BRIGGS-PRICE v. THE UNITED KINGDOM

SECOND SECTION

DECISION

Application no. 59494/09
Robert BRIGGS-PRICE
against the United Kingdom

The European Court of Human Rights (Second Section), sitting on 8 July 2025 as a Chamber composed of:

 Arnfinn Bårdsen, President,
 Saadet Yüksel,
 Tim Eicke,
 Péter Paczolay,
 Oddný Mjöll Arnardóttir,
 Gediminas Sagatys,
 Juha Lavapuro, judges,
and Hasan Bakirci, Section Registrar,

Having regard to the above application lodged on 21 October 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr Robert Briggs-Price, is a British national who was born in 1954 and is detained in HMP Whitemoor. He was represented before the Court by Mr H. Milner of Henry Milner and Company, a firm of solicitors based in London.

2.  The Government of the United Kingdom (“the Government”) were represented by their Agent, Mr C. Wickremasinghe of the then Foreign and Commonwealth Office.

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

4.  On 22 June 2000 the applicant was charged under section 170(2) of the Customs and Excise Management Act 1979 (see paragraph 72 below) with conspiracy to evade the prohibition on the importation of heroin and conspiracy to cheat the public revenue in relation to excise duty and tax payable on imported cigarettes.

5.  The applicant had also been charged under section 5(3) of the Misuse of Drugs Act 1971 (see paragraph 71 below) with a single count of possession of one kilogram of cannabis with intent to supply, a count relating to a particular day in October 1999. However, prior to trial the prosecution agreed that this charge would be left on the file. As a result, no charge was pursued against the applicant in relation to dealing in cannabis, although when the prosecution invited the Court to lay the indictment on the file it nevertheless made it plain that it intended to pursue confiscation proceedings in relation to trafficking in cannabis.

6.  The applicant was tried in the Crown Court. In respect of the drug trafficking charges the prosecution case at trial was that the applicant had been a potential buyer and distributor of the heroin in the event of its being successfully imported into the United Kingdom. While it was accepted that no heroin had in fact been imported or purchased by the applicant, the prosecution alleged that he had been brought into the conspiracy because he already had a distribution network for the transportation and distribution of cannabis, something which the applicant disputed, and that this same network was to be used for the distribution of heroin. The prosecution relied on extracts from conversations picked up by covert listening devices placed in the applicant’s car and in his home. It also relied on the evidence of undercover police officers.

7.  The applicant gave evidence at his trial. It was the defence case that any smuggling activity discussed with the undercover police officers had been in relation to cigarettes. The applicant stated that he had built up his wealth honestly and over many years, he had been involved only in cigarette smuggling, he had never been involved in the trafficking of either heroin or cannabis, and there had been no pre-existing cannabis distribution network. He explained to the jury that he was a terrible bragger and exaggerator, and any reference by him in the conversations covertly recorded to involvement with drugs had been nothing but exaggeration and lies.

8.  The trial judge made clear to the jury in his summing-up that it was not necessary for them to resolve the cannabis distribution issue against the applicant in order to find him guilty in respect of the heroin conspiracy.

9.  The applicant was convicted on 14 April 2003 of conspiracy to import heroin and was sentenced to seventeen years’ imprisonment.

10.  On 19 April 2004 the applicant pleaded guilty to being concerned in the evasion of duty on imported cigarettes and received a sentence of four and a half years imprisonment to run concurrently with that imposed in relation to the drug trafficking offences.

11.  Applications for leave to appeal against conviction and sentence were dismissed by the Court of Appeal.

12.  Section 2 of the Drug Trafficking Act 1994 (“the 1994 Act”) gave the Crown Court the power to make a confiscation order where a defendant appeared before it to be sentenced in respect of one or more drug trafficking offences. The court was required to determine whether the defendant had benefited from drug trafficking and, if he had, the amount to be recovered (see paragraphs 61-63 below).

13.  Pursuant to section 4(3) of the 1994 Act (see paragraph 66 below), in order to determine whether a defendant had benefited from drug trafficking and, if so, to assess the value of his proceeds, the court was required to make certain assumptions, namely that any property held by the defendant at any time since his conviction or transferred to him since the beginning of a six‑year period ending with the commencement of criminal proceedings against him was received by him as a payment in connection with drug trafficking; that any expenditure since the beginning of that period was made out of payments received by him in connection with drug trafficking; and that for the purposes of assessing the value of any property the property was received free of any other interests in it. The court was not to make the assumptions in relation to any particular property or expenditure if the assumption was shown to be incorrect or would result in serious injustice. Where the court did not make one of the specified assumptions, it was required to state its reasons.

14.  The prosecution duly gave notice that it intended to seek confiscation orders in respect of the applicant’s convictions. It was common ground between the parties that the applicant had substantial assets, including a large hotel and a portfolio of local properties, some of which generated a substantial income. The prosecution did not seek to assert that the applicant had any hidden assets. The applicant did not accept that his assets represented the proceeds of drug trafficking and was prepared to challenge the statutory assumptions under section 4(3) of the 1994 Act (see paragraph 66 below). In order to avoid a protracted and expensive dispute on this matter, the prosecution agreed with the applicant that the statutory assumptions would not be made. The judge accepted this agreement, although he did not provide a written statement of his reasons.

15.  The applicant declined to give evidence in the confiscation proceedings.

16.  On 25 April 2005 the judge handed down two rulings, one assessing the benefit in respect of the heroin conviction, the other dealing with the benefit as regards the cigarette smuggling conviction.

17.  Regarding the heroin conviction, the prosecution conceded that as no heroin was actually imported (see paragraph 6 above), it was inappropriate to make a confiscation order in relation to any benefit accruing to the applicant from his acquisition of heroin. The judge considered this concession to be plainly right. He continued:

“2.  The Crown nevertheless submit that ... the Act oblige[s] the Court to determine whether [the applicant] has benefited from drug trafficking. This is not limited to the particular prohibited drug in respect of which he has been convicted. There was a considerable amount of evidence before the Court that [the applicant] was involved in other criminal activity including trafficking on a substantial scale in cannabis. He was originally indicted with an offence of possession with intent to supply approximately one kilo of cannabis but this matter was not proceeded with following his conviction on the heroin indictment ... The Crown made it clear when inviting the Court to lay that indictment on the file that it intended to pursue confiscation proceedings in relation to trafficking in cannabis. Further, it was part of the Crown’s case on the heroin indictment that [B.] combined with [the applicant] in relation to the heroin in order to take advantage of [the applicant’s] existing distribution network for cannabis and I ruled on the admissibility of such evidence and gave the jury directions as to the use they could properly make of such evidence in reaching their verdicts on the heroin allegation. It cannot therefore be sensibly suggested that this is a ‘new’ allegation, nor can I proceed in these confiscation proceedings on the basis that such evidence along with the [the applicant’s] response to it has not already been ventilated and there must be a possibility of appropriate inferences having been drawn by the jury.”

18.  The judge considered the applicable legislation and human rights issues. He indicated that he was required to inquire into whether the applicant had benefited from drug trafficking and to grant him the opportunity to give evidence. The judge then had to reach a conclusion supported by evidence given in public, on a civil standard of proof, namely on a balance of probabilities.

19.  The judge turned to examine the evidence heard at trial relating to the applicant’s participation in cannabis trafficking. He noted that much of the evidence came from the applicant’s own mouth and was recorded on the covert tapes. He further noted that he had had the opportunity during the trial to form his own impression of the applicant’s character. He observed:

“7.  ... Although many of these matters were ventilated before the jury in the trial, the guilty verdict cannot in itself be determinative of all such matters. The jury’s verdict does not tell me anything as to their findings on the particular decisions I have to make ...”

20.  Nonetheless, on the basis of his own appraisal of the evidence that he had heard, the judge found that he could reach no other conclusion than that the applicant was involved in the distribution of cannabis. He indicated that he had “no doubt that this was the case”.

21.  As to the scale and extent of the applicant’s trafficking in cannabis, the judge accepted that the applicant had a legitimate source of income from his hotel and its activities but continued:

“... there is a very strong inference that he was dealing in substantial amounts of cannabis over a not inconsiderable period, that he determined this lucrative business was too risky and that is why he decided to combine with [B.] on the very high risk but much more profitable enterprise of heroin importation. It seems to me that no other rational explanation is possible from the evidence of the covert tapes as placed before the jury in the heroin trial ... The absence of additional evidence or the failure to discover substantial amounts of cannabis in his possession or under his control does not deflect me from such a conclusion given the well-established method of proceedings by [the applicant] ...”

22.  The judge therefore concluded that the applicant had benefited from drug trafficking and took the period of the benefit to be six months (the period to which the covert tapes referred). As to the amount of the benefit, the judge noted:

“... I do not pretend that this is an easy decision to reach given the degree of certainty required and rightly required in such proceedings ...”

23.  The prosecution submitted that during this six month period the evidence established that the applicant had dealt in 6 tons of cannabis, selling this for a total of approximately 8.7 million British pounds (“GBP”). For the judge, the fact that it was impossible to determine precisely the amount of cannabis the applicant was trafficking did not mean that the court should make no finding as to the amount of his benefit. He continued:

“... If he had been involved with as much as 6 tons i.e. a ton every month for 6 months, I would be satisfied on the evidence of [a police officer] that the amount of his benefit would have been £8.7 million. The absence of assets to this amount does not deflect me from concluding that substantial profits were being made because I am by no means satisfied that the assets declared to the Receiver form the full extent of this defendant’s wealth, but I do not propose to involve myself with that aspect of the matter and will leave it ... to the Receiver to investigate such matters fully. However, I do not think that I can reach the conclusion which the Crown invites me to reach and say that I am sure on the balance of probabilities that [the applicant] has benefited from drug trafficking to the extent of 8.7 million pounds. I have to give effect to my conclusions that while substantial profits have been made by him from drug trafficking, an appropriate deduction should be made to take account of (1) the inconsistencies in his responses and statements on the covert tapes as to the amounts he was importing or otherwise obtaining, (2) the frequency of such importations and (3) the degree of exaggeration possibly present in some of the statements he makes on the covert tapes. Given the seriousness of the consequences of my findings, it seems to me that I should first reduce the Crown’s figure to £8 million then discount that sum by 50 per cent to 4 million pounds. This represents a fair conclusion bearing in mind the defendant’s own unguarded statements as to his activities and the value of the drugs he plainly admits he was dealing in.”

24.  The judge further observed that in certain cases it was appropriate to make a percentage discount to guard against possible injustice or inflation and explained that, given that his finding of benefit did not have the additional support of the discovery of either substantial amounts of drugs or cash, he had carefully considered whether a further discount would be appropriate in the applicant’s case. However, he concluded that the reduction he had already made took account of these considerations.

25.  In a separate ruling, the judge found the benefit from the cigarette smuggling to be GBP 510,734.

26.  On 30 June 2006 a further hearing took place to determine the recoverable amount which was to be the sum stipulated in the confiscation orders. In the context of these proceedings, the judge had regard to a report by the receiver setting out the extent of the applicant’s realisable assets. The applicant’s total assets were calculated to be GBP 3,139,224. The judge accordingly made a confiscation order in respect of the cigarette smuggling conviction for GBP 510,734 and a confiscation order in respect of the heroin conviction for GBP 2,628,490, which represented the value of the remainder of the applicant’s realisable assets after the cigarette smuggling order had been satisfied.

27.  The confiscation order linked to the heroin conspiracy was to be paid by 31 October 2007 and in the event of non-payment a consecutive sentence of eight years’ imprisonment was to be imposed.

28.  The applicant was granted leave to appeal against the confiscation order linked to the heroin conspiracy on the ground that the manner in which the benefit had been assessed, namely by reference to alleged payments connected to uncharged and unproven cannabis smuggling allegations, had violated his rights under Article 6 § 2 of the Convention.

29.  The Court of Appeal’s judgment was delivered by Lord Justice Richards on 22 January 2008. The court noted at the outset that

“a point of central importance for the present appeal is that there was no charge against the applicant in relation to involvement in the distribution of cannabis or his having a cannabis distribution network There was a single count ... of being concerned in the supply of cannabis. That was not before the jury and ... was not proceeded with but was ordered to lie on the file following his conviction in respect of heroin conspiracy.”

30.  The court found the procedure adopted for the determination of the applicant’s benefit from drug trafficking to have been compatible with Article 6 § 2. It noted that the core of the Court’s judgment in Phillips v. the United Kingdom (no. 41087/98, ECHR 2001‑VII) was that the confiscation procedure did not generally engage Article 6 § 2 at all since it was part of the sentencing process following conviction. In this regard, it observed:

“41.  ... The fact that benefit arising from other offences can be taken into account (indeed, under the operation of the statutory assumptions, that assets are assumed to derive from other offending) does not mean that the defendant is being charged with another criminal offence or is presumed to be guilty of another criminal offence.

42.  The principle does not appear to us to be fundamentally different where, instead of relying upon a statutory assumption that assets or expenditure derive from other criminal conduct, the Crown seeks to prove by evidence that the defendant has derived a benefit from other criminal conduct. That still takes place as part of the sentencing process and still does not involve charging the defendant with another criminal offence, let alone presuming him to be guilty of another offence.”

31.  As to the applicant’s reliance on the Court’s judgment in Geerings v. the Netherlands (no. 30810/03, 1 March 2007), the Court of Appeal noted:

“43.  It seems to us that the decision in Geerings needs to be approached with some care. The court gave two reasons for distinguishing the previous case law, notably Phillips. The second reason, namely that the confiscation order related to offences of which the applicant had actually been acquitted, plainly has no application to the present case but serves to underline how different Geerings was on its facts. The Dutch court’s order was in truth inconsistent with the acquittals and it is not in the least surprising that it was found for that reason to be in violation of Article 6(2).

44.  The first reason given for distinguishing the earlier cases is that in the instant case the Dutch court had found the applicant to have obtained unlawful benefit from the crimes in question, although he was never shown to be in possession of any assets for whose provenance he could not give an adequate explanation and that the court reached this finding ‘by accepting a conjectural extrapolation based on a mixture of fact and estimate contained in a police report.’ As the Strasbourg Court went on to say:

‘If it is not found beyond a reasonable doubt that the person affected has actually committed the crime, and if it cannot be established as fact that any advantage, illegal or otherwise, was actually obtained, such a measure can only be based on a presumption of guilt.’

We do not read the relevant passage... as holding that only an assets-based approach of the kind for which [Counsel for the applicant] has contended can be compatible with Article 6(2). Had that been the Court’s intention, we would have expected some clearer indication that the relevant provisions of the Dutch criminal code, which did not depend on an assets-based approach, were themselves incompatible with Article 6(2). It seems to us ... that the court’s concern was as to the absence of any proper factual basis in the particular case, whether by reference to assets or otherwise, for finding benefit from other offences ...”

32.  The Court of Appeal found there to be no corresponding problem in the applicant’s case, in which the trial judge’s assessment of the benefit was based on a clear finding, reached in practice on the criminal standard of proof, that the applicant had engaged in the trafficking of cannabis. This finding was clearly reasoned and based on evidence the judge had heard from both the prosecution and defence during the trial, the allegation concerning the applicant’s cannabis distribution network having formed a central part of the case against him. The judge had also given detailed reasons, again based on the evidence, for assessing the level of benefit as he did, making discounts favourable to the applicant in order to avoid any unfairness.

33.  The Court of Appeal concluded:

“... As it seems to us, there is no problem in principle in finding in this way that benefit has been derived from drug trafficking, even if the [applicant’s] known assets are not assumed or shown to be derived from unlawful activity. We do not accept that the way in which the matter was approached involved a fresh or new charge against the [applicant] for Article 6 purposes. Everything fell within the scope of the normal confiscation procedure following on from the [applicant’s] conviction on the heroin count, and as such it was part of the sentencing process and Article 6(2) did not apply to it. In any event we do not consider that what happened involved in any way the application of a presumption of guilt, or a violation of the [applicant’s] rights under Article 6(2). We should perhaps add that although we do not consider that Article 6(1) is strictly before us, we see nothing in [counsel for the applicant’s] submissions to cause us any concern about the compatibility with Article 6(1) of the procedure that was adopted in this case.”

34.  The appeal was accordingly dismissed.

35.  On 15 April 2008 the Court of Appeal certified a point of law of general public importance but refused leave to appeal. Leave to appeal was subsequently granted by the House of Lords.

36.  On 29 April 2009 their Lordships unanimously dismissed the applicant’s appeal, for different reasons.

37.  Lord Phillips of Worth Matravers began by emphasising the exceptional nature of the case:

“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.

...

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.”

38.  With regard to Article 6 § 2 of the Convention, he observed:

“24.  Article 6(2) does not spell out the standard of proof that has to be applied in discharging the burden of proving that a defendant is guilty of a criminal offence. It does, however, provide that he has to be proved guilty ‘according to law’. This requirement will not be satisfied unless the defendant is proved to be guilty in accordance with the domestic law of the State concerned. English law draws a clear distinction between the criminal and the civil standard of proof. The criminal standard requires proof beyond reasonable doubt. Section 2(8) of the Act 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 the civil standard. It is at least arguable that this will bring the Act into conflict with Article 6(2) if the prosecution adopt an approach to proving benefit that involves charging the defendant with a criminal offence. If so, the Act must be read down so as to prohibit such an approach.

25.  A similar issue arises in relation to article 6(3). English law has specific procedural requirements that satisfy this article in relation to a criminal prosecution. They were not applied in this case in relation to the cannabis offences. If the approach adopted by the prosecution amounted to charging the defendant with those offences, it is arguable that this was in conflict with article 6(3).”

39.  However, having considered in some detail relevant domestic and Court’s jurisprudence regarding confiscation proceedings and the presumption of innocence, he found:

“40.  There is authority that establishes that both the adjective ‘criminal’ and the noun ‘charge’ are autonomous concepts but that the Strasbourg Court attaches significance to the way in which they are treated in domestic law and looks to the substance rather than to the form. Not without hesitation, I have concluded that the allegations that were made in relation to the cannabis offences did not constitute ‘criminal charges’. First they were not so treated under our law. Secondly, they could not and did not lead to criminal convictions. Thirdly, and most significantly, their consequence, the confiscation of the property of a convicted drug dealer, is precisely the same as that in Phillips and Grayson & Barnham. Those cases required a finding that the property confiscated was derived from criminal offending, albeit that the precise offences did not have to be specified but could be inferred. The Strasbourg Court accepted that the safeguards of Article 6(2) did not apply in such circumstances. It would seem illogical to impose them where the details of the offending are alleged with more particularity.”

40.  Lord Phillips noted that the guarantees of Article 6 § 1 nonetheless applied to the confiscation proceedings. As to whether there had been a violation of this Article in the circumstances of the case, he found:

“41.  ... The requirements of a fair trial in confiscation proceedings are not poles apart from those imposed by Article 6(2) and 6(3). Where, as here, the prosecution rely on criminal offending to prove the existence of benefit, they have to prove that offending. The defendant is presumed innocent until proved guilty, albeit by the civil standard of proof. When, in Grayson and Barnham, the Strasbourg court set out the safeguards in our system that had led it to conclude that our procedure satisfied Article 6(1) it might well have been carrying out a check list of the relevant requirements of Article 6(3).

42.  The facts of this case are unusual. The prosecution, as part of their case on the conspiracy to import heroin, gave the defence particulars of evidence that they intended to adduce of other drug offences. The [applicant] challenged these at his trial and could have challenged them again in the confiscation proceedings. The judge was sure on the evidence that the relevant offences were proved. He deduced the benefit from the proved offending. In the Court of Appeal Richards LJ held that the procedure adopted was compatible with article 6(2). There is no basis for suggesting that the fair trial requirements of Article 6(1) were not satisfied.

43.  ... It is open to the prosecution to prove the derivation of benefit from drug trafficking by proving the commission of drug trafficking not charged on the indictment ...”

41.  Lord Rodger of Earlsferry considered that the case had a number of unsatisfactory aspects. First of all, the applicant had not been charged with being concerned in the supplying of cannabis contrary to section 4(3)(b) of the Misuse of Drugs Act 1971, even though much of the most important evidence at trial was designed to prove that he was engaged in distributing cannabis through a pre-existing network. He continued:

“46.  In Scotland, the absence of a section 4(3)(b) charge would have rendered the evidence relating to the cannabis distribution network inadmissible, as being evidence of a crime not charged. In this case, however, the evidence was led at the trial and, on an application to the Full Court for leave to appeal on the basis that the judge should not have admitted evidence showing that the network was for the distribution of cannabis, the Court of Appeal (Thomas LJ, Jack J and HH Judge Radford) [2005] EWCA Crim 368 were unable to see that there was an arguable ground of appeal.

47.  Plainly, the evidence relating to the cannabis network was very relevant to the Crown’s case. And, if the indictment had included a count relating to that matter, all would have been well. The absence of such a count means, however, that the appellant was never charged with an offence relating to the cannabis network. And, although the evidence about the network formed an important part of the prosecution case at trial, the judge ... directed the jury that, even if they rejected that evidence, they could still convict the appellant of the count on the indictment. It is, accordingly, impossible to tell whether the jury were satisfied that the appellant was involved in the network. Putting the matter another way ... the approach adopted by the Crown meant that the jury were not given the opportunity, if so advised, to declare the appellant’s innocence of any involvement in a cannabis network by acquitting him of a count relating to it.”

42.  According to Lord Rodger, the second unsatisfactory feature of the case was that those representing the prosecution and the applicant simply agreed to proceed with the confiscation proceedings on the basis that the assumptions in section 4(3) of the 1994 Act (see paragraph 66 below) should not be applied. If the judge had made his own decision that, for a reason covered by section 4(4) of the 1994 Act (see paragraphs 67-68 below), the assumptions should not be applied, there would have been no problem. However, while apparently accepting that the assumptions should not be applied, the judge did not make any determination in terms of section 4(4). Lord Rodger stated:

“50.  In my view, the matter was mishandled. The requirement in section 4(2) to apply the assumptions binds the court. That is consistent with the wider position that it is the court which acts under section 2 – and which can indeed do so, even though the prosecutor has not asked it to. No unilateral action by the prosecution, or joint action by the parties, can relieve the court of its obligation under section 4(2) to apply the assumptions. ...”

43.  Nonetheless, as the statutory assumptions were fairly draconian, Lord Rodger considered that a failure to apply them could not be regarded as any kind of detriment to the applicant. On the contrary, because the judge did not apply the assumptions in this case, he had enjoyed the advantage of not having his hotel and other property, and all his expenditure over the preceding six years, deemed to have been derived from drug trafficking. What had led to the confiscation order being made against the applicant was not the failure to apply the assumptions. Rather, it was the fact that, even without the help of those assumptions, the judge was satisfied that he had benefited from drug trafficking. The judge’s conclusion to that effect had been based on the evidence which he had heard during the trial about the quantities of cannabis which were being bought for, and distributed through, the cannabis network.

44.  The applicant had sought to argue that where the court was considering an alleged benefit not deriving from an offence of which the defendant had been convicted, the structure of the 1994 Act meant that it could proceed only on the basis of the assumptions in section 4(3) (see paragraph 66 below). In Lord Rodger’s view, that was an impossible contention. The mere fact that the assumptions were not applicable did not mean that the defendant had not benefited from drug trafficking: it merely meant that the court could not use the assumptions to determine either that he had benefited, or that he had benefited to a particular extent. If there was evidence to show the benefit, then the court could use it. The statutory assumptions were not the only basis for confiscation proceedings under the 1994 Act.

45.  Consequently, Lord Roger had no doubt that under English domestic law the judge had been entitled to use the evidence led at the trial, and the additional information as to the selling price of bulk cannabis, to determine that the applicant had benefited from trafficking in cannabis and to assess the value of his proceeds at GBP 4 million (see paragraph 23 above).

46.  Lord Roger then turned to consider the applicant’s Convention arguments. He agreed that Article 6 § 2 did not apply to the confiscation proceedings, noting:

“64.  ... Nothing said or done by the prosecution or the court in the course of the confiscation proceedings was designed to convict or acquit the [applicant] of any other drug-related offence. So Article 6(2) was not engaged when the court was determining, as part of the sentencing procedure for the trigger offence, whether the [applicant] had benefited from drug trafficking, other than the drug trafficking comprising the trigger offence.”

47.  Lord Rodger accepted that the presumption of innocence nonetheless applied as part of the guarantees inherent in Article 6 § 1 of the Convention, but considered that the Article was satisfied, noting:

“74.  Although the [applicant] was not ‘charged’ with the cannabis network offence, evidence of his involvement in the network was led by the prosecution at his trial for the conspiracy count. The [applicant] was represented by counsel. Before trial, he would have been supplied with police statements and other material from which it would have been clear that the prosecution was intending to lead evidence about his involvement in the cannabis distribution network at his trial. The [applicant] has never suggested otherwise. The trial judge held that that evidence was admissible and the Court of Appeal held that there was no arguable appeal against that ruling. Counsel for the [applicant] had every opportunity to cross-examine the relevant witnesses and to lead evidence to counter the prosecution evidence relating to the cannabis distribution network. At the trial, accordingly, any requirements of Article 6(1) and (3) were surely satisfied in respect of the allegations relating to his involvement in that network.

75.  In the context of the confiscation proceedings the judge had regard to this evidence which had been led at the trial and, on that basis, had ‘no doubt’ that the [applicant] had indeed been involved in running the network. So, in this case, there is no question of the judge proceeding on a presumption that the [applicant] had been involved in the cannabis network – indeed, the judge plainly thought that the [applicant’s] involvement had been proved to the criminal standard, beyond a reasonable doubt. On any view, therefore, the presumption of innocence in Article 6(1) was fully respected in the confiscation proceedings.”

48.  However, unlike Lords Phillips and Mance, Lord Rodger considered that the relevant standard of proof was “beyond reasonable doubt”, observing:

“77.  ... If a presumption of innocence is implied into Article 6(1), then it, too, must require that the person be proved guilty according to law. In the context of a criminal trial, the standard of proof, according to our law, is beyond reasonable doubt. Indeed, if that were not the position, the Crown could ask the court to make a confiscation order on the basis of an alleged benefit from a specific offence of which the defendant would have been acquitted if he had been prosecuted for it.”

49.  On whether that standard had been satisfied in the present case, Lord Rodger noted:

“79.  By virtue of section 3 of the Human Rights Act 1998, I would accordingly read section 2(8)(a) of the 1994 Act as applying the civil standard of proof to any question as to whether a person has benefited from drug trafficking, but not to any question as to whether a person has committed a specific drug trafficking offence.

80.  Admittedly, Judge Stokes could not point to any assets or expenditure of the [applicant] which were directly linked to the trafficking through the cannabis distribution network. But, as I have explained, expenditure and assets are only the likely indicia of profitable drug trafficking. What the judge had to determine was not whether the [applicant] had profited from drug trafficking, but whether the [applicant] had benefited from drug trafficking, within the meaning of section 2(3). Even in the absence of such indicia, it was open to the judge, on the available evidence, to find that the [applicant] must have benefited from drug trafficking – in the sense that he had received payments or rewards from his involvement. Such a finding involves no violation of Article 6(1) or (2). So far as the amount of the benefit is concerned, the judge was careful to reduce his estimate so as to allow for any margin of error in that calculation. Again, it is hard to see how that calculation could possibly give rise to a violation of Article 6(1) or (2), especially given that the [applicant] does not criticise the judge’s estimate or the way that it was arrived at. In no sense can it be said, in this case, that the court’s conclusions as to the benefit derived by the [applicant] from drug trafficking were based on a presumption of guilt: they were based on evidence.

81.  In short, nothing in the European Court’s judgment in Geerings suggests that what the judge did in this case involved a violation of any of the appellant’s article 6 Convention rights. More particularly, when making the confiscation order as part of the sentencing process, the judge did not proceed on the basis of any presumption as to the appellant’s guilt. There was accordingly no violation of the presumption of innocence as contained in either article 6(1) or 6(2).”

50.  Lord Neuberger of Abbotsbury agreed fully with Lord Rodger as regards the Convention issues arising in the appeal. He added:

“150.  I have some sympathy with the argument, developed more fully by Lord Rodger, that it was surprising that the prosecuting authorities decided to charge the appellant only with the diamorphine conspiracy if evidence of his cannabis trafficking was intended to be given at trial, and then invoked for the purposes of any subsequent confiscation order. However, I would not want to say much about that aspect, as the detailed facts and implications of that issue were not debated before your Lordships. Indictments should not be overloaded, and it would be more than unfortunate if any criticism of the course taken in this case led to the prosecuting authorities feeling obliged to charge a defendant with every conceivable drug‑trafficking offence they might be relying on in any contingent confiscation proceedings. Such a course would be inappropriate and inconsistent with the purpose of the 1994 Act. All I would say is that, without suggesting that I think that there would have been anything in the argument, it would have been open to Mr Briggs‑Price to argue either that he should be charged with cannabis trafficking if it was to be relied on in any subsequent confiscation procedure, or that the cannabis trafficking should not be relied on in any such procedure. If such an argument had been raised, the Judge no doubt would have considered it on its merits.”

51.  Lord Brown of Eaton-under-Heywood agreed that the applicant was wrong to contend that the only way of determining the benefit from drug trafficking (except, of course, in respect of an offence of which the defendant had been convicted) was on the basis of the section 4(3) assumptions (see paragraph 66 below), and he was content to assume that the course adopted in this case was consistent with domestic legislation, notwithstanding the obvious discordance between the judge’s finding of cannabis dealing to the criminal standard of proof and section 2(8) of the 1994 Act, which provided that it was the civil standard of proof which was to apply to the determination of any question arising as to whether a person had benefited from drug trafficking (see paragraph 69 below).

52.  Lord Brown alone found that Article 6 § 2 did apply in the circumstances of the case. He noted:

“87.  I confess, however, to somewhat greater difficulty regarding the compatibility of the confiscation proceedings here with Article 6(2). I cannot regard Phillips v United Kingdom (2001) 11 BHRC 280 (which endorsed the Privy Council’s decision in McIntosh v Lord Advocate [2003] 1 AC 1078) as conclusive of the Article 6(2) argument. McIntosh ... was based squarely on confiscation proceedings where the benefit of drug trafficking was determined by reference to identified property (a process ... akin rather to tracing than to finding the defendant to have been engaged in criminal conduct). And Phillips too was concerned with the statutory assumptions under which benefits are calculated by reference to identifiable property.”

53.  He then reviewed subsequent case-law of the Court and concluded:

“91.  ... With no less hesitation I have come to a different conclusion [from that of Lord Phillips]. Geerings seems to me to stand for more than merely the prohibition against reliance on criminality of which the defendant has actually been acquitted. That was separately identified as the second of the two reasons given by the Court for distinguishing Phillips and (rightly or wrongly) Van Offeren ... The first reason is that contained in paras 46 and 47 of the Court’s judgment ... ‘that the applicant [in Phillips and Van Offeren] demonstrably held assets whose provenance could not be established; that these assets were reasonably presumed to have been obtained through illegal activity; and that the applicant had failed to provide a satisfactory alternative explanation’.

92.  ... [T]he Court stated what was objectionable in the Dutch court’s findings in Geerings which distinguished it from Phillips and Van Offeren: ‘that the applicant had obtained unlawful benefits from the crimes in question although [he] was never shown to hold any assets for whose provenance he could not give an adequate explanation, [such finding having been reached] by accepting a conjectural extrapolation based on a mixture of fact and estimate contained in a police report’.

93.  That seems to me to describe the present case precisely. Then ... the court ruled out the confiscation of benefit calculated by reference to assets which are not known to have been in the possession of the person affected, the more so if the measure concerned relates to a criminal act of which the person affected has not actually been found guilty... The Court continued, ‘If it is not found beyond a reasonable doubt that the person affected has actually committed the crime, and if it cannot be established as fact that any advantage, illegal or otherwise, was actually obtained, such a measure can only be based on a presumption of guilt. This can hardly be considered compatible with article 6(2).’

94.  That again (with one important exception, the standard of proof, to which I shall return) seems to me to describe this case. ... I understand the Court’s reasoning in paras 46 and 47 [of Geerings] to amount to this: the prosecution must either demonstrate that the defendant holds or has held assets the provenance of which he cannot satisfactorily explain (as in Phillips and Van Offeren – see para 44), or must establish beyond reasonable doubt that the defendant has committed some other offence (or offences) from which it can be presumed that he obtained advantage. In the latter case, of course, article 6(2) applies but is satisfied.

95.  The obvious difference between Geerings and the present case is that in the present case the appellant, so far from having been acquitted of the cannabis offence, was found by the judge beyond reasonable doubt to have committed it. On this basis and on this basis alone I would regard Geerings as distinguishable and article 6(2), albeit engaged here, to be satisfied. The fact that the cannabis offence was not treated under domestic law as a criminal charge and did not lead to a criminal conviction is not in my judgment a sufficient basis for holding it not to be a charge within the autonomous Convention meaning.”

54.  Lord Brown concluded with the following remark:

“97.  At one stage in the preparation of this opinion I wondered whether, assuming for Convention purposes the [applicant] was indeed to be regarded as charged with a criminal offence, he can properly be said to have been ‘proved guilty according to law’, not least having regard to the terms of section 2(8). Given, however, the obvious overall fairness of the confiscation proceedings here ... I cannot think that Strasbourg would regard the procedure in fact adopted as unlawful. Having swallowed the camel of accepting that our confiscation proceedings generally are compliant with Article 6, the European Court of Human Rights is in my opinion unlikely to strain at this gnat.”

55.  For Lord Mance, it was clear, almost beyond sensible argument, that Part I of the 1994 Act involved a single overall scheme, in which the assumptions played a potential evidential role. The scheme operated by reference to the benefit made from drug trafficking and the value of the proceeds of drug trafficking. The assumptions, where they applied, did no more than assist to prove these matters. It was a fallacy to describe them as some form of separate assets-based recovery. They were means of proving the receipt of proceeds from drug trafficking by pointing to particular property or expenditure and requiring an explanation for its origin. The defendant was entitled to rebut the assumptions in relation to any particular property or expenditure by showing them to be incorrect in its case. To the extent that the assumptions did not apply, the Crown had to make its case without their assistance, but the essential enquiry was the same: namely, whether any benefit was made and proceeds received.

56.  Having considered the relevant case-law of the Court, Lord Mance adopted a broadly similar position to that of Lord Phillips (see paragraphs 37‑40 above). He too found that Article 6 § 2 did not apply to the confiscation proceedings in the applicant’s case. In respect of Geerings (cited above), he said the following:

“... one can ... understand a court’s reluctance to endorse a confiscation order relating to ‘the very crimes of which the defendant has been acquitted’. That, as it seems to me, must represent the point of public policy or public appearance which is the key to paragraphs 47-50 and to the approach taken in Geerings (however inconsistently with van Offeren). If so, the present case is clearly different. There was no charge or acquittal here in respect of any of the drug trafficking offences which led the judge to conclude that the appellant had benefited and received the proceeds in relation to which the confiscation order was made. The potential affront to public perception involved in confiscation proceedings relating to the proceeds of offending of which the defendant has been acquitted is not present.”

57.  Lord Mance also held that the standard of proof required from the prosecution in proving any relevant drug trafficking was the civil standard. In this regard, he opined:

“132.  Some of your Lordships take the view that, where the statutory assumptions are not deployed, then the prosecution must prove any relevant drug trafficking on which reliance is placed (other than that consisting in the offences of which the defendant has been convicted) to the criminal standard (although, if I have understood correctly, any benefit resulting from such trafficking would still only need to be proved to the civil standard). There is, in my view, no basis under article 6(1) or (2) for such distinctions. They would be inconsistent with the unitary nature of the scheme which I have explained in paras 103-106 above. The standard of proof of every aspect of benefit by drug trafficking is in my view the civil standard, whether such benefit is established by direct or indirect evidence. The indirect route provided by the assumptions merely involves a shifting of the onus of proof.”

58.  Lord Mance further found that no breach of Article 6 § 1 had been made out in the present case. The fact that the assumptions were not made rendered any such complaint even weaker here than it was in Phillips (cited above) and Grayson and Barnham v. the United Kingdom (nos. 19955/05 and 15085/06, 23 September 2008).

59.  Like Lord Rodger, Lord Mance expressed a critical view of the approach adopted by the prosecution in the present case. He noted:

“108.  In the present case, I share the feeling that it is undesirable that a defendant should be charged only with an offence of conspiring to import heroin, that the Crown should in order to prove that offence adduce extensive evidence (in the form of covertly taped admissions) of the defendant having a pre-existing distribution network for the transportation and distribution of cannabis, in order to show why the defendant was approached to import heroin, and that the judge should then be invited to make a confiscation order on the basis of the benefit made and proceeds received from the cannabis dealings proved to his satisfaction by such evidence. I understand that, in the absence of any charge relating to the cannabis dealings, the evidence of the [applicant’s] admissions of such dealings would not have been admissible in Scotland. But criminal law and procedure vary widely among European countries, and, within the parameters of the European Convention on Human Rights and of the common principles governing proper prosecutorial conduct (neither of which it has been suggested were exceeded in this particular respect), it is not for us to proceed on the basis of some instinctive preference for an approach different from that here actually adopted. If there was any objection to the course taken at trial or at the stage when the confiscation order was sought, it was open to the defence to apply to stay or limit further proceedings or to exclude the proposed evidence accordingly. This was done, but the trial judge held that the evidence that the defendant had a pre-existing cannabis distribution network was relevant and had, though prejudicial, considerable probative value and should be admitted, and went on to give directions in his summing up which accurately explained the nature and potential significance of the evidence, and which made clear that it was for the jury to decide whether there was in fact such a network. The judge’s ruling was challenged unsuccessfully on appeal to the Court of Appeal. The correctness of what the Court of Appeal described as the judge’s ‘very clear ruling’ and ‘careful summing-up’ are no longer in issue before your Lordships’ House. In these circumstances, there was nothing irregular or abusive in what was done during the confiscation proceedings if it fell within the statutory provisions, as in my opinion it clearly did.”

