birmingham Crown Court of robbery (count 1) and possession of an imitation firearm when committing a relevant offence (count 2). He was sentenced to 15 years’ imprisonment on each count, to run concurrently. L.C. was acquitted on count 1 and the jury were directed to return a not guilty verdict in relation to count 2.

It subsequently emerged that, following his acquittal, L.C. had been arrested and charged with a number of serious offences from 1998 to 2004, including robberies which involved similar features to the Nuneaton robbery. There was DNA evidence linking L.C. to the robberies. The applicant considered that the evidence gathered by the Crown in respect of these charges showed a lack of association between him and L.C. and a course of conduct by L.C. linking him to the particular kind of robbery for which the applicant had been convicted. He argued that the material ought to have been disclosed prior to his trial as it would have affected the way in which he presented his defence. The Crown disputed that there was any obligation to disclose the material, arguing that the revelation of the applicant’s true antecedents was a matter for the applicant and his counsel alone. Evidence tending to support the allegation that L.C. had been involved in other robberies was irrelevant to the question of the applicant’s participation in the Nuneaton robbery. In any event, the Crown argued that the material, even if disclosed, would have been inadmissible in the applicant’s trial.

The applicant sought leave to appeal to the Court of Appeal against conviction and sentence on the ground that he did not receive a fair trial. He complained that the failure of the prosecution to disclose the information regarding L.C. put the applicant at a disadvantage in the trial. He also criticised the judge’s summing-up to the jury and the giving of a Lucas direction on lies. Finally, he argued that the sentence was manifestly excessive.

On 6 April 2006, leave to appeal against conviction and sentence was refused on all grounds, with the exception of the ground of appeal against conviction based on non-disclosure, which was adjourned for the Crown to attend.

On 8 June 2006, confiscation proceedings took place under the Proceeds of Crime Act 2002 (“the 2002 Act”). In the context of the proceedings, the applicant continued to deny his participation in the robbery and so gave no evidence as to the identities of the other two men involved or what had happened to the proceeds of the robbery. He was questioned about his assets, and in particular about a house which he purchased in 2004. In April 2004, some four months after the robbery, the applicant had made a mortgage application in which he alleged earnings of GBP 33,000 per year. He obtained a mortgage of around GBP 114,000. The judge noted that the applicant’s actual earnings of around GBP 9,000 from his job as a supervisor in a warehouse were insufficient to service such a mortgage. Furthermore, the applicant had provided a deposit of GBP 20,000, which he claimed came from members of his family. No documents to this effect were submitted and no family members gave evidence in the confiscation proceedings to support the claim. Accordingly, the judge refused to accept that the money was provided by family members, considering it more likely that it came from the proceeds of the robbery.

Counsel for the applicant urged the judge to bear in mind, in assessing the amount of the benefit that the applicant had obtained from his criminal conduct as required under the 2002 Act, that the prosecution case was that the robbery had been committed by three men. Accordingly, he argued, the proceeds of the robbery should be apportioned, with the applicant’s share amounting to around GBP 200,000. Counsel invited the judge to say that one of those three men must have been L.C. He further invited the judge to take into consideration the experience of the courts that those who seek to sell stolen goods receive but a fraction of their proper retail value.

The judge rejected counsel’s submissions. As to the suggestion that he should find one of the three men to have been L.C., he said:

“[The applicant’s counsel] in effect urges me to reject the jury’s finding by implication and say that one of those three men must have been [L.C.]. I could not possibly go behind the verdict in that way.”

He found that:

“The value of the benefit was the value of the benefit at the time it came into the defendant’s hands. How it was dealt with thereafter does not in any way affect the value of that benefit. This is predicated upon an assumption that it was all sold, and all sold to knowing buyers. There is no evidence from the defendant as to what he did with the proceeds of the robbery. And equally, in terms of the way in which the legislation is structured, there seem to me to be no grounds for saying that the total benefit should not be ascribed to this single defendant. The defendant has had the benefit of advice from leading and junior counsel and his solicitors throughout. He was given the opportunity in these proceedings to support his counsel’s submission in apportionment in relation to the possible identities or destination of the proceeds of the robbery; he declined to provide any information to the court in relation to that.”

He concluded:

“I therefore declare in his case a total benefit, allowing for the increase in the value of money, of GBP 600,809. The state of the law is such that because this defendant has not revealed what happened to the proceeds of the robbery, and particularly in light of the fact that he has told lies in connection with these proceedings, it seems to me that the law permits me, and in this case it is appropriate for me, to declare realisable assets to be GBP 600,809.”

Following clarification as to the correct adjusted figure, a confiscation order for the sum of GBP 602,812 was made. The applicant was ordered to serve five years’ imprisonment in default, to run consecutively to his 15‑year sentence.

The applicant subsequently applied for leave to appeal against the confiscation order on the grounds that the judge had erred in failing to take into account the fact that the robbery was committed by three men and that it was unlikely that the stolen jewellery had been sold for its full value.

On 13 November 2006, the Court of Appeal refused leave to appeal in respect of the remaining ground of appeal against conviction and the appeal against the confiscation order.

As to the disclosure of material from investigations into L.C.’s activities, the court concluded that the Crown had complied with their duty of disclosure and that, even if this were not the case, the contested material if disclosed could not have been admitted as evidence in the applicant’s trial proceedings.

Regarding the confiscation order, the Court of Appeal concluded (at paragraph 32):

“...There is no doubt that the provisions of the Act are draconian, as were the provisions of Acts which preceded this recent Act. But we have examined the way in which the judge came, first of all, to t