Benjafield, R v. [2002] UKHL 2 (24th January, 2002)

REGINA

v.

BENJAFIELD

(APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))

ON 24 JANUARY 2002

[2002] UKHL 2

LORD SLYNN OF HADLEY

My Lords,

1. For the reasons to be given by my noble and learned friend Lord Steyn I too would dismiss this appeal.

LORD BROWNE-WILKINSON

My Lords,

2. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. I agree with it and, for the reasons he has given, I too would dismiss this appeal.

LORD STEYN

My Lords,

3. This appeal was heard at the same time as the appeal in R v Rezvi in which the House deliver speeches today. In many respects the two appeals involve substantially similar questions. Having regard to the conclusions and reasons in R v Rezvi it will be possible to deal with this appeal quite briefly.

4. In outline the circumstances of the appeal are as follows. On 8 September 1998 the appellant pleaded guilty to two counts of an indictment, thereby admitting that he had conspired with others to supply class A and B drugs between 6 May and 24 July 1997. On 19 October 1998 a Crown Court judge sentenced him to 14 years and five years respectively, the terms to run concurrently. A preliminary hearing to determine the extent to which the appellant benefited from drug trafficking took place between 29 and 31 March 1999. On 1 July 1999 the court made a confiscation order in the sum of £327,971. In default of payment of the said sum, a term of three years’ imprisonment was imposed. On 5 October 1999 a High Court judge gave the appellant leave to appeal against the confiscation order. On 6 December 2000 the appeal came before Lord Woolf CJ, Judge LJ and Collins J. The Court of Appeal considered the compatibility of section 4(3) of the Drug Trafficking Act 1994 with the Human Rights Act 1998 which incorporated the European Convention for the Protection of Human Rights and Fundamental Freedoms into our law (Schedule 1). On 20 December 2000 the Court of Appeal [2001] 3 WLR 75 gave judgment on the application of articles 6(1) and 6(2) to confiscation proceedings. The Court of Appeal adjourned consideration of the merits of the appellant’s appeal to a later date. On Thursday 8 March 2001 the adjourned hearing took place. In a judgment which is unreported the Court of Appeal (Judge LJ and Collins J) dismissed the appeal.

5. On this appeal the following issues arise for determination:

    (i) Whether a defendant who was the subject of criminal proceedings before the coming into force of sections 6 and 7(1)(b) of the Human Rights Act 1998 is entitled, after they come into force, to rely, in the course of appellate proceedings, on an alleged breach of his Convention rights by the trial court or prosecuting authority.
    (ii) Whether a person against whom a confiscation order is sought under section 4 of the 1994 Act is “charged” with a criminal offence within the meaning of article 6(1) of the Convention.
    (iii) If such a person is charged with a criminal offence, whether the reverse burden assumptions in section 4 of the 1994 Act are compatible with article 6(2) of the Convention and/or article 1 of the First Protocol.
    (iv) Whether it was appropriate and just to make the confiscation order in the circumstances of this case.

The retrospectivity issue.

6. The answer to issue (i) is No. The appellant pleaded guilty and was sentenced and a confiscation order was imposed on him before the 1998 Act came into force. Following the decision of the House in R v Kansal[2001] 3 WLR 1562, it is now clear that the appellant’s Convention rights are not engaged. Nevertheless, I will briefly summarise the position on the assumption that the Convention is applicable.

The criminal charge issue

7. The answer to issue (ii) is No. Relying on the decision of the Privy Council in McIntosh v Lord Advocate [2001] 3 WLR 107 and the decision of a chamber of the European Court of Human Rights in Phillips v United Kingdom (Application No 41087/98) 5 July 2001, as well as on the relation between article 6(2) and article 6(3)(a), I explained in R v Rezvi why the bringing of confiscation proceedings is not a criminal charge under article 6(2) of the Convention. There are material differences between the confiscation regimes under the Criminal Justice Act 1988 (applicable in R v Rezvi) and the 1994 Act (applicable in the present case). But in regard to the applicability of article 6(2) the position is the same. Article 6(2) does not apply to confiscation proceedings. But the appellant has the full protection of article 6(1).

Compatibility of reverse burden provisions with article 6(1)

8. It is unnecessary to set out the legislation. Counsel for the appellant concentrated on the following provisions of the 1994 Act:

    “4. (1) For the purposes of this Act –
    • (a) any payments or other rewards received by a person at any time (whether before or after the commencement of this Act) in connection with drug trafficking carried on by him or another person 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) Subject to subsections (4) and (5) below, the Crown Court shall, for the purpose –

(a)

    • of determining whether the defendant has benefited from drug trafficking, and

(b)

    • if he has, of assessing the value of his proceeds of drug trafficking, make the required assumptions.

(3) The required assumptions are –

(a) that any property appearing to the court –

(i) to have been held by the defendant 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.

(4) The court shall not make any required assumption in relation to any particular property or expenditure if –

    • (a) that assumption is shown to be incorrect in the defendant’s case; or
    • (b) the court is satisfied that there would be a serious risk of injustice in the defendant’s case if the assumption were to be made; and where, by virtue of this subsection, the court does not make one or more of the required assumptions, it shall state its reasons.”
    • (Emphasis supplied).

Making due allowance for the differences between the confiscation procedures under the 1988 Act and under the 1994 Act, the reasoning in R v Rezvi applies with equal force in this case. The 1994 Act pursues an important objective in the public interest and the legislative measures are rationally connected with the furtherance of this objective. The procedure devised by Parliament is a fair and proportionate response to the need to protect the public interest. The critical point is that under the 1994 Act, as under the 1988 Act, the judge must be astute to avoid injustice. If there is or might be a serious or real risk of injustice, he must not make a confiscation order. In these circumstances a challenge to the compatibility of the legislation must fail.

Article 1 of the First Protocol.

9. For the reasons given in Rezvi I would hold that any interference with article 1 of the First Protocol is justified.

The merits.

10. The main issue in the confiscation proceedings concerned two properties known as “The Bentleys” (which was in the appellant’s sole name) and “La Siesta” (which was in the joint names of the appellant and his mother). The question was whether the appellant’s father had provided the money for the purchase of the properties or whether the money was the appellant’s own income derived from drug trafficking. The appellant’s case was that his father completed a number of property sales between June and November 1986. The total realised moneys were in the region of £92,000. The appellant contended that this figure would have constituted a sufficient pool for the purchase of the properties. Summaries of the conveyancing files were provided to the Court of Appeal. The appellant submitted that these files suggested that his father had had sufficient funds. The property was acquired when the appellant was 24 years old, several years before there was any direct evidence that he was involved in drug trafficking. Mr Heywood, the vendor of one of the properties, gave evidence that he thought the appellant was “skint”.

11. On the other hand, the trial judge found that he was satisfied that Benjafield was at the head of a very considerable organisation dealing in large quantities of class A and class B drugs. He was not an addict and was motivated purely through profit. The appellant did not give evidence and so the judge was deprived of any explanation by him. The appellant’s father was called to give evidence but the judge rejected his evidence. The Crown’s case was that there was no evidence of the source of the funds for the appellant to buy the properties.

12. Counsel for the appellant argued that on the evidence the making of a confiscation order was inappropriate. He said that it was probable that the appellant’s father paid for the properties. The fact that the appellant did not testify is, however, a powerful point against him. Collins J (with whom Judge LJ agreed) further observed, in paragraph 19:

    “The indictment covered the dates March to July 1997, but it was clear from the conversations that were overhead that this appellant must have been involved in drug trafficking to a major extent for a period before that. He was, as the judge found, the prime mover, indeed the leader, of the enterprise. As a matter of common sense it can be said that one does not get to that pinnacle in drug trafficking immediately, so it was clear that it would have been a perfectly proper inference to draw that this appellant had been engaged in drug trafficking for some time before May 1997.”

And later Collins J added, in paragraph 46:

    “where the drug trafficking was at such a high level it is perfectly proper to conclude that it must have been going on for a considerable time before the appellant built himself up to reach the position that on the evidence he clearly did reach.”

For my part I see no reason to disagree with the reasoning of the Court of Appeal.

13. A less than satisfactory aspect of the case is, however, that the judge had misdescribed his function by saying “it has not been shown on the balance of probabilities that there was any risk of injustice”. As is apparent from the judgments in R v Rezvi and on this appeal that is putting it too high. The judge must avoid any real risk of injustice. But I am satisfied that no injustice or prejudice resulted from this misdirection as is convincingly shown by the careful review of the case by the Court of Appeal.

Disposal

14. I would dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

15. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. I agree with it, and for the reasons which he has given I too would dismiss the appeal.

LORD HUTTON

My Lords,

16. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. I agree with it, and for the reasons which he has given I too would dismiss this appeal.

 

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