KOLI v. THE UNITED KINGDOM

SECOND SECTION

DECISION

Application no. 58671/12
Raj KOLI
against the United Kingdom

The European Court of Human Rights (Second Section), sitting on 1 July 2025 as a Chamber composed of:

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

Having regard to the above application lodged on 3 August 2012,

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 Raj Koli, is a British national who was born in 1976. He was represented before the Court by Mr D. Clarke of Clarke Kiernan Solicitors, a firm of solicitors based in Tonbridge, Kent.

2.  The United Kingdom Government (“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 6 March 2009 the applicant pleaded guilty to conspiracy to conceal, disguise, convert, transfer or remove criminal property contrary to section 327 of the Proceeds of Crime Act 2002 (“POCA” – see paragraph 31 below). He admitted that he had acted as a courier for a package containing 400,000 British pounds (GBP). Although he was supposed to receive GBP 4,000 in payment for his services he claimed that this sum was not in fact paid to him.

5.  The applicant was sentenced to five years’ imprisonment later reduced on appeal to three years and six months’ imprisonment. He was released on licence in June 2010.

6.  Pursuant to sections 1 and 19 of the Serious Crime Act 2007 (see paragraph 32 below), a Serious Crime Prevention Order was made on 4 February 2011 which required him, inter alia, to notify the Serious Organised Crime Agency (“SOCA”) if he possessed any mobile telephones, computers or vehicles.

7.  Confiscation proceedings commenced following the applicant’s conviction.

8.  Section 6 of POCA gave the Crown Court the power to make a confiscation order where a defendant was convicted of an offence or offences in proceedings before it (see paragraph 22 below). The court was required to determine whether the defendant had a criminal lifestyle, if he had benefited from his criminal conduct and, if he had, the amount to be recovered (see paragraph 22 below). In determining whether he had benefited from criminal conduct, and in deciding his benefit from such conduct, section 10 of POCA required the court to make certain assumptions (“the statutory assumptions”). In short, the court had to assume that any property transferred to the defendant at any time in the six years before the criminal proceedings were started had been obtained by him as a result of his general criminal conduct, and that any expenditure incurred by the defendant during this period was met from property obtained by him as a result of his general criminal conduct (see paragraphs 25-26 below). The court was not to make an assumption if it was shown to be incorrect or there would be a serious risk of injustice if it was made (see paragraph 25 above).

9.  As the court found that the applicant had a criminal lifestyle it was required to make the aforementioned statutory assumptions.

10.  Pursuant to section 16 of POCA the court could order the prosecution to give it a statement of information (see paragraph 28 below), and pursuant to section 17 it could order that a defendant respond to the prosecution’s section 16 statement (see paragraph 29 below). Any acceptance by a defendant in a section 17 statement that he had benefited from criminal conduct would not be admissible in evidence in any separate or subsequent proceedings for an offence (section 17(6) – see paragraph 29 below).

11.  The prosecution duly served a section 16 statement detailing the matters it considered relevant to determining the applicant’s benefit from criminal conduct. It estimated that during the six years prior to conviction the applicant’s benefit from his general criminal conduct had been in excess of GBP 3.3 million. In calculating the benefit figure the prosecution relied on three heads of income: (i) income paid into a bank account in the names of the applicant and his girlfriend; (ii) income in relation to a firm called P&S Motors; and (iii) income in relation to a Chelsea restaurant. The prosecution maintained that the vast bulk of the funds going through the bank accounts of the applicant and his girlfriend were the proceeds of fraud – which the applicant either participated in or knew about – and that the fraudsters were individuals known to him.

12.  In his section 17 statement submitted in response (see paragraph 29 below), the applicant claimed that none of the sums going through the accounts were the proceeds of crime and that all payments received were the result of legitimate business interests (in respect of which he admitted that he had evaded tax) or money received from his father via friends and business contacts.

13.  By the time of the hearing it was accepted by the parties that the applicant had received no benefit from the offence of which he had been convicted. It was also accepted that the benefit figure in respect of (i) and (ii) above was approximately GBP 2 million. The main dispute was in relation to (iii), being the income from the Chelsea restaurant (see paragraph 11 above). Having heard evidence, the judge found that this income should be added to the first two heads taking the total benefit figure to GBP 3.3 million.

