Crime

Confiscation order - statutory assumptions - compatible with right to fair trial and presumption of innocenceR v Benjafield; R v Leal; R v Rezvi; R v...Confiscation order - statutory assumptions - compatible with right to fair trial and presumption of innocenceR v Benjafield; R v Leal; R v Rezvi; R v Milford: CA (Lord Woolf CJ, Judge LJ and Collins J): 21 December 2000Confiscation orders were made against each defendant pursuant to section 2 of the Drug Trafficking Act 1994 or section 71 of the Criminal Justice Act 1988, as amended, following their conviction for drug trafficking offences or theft.

The defendants appealed on the grounds that the statutory assumptions made under the Acts contravened their right to a fair trial and the presumption of innocence under article 6(1)(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, as enacted by the Human Rights Act 1998.Charles Miskin QC and Danny Friedman (instructed by Stewarts, Stowmarket) for Benjafield.

Craig Rush (assigned by Registrar of Criminal Appeals) for Leal.

Tim Owen QC and Gary Summers (instructed by Magrath & Co) for Rezvi.

David Osborne (assigned by Registrar of Criminal Appeals) for Milford.

Andrew Mitchell QC, Kennedy Talbot, John Farmer, Andrew Marshall, Stephen Winberg and Andrew Maitland (instructed by Crown Prosecution Service, Headquarters) for the Crown.Held, dismissing Rezvi's appeal, adjourning Benjafield and Leal's appeals for further argument and noting that Milford's conviction had already been quashed by a different constitution, that confiscation proceedings under the 1988 and 1994 Acts had to be considered on the assumption that they were subject to the requirements of article 6(1)(2) of the convention, even though they were part of the sentencing, rather than the trial, process; that the onus placed on the defendant under the Acts was a persuasive one and it was necessary to consider whether the public interest in being able to confiscate the ill-gotten gains of criminals justified that interference with the normal presumption of innocence; that while the extent of the interference was substantial, Parliament had made efforts to balance the defendant's interest against the public's by providing that any question of confiscation arose only after a conviction, that the prosecution and the court had a discretion over the initiation of the proceedings, that the manner in which that discretion was exercised and any order made could be reviewed by the Court of Appeal, and that a confiscation order should not be made if there were a serious risk of injustice; that if those discretions were properly exercised, the solution which parliament had adopted was a reasonable and proportionate response to a substantial public interest and, therefore, justifiable; and that, accordingly, the statutory provisions did not contravene article 6, although it was the application of the provisions to the facts which would be critical in determining whether article 6 had been contravened in a particular case (WLR)