On 3 February 1995 the Drug Trafficking Act 1994 (DTA) came into force, replacing the Drug Trafficking Offences Act 1986 (DTOA) and incorporating the changes made to that Act by the Criminal Justice (International Co-operation) Act 1990 and the Criminal Justice Act 1993.

The DTA effects wide reaching changes to the confiscation enquiry procedure and the powers available to prosecutors in relation to confiscation orders.

Yet, despite the addition of some subsections which seem to do little more than rehearse the existing law, the practice and procedure regarding restraint orders under s.8 of the DTOA reappears unaltered in s.26 of the new Act.Curiously, no attempt is made by the DTA to address the perennial battlefield surrounding restraint orders: disclosure of assets.

In the light of this legislative silence and the new powers regarding confiscation orders, the recent revision of the existing practice on the provision of such information by defendants, particularly in regard to self-incrimination, in the case of Re C [1995] The Times, 21 April, stands to have a significant impact on the continuing use of restraint orders under the new Act.The practice has developed since the Court of Appeal decision in Re O [1991] 2 QB 520 of providing within restraint orders requirements upon the defendant to give, on affidavit, full details not only of his or her assets both within and without the jurisdiction, but also extensive details of any financial transactions in which he or she has been involved over an extended period, often six years.It is difficult to think of a more sensitive environment in which to compel the disclosure of such information.

The defendant must under either Act (s.7 of the DTOA, s.25 of the DTA) already be charged with a drug trafficking offence, or a charge must be contemplated or a confiscation order made.

The charges themselves imply a criminal involvement in the international movement of money and assets.

Upon determination of a confiscation order, the presumptions which the court may make under s.2 of the DTOA, and is compelled to make under the parallel s.4 of the new Act, of course mean that any property transferred to the defendant in the six years prior to the proceedings are presumed to be the proceeds of drug trafficking, unless the defendant can prove otherwise.

Identifying all his or her assets, particularly large sums of cash, and all his or her financial dealings under the compulsion of a court order, therefore stands to be an immensely prejudicial exercise for the defendant.The principles empowering the court to order disclosure against a defendant, notwithstanding the prejudice, laid down by Lords Donaldson and Glidewell in Re O, remained without revision until Re C.

Derived from the closely analogous Mareva practice, the Court of Appeal in Re O held that the jurisdiction to order the disclosure of assets by a defendant flows from the power of the court to make all such ancillary orders as appear just and convenient.

This ancillary purpose in regard to restraint orders, in that case under s.77 of the Criminal Justice Act 1988 although the same expressly applies to orders under s.8 of the DTOA and now s.26 of the DTA, is to enable the prosecutor to identify those persons affected by the restraint, to police compliance with the order and to enable a receiver to be appointed if the need arises.The absence of any statutory exclusion of the common law protection against self-incrimination would however permit the defendant to refuse to comply with the order for disclosure and thereby frustrate a purpose behind the restraint.

Lord Donaldson therefore proposed an express restriction to be included within all restraint orders designed to protect the privilege without preventing the disclosure.

The protection reads: 'No disclosure made in compliance with this order shall be used as evidence in the prosecution of an offence alleged to have been committed by the person required to make that disclosure or by any spouse of that person.'Yet arguably the precedent protection provided by Re O is insufficient.

Although the use of the affidavit of disclosure itself is excluded from use in evidence in any subsequent proceedings, it does not however seem to exclude the use of the information so disclosed in the affidavit as an investigative tool.

For instance, as part of the disclosure provisions the defendant is invariably compelled to identify individuals with whom he or she has conducted cash transactions, information which may be highly incriminatory and of which the prosecution may well have been entirely unaware.

There would appear to be no prohibition on the prosecutor using that disclosed information to interview those individuals and then call them to give evidence against the defendant, or collect further evidence from their statements.The courts, particularly in Re O itself, have always emphasised the close analogy between restraint orders and Mareva injunctions.