RELEVANT LEGAL FRAMEWORK AND PRACTICE

60.  The applicable legislation at the time was the Drug Trafficking Act 1994 (the 1994 Act”), which was subsequently replaced by the Proceeds of Crime Act 2002 (“POCA”). Although the power to make a confiscation order under POCA came into force before the applicant was convicted, it had no effect where the offences, for the purposes of confiscation, were committed, as in the present case, before 24 March 2003.

61.  Pursuant to section 2 of the 1994 Act, where a defendant appeared before the Crown Court to be sentenced in respect of one or more drug trafficking offences, and the prosecutor asked the court to proceed under section 2 or the court considered that it was appropriate to do so, the court was required to first determine whether the defendant had benefited from drug trafficking.

62.  Pursuant to section 2(3):

“(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.”

63.  If the court determined that the defendant had benefited from drug trafficking, section 2(4) of the 1994 Act required it, before sentencing or otherwise dealing with him in respect of the offences concerned, to determine the amount to be recovered in his case in accordance with section 5. Section 5 restricted the amount to be recovered under a confiscation order to the amount certified by the court as capable of being realised from the defendant’s assets at the time the order was made. Subject to that limitation, it provided that the amount to be recovered under the order was to be the amount that the court assessed to be the value of the defendant’s proceeds of drug trafficking.

64.  Section 2(5) required the court to order the defendant to pay that amount.

65.  Section 4 made provision for assessing the proceeds of drug trafficking. It provided:

“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.”

66.  The assumptions were set out in section 4(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.”

67.  Pursuant to section 4(4), the court could 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 ...”

68.  Section 4(4) further stipulated that where the court did not make one or more of the required assumptions, it was required to state its reasons.

69.  According to section 2(8), the standard of proof required to determine any questions in relation to whether a person had benefited from drug trafficking and the extent of such benefit arising under the Act was that applicable in civil proceedings (i.e. on a “balance of probabilities”).

70.  Section 4(3)(b) of the Misuse of Drugs Act 1971 provides as follows:

“Subject to section 28 of this Act, it is an offence for a person—

...

(b )to be concerned in the supplying of such a drug to another in contravention of that subsection; ...”

71.  Section 5(3) provides as follows:

“Subject to section 28 of this Act, it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another in contravention of section 4(1) of this Act.”

72.  Section 170(2) of the Customs and Excise Management Act 1979 provides as follows:

“Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion—

(a) of any duty chargeable on the goods;

(b) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment; or

(c) of any provision of the Customs and Excise Acts 1979 applicable to the goods,

he shall be guilty of an offence under this section and may be detained.”

73.  In October 2011 the Supreme Court, which in October 2009 had replaced the Appellate Committee of the House of Lords as the highest court in the United Kingdom, gave judgment in a case concerning the applicability of Article 6 § 2 of the Convention to proceedings for the recovery of the fruits of criminal activity under POCA (see paragraph 60 above). The relevant provisions of POCA permitted the recovery of the fruits of criminal activity, irrespective of whether anyone had been convicted of the activity that produced them. Pursuant to section 241(3) of POCA, the court had to decide on a balance of probabilities whether it was proved that any matters alleged to constitute unlawful conduct had occurred or that any person intended to use any cash in unlawful conduct.

74.  The appellants in the case before the Supreme Court had been acquitted in Portugal of charges related to drug trafficking and money laundering. Before the Supreme Court they argued that the application of the civil standard of proof in the recovery proceedings, rather than the criminal standard of beyond reasonable doubt, had breached their right to a fair trial under Article 6 of the Convention.

75.  Lord Phillips (with whom Lord Mance, Lord Judge and Lord Reed agreed) delivered the leading judgment. Of the applicants’ case, which fell under Part 5 of POCA (concerning the recovery of the fruits of criminal activity), he said the following:

“5.  ’Balance of probabilities’ is the standard of proof applied in civil proceedings under English law (‘the civil standard of proof’). In criminal proceedings guilt has to be proved ‘beyond reasonable doubt’ (‘the criminal standard of proof’). In concluding that the property recovered was the product of criminal conduct on the part of the appellants, [the judge] applied the civil standard of proof, albeit that he used language that suggested that the criminal standard might well have been satisfied. It is the appellants’ case, advanced without success in the Court of Appeal, that this was contrary to the Human Rights Act 1998 in that it infringed their right to a fair trial under article 6 of the European Convention on Human Rights (‘the Convention’). They urge that, despite the language of section 241(3), we should ‘read down’ the subsection so as to accord to it the meaning that the court must decide whether it is proved beyond reasonable doubt that matters alleged to constitute unlawful conduct occurred. Alternatively, they submit that the Court should declare the subsection to be incompatible with the Convention pursuant to section 4 of the Human Rights Act.”

76.  He continued:

“14.  [Counsel’s] submissions on behalf of the appellants founded upon the fact that an essential stepping stone toward proving that the property owned by the appellants was the product of crime was proof that the appellants had been guilty of criminal conduct, in the form of drug trafficking and money laundering. He submitted that in these circumstances article 6(2) applied. The appellants were entitled to the presumption of innocence afforded by that article. Rebuttal of the presumption of innocence required proof of guilt to the criminal standard, this being implicit in the words ‘according to law’. He added to this the submission that once [the first applicant] had been acquitted of drug trafficking by the Portuguese Court no adverse finding could be made that implicated him in the conduct of which he had been acquitted.”

77.  Lord Phillips examined the Court’s judgment in Geerings (cited above). He considered that it could be read as supporting one or more of the following propositions in relation to confiscation proceedings:

“43.  i)  Where a defendant has been tried and acquitted of an offence no claim can be based upon an assertion that he committed that offence.

ii)  In no case can confiscation be ordered unless it is proved to the criminal standard that the defendant committed the offences from which the property is alleged to have been derived.

iii)  Where it is not proved by independent evidence that the defendant possesses or possessed property for which there is no innocent explanation, but asserted that this is to be inferred from the fact that he committed a crime or crimes, the latter fact must be proved according to the criminal standard of proof.”

78.  He considered the first proposition to be contrary to principle, explaining:

“44.  ... If confiscation proceedings do not involve a criminal charge, but are subject to the civil standard of proof, I see no reason in principle why confiscation should not be based on evidence that satisfies the civil standard, notwithstanding that it has proved insufficiently compelling to found a conviction on application of the criminal standard. At all events, insofar as other Strasbourg jurisprudence supports the first proposition, it is only in circumstances where there is a procedural link between the criminal prosecution and the subsequent confiscation proceedings. There was no such link in the present case. The acquittal was in Portugal and the recovery proceedings here in England. Furthermore, the evidence in the latter ranged much wider than the evidence that was relied upon in the Portuguese prosecution.”

79.  The third proposition, he noted, would not put the High Court judgment in doubt since that decision was founded on property in the hands of the applicants whose provenance had not been sufficiently explained.

80.  The critical proposition was the second one since, if it was sound, the appeal would have to be allowed as the High Court judge had applied the civil, and not the criminal, standard of proof. Lord Phillips considered that this proposition was inconsistent with the Court’s earlier cases of Phillips (cited above) and Van Offeren v. the Netherlands ((dec.), no. 19581/04, 5 July 2005) and could not properly be derived from Geerings, which did not purport to depart from those earlier decisions. He therefore held that the commission by the applicants of criminal conduct from which the property that they held was derived had to be established according to the civil, and not the criminal, standard of proof. He concluded:

“54.  The views on standard of proof expressed in Briggs-Price by members of the House were obiter but the application of the common ground in the views of Lord Phillips, Lord Brown and Lord Mance leads to the following conclusion. The commission by the appellants in the present case of criminal conduct from which the property that they held was derived had to be established according to the civil and not the criminal standard of proof. For the reasons that I have given that remains my conclusion. It is a conclusion which, prior to Geerings, appeared to be firmly founded on the decision of the Privy Council in McIntosh v Lord Advocate [2001] UKPC D1; [2003] 1 AC 1078. In my view that foundation is unshaken.

55.  The starting point in this case is the possession of property by the appellants for whose provenance they were unable to provide a legitimate explanation. There was an abundance of evidence, set out at length by the judge with great care, which implicated them in criminal activity that provided the explanation for the property that they owned. The judge rightly applied the civil standard of proof, but on my reading of his judgment he would have been satisfied to the criminal standard of the appellants’ wrongdoing.”

81.  Lord Clarke agreed that the Strasbourg jurisprudence did not support the proposition that confiscation could not be ordered unless it was proved to the criminal standard that the defendant had committed the offences from which the property he held derived.

82.  This Convention, which was ratified by the United Kingdom on 28 June 1991, provides, insofar as relevant:

“The Parties to this Convention,

Deeply concerned by the magnitude of and rising trend in the illicit production of demand for and traffic in narcotic drugs and psychotropic substances, which pose a serious threat to the health and welfare of human beings and adversely affect the economic, cultural and political foundations of society,

Deeply concerned also by the steadily increasing inroads into various social groups made by illicit traffic in narcotic drugs and psychotropic substances, and particularly by the fact that children are used in many parts of the world as an illicit drug consumers market and for purposes of illicit production, distribution and trade in narcotic drugs and psychotropic substances, which entails a danger of incalculable gravity,

Recognizing the links between illicit traffic and other related organized criminal activities which undermine the legitimate economies and threaten the stability, security and sovereignty of States,

...

Aware that illicit traffic generates large financial profits and wealth enabling transnational criminal organizations to penetrate, contaminate and corrupt the structures of government, legitimate commercial and financial business, and society at all its levels.

Determined to deprive persons engaged in illicit traffic of the proceeds of their criminal activities and thereby eliminate their main incentive for so doing,

...

Hereby agree as follows:

Article 1

DEFINITIONS

...

(I)  “Confiscation”, which includes forfeiture where applicable, means the permanent deprivation of property by order of a court or other competent authority;

...

(p)  “Proceeds” means any property derived from or obtained, directly or indirectly, through the commission of an offence established in accordance with article 3, paragraph I;

(q)  “Property” means assets of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments evidencing title to, or interest in, such assets;

...

Article 3

OFFENCES AND SANCTIONS

1.  Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally:

(a) (i)  The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention;

...

(iii)  The possession or purchase of any narcotic drug or psychotropic substance for the purpose of any of the activities enumerated in (I) above;

...

4. (a)  Each Party shall make the commission of the offences established in accordance with paragraph I of this article liable to sanctions which take into account the grave nature of these offences, such as imprisonment or other forms of deprivation of liberty, pecuniary sanctions and confiscation.

...

Article 5

CONFISCAT1ON

1.  Each Party shall adopt such measures as may be necessary to enable confiscation of:

(a)  Proceeds derived from offences established in accordance with article 3, paragraph 1 or property the value of which corresponds to that of such proceeds;

...

2.  Each Party shall also adopt such measures as may be necessary to enable its competent authorities to identify, trace, and freeze or seize proceeds, property, instrumentalities or any other things referred to in paragraph 1 of this article, for the purpose of eventual confiscation.

3.  In order to carry out the measures referred to in this article, each Party shall empower its courts or other competent authorities to order that bank, financial or commercial records be made available or be seized. A Party shall not decline to act under the provisions of this paragraph on the ground of bank secrecy.

...

6. (a)  If proceeds have been transformed or converted into other property, such property shall be liable to the measures referred to in this article instead of the proceeds.

(b)  If proceeds have been intermingled with property acquired from legitimate sources, such property shall, without prejudice to any powers relating to seizure or freezing, be liable to confiscation up to the assessed value of the intermingled proceeds.

(c)  Income or other benefits derived from:

(i)  Proceeds;

(ii)  Property into which proceeds have been transformed or converted; or

(iii)  Property with which proceeds have been intermingled

shall also be liable to the measures referred to in this article, in the same manner and to the same extent as proceeds.

7.  Each Party may consider ensuring that the onus of proof be reversed regarding the lawful origin of alleged proceeds or other property liable to confiscation, to the extent that such action is consistent with the principles of its domestic law and with the nature of the judicial and other proceedings.”