14.  In determining the recoverable amount the trial judge calculated the applicant’s known available assets to be over GBP 600,000. The main dispute concerned the existence or otherwise of hidden assets.

15.  The applicant had stated in his oral evidence at the hearing that the money which had been identified by the prosecution as moving through his account had all been dissipated. The picture he painted was one of a profligate son of an indulgent and wealthy family who had spent all his money and had nothing left to show for it. However, the judge rejected the applicant’s evidence, finding it to be completely unreliable and false, and found the value of his hidden assets to be nearly GBP 960,000. Adding this figure to the known available assets, the recoverable amount was found to be GBP 1.6 million. A confiscation order was accordingly made against the applicant for this sum with a sentence of seven years’ imprisonment set in default of payment.

16.  The applicant appealed against the confiscation order to the Court of Appeal. He accepted that he had not been truthful in his section 17 statement (see paragraph 12 above). The truth was that he had no hidden assets because he had used his bank accounts to launder the proceeds of frauds committed by others and the money passing through them was ultimately returned to the original owner. As any acceptance made in oral evidence was admissible in evidence in any subsequently proceedings (in contrast to any acceptance contained in a section 17 statement – see paragraphs 10 above and 29 below), he claimed that he had been placed in an impossible position, since if he told the truth in his oral evidence at the confiscation proceedings he would have risked prosecution for further offences. This was unfair because in order to avoid a finding of hidden assets (and thus a large confiscation order and a substantial prison sentence in default of payment of that order), he had to explain where the assets had come from and where they had gone. There had therefore been a breach of the privilege against self-incrimination.

17.  On 6 March 2012 the Court of Appeal denied him permission to appeal. In respect of the applicant’s submission on self-incrimination, it found:

“18.  In our judgment it matters not what the evidence was which was given by the applicant. What is important, and in our judgment fatal to his application for leave to appeal, is the fact that he gave oral evidence. In effect, the argument on behalf of the applicant can be summarised as being in two forms. The first is based on the premise that he gave oral evidence and was not inhibited from doing so by virtue of the prospect of incriminating himself. In those circumstances, whilst there may be an argument which he might subsequently rely on if that evidence were to be relied on in support of subsequent criminal proceedings, in our judgment it cannot affect the lawfulness of the orders made by the judge in the confiscation proceedings because he has not been inhibited by the fact that oral evidence given by him is not subject to the protection from self-incrimination but which the written response in answer to the court’s order would be.

19.  If, however, the applicant had not given evidence because he was worried about incriminating himself, on the facts of this case he would only have been inhibited about giving evidence which, if given truthfully, would have rendered hopeless his position in respect of the issue of benefit, and would have left unaffected the finding in relation to hidden assets because that finding was substantially less than the total sums going through the accounts, being less than £1 million, as against £3 million going through the accounts.

...

23.  ... this is not a case where the applicant declined to give evidence because of his concern about self-incrimination. He gave evidence. It was for the judge to consider and adjudicate upon that evidence. As we have indicated, the judge concluded that his evidence was an untruthful denial of the case which the Crown had asserted, namely that the monies in the account were the proceeds of fraud. As it turns out, and as we have been informed, that case was a true bill because that was indeed the source of the vast preponderance of the monies going through the account.

24.  In our judgment, therefore, there is no arguable case that there has been any serious or real risk of injustice. The conclusions on benefit to which the learned judge came were conclusions to which he was bound to come, whether by operation of the presumption or on the facts of the case as now revealed to us on behalf of the applicant. As we have indicated, his judgment in respect of hidden assets was, if anything, unduly generous to the applicant, as recognised by his then counsel.

25.  Accordingly, notwithstanding the fact that [counsel for the applicant] may conceivably have a technical argument in respect of section 17 and the parallel provisions in section 18, in the context of this case they are wholly theoretical. We refuse this application without in any way offering any opinion as to whether or not those technical arguments are good.”

18.  Following his release in June 2010 (see paragraph 5 above), the applicant was subsequently recalled to prison for breach of the terms of his licence. He was also convicted of two counts of breach of the Serious Crime Prevention Order (see paragraph 6 above) and sentenced to two years’ imprisonment on each count, to run concurrently to the sentence being served (after his recall to prison) for the original money laundering offence.

19.  The applicant was granted permission to appeal against sentence, this being the first time any defendant had been prosecuted for breach of a Serious Crime Prevention Order. He argued that, given that he had already been recalled to prison for breach of his licence, and the terms of the licence and the order were similar, no further punishment was warranted for breach of the order.

20.  The Court of Appeal rejected that argument, stating:

“We do not think that there is merit in the argument that having been recalled for breach of licence conditions identical to those imposed under the order no further punishment was warranted. The whole point was the necessity, as the original judge saw it, of not merely leaving it to those responsible for the sentence in the Ministry of Justice to decide whether the licence conditions should contain obligations of notification, but that more was required, namely the imposition of the order we have identified. In those circumstances should there, as there was in this case, be a failure to notify, the consequences had to be twofold: not only recall, but also punishment.”

21.  The Court of Appeal did, however, reduce the sentence for breach of the order to one year’s imprisonment on each count, to run concurrently with the original sentence. The applicant would therefore be required to serve an additional four months’ imprisonment after the expiry of the original sentence.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

22.  Confiscation proceedings are governed by POCA. Section 6 provides, insofar as relevant:

“(1)  The Crown Court must proceed under this section if the following two conditions are satisfied.

(2)  The first condition is that a defendant falls within any of the following paragraphs—

(a)  he is convicted of an offence or offences in proceedings before the Crown Court;

...

(3)  The second condition is that—

(a)  the prosecutor... asks the court to proceed under this section, or

(b)  the court believes it is appropriate for it to do so.

(4)  The court must proceed as follows—

(a)  it must decide whether the defendant has a criminal lifestyle;

(b)  if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;

(c)  if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.

(5)  If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must—

(a)  decide the recoverable amount, and

(b)  make an order (a confiscation order) requiring him to pay that amount.

...

(7)  The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.”

23.  Pursuant to section 75 a defendant has a criminal lifestyle if an offence is specified in Schedule 2 (which includes offences such as drug‑trafficking and money laundering); an offence constitutes conduct forming part of a course of criminal activity; or it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.

24.  Under section 76(4) a person benefits from conduct if he obtains property as a result of or in connection with the conduct. Section 76(7) provides that if a person benefits from conduct, his benefit is the value of the property obtained.

25.  Section 10 provides for the making of four assumptions for the purpose of deciding whether a defendant has benefited from his general criminal conduct and deciding his benefit from that conduct. Where relevant, it provides:

“(1)  If the court decides under section 6 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of —

(a)  deciding whether he has benefited from his general criminal conduct, and

(b)  deciding his benefit from the conduct.

(2)  The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him —

(a)  as a result of his general criminal conduct, and

(b)  at the earliest time he appears to have held it.

(3)  The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him —

(a)  as a result of his general criminal conduct, and

(b)  at the earliest time he appears to have held it.

(4)  The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.

(5)  The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.

(6)  But the court must not make a required assumption in relation to particular property or expenditure if —

(a)  the assumption is shown to be incorrect, or

(b)  there would be a serious risk of injustice if the assumption were made.”

26.  The “relevant day” referred to in subsections (2) and (4) is normally the day six years before proceedings were started against the defendant (section 10(8)).

27.  Section 7 provides guidance on fixing the recoverable amount:

“(1)  The recoverable amount for the purposes of section 6 is an amount equal to the defendant’s benefit from the conduct concerned.

(2)  But if the defendant shows that the available amount is less than that benefit the recoverable amount is–

(a)  the available amount, or

(b)  a nominal amount, if the available amount is nil.”

28.  As regards the conduct of confiscation hearings, section 16 allows the court to order the prosecution to give it a statement of information. Section 16(3)–(5) defines the statement of information in these terms:

“(3)  If the prosecutor ... believes the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor ... believes are relevant in connection with deciding these issues—

(a)  whether the defendant has a criminal lifestyle;

(b)  whether he has benefited from his general criminal conduct;

(c)  his benefit from the conduct.