If Mareva practice is followed, it would seem quite doubtful that the privilege against self-incrimination could be said to extend only to prevent the use of the information so disclosed in evidence and not equally to its investigative exploitation.

According to Lord Wilberforce in Rank Films v Video Information Centre [1982] AC 380 the privilege against self-incrimination extends to a prohibition on providing information which could be used either directly or indirectly to 'set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character'.

Prior to Re O, this principle had indeed applied in the context of a restraint order under s.8 of the DTOA.

Webster J in Re A Defendant [1987] Independent, 2 April, following Rank Films concluded that the use of any such disclosure had to be excluded from 'any purpose other than a purpose arising under the 1 986 Act'.Lord Donaldson's precedent condition came up for analysis by the House of Lords in AT&T Istel Ltd v Tully [1993] AC 45.

In the context of an order for disclosure in Mareva proceedings, the Re O condition had been applied.

The defendants, concerned lest they might be exposed to the possibility of charges of conspiring to defraud, argued that their privilege against self-incrimination was still infringed.The House of Lords upheld the plaintiffs' appeal against the dismissal of the disclosure order but only by relying strictly on a letter from the Crown Prosecution Service, in which the CPS agreed not to use any information so disclosed either in evidence in any prosecution or, more significantly, for investigative purposes.

To Lord Lowry (p.69) this letter made all the difference and provided the defendants with sufficient protection to ensure the disclosure could be given without the risk of infringing their common law privilege.

The clear conclusion to draw is that, without the agreement of the CPS to extend the protection to prevent an investigative use of the information disclosed, the House of Lords felt that the Re O protection was insufficient to protect the privilege against self-incrimination.Of course, evidence produced from the investigative use of information disclosed under the compulsion of a restraint order might still be excluded either in the concurrent criminal proceedings or any subsequent proceedings by the exercise of the trial judge's discretion to exclude evidence unfairly obtained under s.78(1) of the Police and Criminal Evidence Act 1984.

Yet Rank Films, AT&T Istel v Tully and even Re O itself all hold that s.78(1) of PACE is no substitute for the privilege against self-incrimination.These were the issues before Ognall J in Re C.

The facts were far from uncommon.

C had been charged with possession of cannabis with intent to supply, a drug trafficking offence, and a restraint order obtained under the old DTOA.

The prosecution's evidence alleged that, in addition to a quantity of the drug, traces of cocaine had been found on a set of scales at C's home and a large sum of cash found secreted under floorboards.

As part of the restraint order C was required to disclose all his assets, including details of the ownership of the cash, and details of all cash received by him in excess of £500 in the preceding six years.

The order contained the usual Re O precedent condition.

Understandably, C was concerned to ensure that any individuals he might thereby identify would not be available for interview by the police either in regard to these charges or any other charges connected to the alleged presence of cocaine.Ognall J, in following Rank Films and AT&T Istel v Tully, held that the protection afforded by the Donaldson condition was insufficient to protect the defendant's common law privilege fully.

Further the argument that any such insufficiency was rectified by reliance on s.78(1) of PACE was, again from these authorities, soundly rejected as 'our courts will not countenance any in-roads into the privilege of refusing to incriminate oneself unless either (a) it is required by statute that the privilege takes second place to a wider public interest or, (b) that there is some other adequate protection afforded as of the kind envisaged by the letter alluded to by their Lordships in the AT&T case, or some other form of binding and comprehensive undertaking'.Ognall J therefore augmented the Re O condition by adding a further clause taken from the judgment of Turner J in Re D [1995] The Times, 26 Jan uary, a case concerning disclosure by a non-party: 'and no use shall be made in any such prosecution against the defendant or his spouse of evidence obtained as a direct result of such disclosure'.This revision of the four-year-old practice reliant on Re O has a number of useful implications.

First, the prospect arises for the defendant of employing the affidavit of disclosure to exclude troublesome evidence.

In the usual case the restraint order will follow shortly after arrest and long before committal.

It is in fact usually admitted in the supporting affidavit from the investigating officer that enquiries are continuing.