83.  The 1990 Convention, which entered into force in the United Kingdom on 1 September 1993, proclaimed that one of the “modern and effective methods” in the “fight against serious crime ... consists in depriving criminals of the proceeds from crime” (see the Preamble to the Convention).

84.  The Convention called upon the Signatory Parties to “adopt such legislative and other measures as may be necessary to enable it to confiscate instrumentalities and proceeds or property the value of which corresponds to such proceeds” (see Article 2). At the same time, the term “confiscation” was defined as “a penalty or a measure, ordered by a court following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property” (see Article 1).

85.  This 2005 Convention, which the United Kingdom has signed and ratified, provides, insofar as relevant:

“Preamble

...

Considering that the fight against serious crime, which has become an increasingly international problem, calls for the use of modern and effective methods on an international scale;

Believing that one of these methods consists in depriving criminals of the proceeds from crime and instrumentalities;

...

Article 1 – Use of terms

For the purposes of this Convention:

a  ’proceeds’ means any economic advantage, derived from or obtained, directly or indirectly, from criminal offences. It may consist of any property as defined in sub‑paragraph b of this article;

b  ’property’ includes property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title to or interest in such property;

...

Chapter III – Measures to be taken at national level

Section 1 – General provisions

Article 3 – Confiscation measures

1  Each Party shall adopt such legislative and other measures as may be necessary to enable it to confiscate instrumentalities and proceeds or property the value of which corresponds to such proceeds and laundered property.

...

3  Parties may provide for mandatory confiscation in respect of offences which are subject to the confiscation regime. Parties may in particular include in this provision the offences of money laundering, drug trafficking, trafficking in human beings and any other serious offence.

4  Each Party shall adopt such legislative or other measures as may be necessary to require that, in respect of a serious offence or offences as defined by national law, an offender demonstrates the origin of alleged proceeds or other property liable to confiscation to the extent that such a requirement is consistent with the principles of its domestic law.

Article 5 – Freezing, seizure and confiscation

Each Party shall adopt such legislative and other measures as may be necessary to ensure that the measures to freeze, seize and confiscate also encompass:

a  the property into which the proceeds have been transformed or converted;

b  property acquired from legitimate sources, if proceeds have been intermingled, in whole or in part, with such property, up to the assessed value of the intermingled proceeds;

c  income or other benefits derived from proceeds, from property into which proceeds of crime have been transformed or converted or from property with which proceeds of crime have been intermingled, up to the assessed value of the intermingled proceeds, in the same manner and to the same extent as proceeds.”

86.  EU Directive no. 2014/42 of the European Parliament and of the Council of 3 April 2014, on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union, provides, insofar as relevant:

“Whereas:

(1)  The main motive for cross-border organised crime, including mafia-type criminal organisation, is financial gain. As a consequence, competent authorities should be given the means to trace, freeze, manage and confiscate the proceeds of crime. However, the effective prevention of and fight against organised crime should be achieved by neutralising the proceeds of crime and should be extended, in certain cases, to any property deriving from activities of a criminal nature.

...

(3)  Among the most effective means of combating organised crime is providing for severe legal consequences for committing such crime, as well as effective detection and the freezing and confiscation of the instrumentalities and proceeds of crime.

(4)  Although existing statistics are limited, the amounts recovered from proceeds of crime in the Union seem insufficient compared to the estimated proceeds. Studies have shown that, although regulated by Union and national law, confiscation procedures remain underused.

(5)  The adoption of minimum rules will approximate the Member States’ freezing and confiscation regimes, thus facilitating mutual trust and effective cross-border cooperation.

(6)  The Stockholm Programme and the Justice and Home Affairs Council Conclusions on confiscation and asset recovery adopted in June 2010 emphasise the importance of a more effective identification, confiscation and re-use of criminal assets.

...

(8)  The Commission implementation reports on Framework Decisions 2003/577/JHA, 2005/212/JHA and 2006/783/JHA show that existing regimes for extended confiscation and for the mutual recognition of freezing and confiscation orders are not fully effective. Confiscation is hindered by differences between Member States’ law.

...

(11)  There is a need to clarify the existing concept of proceeds of crime to include the direct proceeds from criminal activity and all indirect benefits, including subsequent reinvestment or transformation of direct proceeds. Thus proceeds can include any property including that which has been transformed or converted, fully or in part, into other property, and that which has been intermingled with property acquired from legitimate sources, up to the assessed value of the intermingled proceeds. It can also include the income or other benefits derived from proceeds of crime, or from property into or with which such proceeds have been transformed, converted or intermingled.

(12)  This Directive provides for a broad definition of property that can be subject to freezing and confiscation. ...

...

(19)  Criminal groups engage in a wide range of criminal activities. In order to effectively tackle organised criminal activities there may be situations where it is appropriate that a criminal conviction be followed by the confiscation not only of property associated with a specific crime, but also of additional property which the court determines constitutes the proceeds of other crimes. This approach is referred to as extended confiscation. ...

...

(21)  Extended confiscation should be possible where a court is satisfied that the property in question is derived from criminal conduct. This does not mean that it must be established that the property in question is derived from criminal conduct. Member States may provide that it could, for example, be sufficient for the court to consider on the balance of probabilities, or to reasonably presume that it is substantially more probable, that the property in question has been obtained from criminal conduct than from other activities. In this context, the court has to consider the specific circumstances of the case, including the facts and available evidence based on which a decision on extended confiscation could be issued. The fact that the property of the person is disproportionate to his lawful income could be among those facts giving rise to a conclusion of the court that the property derives from criminal conduct. Member States could also determine a requirement for a certain period of time during which the property could be deemed to have originated from criminal conduct.

(22)  This Directive lays down minimum rules. It does not prevent Member States from providing more extensive powers in their national law, including, for example, in relation to their rules on evidence.

(23)  This Directive applies to criminal offences which fall within the scope of the instruments listed herein. Within the scope of those instruments, Member States should apply extended confiscation at least to certain criminal offences as defined in this Directive.

...

Article 1

Subject matter

1.  This Directive establishes minimum rules on the freezing of property with a view to possible subsequent confiscation and on the confiscation of property in criminal matters.

2.  This Directive is without prejudice to the procedures that Member States may use to confiscate the property in question.

Article 2

Definitions

For the purpose of this Directive, the following definitions apply:

(1)  ’proceeds’ means any economic advantage derived directly or indirectly from a criminal offence; it may consist of any form of property and includes any subsequent reinvestment or transformation of direct proceeds and any valuable benefits;

(2)  ’property’ means property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title or interest in such property;

(3)  ’instrumentalities’ means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal offences;

(4)  ’confiscation’ means a final deprivation of property ordered by a court in relation to a criminal offence;

(5)  ’freezing’ means the temporary prohibition of the transfer, destruction, conversion, disposal or movement of property or temporarily assuming custody or control of property;

(6)  ’criminal offence’ means an offence covered by any of the instruments listed in Article 3.

Article 3

Scope

This Directive shall apply to criminal offences covered by:

...

(g)  Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking;

...

Article 4

Confiscation

1.  Member States shall take the necessary measures to enable the confiscation, either in whole or in part, of instrumentalities and proceeds or property the value of which corresponds to such instrumentalities or proceeds, subject to a final conviction for a criminal offence, which may also result from proceedings in absentia.

2.  Where confiscation on the basis of paragraph 1 is not possible, at least where such impossibility is the result of illness or absconding of the suspected or accused person, Member States shall take the necessary measures to enable the confiscation of instrumentalities and proceeds in cases where criminal proceedings have been initiated regarding a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, and such proceedings could have led to a criminal conviction if the suspected or accused person had been able to stand trial.

Article 5

Extended confiscation

1.  Member States shall adopt the necessary measures to enable the confiscation, either in whole or in part, of property belonging to a person convicted of a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, where a court, on the basis of the circumstances of the case, including the specific facts and available evidence, such as that the value of the property is disproportionate to the lawful income of the convicted person, is satisfied that the property in question is derived from criminal conduct.

2.  For the purpose of paragraph 1 of this Article, the notion of ‘criminal offence’ shall include at least the following:

...

(e)  a criminal offence that is punishable, in accordance with the relevant instrument in Article 3 or, in the event that the instrument in question does not contain a penalty threshold, in accordance with the relevant national law, by a custodial sentence of a maximum of at least four years.”

COMPLAINTS

87.  The applicant complains under Article 6 §§ 1 and 2 of the Convention that the confiscation proceedings violated the presumption of innocence since, in calculating his benefit from drug trafficking, the trial judge found it proved to the criminal standard that he had committed a drug trafficking offence of which he had not been tried or convicted.

THE LAW

88.  The applicant argued that the allegation of substantial cannabis dealing made in the course of the confiscation proceedings represented the bringing of a new criminal charge which was determined by the judge without the evidential and procedural safeguards that normally apply following a criminal prosecution. Alternatively, following the Court’s judgment in Allen v. the United Kingdom ([GC], no. 25424/09, ECHR 2013), he argued that there had been a breach of the second aspect of Article 6 § 2 because, following a full criminal investigation into his involvement in the importation of cannabis, the State had decided not to prosecute him for this offence and yet in the course of the confiscation proceedings the judge had found to the criminal standard that he was guilty of it.

Article 6 § 2 of the Convention reads as follows:

“ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

(a)   The Government

89.  The Government invited the Court to declare the complaint under Article 6 § 2 of the Convention inadmissible on the basis that the presumption of innocence was not applicable to the confiscation proceedings.

90.  Relying on the Court’s case-law (in particular, Phillips v. the United Kingdom, no. 41087/98, §§ 32-34, ECHR 2001-VII, Van Offeren v. the Netherlands (dec.), no. 19581/04, 5 July 2005, Grayson and Barnham v. the United Kingdom, nos. 19955/05 and 15085/06, § 37, 23 September 2008, Raimondo v. Italy, 22 February 1994, § 43, Series A no. 281-A, Arcuri v. Italy (dec.), no. 52024/99, ECHR 2001-VII, Butler v. the United Kingdom (dec.), no. 41661/98, ECHR 2002-VI, and Webb v. the United Kingdom (dec.), no. 56054/00, 10 February 2004), the Government argued that confiscation proceedings did not involve the bringing of a new charge, regardless of whether the confiscation order had deprived the applicant of the benefit derived from the specific conviction which had triggered the proceedings, or from drug trafficking with which he had neither been charged nor convicted. In both cases the aim of the confiscation proceedings was to deprive a person convicted of drug trafficking of the benefit received from the activity of drug trafficking and to reduce the profits available for further criminal enterprises.

91.  The Government submitted that there was no distinction between an “asset-based approach”, where confiscation was based on proof of assets which the applicant could not show were lawfully obtained, and a “direct evidence approach”, where confiscation was based on evidence that the applicant had engaged in, and benefitted from, drug trafficking other than that of which he had been convicted (see the applicant’s arguments in this respect, summarised in paragraphs 98 and 99 below). Such a distinction would be irrational and illogical, since both approaches assumed that the defendant had been involved in criminal activity outside the indictment counts. Referring to Lord Mance’s arguments summarised in paragraph 55 above, the Government argued that the essential enquiry was therefore the same – what, if any, benefit was made and proceeds received? Moreover, if an asset-based approach was used and the defendant sought to explain the lawful origin of his assets, the prosecution could rely on direct evidence of other criminal activity to disprove his explanation. There was no rational or logical reason why a direct evidence approach would engage Article 6 § 2 where it was used to prove the existence of unidentified assets, but would not do so when used to prove the source of identified assets.

92.  There was also no support for such an approach in the Court’s case‑law. Although the prosecutor in Phillips (cited above) had not relied on direct evidence of other offending, the Government argued that the Court would have come to the same conclusions if he had relied wholly or partly on such evidence. This was apparent from the way in which the Court had approached the case, the reasons it gave for its conclusions, and the language it had used in its judgment. The Court had had regard to the classification of the proceedings under national law, and their purpose and essential nature, all of which remained the same regardless of the type of evidence relied on by the domestic court. Moreover, in Phillips the Court had expressly acknowledged that the confiscation order was based on an assumption that the applicant had been involved in other unlawful drug‑related activities prior to the offence of which he was convicted, and this did not negate its conclusion that Article 6 § 2 was not engaged.

93.  In Van Offeren (cited above) the Court had employed the same reasoning as in Phillips, even though the national court had relied partly on direct evidence and partly on an assets-based approach. In M v. Italy (no. 12386/86, Commission decision of 15 April 1991) the Commission had found that Article 6 § 2 was not engaged where the confiscation of property was based on circumstantial evidence that it was derived from unlawful activities. Similarly, in Grayson and Barnham (cited above) the Court had found no violation of Article 6 § 1 even though in the case of one of the applicants the assessed benefit had been based largely on inference of the amounts that he must have paid to purchase two consignments of cannabis, despite the fact that the purchase had not formed the subject of the charges against him.

94.  The case of Geerings v. the Netherlands (no. 30810/03, 1 March 2007) did not, in the Government’s view, assist the applicant. While it was not an easy case to understand, the crucial distinction between Geerings and Van Offeren was that the applicant in Geerings had been acquitted of the very crimes in respect of which the confiscation order was made. If the reasoning in Geerings were to be applied more broadly, it would be inconsistent with Phillips, Van Offeren and the other authorities cited above. Furthermore, the imposition of the criminal standard of proof was flawed for the reasons explained by Lord Mance (see paragraph 57 above).

95.  Even if Geerings was not confined to acquittal cases, the Government argued that the two conditions in paragraph 47 (if it was not found beyond a reasonable doubt that the person affected had actually committed the crime, and if it could not be established as fact that any advantage, illegal or otherwise, was actually obtained) had to be read in the alternative, with the consequence that Article 6 § 2 of the Convention would not be engaged if either was satisfied. A confiscation order therefore had to be imposed by reference either to direct evidence of offending or evidence of identified assets found to be unlawfully obtained. In the present case the judge had imposed the confiscation order by reference to direct evidence of offending, which was, in practice, more favourable to the applicant than the application of the statutory assumptions in section 4(3) of the 1994 Act (see paragraph 66 above). In so doing, he had applied the criminal standard, stating that he had “no doubt” that the applicant had been involved in the distribution of cannabis (see paragraph 20 above). Consequently, even on this broader application of the test in Geerings, it had clearly been satisfied on the facts of the case.

96.  The Government did not consider that Allen (cited above) had altered the nature of the analysis of whether Article 6 § 2 was engaged in the present case, since the Court in Allen had been concerned with the “second aspect” of Article 6 § 2, which applied only where criminal proceedings had terminated. In Allen the Court did not suggest that sentencing proceedings or confiscation proceedings were to be determined by any test other than the Engel/Phillips test (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22, and Phillips, cited above, § 35): in other words, Article 6 § 2 would only be applicable if allegations made in the course of the proceedings constituted an accusation “of a nature and degree as to amount to the bringing of a new ‘charge’”.

(b)   The applicant

97.  The applicant argued that Article 6 § 2 of the Convention was engaged whenever a court was invited to make a formal, conclusive and public finding that an individual had committed a specifically identified criminal offence.

98.  In the confiscation context he sought to distinguish between an “asset‑based approach” and a “direct evidence approach”. In an asset-based approach the courts were required to make a judgment about the status of particular assets held by a defendant, whereas in a direct evidence approach they were asked to make a formal and conclusive finding that the defendant was guilty of a specific criminal offence outside the indictment counts. It was the applicant’s contention that Article 6 § 2 was engaged in the latter case.

99.  In the applicant’s view, Geerings (cited above) provided strong support for distinguishing between an “asset-based approach” and a “direct evidence approach”. Contrary to what the Government suggested, Geerings could not be confined to cases where the defendant had been acquitted of the offence in respect of which the prosecution sought a confiscation order (see the Government’s arguments in this respect, summarised in paragraph 94 above). This was because the Court had identified two features that distinguished Geerings from Phillips and Van Offeren (both cited above): first, the Dutch Court of Appeal found that the applicant had obtained unlawful benefit from the crimes in question although he was never shown to be in possession of any assets for whose provenance he could not give an adequate explanation; and secondly, the impugned order related to the very crimes of which the applicant had been acquitted.

100.  The applicant further argued that the two conditions laid down in the penultimate sentence of paragraph 47 of Geerings (if it was not found beyond a reasonable doubt that the person affected had actually committed the crime, and if it could not be established as fact that any advantage, illegal or otherwise, was actually obtained) had to be understood as being cumulative. Accordingly, the applicant submitted that Geerings was authority for the proposition that in situations where the defendant had no assets of unknown or dubious provenance, confiscation proceedings that involved an assertion that he had committed a specified criminal offence (other than the index offence) would necessarily engage Article 6 § 2 of the Convention.

101.  The applicant accepted that there was tension between Geerings, on the one hand, and Phillips and Van Offeren, on the other, but argued that this tension could be resolved by acknowledging that the latter were asset-based cases, while the former was not. Alternatively, should they be irreconcilable, he argued that the judgment in Geerings, which was later in time, should be preferred.

102.  In any event, the applicant argued that even if the Court’s reasoning in Phillips was applicable, Article 6 § 2 would still apply if the accusations levelled against a defendant were of “a nature and degree as to amount to the bringing of a new charge”. To determine whether accusations amounted to a new charge, it was necessary to compare the accusations provided in the index offence with the accusations levelled against the defendant in the confiscation proceedings. In the present case the applicant had been tried and convicted of conspiring to import heroin. However, no heroin was ever purchased or imported by the applicant. In contrast, in the confiscation proceedings the applicant was accused of having operated a substantial and lucrative international drug trafficking operation. On any view, these accusations were of a completely different “nature and degree” to the index offence “and amounted to the bringing of a new ‘charge’”

103.  The applicant further argued that in order for the sentencing analogy in Phillips to hold up there had to be an identifiable nexus between the penalty and the index offence. While that nexus was present in Phillips, in the case at hand the applicant’s conviction had been completely unconnected to the terms and scope of the confiscation order, which was fixed exclusively by reference to a discrete and entirely separate offence that the applicant had never properly been tried for, still less convicted of.

104.  If the Court were to reject the applicant’s primary argument, he invited it to overrule the approach of the majority in Phillips and instead endorse the approach adopted by Judge Bratza in his partially dissenting opinion.

105.  Following the judgment of the Grand Chamber in Allen (cited above), the applicant asserted that Article 6 § 2 was also engaged in its “second aspect”, which was not confined to cases where a person had been formally tried and convicted of a particular offence. It had also been held to apply in cases, such as the present, where an applicant had been investigated in relation to a criminal offence and those proceedings were closed without any charges being brought (the applicant quoted, in this respect, Vanjak v. Croatia, no. 29889/04, § 41, 14 January 2010, and Šikić v. Croatia, no. 9143/08, § 47, 15 July 2010). In light of this line of case-law, and the Court’s duty to interpret Article 6 § 2 in a manner that was practical and effective, the applicant argued that the second aspect of Article 6 § 2 of the Convention should apply to assertions of guilt where the State had, in the context of criminal proceedings against an applicant, actively chosen not to pursue a particular criminal charge.

(a)   General principles

(i)      Presumption of innocence

106.  As expressly stated in the terms of the Article itself, Article 6 § 2 applies where a person is “charged with a criminal offence” (see Allen, cited above, § 95). The Court has repeatedly emphasised that this is an autonomous concept and must be interpreted according to the three criteria set out in its case-law, namely the classification of the proceedings in domestic law, their essential nature, and the degree of severity of the potential penalty (see, among many other authorities on the concept of a “criminal charge”, Engel and Others, cited above, § 82, and Phillips, cited above, § 31). A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 110-111, 12 May 2017, with references therein).

107.  The presumption of innocence has two aspects. In its first aspect it is a procedural guarantee in the context of a criminal trial itself, imposing requirements in respect of, inter alia, the burden of proof, legal presumptions of fact and law, the privilege against self-incrimination, pre‑trial publicity and premature expressions, by the trial court or by other public officials, of a defendant’s guilt (see Allen, quoted above, § 93, with further references).

108.  In its second aspect its aim is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty of the offence charged (see Allen, cited above, § 94; see also Nealon and Hallam v. the United Kingdom [GC], nos. 32483/19 and 35049/19, §§ 101-109, 11 June 2024).

109.  In Allen the Court held that whenever the question of the applicability of the second aspect of the presumption of innocence arises, the applicant must demonstrate the existence of a link between the concluded criminal proceedings and the subsequent proceedings. Such a link is likely to be present, for example, where the subsequent proceedings require examination of the outcome of the prior criminal proceedings and, in particular, where they oblige the court to analyse the criminal judgment, to engage in a review or evaluation of the evidence in the criminal file, to assess the applicant’s participation in some or all of the events leading to the criminal charge, or to comment on the subsisting indications of the applicant’s possible guilt (see Nealon and Hallam, cited above, § 122, and Allen, cited above, § 104).

(ii)    Confiscation and sentencing

110.  In Phillips (cited above, § 36) the Court held that Article 6 § 2 of the Convention was not applicable to the confiscation proceedings brought against the applicant. Whilst it was clear that Article 6 § 2 governed criminal proceedings in their entirety, the right to be presumed innocent under Article 6 § 2 arose only in connection with the particular offence “charged”. Once an accused had properly been proved guilty of that offence, Article 6 § 2 could have no application in relation to allegations made about his character and conduct as part of the sentencing process, unless such accusations were of such a nature and degree as to amount to the bringing of a new “charge” within the autonomous Convention meaning of that term (ibid, § 35).

111.  In determining whether in the course of the confiscation proceedings the applicant had been “charged with a criminal offence”, within the meaning of Article 6 § 2, the Court had regard to the three Engel and Others criteria (ibid, § 31; see also paragraph 106 above). As regards the first criteria, the Court considered it to be “clear” that an application for a confiscation order did not involve any new charge or offence in terms of the criminal law. On the contrary, confiscation orders were part of the sentencing process which followed upon the conviction of the defendant of the criminal offences with which he was charged (ibid, § 32). Turning to the second and third criteria, the Court noted that the purpose of the confiscation procedure was not the conviction or acquittal of the applicant for any other drug-related offence. Although the Crown Court assumed that he had benefited from drug trafficking in the past, this was not reflected in his criminal record. It could not, therefore, be said that he was “charged with a criminal offence”. Instead, the purpose of the procedure had been to enable the national court to assess the amount at which the confiscation order should properly be fixed. This procedure was analogous to the determination by a court of the amount of a fine or the length of a period of imprisonment to be imposed on a properly convicted offender (ibid, §§ 33‑34).

112.  In Van Offeren (cited above) the applicant had been convicted of having transported cocaine, of having held about 640 grams of cocaine, of having held – in preparation of drug offences – about 535 grams of a substance [mannitol] destined to dilute cocaine, of having unlawfully held firearms and ammunition, and of social security fraud. He was acquitted of the remaining charges, including trafficking cocaine. The prosecutor subsequently asked for an order for the confiscation of illegally obtained advantage, which had been assessed on the basis of a criminal financial investigation at a total amount of 357,059 Netherlands guilders (corresponding to 162,026.31 euros). The applicant argued that as he had not obtained any benefit from the crimes of which he had been convicted, the request for a confiscation order had been based on illegally obtained advantage by or through trafficking cocaine, an offence of which he had been acquitted. A confiscation order was ultimately made for the total sum of the applicant’s unexplained assets. In making the order the Dutch Court of Appeal indicated that “there exist sufficient indications that [the applicant] has committed the offence of cocaine trafficking” and, in the absence of any other credible explanation for his assets, that he “derived benefit from this trafficking in cocaine.” The Court, following Phillips (cited above), found that the confiscation proceedings were part of the sentencing process and therefore did not involve the bringing of any new “charge” within the meaning of Article 6 § 2 of the Convention. Consequently, the applicant’s complaint under that Article was rejected as manifestly ill-founded.

113.  In Geerings (cited above, §§ 45-51), the applicant had been acquitted by the Court of Appeal of most of the charges against him. Although he was not in possession of any assets for whose provenance he could not give an adequate explanation, a confiscation order was made on the basis that there were “sufficient indications” that he had committed and benefitted from the crimes of which he had been acquitted. The Court held that the presumption of innocence was applicable to and had been breached in the confiscation proceedings. In reaching this conclusion, it distinguished the facts of the case before it from both Phillips and Van Offeren on the following basis:

“46.  Firstly, the Court of Appeal found that the applicant had obtained unlawful benefit from the crimes in question although in the present case he was never shown to be in possession of any assets for whose provenance he could not give an adequate explanation. The Court of Appeal reached this finding by accepting a conjectural extrapolation based on a mixture of fact and estimate contained in a police report.

47.  The Court considers that ‘confiscation’ following on from a conviction – or, to use the same expression as the Netherlands Criminal Code, ‘deprivation of illegally obtained advantage – is a measure (maatregel) inappropriate to assets which are not known to have been in the possession of the person affected, the more so if the measure concerned relates to a criminal act of which the person affected has not actually been found guilty. If it is not found beyond a reasonable doubt that the person affected has actually committed the crime, and if it cannot be established as fact that any advantage, illegal or otherwise, was actually obtained, such a measure can only be based on a presumption of guilt. This can hardly be considered compatible with Article 6 § 2 (compare, mutatis mutandis, Salabiaku v. France, judgment of 7 October 1988, Series A no. 141‑A, pp. 15-16, § 28).