(4)  A statement under subsection (3) must include information the prosecutor ... believes is relevant—

(a)  in connection with the making by the court of a required assumption under section 10;

(b)  for the purpose of enabling the court to decide if the circumstances are such that it must not make such an assumption.

(5)  If the prosecutor ... does not believe the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor ... believes are relevant in connection with deciding these issues—

(a)  whether the defendant has benefited from his particular criminal conduct;

(b)  his benefit from the conduct.”

29.  The court may order that a defendant respond to a section 16 statement of information. Section 17 governs the response and, insofar as relevant, provides:

“(1)  If the prosecutor ... gives the court a statement of information and a copy is served on the defendant, the court may order the defendant—

(a)  to indicate (within the period it orders) the extent to which he accepts each allegation in the statement, and

(b)  so far as he does not accept such an allegation, to give particulars of any matters he proposes to rely on.

...

(6)  No acceptance under this section that the defendant has benefited from conduct is admissible in evidence in proceedings for an offence.”

30.  Section 18 empowers the court to first order a defendant to provide information necessary to help it in carrying out its functions. Its terms mirror those set out in section 17. In particular, it includes a guarantee that information given under this section which amounts to an admission by the defendant that he has benefited from criminal conduct will not be admissible in evidence in proceedings for an offence.

31.  A person commits an offence under section 327 if he or she conceals criminal property, disguises criminal property, converts criminal property, transfers criminal property or removes criminal property from England and Wales or from Scotland or from Northern Ireland.

32.  Pursuant to sections 1 and 19 of the Serious Crime Act 2007, the Crown Court, when dealing with a person convicted of a serious offence, may make a Serious Crime Prevention Order if it is satisfied that the person has been involved in serious crime and it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime. Such an order may contain such prohibitions, restrictions or requirements, and such other terms as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person concerned in serious crime.

33.  In McIntosh the Scottish High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”) had held, by a majority of two to one, that a confiscation procedure similar to that applied in the present case was incompatible with Article 6 § 2 of the Convention. In particular, it found that in asking the court to make a confiscation order the prosecutor was in fact asking it to conclude that the defendant had committed a criminal offence, even though there had been no indictment or complaint, and no conviction. As the allegation against the defendant was unspecific and based on no evidence, his need for the presumption of innocence had been all the greater. The operation of the statutory assumptions had therefore offended against the presumption of innocence.

34.  However, on 5 February 2001 the Judicial Committee of the Privy Council, on appeal, held unanimously that Article 6 § 2 of the Convention did not apply, since during the confiscation proceedings the accused was not “charged with a criminal offence” but was instead faced with a sentencing procedure in respect of the offence of which he had been convicted. Even if Article 6 § 2 could be said to have applied, the Privy Council held that the assumption involved in the making of the confiscation order was neither unreasonable nor oppressive.

35.  In R. v. Rezvi the House of Lords unanimously held that a similar confiscation scheme under the Criminal Justice Act 1988 was compatible with Article 6 § 1 of the Convention. Lord Steyn, with whom the other Law Lords agreed, observed:

“It is a notorious fact that professional and habitual criminals frequently take steps to conceal their profits from crime. Effective but fair powers of confiscating the proceeds of crime are therefore essential. The provisions of the 1988 Act are aimed at depriving such offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to deter the commission of further offences and to reduce the profits available to fund further criminal enterprises.

...

It is clear that the 1988 Act was passed in furtherance of a legitimate aim and that the measures are rationally connected with that aim ... The only question is whether the statutory means adopted are wider than is necessary to accomplish the objective. Counsel for the appellant submitted that the means adopted are disproportionate to the objective inasmuch as a persuasive burden is placed on the defendant. The Court of Appeal [2001] 3 WLR 75, 103 carefully considered this argument and ruled:

‘The onus which is placed upon the defendant is not an evidential one but a persuasive one, so that the defendant will be required to discharge the burden of proof: see Lord Hope’s third category of provisions in R v Director of Public Prosecutions, Ex Kebilene, [2000] 2 AC 326, 379. This is therefore a situation where it is necessary carefully to consider whether the public interest in being able to confiscate the ill-gotten gains of criminals justifies the interference with the normal presumption of innocence. While the extent of the interference is substantial, Parliament has clearly made efforts to balance the interest of the defendant against that of the public in the following respects:

(a)  It is only after the necessary convictions that any question of confiscation arises. This is of significance, because the trial which results in the conviction or convictions will be one where the usual burden and standard of proof rests upon the prosecution. In addition, a defendant who is convicted of the necessary offence or offences can be taken to be aware that if he committed the offences of which he has been convicted, he would not only be liable to imprisonment or another sentence, but he would also be liable to confiscation proceedings.

(b)  The prosecution has the responsibility for initiating the confiscation proceedings unless the court regards them as inappropriate...

(c)  There is also the responsibility placed upon the court not to make a confiscation order when there is a serious risk of injustice. As already indicated, this will involve the court, before it makes a confiscation order, standing back and deciding whether there is a risk of injustice. If the court decides there is, then the confiscation order will not be made.

(d)  There is the role of this court on appeal to ensure there is no unfairness.

... [I]n our judgment, if the discretions which are given to the prosecution and the court are properly exercised, the solution which Parliament has adopted is a reasonable and proportionate response to a substantial public interest, and therefore justifiable.’

For my part I think that this reasoning is correct, notably in explaining the role of the court in standing back and deciding whether there is or might be a risk of serious or real injustice and, if there is, or might be, in emphasising that a confiscation order ought not be made.

...

In agreement with the unanimous views of the Court of Human Rights in Phillips v. United Kingdom (Application No 41087/98) 5 July 2001 I would hold that Part VI of the 1988 Act is a proportionate response to the problem which it addresses.”

36.  In R. v. Benjafield the House of Lords unanimously held that the equivalent confiscation scheme under the Drug Trafficking Act 1994 (subsequently considered in Phillips, cited above) was also compatible with Article 6 § 1 of the Convention.

37.  In R v. Briggs-Price confiscation proceedings under the Drug Trafficking Act 1994 had commenced after the defendant was convicted on charges of conspiracy to evade the prohibition on the importation of heroin. Originally, he had also been charged with possession of one kilogram of cannabis with intent to supply, but prior to the trial the court acceded to the prosecution’s request to lay this charge on the file. In doing so, the prosecution made it plain that it intended to pursue confiscation proceedings in relation to trafficking in cannabis. In addition, it was part of the prosecution’s case at trial that the defendant 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. During the confiscation proceedings which followed the defendant’s conviction the statutory assumptions were not made. Instead, the prosecution sought to prove that the defendant had trafficked in cannabis and invited the court to estimate the profit that he must have derived from those offences. In making a confiscation order, the judge indicated that he had “no doubt” the defendant had also been involved in the supply of cannabis.

38.  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.”

39.  Therefore, in that case the Lordships were not concerned with the operation of the statutory assumptions. Relying, inter alia, on Phillips (cited above), they proceeded on the basis that the operation of the statutory assumptions did not constitute a “new charge” within the meaning of Article 6 § 2 of the Convention, and did not render the confiscation proceedings unfair within the meaning of Article 6 § 1.

COMPLAINTS

40.  The applicant principally complains that the confiscation proceedings were incompatible with Article 6 §§ 1 and 2 of the Convention.

41.  The applicant also complains under Article 6 §§ 1 and 2 of the Convention of a breach of the privilege against self-incrimination because section 17(6) of POCA (see paragraph 29 above) only protected his written evidence and not any oral evidence from being used in any subsequent criminal proceedings; that the custodial sentence imposed for breach of the Serious Crime Prevention Order (see paragraphs 18-21 above) was unfair and amounted to double jeopardy when he had already been recalled to prison for breach of the terms of his licence; and that the resulting term of imprisonment was in breach of the prohibition on ill‑treatment contained in Article 3 of the Convention.