A fulsome affidavit of disclosure might logically be used as a means to attempt to taint the prosecution case, particularly as the defendant's financial affairs are inevitably an issue not simply at the confiscation enquiry but as to the question of guilt as well.Of more historical significance is the implication lying behind Ognall J's judgment in Re C.

The summons to vary the Re O provision was founded on the usual contention of the CPS that the Re O condition did not prevent the investigative use of the information so disclosed.

It was upon that concession by the CPS that Ognall J found the purpose behind the summons to be made out and ordered accordingly.

He was not therefore called upon to consider whether the Re O condition did in any event prevent such investigative use.

He does however comment in obiter, that on another reading the Re O condition might indeed already extend that very protection by the words 'no disclosure made in compliance with this order shall be used'.

If that obiter is followed, the prospect also arises that any past prosecutions founded on evidence so derived, especially where s.78(1) of PACE was unsuccessfully invoked, might now be unsafe.Yet the real importance of Re C can be seen in the context of the convicted defendant.

Under the DTOA the procedure for the tendering of statements concerning the defendant's benefit from the proceeds of drug trafficking and his realisable assets to assist the assessment of the confiscation order was set out in s.3.

S.3(6) gave a protection against the admissibility in evidence in any subsequent proceedings for an offence of any acceptance made by a defendant as part of this process that any payment received by him was in connection with drug trafficking.

The procedure for the tendering of s.3 statements under the old Act is now amplified and augmented in s.11 of the new Act providing the same legislative protection in s.11(11) of the DTA in relation to admissions made during that process.S.3(2) and (3) of the DTOA always enabled the court to require a defendant to indicate whether he accepted the allegations made in the s.3 statement and to imply admissions where a defendant failed to do so.

Yet the new Act takes this power much further.

Under s.12 of the DTA the court is now given the additional power to order the defendant to give such information as might assist it in carrying out its functions in the assessment of the findings of fact for the determination of a confiscation order.

By s.12(5) of the DTA the court may draw adverse inferences from the failure of a defendant to comply with such an order 'without reasonable excuse'.

Yet no legislative protection against self-incrimination is however given and the protection of s.11(11) of the DTA is expressly restricted to admissions made under s.11 only.This therefore presents the convicted defendant, who has received proceeds from some illegal source other than drug trafficking, with a co nsiderable dilemma.

S.12, arguably, enables the court to require much more information than the mere acceptance that certain assets are the proceeds of drug trafficking.

Otherwise it would be entirely superfluous.

Presumably it should be read in conjunction with the now mandatory presumptions in s.4, namely that any receipts in the previous six years are, unless the defendant proves to the contrary, the proceeds of drug trafficking.A defendant who has receipts from, say, burglaries and is faced with an order under s.12 of the DTA, has only two legitimate approaches.

The first is to say nothing, in which case the presumptions and inferences of ss.4 and 12 work together to drag those proceeds inexorably into the confiscation calculations.

Whether potential self-incrimination is a reasonable excuse for non-compliance in the terms of s.12(5) of the DTA, especially taking into account Re C, is questionable and may in any event be difficult to prove without causing that incrimination.

The alternative is to identify the non drug related illegal source.

Yet this construction of s.12 would suggest that in doing so the defendant will have exposed himself to the risk of even further prosecution.The only solution to the problem would appear to be to invoke the protection of Re C and reveal those additional illegal sources as part of the disclosure at the restraint order stage.

Following Re C the defendant could do so with impunity and at the same time provide an answer to the presumptions of s.4.

The incorporation of that disclosure as part of the prosecutor's statement in the confiscation enquiry (now under s.11 of the DTA) could well avoid the need for an s.12 order.

Even if an s.12 order is then made, the defendant now has a ready made 'reasonable excuse' to avoid adverse inferences.

Of course the defendant in doing so must remain aware of the possible forfeiture under s.43 of the Powers of the Criminal Courts Act 1973 of assets used or intended to be used to commit or facilitate the commission of any offence.

