Information Note on the Court’s case-law No. 111
August-September 2008
Grayson and Barnham v. the United Kingdom - 19955/05
Judgment 23.9.2008 [Section IV]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Partial shifting of burden of proof onto defendant for purposes of calculating amount of confiscation order in drug-trafficking cases: no violation
Facts: Both applicants were convicted of drug-trafficking offences and given custodial sentences. In accordance with the Drug Trafficking Act 1994, at the first stage of the confiscation procedure the onus was on the prosecution to establish, on the balance of probabilities, that the defendant had spent or received specific sums of money during the six years preceding the trigger offence. The Act empowered a court to assume that all property held by a person convicted of a drug-trafficking offence within the preceding six years represented the proceeds of drug trafficking. The burden then passed to the defendant to show, again on the balance of probabilities, that the money had instead come from a legitimate source. At the second stage of the procedure, the burden shifted to the defendant to establish that his realisable assets were less than the amount of benefit he was assessed to have received from drug-trafficking. Since the applicants had failed to prove that their realisable property was less than the amount of their assessed benefit, the confiscation orders were made equal to that amount. The applicants were liable to additional terms of imprisonment if they did not pay the sums within the time-limit. They appealed unsuccessfully.
Law: In Phillips v. the United Kingdom (no. 41087/98, ECHR 2001-VII ; in Information Note no. 32), the Court had held that the reversal of the burden of proof in confiscation proceedings following a conviction for a drug trafficking offence was compatible with Article 6. In the instant cases, the Court’s task was to determine whether the way in which the statutory assumptions had been applied in the confiscation proceedings had offended the basic principles of a fair procedure inherent in Article 6 § 1. Throughout the confiscation proceedings the rights of the defence had been protected by the safeguards built into the system. Thus, in each case the assessment had been carried out by a court through a judicial procedure that included a public hearing, advance disclosure of the prosecution case and the opportunity for the applicants to adduce documentary and oral evidence. Each applicant had been represented by counsel of his choice. Before the Court, neither applicant had seriously complained about the fairness of the first stage of the confiscation procedure in which the benefit from drug trafficking was calculated. It was not incompatible, in principle or practice, with the concept of a fair trial under Article 6 to place the onus on the applicants, once they had been convicted of a major offence of drug dealing, to establish that the source of money or assets which they had been shown to have possessed in the years preceding the offence was legitimate. Given the existence of the safeguards referred to above, the burden on them had not exceeded reasonable limits. Furthermore, the judges had a discretion not to apply the impugned assumption if, in their opinion, it would give rise to a serious risk of injustice. As regards the second stage of the confiscation procedure, the applicants had chosen to give oral evidence relating to their realisable assets. They were legally represented and had been informed, through the judges’ detailed rulings, exactly how the benefit figure had been calculated. They had been given the opportunity to explain their financial situation and to describe what had happened to the assets which the judge had taken into account in setting the benefit figure. The first applicant, who had been found to have had large sums of unexplained money passing through his bank accounts, had failed to give any credible explanation for these anomalies. The second applicant had not even attempted to explain what had happened to the various consignments of cannabis he had been found to have purchased. In each case the judge found the applicant’s evidence to have been entirely dishonest and lacking in credibility. It was not for the European Court to substitute its own assessment of the evidence for that of the national courts. Moreover, since the applicants had been proved to have been involved in extensive and lucrative drug dealing over a period of years, it was not unreasonable to expect them to explain what had happened to all the money shown by the prosecution to have been in their possession, any more than it was unreasonable at the first stage of the procedure to expect them to show the legitimacy of the source of such money. Such matters fell within the applicants’ particular knowledge and the burden on them would not have been difficult to meet if their accounts of their financial affairs had been true.
Conclusion: no violation (unanimously).
The Court found no violation of Article 1 of Protocol No. 1.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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