THE LAW

42.  The applicant complains of a violation of the presumption of innocence enshrined in Article 6 § 2 of the Convention.

Article 6 § 2 provides as follows:

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

(a)   The parties’ submissions

43.  The Government submitted that the confiscation proceedings did not engage Article 6 § 2 of the Convention as they did not involve the bringing of a new criminal charge. The Government relied on Phillips v. the United Kingdom (no. 41087/98, ECHR 2001‑VII), in which the Court held that Article 6 § 2 of the Convention did not apply to English confiscation proceedings since the proceedings and the confiscation order were part of the sentencing process that followed conviction. Even if the order was substantial and involved a term of imprisonment in default, the guilt or innocence of the defendant was not at stake. Furthermore, unlike the applicant in Geerings v. the Netherlands (no. 30810/03, 1 March 2007), the present applicant had demonstrably held assets for which he had failed to provide a satisfactory explanation, and the confiscation order did not relate to crimes in respect of which he had been acquitted.

44.  The applicant acknowledged that following Phillips (cited above) confiscation proceedings did not as a general rule engage Article 6 § 2 of the Convention. However, he argued that in the present case Article 6 § 2 had been engaged by the allegations of criminality specifically alleged against him, which were vastly different in gravity to the offence for which he had been charged and convicted.

45.  He further argued that the confiscation order had been disproportionate to the benefit he had derived from the offending of which he had been convicted.

(b)   The Court’s assessment

(i)      General principles

46.  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 v. the United Kingdom [GC], no. 25424/09, § 95, ECHR 2013). 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 v. the Netherlands, 8 June 1976, § 82, Series A no. 22, 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).

47.  In Phillips (cited above, §§ 35-36) 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.

48.  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 (see paragraph 46 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 (see Phillips, cited above, § 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).

49.  Similarly, in Van Offeren v. the Netherlands ((dec.), no. 19581/04, 5 July 2005) the Court treated confiscation proceedings following on from a conviction as part of the sentencing process and therefore as not involving the bringing of any new “charge” within the meaning of Article 6 § 2 of the Convention.

50.  In Geerings (cited above, §§ 45-51), however, the Court held that the presumption of innocence had been breached in confiscation proceedings. In reaching this conclusion, it distinguished the facts of the case before it from both Phillips and Van Offeren on the basis that the impugned order related to the very crimes of which the applicant had in fact been acquitted; and that he was never shown to be in possession of any assets for whose provenance he could not give an adequate explanation.

51.  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).

(ii)    Application of these principles to the present case

52.  In the present case the impugned confiscation order did not relate to crimes of which the applicant had been acquitted, or in respect of which criminal proceedings had been discontinued (compare Geerings and Episcopo and Bassani, both cited above). Therefore, following Phillips (cited above, § 35), Article 6 § 2 could apply to the confiscation proceedings 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.

53.  Having regard to the three criteria employed in Phillips to answer this question (see paragraph 48 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). Nevertheless, it is the applicant’s contention that Article 6 § 2 was engaged in the present case because the allegations of criminality made during the confiscation proceedings were vastly different in gravity to the offence of which he had been charged and convicted, and there was a lack of proportionality between the confiscation order and the offences of which he was convicted (see paragraphs 44 and 45 above).

54.  In the Court’s view, this argument is misconceived. In Phillips (cited above, § 35) the Court made it clear that Article 6 § 2 could only apply to confiscation proceedings where the allegations made about the accused’s character and conduct in the course of those proceedings 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. What is relevant, therefore, is the nature and degree of the allegations against the accused’s character and not their relationship to the index offence (being the offence that led to his conviction) or the proportionality of the amount of the confiscation order to the benefit derived from the index offence.

55.  Regardless of any perceived “difference in gravity” or “lack of proportionality”, it remained the case that in the context of the confiscation proceedings allegations that the applicant had engaged in, and benefitted from, criminal conduct 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. Such allegations were not a “prelude to ‘criminal proceedings’” against him (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).

56.  In the present case, therefore, the Court does not consider that the confiscation proceedings amounted to a “criminal charge” within the autonomous Convention meaning given to that term. Accordingly, it finds that Article 6 § 2 was not applicable to the confiscation proceedings. The applicant’s complaints thereunder are therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4.