Yet this of course need not apply to the proceeds of crime and again the reasoning of Re C must suggest that the disclosure should not be made available in that way.Indeed, applying the existing law on disclosure to post confiscation proceedings under the new Act seems set to revise Re O even further.

S.16 of the Criminal Justice (International Co-operation) Act 1990 introduced the power to apply to the court to increase the amount of a confiscation order, where the order is less than the amount assessed to be the value of the defendant's proceeds of drug trafficking, and further information comes to light to suggest that the defendant's realisable assets are greater than the amount taken into account at the confiscation enquiry.

Of course, it was always open under the DTOA to commence restraint proceedings up to the time a confiscation order was satisfied (ss.8 and 38(12)).Under the DTA those powers have been considerably increased.

s.16 of the 1990 Act is repeated in s.16 of the DTA.

Yet ss.13 to 15 of the DTA grant powers to reconsider the other findings of fact in the confiscation enquiry: whether or not the defendant has benefited from drug trafficking and the amount of that benefit.

A prosecutor can apply to reopen the confiscation order enquiry if the Crown court had decided either not to proceed under the Act, had made a finding of fact that the defendant had not benefited from drug trafficking or the prosecutor believes that the defendant's proceeds of drug trafficking were under-assessed by the court where new evidence comes to light, either not available at sentencing or not considered by the Crown Court.The only limitation which seems to be placed on such applications is that they must be made within six years of conviction.

It follows that such proceedings can therefore be brought even after a confiscation order is satisfied.

More significantly, as ss.25(1) and 41(3) and (4) of the DTA now allow restraint proceedings to be brought if such an application has been made and not concluded, it follows that restraint proceedings can also be commenced even long after confiscation proceedings have concluded.

This therefore gives rise to the prospect that the disclosure provisions now available in restraint proceedings might be used to support or even found an application to increase or reopen a confiscation order.This too would seem an infringement of the privilege against self-incrimination, yet one obviously not addressed by Re O or Re C.

However, such a purpose would seem to fall outside those identified in Re O.

A previous attempt to argue along similar lines that the disclosure of itself meant an infringement of the privilege, as it could be used as part of the s.3 of the DTOA enquiry, was rejected by the Court of Appeal in Re T (1993) 96 Cr App R 194.

Yet the recent decisions of the European Commission of Human Rights in both Saunders v UK and Welch v UK, suggest that a compulsion to provide evidence against the defendant's own interest in the context of a penalty, as a confiscation order has now been held to be, may well be a breach of art 7 of the European Convention on Human Rights.Indeed, the rejection of the defendant's argument in Re T was founded on the statutory protection against self-incrimination provided by s.3(6) of the DTOA.

That protection no longer applies where the disclosure is compelled by an order under s.12 of the DTA and which power can be invoked in proceedings to reopen or increase a confiscation order.

It would seem to follow therefore that the argument rejected in Re T may now become entirely applicable to disclosure orders in proceedings under the new Act or at least in the post confiscation context.It is quite surprising, particularly in the light of the extensive additional powers incorporated into the DTA, that no attempt has been made to give a statutory framework for disclosure in restraint proceedings.

While Re O remains the authority to enable disclosure it certainly seems the case that prosecutors now seek a level of disclosure, particularly requiring details of past transactions, which did not form part of the disclosure order before the Court of Appeal in that case.The legislation is unashamedly Draconian and yet there remains no restriction, either express or implied, on invoking the privilege against self-incrimination.

Where such legislative restrictions do apply it appears that far more significance is afforded to the protection of s.78(1) of PACE than given to it by Re O and Re C (see Re Arrows Ltd (No.

4) [1994] 3 WLR 656) as indeed Ognall J comments in Re C.

Yet in the context of restraint orders this protection has only been extended by Re C and, it is argued, the curious omission of reference to the common law privilege in s.12 of the DTA might well resurrect the general argument that any disclosure which might be available to the confiscation process would infringe the privilege.