48.  Secondly, unlike in the Phillips and Van Offeren cases, the impugned order related to the very crimes of which the applicant had in fact been acquitted.

49.  In the Asan Rushiti judgment ([see Asan Rushiti v. Austria, no. 28389/95], § 31 [, 21 March 2000]), the Court emphasised that Article 6 § 2 embodies a general rule that, following a final acquittal, even the voicing of suspicions regarding an accused’s innocence is no longer admissible.

50.  The Court of Appeal’s finding, however, goes further than the voicing of mere suspicions. It amounts to a determination of the applicant’s guilt without the applicant having been “found guilty according to law” (compare Baars v. the Netherlands, no. 44320/98, § 31, 28 October 2003)”.

114.  More recently, in Episcopo and Bassani v. Italy (nos. 47284/16 and 84604/17, §§ 127-141, 19 December 2024), a case decided following the judgment of the Grand Chamber in Nealon and Hallam ([GC], nos. 32483/19 and 35049/19, 11 June 2024), the Court found a violation of Article 6 § 2 of the Convention where the domestic courts ordered the confiscation of the first applicant’s assets after the criminal proceedings were discontinued, even though under domestic law a criminal “conviction” was a formal requirement for confiscation. The Court found that, in ordering the confiscation of the first applicant’s assets, the domestic courts imputed criminal liability to him despite the discontinuance of the proceedings and thereby breached his right to be presumed innocent (see Nealon and Hallam, cited above, § 168).

(b)   Application of these principles to the present case

115.  The applicant contends that Article 6 § 2 of the Convention was engaged either in its first aspect or, alternatively, in its second aspect. In respect of the first aspect, he argues that the allegation of substantial cannabis dealing made in the course of the confiscation proceedings represented the bringing of a new criminal charge (see the applicant’s arguments in this respect, summarized in paragraphs 102-103 above). In respect of the second aspect, he argues that the criminal investigation into his involvement in the importation of cannabis constituted criminal proceedings that were discontinued when the State decided not to prosecute him for this offence (see paragraph 105 above).

(i)      The second aspect of Article 6 § 2

116.  The applicant was in fact charged with a single count of possession of one kilogram of cannabis with intent to supply, a charge which was left to lie on the file (see paragraph 5 above). He does not suggest that this offence, which related to a particular day in October 1999 (see paragraph 5 above), was the same offence that the trial judge, in the course of the confiscation proceedings, had “no doubt” that he had committed (see paragraph 20 above). Not only is the possession of one kilogram of cannabis with intent to supply quite different in both substance and scale from widespread distribution of cannabis over (at least) a six month period, but the two offences also have a different legal basis. The applicant was charged with an offence under section 5(3) of the Misuse of Drugs Act 1971 (see paragraphs 5 and 71 above), whereas it is clear from the judgment of the Supreme Court that the appropriate “charge” for the “offence” under consideration in the confiscation proceedings would have been under section 4(3)(b) of the Misuse of Drugs Act 1971 (see paragraphs 41 and 70 above). This was acknowledged by the Court of Appeal, which found it to be of “central importance for the present appeal ... that there was no charge against the applicant in relation to involvement in the distribution of cannabis or his having a cannabis distribution network” (see paragraph 29 above).

117.  In any event, it is not the applicant’s case before the Court that there was a “link” between the charge under section 5(3) of the Misuse of Drugs Act 1971, which was left to lie on the file (see paragraph 5 above), and the findings made in the confiscation proceedings concerning his involvement in the distribution of cannabis (see paragraphs 17-25 above). Instead, the applicant argues that there was a “link” between the findings in the confiscation proceedings and the investigation into the widespread distribution of cannabis through a cannabis distribution network. He relies on the cases of Vanjak and Šikić (both cited above) as support for his contention that Article 6 § 2 may apply in its second aspect where the criminal proceedings ended prior to a formal indictment (see paragraph 105 above). However, in Šikić (cited above, § 5) the applicant was charged with a criminal offence and those charges were later withdrawn and the indictment dismissed. Vanjak (cited above, §§ 5-20) does not sit easily within the framework of second aspect cases as the impugned disciplinary proceedings ran parallel to the criminal investigation, and concluded before the criminal investigation was discontinued.

118.  Consequently, if Article 6 § 2 applies in the present case, it can only be in its first aspect.

(ii)    The first aspect of Article 6 § 2

119.  Following Phillips (cited above, § 35), Article 6 § 2 could apply to the confiscation proceedings in its first aspect only if the accusations against the applicant were of such a nature and degree as to amount to the bringing of a new “charge” against him.

120.  Having regard to the three criteria employed in Phillips to determine whether this test had been met (see paragraph 111 above), the Court notes that the confiscation proceedings in the present case were also part of the sentencing process which followed the applicant’s conviction of the criminal offences with which he was charged. The purpose of the confiscation proceedings was the same as in Phillips (assessing the amount at which the confiscation order should be fixed), as was the penalty (a confiscation order with a period of imprisonment in default).

121.  There was, however, one difference between the two cases: instead of seeking to prove that the applicant possessed, or had possessed, property and inviting the court to assume that that property represented benefit derived from drug trafficking, in the present case the prosecution sought to prove that the applicant 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 those offences (see paragraph 37 above). The applicant has therefore sought to distinguish between an “asset‑based approach”, where confiscation was based on proof of assets which the defendant could not show were lawfully obtained, and a “direct evidence approach”, where confiscation was based on evidence that the defendant had engaged in, and benefitted from, drug trafficking other than that of which he had been convicted (see paragraph 98 above). In his view, the latter will engage Article 6 § 2, whereas the former will not.

122.  However, both approaches assume that the defendant had been involved in criminal activity outside the indictment counts. As Lord Mance pointed out, it would be “a fallacy to describe [the statutory assumptions] as some form of separate assets-based recovery”. They were a means of proving the receipt of proceeds from drug trafficking by pointing to particular property or expenditure and requiring an explanation for its origin. If and when they did not apply, the prosecution had to make its case without their assistance, but the essential enquiry was the same: namely, whether any benefit was made and proceeds received (see paragraph 55 above).

123.  Moreover, any distinction between the two would be difficult to sustain in practice, since the line between them will easily be blurred. As the Government have pointed out, even if an “asset-based approach” is used, the prosecution might rely on direct evidence of other criminal activity in order to disprove the defendant’s explanation for the origin of his assets (see paragraph 91 above). This appears to be what happened in Van Offeren (cited above), and yet the Court still found that the confiscation proceedings did not involve the bringing of any new “charge” within the meaning of Article 6 § 2 of the Convention (see paragraph 112 above).

124.  Perhaps more importantly, there would appear to be no legal basis on which such a distinction could be sustained. Regardless of which approach is adopted, in the context of confiscation proceedings allegations that a defendant had engaged in, and benefitted from, drug trafficking other than that of which he had been convicted could not, in and of itself, amount to the bringing of a “new charge” against him. This is true even in a case such as the present, where the judge stated that he had “no doubt” the applicant had been involved in the distribution of cannabis (see paragraph 20 above). Such allegations were not a “prelude to ‘criminal proceedings’” against the defendant (see Deweer v. Belgium, 27 February 1980, § 45, Series A no. 35), nor were they an official notification of an allegation that he had committed a criminal offence (see Simeonovi, cited above, § 110).

125.  The applicant relies on Geerings (cited above) as support for his contention that Article 6 § 2 would be applicable where a “direct evidence approach” was employed. However, as he has himself acknowledged, Geerings does not sit easily within the framework of the Court’s existing Article 6 § 2 case-law (see paragraph 101 above).

126.  First of all, in Geerings the question of the applicability of Article 6 § 2 is conflated with the question of whether that Article has been breached. It is therefore unclear whether the Court considered that the allegations made in the context of the confiscation proceedings amounted to the bringing of a “new charge” or whether Article 6 § 2 was applicable on some other basis. However, it is noteworthy that if Geerings were to be decided today, in light of the Court’s judgments in Allen and Nealon and Hallam (both cited above) it would almost certainly be treated as a “second aspect” case as the confiscation order was made on the basis that there were “sufficient indications” that the applicant had committed and benefitted from the crimes of which he had been acquitted (like, for example, Episcopo and Bassani, cited above, §§ 127-141). This would appear to be borne out by the Court’s reliance on Minelli v. Switzerland, 25 March 1983, Series A no. 62, Sekanina v. Austria, 25 August 1993, Series A no. 266-A, and Asan Rushiti v. Austria, no. 28389/95, § 27, 21 March 2000 (see Geerings, cited above, §§ 41, 42 and 49).

127.  Understanding Geerings as a “second aspect” case does not resolve the tension between that judgment and the decision in Van Offeren (cited above), in which the applicant had also been acquitted of a criminal offence the court later found there to be “sufficient indications” that he had committed. Nor does it explain the reasoning in paragraphs 46 and 47 of Geerings, which would appear to suggest that regardless of whether or not there had been a previous acquittal or discontinuance, a confiscation order would be incompatible with Article 6 § 2 if “it is not found beyond a reasonable doubt that the person affected has actually committed the crime, and if it cannot be established as fact that any advantage, illegal or otherwise, was actually obtained”. However, this reasoning – which appears to suggest that if a “direct evidence approach” is adopted, the appropriate standard of proof should be the criminal standard of beyond reasonable doubt – is difficult to reconcile with the Court’s judgment in Nealon and Hallam (cited above, § 168), which held that following an acquittal or discontinuance the one thing that the courts and other authorities should not do is impute criminal liability to the individual concerned.

128.  Consequently, the Court’s judgment in Geerings is of no assistance in the case at hand, in which the Court is concerned only with the “first aspect” of Article 6 § 2 of the Convention.

129.  Accordingly, the Court finds that the “accusations” made against the applicant in the confiscation proceedings were not of such a nature and degree as to amount to the bringing of a “new charge” within the autonomous Convention meaning of that term.

130.  The applicant also invites the Court to overrule the approach of the majority in Phillips (cited above) and instead endorse the approach adopted by Judge Bratza (see paragraph 104 above). While Judge Bratza agreed with the majority that there had been no violation of Article 6 § 2, he could not accept their view that it had no application to the confiscation proceedings against the applicant. In Judge Bratza’s opinion, the majority had taken too narrow a view of the role of Article 6 § 2 by holding that, once an accused had been proved guilty of the offence charged, Article 6 § 2 could have no application in relation to allegations made about his character and conduct as part of the sentencing process, unless the allegations were of such a nature and degree as to amount to the bringing of a “new charge”.

131.  While the Court is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases (see Muršić v. Croatia [GC], no. 7334/13, § 109, 20 October 2016, with references therein).

132.  In any event, the Court’s case-law on Article 6 § 2 of the Convention has not remained static in the twenty-four years since Phillips was decided. While Phillips itself has not been overruled (on the contrary, it has been referenced in two Grand Chamber cases, albeit in different contexts from that which is currently under discussion – see Allen, cited above, § 95, concerning the existence of a criminal charge under Article 6 § 2, and G.I.E.M. S.r.l. and Others v. Italy [GC], nos. 1828/06 and 2 others, §§ 290-291, 28 June 2018, concerning the existence of a penalty under Article 1 of Protocol No. 1), Judge Bratza’s dissenting opinion would appear to have been overtaken by subsequent developments. In particular, he relies on Minelli and Sekanina (both cited above) as authority for the proposition that the scope and field of application of Article 6 § 2 had undergone substantial development, with the consequence that the presumption of innocence might be applicable after the trial of the criminal charge had come to an end. However, it is now clear that both cases fall under the second aspect of Article 6 § 2 (see Allen, cited above, § 98, and Nealon and Hallam, cited above, §§ 103-104), with which neither the present case nor that of Phillips is concerned.

133.  Finally, the Court has recognised that the powers of confiscation conferred on the national courts are an important weapon in the fight against the scourge of drug trafficking (see Welch v. the United Kingdom, 9 February 1995, § 36 Series A no. 307-A). To this end, common European and even universal legal standards now increasingly encourage the confiscation of property linked to serious criminal offences such as drug offences, with or without the prior existence of a criminal conviction; the shifting of the onus of proving the lawful origin of property presumed to have been wrongfully acquired onto the defendants/respondents in both criminal and non-criminal proceedings for confiscation and the recovery of assets; the application of confiscation and civil recovery measures not only to the direct proceeds of crime but also to property, including any incomes and other indirect benefits, obtained by converting or transforming the direct proceeds of crime or intermingling them with other, possibly lawful, assets; and the application of confiscation measures and civil recovery proceedings to any third parties (see paragraphs 83-86 above; see also Gogitidze and Others v. Georgia, no. 36862/05, § 105, 12 May 2015). If the Court were to now find that allegations made against the defendant in confiscation proceedings engaged the presumption of innocence, even in the absence of a “new charge”, it would impede the operation of domestic confiscation schemes adopted in order to comply with those European and international standards.