57.  The applicant also complains under Article 6 § 1 about the fairness of the confiscation proceedings.

Article 6 § 1 provides, insofar as relevant:

“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 parties’ submissions

58.  The Government argued that the statutory assumptions in section 10 of POCA (see paragraph 25 above) were compatible with Article 6 § 1 of the Convention. The assumptions were part of an overall scheme of confiscation and within this scheme their role was not to prove a defendant was guilty of a criminal offence, but rather to be a means of proving, for the purposes of sentence, that property had been obtained through criminal conduct. The assumptions therefore had a cogent justification on public interest grounds – namely, that offenders should not profit from their crimes – and they could not be characterised as arbitrary in any way. In addition, they only operated after a defendant had already been convicted. The offender’s guilt or innocence was not at stake and, accordingly, the assumptions could never have any effect on his criminal record or result in him being sentenced for conduct for which he had not been convicted.

59.  The assumptions were also subject to important limitations and safeguards designed to ensure the fairness of proceedings and to maintain the rights of the defence. First of all, they would only operate if the sentencing court was satisfied that the offender had a criminal lifestyle as defined by section 75 of POCA (see paragraph 23 above). Secondly, even where the assumptions arose, the sentencing court could not make an assumption if there would be a serious risk of injustice. Thirdly, the assumptions could be rebutted if the offender showed on a balance of probabilities that property was not obtained as a result of criminal conduct. Finally, confiscation proceedings also contained other fair trial safeguards: for example, hearings took place in public, proceedings were adversarial, the offender could adduce evidence and make representations, and the prosecution had to make advance disclosure.

60.  The applicant contended that the confiscation proceedings had been in breach of Article 6 § 1 of the Convention.

(b)   The Court’s assessment

61.  Article 6 § 1 applies throughout the entirety of proceedings for “the determination of ... any criminal charge”, including proceedings whereby a sentence is fixed (see, for example, Findlay v. the United Kingdom, 25 February 1997, § 69, 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.

62.  The Court has acknowledged that, in addition to being specifically mentioned in Article 6 § 2, a person’s right in a criminal case to be presumed innocent and to require the prosecution to bear the onus of proving the allegations against him forms part of the general notion of a fair hearing under Article 6 § 1. This right is not, however, absolute, since presumptions of fact or of law operate in every criminal law system and are not prohibited in principle by the Convention, as long as States remain within certain limits, taking into account the importance of what is at stake and maintaining the rights of the defence (see Phillips, cited above, § 40, with further references). In particular, the Court has held that it is not incompatible, in principle or practice, with the concept of a fair trial under Article 6 to place the onus on a defendant, once he has been convicted of a major offence, to establish that the source of money or assets which he had been shown to have possessed in the years preceding the offence was legitimate (see Grayson and Barnham v. the United Kingdom, nos. 19955/05 and 15085/06, § 46, 23 September 2008).

63.  The Court’s observations in Phillips (cited above, §§ 42-46) are equally applicable to the present case. The statutory assumptions were not applied to facilitate finding the applicant guilty of an offence, but instead to enable the national court to assess the amount at which the confiscation order should properly be fixed. The applicant’s conviction of a further criminal offence was therefore not at stake. Furthermore, the system was not without safeguards. The assessment of benefit 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 (see paragraphs 8-15 above); the court was empowered to make a confiscation order of a smaller amount if it was satisfied, on the balance of probabilities, that identified items of property should not be included in the benefit figure (see paragraph 27 above); the judge had a discretion not to apply a statutory assumption if he considered that applying it would give rise to a serious risk of injustice (see paragraph 25 above); and the applicant had a right of appeal against the making of the confiscation order, which he in fact used (see paragraphs 16-17 above).

64.  Consequently, while the Court considers Article 6 § 1 to be applicable to the facts of the case (see paragraph 61 above), those facts do not disclose any appearance of a violation of the applicant’s rights under Article 6 § 1 of the Convention.

65.  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.

