AS TO THE ADMISSIBILITY OF
Application No. 22668/93
by R. C.
against the United Kingdom
The European Commission of Human Rights (First Chamber)
sitting in private on 6 April 1994, the following members being
present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 20 September
1993 by R. C. against the United Kingdom and registered on 23
September 1993 under file No. 22668/93;
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
a. Particular circumstances of the case
The applicant is a British citizen born in 1937 and
currently serving a term of imprisonment in HM Prison Downview.
He is represented before the Commission by Mr. Paul Robinson, a
solicitor practising in London and Mr. Ben Emmerson, a barrister
practising in London.
The facts as submitted by the applicant may be summarised
as follows.
The applicant was arrested on 11 January 1988. He was
charged with drugs offences with eleven co-defendants. The
charges related to an international operation spanning several
years to smuggle herbal cannabis into the United Kingdom. A
total of 14 importations was attributed to the operation,
commencing in July 1983 and continuing up until January 1988.
The applicant pleaded not guilty to a single count alleging
a conspiracy fraudulently to evade the prohibition on the
importation of cannabis contrary to section 1 of the Criminal Law
Act 1977. The conspiracy was alleged to have occurred between 1
January 1983 and the 29 February 1988.
The trial took place between 13 September 1989 and 22
February 1990. The applicant was convicted of conspiracy on 22
February 1990. His case was then adjourned for a confiscation
inquiry under the Drug Trafficking Offences Act 1986 (the 1986
Act).
On 28 September 1990, the judge proceeded to sentence the
applicant. He took the view that the applicant had occupied a
central position in the early part of the operation and had been
involved in six of the importations the last of which took place
on 14 November 1986. He sentenced the applicant to 13 years'
imprisonment and pursuant to the 1986 Act, imposed a confiscation
order of £856, 694 with a consecutive term of five years'
imprisonment in default of payment.
The applicant's application for leave to appeal against
sentence to a single judge of the Court of Appeal was refused.
On 23 March 1993, his renewed application was rejected by the
full Court of Appeal.
b. Relevant domestic law and practice
Conspiracy offences
The offence of conspiracy is defined in section 1 of the
Criminal Law Act 1977 as follows:
"...if a person agrees with any other person that a course
of conduct shall be pursued which, if the agreement is
carried out in accordance with their intention, either
(a) will necessarily amount to or involve the commission of
any offence or offences by one or more of the parties to
that agreement...
he is guilty of conspiracy to commit the offence or
offences in question."
Pursuant to established case-law, it is not necessary for
the prosecution to prove that an accused is a party throughout
the duration of an agreement. A conspiracy is deemed to continue
so long as there are two or more parties to it, intending to
carry it into effect. A conspirator may accordingly be convicted
for his part in a conspiracy which has been continued by others
after his withdrawal.
The Drug Trafficking Offences Act 1986
Section 1 of the 1986 Act 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..."
The Act received the royal assent on 8 July 1986. Its
provisions were brought into force by various orders of the
Secretary of State. With the exception of section 1(3) (which
entered into force on 30 September 1986) section 1 entered into
force on 12 January 1987.
Section 38(4) of the 1986 Act provides:
"References in this Act to offences include a reference to
offences committed before the commencement of section 1 of
this Act; but nothing in this Act imposes any duty or
confers any power on any court in or in connection with
proceedings against a person for a drug trafficking offence
instituted before the commencement of that section."
Imprisonment in default
After a confiscation order has been made, the Crown Court
decides upon the period of imprisonment which the offender has
to serve if he fails to pay. This will not be activated until
after such time within which the Court has ordered the offender
to pay. The maximum periods of imprisonment are set down in
section 31 of the Powers of Criminal Courts Act 1973. The maximum
period for an order between the sums of £ 250,000 and £ 1 million
is 5 years.
COMPLAINTS
The applicant complains of the confiscation order and the
term of imprisonment in default of payment. He alleges that this
constitutes the retrospective application of a criminal penalty.
The last importation in which the applicant was involved entered
the United Kingdom on 14 November 1986. The relevant provisions
of the Drug Trafficking Offences Act 1986 came into force on 12
January 1987. Consequently, the applicant submits that his
rights under Article 7 para. 1 of the Convention have been
violated since a heavier penalty has been imposed than the one
which was applicable at the time when he committed his offence.
THE LAW
The applicant complains that the confiscation order with a
sentence of imprisonment in default of payment constitutes the
imposition of a retrospective criminal penalty in violation of
Article 7 para. 1 (Art. 7-1) of the Convention.
Article 7 (Art. 7) of the Convention provides as relevant:
"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..."
The applicant submits that the acts in respect of which he
was convicted - six importations of cannabis into the United
Kingdom - had terminated by November 1986 whereas the statutory
provision pursuant to which a confiscation order was imposed on
him only came into force after that date, namely, on 12 January
1987.
The Commission notes however that, notwithstanding the
specific acts in which the applicant participated, the offence
in respect of which the applicant was charged and convicted was
a conspiracy which existed between the dates of 1 January 1983
and 29 February 1988. The relevant provisions of the 1986 Act
came into force during the subsistence of this conspiracy.
The Commission finds therefore that since the conspiracy was
in existence at and after the date on which the legislation came
into force, it cannot be said that a heavier penalty was imposed
on the applicant than the one which was applicable at the time
the criminal
offence was committed.
It follows that the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First
Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy