Grayson and another v United Kingdom (App No 19955/05 and 15085/06)
European Court of Human Rights, Judge Garlicki (president), Judges Bratza, Mijovic, Bjorgvinsson, Sikuta, Hirvela and Poalelungi, and Mrs F Araci (deputy section registrar), 23 Sep 2008
The fact that a defendant made the subject of an order under the Drug Trafficking Act 1994 (DTA 1994) has the burden of proof to prove, on the balance of probabilities, that his realisable property is less than the amount to which he has been assessed to have benefited from drug trafficking, does not violate his right to a fair trial under art 6(1) of the European Convention on Human Rights (the Convention).
The first applicant was convicted with intent to supply over 28 kilograms of pure heroin. The heroin was assessed to have a wholesale value in excess of £1.2m and a street value in excess of £4m. He was sentenced to 22 years’ imprisonment. The second applicant was convicted of two conspiracy charges involving plans to import large consignments of cannabis into the UK. Neither importation had been successful and the whereabouts of the drugs were unknown. He was sentenced to eleven years’ imprisonment, the judge describing him as the lead organiser in a sophisticated, established and internationally based drug trafficking business.
In both cases confiscation proceedings were brought to determine the statutory benefit to the applicants from their drug related offences. The judge made a confiscation order under DTA 1994 against both defendants. The first defendant was held to have benefited by £1.2m. The judge set an additional ten years’ imprisonment to be served by the first applicant if he did not pay that amount within twelve months. In relation to the second applicant, the judge found that the total benefit was £1.5m. Under the statutory scheme, once the judges had assessed the amount of benefit which the applicants had received, the burden passed to the applicants to show on the balance of probabilities that their realisable assets were less than the amount of their benefit.
Both applicants appealed to the Court of Appeal on the ground that it had been contrary to Art 6 of the European Convention on Human Rights (the Convention) for each judge to hold that it was for them to establish, on the balance of probabilities, that their realisable property was less than their benefit.
The Court of Appeal dismissed the appeal and refused to certify a point of law of general public importance for appeal to the House of Lords. The applicants complained to the European Court of Human Rights (ECtHR) that the burden on them to prove that their realisable property was less than the amount to which they had been assessed to have benefited from drug trafficking, had violated their right to a fair hearing under Art 6(1) of the Convention.
The European Court of Human Rights
In a case involving the procedure for the imposition of a confiscation order, the court’s task was to determine whether the way in which the statutory assumptions were applied had offended the basic principles of a fair procedure inherent in Art 6(1). However, it was not within the province of the court to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it was for the courts to assess the evidence before them. The court’s task was to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, had been fair.
In the instant case, the first applicant had been convicted of an offence involving the importation of over 28 kilograms of pure heroin with a wholesale value of over £1.2m. The applicant had chosen not to give oral evidence at that stage of the proceedings and did not appeal against the ruling on benefit.
Throughout those proceedings, the rights of the defence had been protected by the safeguards built into the system. Thus, in each case the assessment 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. Each applicant had been represented by counsel of his choice. The burden was on the prosecution to establish that the applicants had held the assets in question during the relevant period. Although the court was required by law to assume that the assets derived from drug trafficking, that assumption could have been rebutted if the applicant had shown that he had acquired the property through legitimate means. Furthermore, the judge had a discretion not to apply the assumption if he considered that applying it would give rise to a serious risk of injustice.
Stage of confiscation
Neither applicant had seriously complained about the fairness of that stage of the confiscation procedure, whereby the benefit from drug trafficking was calculated. In either case, in principle or practice, it was not incompatible with the concept of a fair trial under Art 6 to place the onus on the applicant, once he had been convicted of a major offence of drug dealing, 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. Given the existence of the safeguards referred to above, the burden on him did not exceed reasonable limits. The second stage of the procedure had involved the calculation of the value of the realisable assets currently available to the applicant. The legislation at that stage did not require the sentencing court to make any assumption about past criminal activity. Instead it had to make an assessment of the applicant’s means at the time the order was made. The burden at that stage was on the defendant to establish to the civil standard that the amount that might be realised was less than the amount assessed as benefit.
Accordingly, there had been no violation of Art 6(1) of the Convention in respect of either applicant.