134.  In light of the foregoing considerations the Court sees no grounds for departing from the approach taken in Phillips (cited above).

(iii)   Conclusion on admissibility

135.  As Article 6 § 2 is not applicable in either its first or second aspect, the applicant’s complaints under that Article are incompatible ratione materiae with the provisions of the Convention and its Protocols within the meaning of Article 35 § 3 (a) and must therefore be rejected pursuant to Article 35 § 4.

136.  The applicant complained under Article 6 § 1 of the Convention that the confiscation proceedings did not constitute a “fair hearing”.

In so far as relevant, Article 6 § 1 of the Convention reads as follows:

“1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

(a)   The Government

137.  The Government accepted that Article 6 § 1 applied throughout the entirety of the criminal proceedings, including the sentencing procedure, and that a person’s right to be presumed innocent and to require the prosecution to bear the onus of proving any allegations against him formed part of the general notion of a fair hearing under that Article. However, the Government argued that in the present case the applicant had not particularised the reasons for his complaint under Article 6 § 1 of the Convention. In particular, it was not clear whether he relied on any of the rights of the defence other than the right to be presumed innocent.

138.  In any event, the Government argued that the confiscation procedure did not involve any violation of the remainder of the rights of the defence under Article 6 § 1. It was established in both Phillips and Grayson and Barnham (cited above) that the confiscation procedure under the 1994 Act did not involve any breach of Article 6 § 1 where the statutory assumptions were applied. In the present case the applicant had been in a better position than the applicants in Phillips and Grayson and Barnham because he was not subject to the statutory assumptions, and yet the safeguards identified by the Court in those earlier cases were equally applicable.

139.  The safeguards relied on by the Court in Phillips were as follows: the applicant’s conviction for an additional drug trafficking offence was not at stake (Phillips, cited above, § 42) and the assessment was carried out by a court with a judicial procedure including a public hearing, advance disclosure of the prosecution case and the opportunity for the applicant to adduce documentary and oral evidence (ibid, § 43). The Government further argued that while the applicant in Phillips had been required to prove that he had not been involved in any criminal activity, in the present case the applicant had only been required to cast doubt on the prosecution’s account of his involvement in narrowly defined criminal activity. Moreover, instead of inferring that property had been derived from an illegitimate source, the judge had “no doubt” that the applicant had been involved in the distribution of cannabis (see paragraph 20 above), and in assessing the applicant’s benefit, he was careful to err on the side of caution.

(b)   The applicant

140.  The applicant argued that the true nature of the confiscation proceedings was to hold a “trial within a criminal trial”. However, in the United Kingdom trials of criminal conduct were conducted before juries, and were subject to evidential and procedural limitations and disclosure obligations. This fact was understood by Lord Phillips, who observed that if there was a “new charge” in the present case, an issue would arise under Article 6 § 3 of the Convention because the specific procedural requirements which applied to a criminal prosecution were not applied in respect of the cannabis charges (see paragraph 38 above).

141.  The applicant did not accept that the applicable “safeguards” had adequately protected his rights. While his “conviction” might not have been at stake, the confiscation proceedings had nevertheless resulted in a formal finding that he had committed a serious criminal offence, which was then used to impose a penal sanction upon him. In addition, the applicant had been denied the benefit of a normal criminal trial with the attendant safeguards built into that process. In particular, the judge’s findings with regard to cannabis trafficking had been based largely on evidence that he observed at the applicant’s trial for conspiring to import heroin, when he was acting as arbiter of the law and not as arbiter of fact (which was exclusively the role of the jury). In the course of that trial, the applicant’s defence had been tailored to meet the charge he faced (conspiracy to import heroin) and not any other offences he had not been charged with. The fact-finding procedure in the present case had therefore been highly irregular and seriously compromised the applicant’s right to a fair hearing.

142.  In addition, in Phillips the applicant had been required to establish the provenance of particular assets. By showing that they had a legitimate origin, he could foreclose any inquiry about his guilt of any particular offences. By contrast, in the present case the applicant was required to establish that he was not guilty of specific criminal conduct. A direct comparison of the two situations was not, therefore, illuminating. In any event, following the judgment of the Supreme Court in Gale and another v. Serious Organised Crime Agency (see paragraphs 73-81 above), in future the “direct evidence approach” would require use of the civil standard of proof. It would not be enough for a defendant to “cast doubt” on the prosecution’s version of events; rather, once the prosecution established a prima facie case, the onus would shift to the defendant to establish his innocence on the balance of probabilities.

143.  Article 6 § 1 applies throughout the entirety of proceedings for “the determination of ... any criminal charge”, including proceedings whereby a sentence is fixed (see Findlay v. the United Kingdom, 25 February 1997, § 39, Reports of Judgments and Decisions 1997-I) or a confiscation order made (see Phillips, cited above, § 39). It follows, therefore, that Article 6 § 1 of the Convention applies to the confiscation proceedings in the present case.

144.  While it is clear from the Court’s existing case-law that the application of the statutory assumptions under the 1994 Act is not in itself incompatible with Article 6 § 1 of the Convention (see Phillips, cited above, §§ 40-47, and Grayson and Barnham, cited above, §§ 37-50), in the present case those assumptions were not applied. Instead, the prosecution had adopted the “unusual” approach of proving that the applicant had committed drug trafficking offences other than that in respect of which he had been convicted and invited the court to estimate the profit that he must have derived from those offences (see paragraphs 37 and 40 above). For Lord Mance, it was “undesirable” that a defendant should be charged only with an offence of conspiring to import heroin, that in order to prove that offence the Crown should adduce extensive evidence of his having a pre-existing distribution network for the transportation and distribution of cannabis, and that the judge should then be invited to make a confiscation order on the basis of the benefit made and proceeds received from the cannabis dealings proved to his satisfaction by such evidence (see paragraph 59 above). Lord Rodger went further, indicating that in his view the matter was “mishandled” (see paragraph 42 above). In reaching this conclusion, he pointed to two unsatisfactory features – the applicant was not charged with cannabis trafficking, even though much of the most important evidence at trial was designed to prove that he was engaged in distributing cannabis through a pre-existing network, and the parties had agreed among themselves that the statutory assumptions would not apply (see paragraphs 41-42 above).

145.  The fact that the proceedings were “unusual” or even “mishandled” does not, however, compel the conclusion that there has been a breach of Article 6 § 1 of the Convention. In this regard, the Court considers the following factors to be relevant.

146.  First of all, the statutory assumptions were not made because the applicant agreed with the prosecution that they would not be made, and the judge accepted this agreement (albeit without providing a written statement of his reasons as required by section 4(4) of the 1994 Act – see paragraphs 68 and 144 above) (see paragraph 14 above). Therefore, while the non‑application of the statutory assumptions was irregular, this took place in accordance with – rather than contrary to – the applicant’s express wishes.

147.  Secondly, as Lord Rodger pointed out, the statutory assumptions were fairly draconian, and a failure to apply them could not be regarded as any kind of detriment to the applicant. On the contrary, because the judge did not apply the assumptions in this case, the applicant enjoyed the advantage of not having his hotel and other property, and all his expenditure over the preceding six years, deemed to have been derived from drug trafficking (see paragraph 43 above). Lord Mance appeared to agree, since in his view the fact that the assumptions were not made had rendered the applicant’s Article 6 § 1 complaint even weaker than it was in Phillips and Grayson and Barnham (both cited above – see paragraph 58 above).

148.  Thirdly, the allegations of the applicant’s involvement in cannabis trafficking were not “new” allegations which only came to light during the confiscation proceedings (see paragraph 17 above). The applicant had originally been charged with a single count of possession of one kilogram of cannabis with intent to supply, a count relating to a particular day in October 1999. Prior to trial the prosecution agreed that this charge would be left on the file, but the prosecution made it plain that it intended to pursue confiscation proceedings in relation to trafficking in cannabis (see paragraph 5 above). In addition, it was part of the prosecution’s case at trial that the applicant had been brought into the heroin conspiracy because he already had a distribution network for the transportation and distribution of cannabis, and that this same network was to be used for the distribution of heroin (see paragraph 6 above).

149.  Fourthly, there were a number of procedural safeguards in place during the trial and confiscation proceedings. As Lord Rodger pointed out (see paragraph 47 above), the applicant was represented by counsel. Before trial, he would have been supplied with police statements and other material from which it would have been clear that the prosecution was intending to lead evidence about his involvement in the cannabis distribution network at his trial (see paragraph 6 above). The applicant challenged unsuccessfully the admissibility of this evidence at trial, both before the trial judge and on appeal (see paragraph 59 above). It would also have been open to the applicant to have argued either that he should have been charged with cannabis trafficking if it was to be relied on in a subsequent confiscation procedure, or that the cannabis trafficking should not have been relied on in the confiscation proceedings (see paragraphs 40 and 50 above). He does not appear to have done so. During the trial, counsel for the applicant was able to lead evidence to counter the prosecution evidence relating to the cannabis distribution network and he had every opportunity to cross-examine the relevant witnesses (see paragraph 47 above).

150.  In the context of the confiscation proceedings, the applicant had the opportunity to give evidence but declined to do so (see paragraph 15 above). The judge, in fixing the amount of the confiscation order, was aware of the seriousness of the consequences of his findings and reduced the amount of the order to avoid injustice to the applicant (see paragraph 23 above). The applicant was able to appeal the confiscation order first to the Court of Appeal and then to the House of Lords. The Court of Appeal held that the trial judge’s finding had been clearly reasoned and based on evidence that he had heard from both the prosecution and defence during the trial. The judge had also given detailed reasons, again based on the evidence, for assessing the level of benefit as he did, making discounts favourable to the applicant in order to avoid any unfairness (see paragraph 32 above). The House of Lords unanimously dismissed the applicant’s appeal. Notwithstanding the criticism by some of the Lordships of the handling of the criminal proceedings and subsequent confiscation proceedings (see paragraph 144 above), they all found that the proceedings as a whole were “fair” within the meaning of Article 6 § 1 of the Convention (see paragraphs 40, 47 and 58 above).

151.  The Court takes note of Lord Phillips observation to the effect that if the prosecution’s approach had amounted to a new charge being brought against the applicant, finding him “guilty” to the criminal standard of that offence in the confiscation proceedings, in the absence of the specific procedural requirements that would normally attend a criminal prosecution, might have raised an issue under Article 6 § 2 of the Convention, insofar as it required an applicant to have been “proved guilty according to law”, and under Article 6 § 3 of the Convention (see paragraph 38 above; see also Lord Brown’s concluding remark quoted in paragraph 54 above). It further notes that if the applicant had been formally charged with the offence under section 4(3)(b) of the Misuse of Drugs Act 1971 (see paragraph 70 above) of supplying cannabis, and acquitted by the jury, or if such proceedings had been discontinued, the application of the criminal standard in the confiscation proceedings might have raised an issue under the second aspect of Article 6 § 2 of the Convention (see Nealon and Hallam, cited above, § 168). It would therefore have been preferable had the trial judge applied the civil standard required by section 2(8) of the 1994 Act (see paragraph 69 above; see also the judgment of the Supreme Court in Gale and another v. Serious Organised Crime Agency, discussed at paragraphs 73-81 above) and avoided “overstepping the bounds of the civil forum” (see Allen, cited above, § 126). However, in the absence of a “charge” under section 4(3)(b) of the Misuse of Drugs Act 1971 (see paragraph 70 above), or an “acquittal” or “discontinuance” such as to engage the presumption of innocence in its first or second aspect, the use of the criminal standard of proof did not, in and of itself, render the confiscation proceedings against the applicant “unfair” within the meaning of Article 6 § 1 of the Convention. As the applicant himself implicitly recognises (see paragraph 142 above), absent any concerns in respect of the presumption of innocence, the application of the criminal standard was more favourable to a defendant such as himself than the application of the civil standard would have been.

152.  Accordingly, while the Court considers Article 6 § 1 to be applicable to the facts of the case (see paragraph 143 above), those facts do not disclose any appearance of a violation of the applicant’s rights under Article 6 § 1 of the Convention.

153.  It follows that the applicant’s complaint under that head is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 28 August 2025.

 Hasan Bakırcı Arnfinn Bårdsen
 Registrar President