AS TO THE ADMISSIBILITY OF
Application No. 32344/96
by Bryan Leslie ELTON
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 11 September 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 May 1995 by
Bryan Leslie ELTON against the United Kingdom and registered on
22 July 1996 under file No. 32344/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a national of the United Kingdom, born in 1951,
and is currently detained in HMP Whitemoor.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
a. Particular circumstances of the present case
On 1 October 1992, certain provisions of the Criminal Justice Act
entered into force. Pursuant to these provisions, persons convicted on
or after 1 October 1992 and who have been sentenced to four years'
imprisonment or more are required to serve one half of their sentence
before being eligible for parole. Prior to the entry into force of
these provisions, a person sentenced to imprisonment was eligible for
parole after having served one third of the sentence imposed.
On 15 October 1993, the Maidstone Crown Court convicted the
applicant of drug offences committed on 25 September 1992 and sentenced
him to twelve years' imprisonment and, pursuant to the Drug Trafficking
Offences Act 1986 (the 1986 Act), a confiscation order, aimed at
depriving the applicant of benefits derived from the offences of which
he had been found guilty, in the amount of £.6.500 was made with six
months' consecutive imprisonment when this sum was not paid within
twelve months of his sentence.
At some unspecified point in time in August or September 1995,
the applicant sought leave to appeal against the making of the
confiscation order against him. In his appeal he stated:
"The grounds for my appeal are that the making of the
confiscation order against me was on the basis of assumptions
made by the Court pursuant to Section 2 of the 1986 Act. It is
my contention and complaint that since the confiscation order
made under the act was in nature of a criminal penalty I should
have been afforded the usual safeguards and guarantees available
to a defendant in the Criminal Justice system the most basic one
of which is to expect the Prosecution to make out its case
against me on a criminal standard of proof (beyond reasonable
doubt). The assumptions contained in section 2 of the Drug
Trafficking Offences Act 1986 effectively reverses the usual
burden of proof and consequently it is my contention that the
assumptions are in breach of the European Convention of Human
Rights and in particular of Article 6(2) thereof. ..."
On 20 November 1995, a single judge of the Court of Appeal denied
the applicant leave to appeal against the making of the confiscation
order, holding:
"your complaint is not of the manner in which the trial Judge
reached his conclusion, but is against the statutory framework. It is
not the function of the Court of Appeal Criminal Division to negative
primary legislation."
b. Relevant domestic law
The Drugs Trafficking Offences Act 1986 provides as follows:
"1. Confiscation orders
(1) ... where a person appears before the Crown Court to be
sentenced in respect of one or more drug trafficking offences
(and has not previously been sentenced or otherwise dealt with
in respect of his conviction for the offence or, as the case may
be, any of the offences concerned), the court shall act as
follows:
(2) The court shall first determine whether he has benefited
from drug trafficking.
(3) For the purposes of this Act, a person who has at any time
(whether before or after the commencement of this section)
received any payment or other reward in connection with drug
trafficking carried on by him or another has benefited from drug
trafficking.
(4) If the court determines that he has so benefited, the court
shall, before sentencing ... determine ... the amount to be
recovered in his case by virtue of this section.
(5) The court shall then in respect of the offence or offences
concerned -
(a) order him to pay that amount ...
...
2. Assessing the proceeds of drug trafficking
(1) For the purposes of this Act -
(a) any payments or others rewards received by a person at any
time (whether before or after the commencement of section 1 of
this Act) in connection with drug trafficking carried on by him
or another 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) The court may, for the purpose of determining whether the
defendant has benefited from drug trafficking and, if he has, of
assessing the value of his proceeds of drug trafficking, make the
following assumptions, except to the extent that any of the
assumptions are shown to be incorrect in the defendant's case.
(3) Those assumptions are -
(a) that any property appearing to the court -
(i) to have been held by him 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 ..."
COMPLAINTS
The applicant complains under Article 7 of the Convention that
he is only eligible for parole after having served half of his sentence
whilst the offences of which he has been convicted have been committed
prior to the entry into force of the new more strict rules on
eligibility for parole.
The applicant complains that the making of the confiscation order
against him is contrary to Article 6 para. 2 of the Convention in that
it is based on an assumption rather than on facts proven beyond
reasonable doubt.
THE LAW
1. The applicant complains under Article 7 (Art. 7) of the
Convention that he is only eligible for parole after having served half
of his sentence whilst the offences of which he has been convicted have
been committed prior to the entry into force of the new rules on
eligibility for parole.
Article 7 (Art. 7) of the Convention reads as follows:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the time
when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the criminal offence
was committed.
2. This Article shall not prejudice the trial and punishment
of any person for any act or omission which, at the time when it
was committed, was criminal according to the general principles
of law recognised by civilised nations."
However, the Commission is not required to decide whether or not
the facts submitted by the applicant disclose any appearance of a
violation of Article 7 (Art. 7) of the Convention as, in accordance
with Article 26 (Art. 26) of the Convention, the Commission finds that
the final decision regarding the determination of the applicant's
prison sentence was given by the Maidstone Crown Court on 15 October
1993. This is more than six months before the date on which the
application was submitted.
This finding is not altered by the subsequent proceedings, as
these proceedings did not concern the determination of the applicant's
prison sentence, but only concerned the applicant's objections against
the making of a confiscation order against him.
It follows that this complaint must be rejected under Article 27
(Art. 27) of the Convention for having been submitted out of time.
2. The applicant complains that the making of the confiscation order
against him is contrary to Article 6 para. 2 (Art. 6-2) of the
Convention.
Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Commission recalls that presumptions of fact or law operate
in every legal system and that the Convention does not prohibit such
presumptions in principle. Article 6 para. 2 (Art. 6-2) of the
Convention does not, however, regard presumptions of fact or law
provided for in the criminal law with indifference. It requires States
to confine them within reasonable limits which take into account the
importance of what is at stake and maintain the rights of the defence
(cf. Eur. Court HR, Salabiaku v. France jugment of 7 October 1988,
Series A no. 141, p. 16, para. 28; and Pham Hoang v. France judgment
of 25 September 1992, Series A no. 243, p. 21, para. 33).
The Commission further recalls that the Court has stressed that
"it does not call into question in any respect the powers of
confiscation conferred on the courts as a weapon in the fight against
the scourge of drug trafficking" (Eur. Court HR, Welch v. the United
Kingdom judgment of 9 February 1995, Series A no. 307-A, p. 14,
para. 36).
The Commission notes that the confiscation order was made by the
Maidstone Crown Court after it had found the applicant guilty of drug
offences, had determined that the applicant had benefitted from drug
offences and had assessed the amount of these benefits.
The Commission further notes that, according to Section 2 of the
Drug Trafficking Offences Act 1986, the relevant assumptions are not
to be made where they are shown to be incorrect in a particular case.
The Commission does not find it established that, in the proceedings
which led to the making of the confiscation order, the applicant was
unable to argue that the assumptions made in his case were incorrect.
Even assuming that the subsequent proceedings before the Court
of Appeal can be regarded as an effective remedy for the purposes of
Article 26 (Art. 26) of the Convention, the Commission cannot find that
the making of the confiscation order against the applicant raises any
issues regarding the principle of presumption of innocence guaranteed
by Article 6 para. 2 (Art. 6-2) of the Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy