Taylor v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 31209/96

by Ronald J. M. TAYLOR

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 February 1996

by Ronald J.M. TAYLOR against the United Kingdom and registered on

29 April 1996 under file No. 31209/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1936. He is currently

detained in Swaleside prison, on the isle of Sheppey in Kent.

The facts of the case, as they have been submitted by the

applicant, can be summarised as follows:

A. Particular circumstances of the case

On 2 June 1986 the applicant, having pleaded guilty, was

convicted by the Central Criminal Court of drug trafficking between

1 January 1974 and 17 September 1979. He was sentenced to six years'

imprisonment and fined £234,750.

On 12 January 1987 section 1 of the Drugs Trafficking Offences

Act 1986 came into force providing for the confiscation of the proceeds

of drug-related offences.

On 1 November 1994 the Crown Court at Chelmsford found the

applicant guilty of drug trafficking between 1 February 1990 and

20 April 1993 and sentenced him to ten years' imprisonment. The court

also made a confiscation order under the Drugs Trafficking Offences

Act 1986 in the sum of £15,311,729.19 which covered proceeds from drug

trafficking relating to the period between 1 January 1974 and

17 September 1979 and the period between 1990 and 1993. In order to

take into account the proceeds relating to the period between

1 January 1974 and 17 September 1979, the court relied on the

applicant's own admission that he had benefited from drug trafficking

during that period of time and had lived comfortably off the proceeds.

In order to take into account the proceeds relating to the second

period, the court relied on the evidence tendered during the

proceedings. The court further ordered that in default of payment of

this sum the applicant would be liable to serve a consecutive four

years' prison sentence.

The applicant applied for leave to appeal against the

confiscation order, invoking, inter alia, Article 7 of the Convention.

On an unspecified date, a single judge gave the applicant leave to

appeal.

The Court of Appeal delivered its judgment on 1 December 1995.

The court considered that the Drugs Trafficking Offences Act gave it

the power to confiscate proceeds from drug-trafficking which related,

inter alia, to the period between 1 January 1974 and 17 September 1979.

Moreover, the applicant's case was clearly distinguished from Welch v.

United Kingdom (Eur. Court HR, judgment of 26 February 1996, Series A

no. 307). As opposed to Welch, the applicant, when committing the

offences which enabled the court to make the confiscation order, i.e.

drug trafficking between 1 February 1990 and 20 April 1993, was aware

of the possibility that such an order could be made, since the Drugs

Trafficking Offences Act 1986 had already come into force. As a result,

the court rejected the applicant's appeal.

B. Relevant domestic law

The Drugs Trafficking Offences Act 1986 provides as follows:

"1. Confiscation orders

(1) ... where a person appears before the Crown Court to be

sentenced in respect of one or more drug trafficking offences

(and has not previously been sentenced or otherwise dealt with

in respect of his conviction for the offence or, as the case may

be, any of the offences concerned), the court shall act as

follows:

(2) The court shall first determine whether he has benefited from

drug trafficking.

(3) For the purposes of this Act, a person who has at any time

(whether before or after the commencement of this section)

received any payment or other reward in connection with drug

trafficking carried on by him or another has benefited from drug

trafficking.

(4) If the court determines that he has so benefited, the court

shall, before sentencing ... determine ... the amount to be

recovered in his case by virtue of this section.

(5) The court shall then in respect of the offence or offences

concerned -

(a) order him to pay that amount ...

...

2 Assessing the proceeds of drug trafficking

(1) For the purposes of this Act -

(a) any payments or others rewards received by a person at any

time (whether before or after the commencement of section 1 of

this Act) in connection with drug trafficking carried on by him

or another 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) The court may, for the purpose of determining whether the

defendant has benefited from drug trafficking and, if he has, of

assessing the value of his proceeds of drug trafficking, make the

following assumptions, except to the extent that any of the

assumptions are shown to be incorrect in the defendant's case.

(3) Those assumptions are -

(a) that any property appearing to the court -

(i) to have been held by him 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 ..."

COMPLAINTS

The applicant complains under Article 7 of the Convention that

the use by the Chelmsford Crown Court of the power to make a

confiscation order in respect of proceeds from drug trafficking

relating to the period between 1 January 1974 and 17 September 1979

amounts to a penalty for offences committed prior to the entry into

force of section 1 of the Drugs Trafficking Offences Act 1986.

THE LAW

The applicant complains that the confiscation order, insofar as

it concerns proceeds relating to the period between 1 January 1974 and

17 September 1979, is a penalty imposed retroactively in breach of

Article 7 (Art. 7) of the Convention.

Article 7 para. 1 (Art. 7-1) of the Convention provides as

follows:

"No one shall be held guilty of any criminal offence on account

of any act or omission which did not constitute a criminal

offence under national or international law at the time when it

was committed. Nor shall a heavier penalty be imposed than the

one that was applicable at the time the criminal offence was

committed".

The Commission recalls that, in accordance with the Court's Welch

v. the United Kingdom judgment, a confiscation order could amount to

a "penalty" within the meaning of Article 7 (Art. 7) of the Convention

(supra, p. 14, para. 36). It also recalls that the Court reached the

conclusion that the confiscation order imposed in Welch constituted

such a penalty given the sweeping statutory assumptions in section 2

para. 3 of the 1986 Act that all property passing through the

offender's hands over a six-year period was the fruit of drug

trafficking unless he could prove otherwise, the fact that the

confiscation order was directed to the proceeds involved in drug

dealing and was not limited to actual enrichment or profit, the

discretion of the trial judge, in fixing the amount of the order, to

take into consideration the degree of culpability of the accused and

the possibility of imprisonment in default of payment by the offender.

The Commission, taking the same elements into account, considers

that the confiscation order imposed on the applicant also constitutes

a "penalty" within the meaning of Article 7 (Art. 7) of the Convention.

Having reached this conclusion, the Commission must next determine

whether this was a penalty imposed for the offences of which the

applicant had been found guilty in 1986.

The Commission notes that, according to the Drugs Trafficking

Offences Act, a confiscation order cannot be made unless there is a

criminal conviction. However, the order may affect proceeds which are

not directly related to the facts underlying a criminal conviction (see

Welch v. United Kingdom judgment, supra, p. 13, para. 29). In the

circumstances of the case, the conviction which activated the power of

the Chelmsford Crown Court to make a confiscation order was that of

1 November 1994. This conviction concerned drug trafficking which had

occurred between 1 February 1990 and 20 April 1993. However, under the

Drugs Trafficking Act, the Crown Court could order the confiscation

also of proceeds which did not relate to the facts of which it had

convicted the applicant and, as a result, the Crown Court was able to

take into account also the proceeds relating to drug trafficking

between 1 January 1974 and 17 September 1979.

The fact that the applicant had already been convicted of drug

trafficking during this period of time was immaterial for the power of

the Crown Court to make the confiscation order. This transpires clearly

from the Act which links the power of the court to make a confiscation

order to the accused's having "benefited" from drug trafficking and not

to the accused's having been convicted. According to the Act a person

may be considered to have "benefited" from drug trafficking without

having been convicted, while a person who has been convicted is not

necessarily considered to have benefited. Following this logic, the

Crown Court, in order to make the confiscation order, did not rely on

the applicant's previous conviction but on his own admission that he

had "benefited" from drug trafficking between 1 January 1974 and

17 September 1979.

In these circumstances, the Commission considers that, although

the confiscation order also concerned proceeds from drug trafficking

between 1 January 1974 and 17 September 1979, this was not a "penalty"

for the offences committed by the applicant between 1 January 1974 and

17 September 1979, but for the offences he committed between 1990

and 1993. When committing these offences, however, the applicant was

aware that he was liable to a confiscation order which could have

concerned earlier proceeds, since the Drugs Trafficking Offences

Act 1986 had already come into force. As a result, the Commission

considers that no appearance of a violation of Article 7 (Art. 7) of

the Convention is disclosed.

It follows that the application is manifestly ill-founded and

that it must be rejected as inadmissible in accordance with Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber