Proceeds of Crime and the European Convention on Human Rights

Introduction

Cases involving the statutory schemes for recovering the proceeds of crime have already given rise to some difficult human rights issues; and unsurprisingly. The purpose of the proceeds of crime legislation is to enable the state to deprive citizens of property in their possession. The provisions are acknowledged to be harsh by their supporters and detractors alike, but their harshness is said to be justified because the public benefits when money which would fund criminal conduct is removed from circulation, and because the provisions have a deterrent effect. The legislation in this field therefore presents features – intervention by the state in the lives of citizens, and a search for a balance between the rights of the individual and the general interest of the community – which correspond to the most fundamental issues with which the European Convention for the Protection of Fundamental Rights and Freedoms ('the Convention') is concerned.

Moreover, the debate as to where the balance should be struck between the rights of the individual and the interests of the state continues. Even as they have upheld the provisions enacted by Parliament, judges have acknowledged their harsh effect: it has become a judicial mantra that the legislation is, and is intended to be, Draconian.1 Yet David Blunkett, the minister who sponsored the Proceeds of Crime Act 2002 ('the 2002 Act') does not view it as a success, saying recently:

"We have failed on the ambition of bankrupting those who had made enormous amounts of money out of criminal behaviour"2

and suggesting that the United Kingdom's overall recovery through confiscation proceedings should be more than four times current totals.

On a political level, the debate will continue, and experience leaves little room to doubt that any new legislation will give rise to its own human rights issues. In the meantime, this article considers some of the cases in which human rights have already had on the law of the proceeds of crime, and outlines some matters which may still give rise to challenge under the current legislation in two areas: the right to a fair trial guaranteed by Article 6 of the Convention and the right to peaceful enjoyment of property under Article 1 of Protocol 1.

Article 6 and Confiscation

The right to a fair trial guaranteed by Article 6 is one of the most extensively litigated provisions of the Convention. Article 6 provides 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 and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

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

  2. Everyone charged with a criminal offence has the following minimum rights:

    (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

    (b) to have adequate time and the facilities for the preparation of his defence;

    (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

    (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

    (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."

    As is clear from the text, one of the most important features of Article 6 is its distinction between those charged with a criminal offence and those whose civil rights and obligations are being determined. The protections in Articles 6(2) and (3) are only expressed to apply to the former. It is not for the state to determine whether proceedings are civil or criminal in nature (although its categorisation is relevant to the determination); being "charged with a criminal offence" has an autonomous meaning under the Convention.3

    So far as confiscation proceedings are concerned, the applicable principles have been settled by the Strasbourg court in Phillips v. United Kingdom (2001) BHRC 280. The prior criminal proceedings do of course involve the determination of a criminal charge, and all of the rights guaranteed under Article 6 apply to the trial. Confiscation proceedings which follow upon conviction, however, are analogous to a sentencing procedure. "Once an accused has properly been proved guilty of [an] offence, Article 6(2) can have no application in relation to allegations made about the accused's character and conduct as part of the sentencing process, unless such accusations are of such a nature and degree as to amount to the bringing of a new "charge" within the autonomous meaning of the Convention"4 And although the presumption of innocence is not only guaranteed by Article 6(2) but is also part of the general notion of a fair hearing under Article 6(1), confiscation, which does not lead to a criminal conviction, does not infringe that presumption.5

    Phillips was concerned with the statutory assumptions which may fall to be made (in that case, under the Drug Trafficking Act 1994 ('the 1994 Act')) that assets held by an offender on conviction, or received or expended by him during the period prescribed by statute, represent his benefit from criminal conduct. In many cases where the assumptions are made, their practical effect is to place the onus on the defendant to show that his assets had a legitimate origin. The court held that the assumptions did not exceed the reasonable limits within which such a reverse onus should be confined by the presumption of innocence inherent in the notion of a fair hearing under Article 6(1).

    The Strasbourg court has also considered, in Grayson and Barnham v. United Kingdom (2009) 48 EHRR 30, whether the burden on the defendant to demonstrate that he does not have sufficient realisable assets to repay his benefit from criminal conduct violates Article 6 of the Convention. It held that it does not. The case involved a straightforward application of the principles in Phillips, the only difference being that the onus on the defendant subject to challenge was not that of demonstrating where his money had come from but where it had now gone. It is surprising that it was declared admissible, but the compatibility of the proceeds of crime procedures with the Convention is at least confirmed.

    On analysis, the statutory assumptions in the proceeds of crime legislation, so far from violating any notion of presumption of...

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