66.  Invoking Article 6 § 1 of the Convention, the applicant further complained that the confiscation proceedings brought against him violated his privilege against self-incrimination because section 17(6) of POCA (see paragraph 29 above) only provided protection from prosecution for his written evidence and not for any oral evidence he gave in the course of the confiscation hearing. He was thereby placed in an impossible situation: if he failed to give evidence, a confiscation order would be made against him in the sum of his benefit from general criminal conduct, but if he did give oral evidence to prove that his available assets were less than his benefit from his general criminal conduct, he risked being prosecuted for further money laundering offences.

67.  The privilege against self‑incrimination does not protect against the making of an incriminating statement per se but against the obtaining of evidence by coercion or oppression. It is the existence of compulsion that gives rise to concerns as to whether the privilege against self-incrimination has been respected (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 267, 13 September 2016, with references therein). In the present case, however, the applicant was not under compulsion to make incriminating statements.

68.  First of all, the purpose of the confiscation proceedings was not to obtain evidence for use in collateral criminal proceedings, but rather to enable the national court to assess the amount at which the confiscation order should properly be fixed (see paragraph 53 above).

69.  Secondly, at the hearing the applicant freely gave oral evidence – which the court found to be completely unreliable and false – to the effect that none of the money which had been identified by the prosecution as moving through his account remained (see paragraph 15 above). He was not compelled to give that evidence; there was no sanction for refusing to do so and, on the facts of the case, neither a refusal to give oral evidence, nor the provision of a truthful account of the funds moving through his bank accounts, would have affected the benefit figure fixed by the court (see the Court of Appeal’s considerations on this issue, quoted in paragraph 17 above).

70.  Finally, section 17 of POCA had provided a procedural safeguard, enabling the applicant to adduce evidence showing that the recoverable amount, for the purposes of the confiscation order, was less than his benefit (see paragraph 29 above). Any acceptance in that statement that he had benefited from criminal conduct would not have been admissible in evidence in any separate or subsequent proceedings for an offence (see paragraph 29 above). The applicant made a section 17 statement but in doing so he elected not to provide a truthful explanation for the funds going through his bank accounts (see paragraph 12 above).

71.  In any event, had there been “compulsion”, and had the evidence given by the applicant in the confiscation proceedings subsequently formed the basis of further criminal proceedings against him, it would have been open to him to invoke the privilege against self-incrimination at that point (see the Court of Appeal’s considerations on this issue, quoted in paragraph 17 above).

72.  In light of the foregoing, the applicant’s complaint concerning the privilege against self-incrimination is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4.

73.  The applicant also alleges that the custodial sentence imposed for breach of the Serious Crime Prevention Order (see paragraphs 18-21 above) was unfair and amounted to double jeopardy since he had already been recalled to prison for breach of the terms of his licence, and that the length of the term of imprisonment he received for breach of the Serious Crime Prevention Order was in breach of the prohibition on ill-treatment contained in Article 3 of the Convention.

74.  To date, the Court has not read into Article 6 of the Convention a right not to be punished twice for the same offence. Instead, it has dealt with such complaints under Article 4 of Protocol No. 7, to which the United Kingdom is not a signatory. This complaint must therefore be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4.

75.  With regard to the Article 3 complaint, the Court has held that matters of appropriate sentencing largely fall outside the scope of the Convention since sentencing practices vary greatly between States and there will be legitimate and reasonable differences between them as to the length of sentences. While the Court has acknowledged that a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3, “gross disproportionality” is a strict test and it will only be on rare and unique occasions that it will be satisfied (see, for example, Harkins and Edwards v. the United Kingdom, nos. 9146/07 and 32650/07, §§ 133-134, 17 January 2012).

76.  As a result of the sentence imposed on the applicant for breach of the Serious Crime Prevention Order, he was required to serve an additional four months’ imprisonment after the expiry of his original sentence (see paragraph 21 above). Such a sentence evidently does not meet the very high threshold of “gross disproportionality”.

77.  Therefore, the applicant’s Article 3 complaint is manifestly ill‑founded within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

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

 Hasan Bakırcı Arnfinn Bårdsen
 Registrar President