R.J.B. v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 32332/96

by R.J.B.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 11 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

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 29 January 1996

by R.J.B. against the United Kingdom and registered on 22 July 1996

under file No. 32332/96;

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 national of the United Kingdom, born in 1940,

and currently resides in Wiltshire. He is represented by

Atter MacKenzie, a firm of solicitors practising in Evesham.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In 1977, the applicant and his wife jointly bought a house, where

they took up residence.

In February 1988 the applicant was arrested for suspected theft.

He was released on bail without charge.

On 3 April 1989, the Criminal Justice Act of 1988 (the 1988 Act)

entered into force. Under Part VI of the 1988 Act, trial courts may

make confiscation orders aimed at removing assessed benefits obtained

through the commission of offences of which a person has been found

guilty.

In June 1989, the applicant gave to his wife his share in their

matrimonial home and his interest in the endowment policy covering the

sum borrowed when this house was mortgaged.

In May 1990, the applicant was rearrested and charged. He was

committed for trial on 14 September 1990 on 22 charges of theft.

On 11 December 1991, following a trial that had lasted twenty-two

days, a jury at the Wood Green Crown Court convicted the applicant of

multiple counts of theft by deception and using false instruments

committed between January 1986 and September 1987. He was sentenced to

three years' imprisonment and, pursuant to Part VI of the 1988 Act, a

confiscation order in the amount of £.140,643.18 was made against him

with twelve months' consecutive imprisonment if this sum was not paid

within twelve months.

With leave of the Crown Court, the applicant filed an appeal

against both his conviction and sentence with the Court of Appeal,

which was dismissed on 26 March 1993.

Since nothing was paid in satisfaction of the payment order, the

Crown Prosecution Service applied in November 1995 to the High Court

for the appointment of a receiver for the realisation of property held

by the applicant, including the assets he had given to his wife in

June 1989. This application was opposed by both the applicant and his

wife.

When the application was heard before the High Court on

2 November 1995, the applicant and his wife relied, inter alia, on the

judgment of the European Court of Human Rights of 9 February 1995 in

the case of Welch v. the United Kingdom (Series A no. 307-A). On this

and other points Judge McCullough held:

"It is accepted on behalf of both Mr and Mrs B. that that

<judgment> does not bind this Court. If it did it would not

merely prevent the appointment of a receiver, it would render the

confiscation order of no effect. What is submitted is that the

<judgment> is a factor which the Court should take into account

when exercising its judgment as to whether it would be

appropriate to take these gifts <made in June 1989> into account

as part of Mr B.'s realisable property. I do not accept this.

What is appropriate is to have regard to the provisions of the

1988 Act, Section 102(4) of which applies the provisions to

offences committed before the commencement of Part VI of that

Act, provided proceedings have not been instituted by that date.

Additionally, it is to be noted that the gifts in question were

made after Part VI have come into force.

... Whatever the hardship to Mrs B., there is no reason why she

should be treated more favourably than she would had the gifts

had not been made. In any event, this Court should proceed on the

basis that the money in Australia, or wherever it is, is

available to Mr B. That has already been decided by the Crown

Court and upheld by the Court of Appeal. ...

... I have no doubt that the transfers of Mr B.'s interests in

the house and in the endowment policy were made in an endeavour

to put the interest in question beyond the reach of the court or

any judgment creditors. ...

I should perhaps add a further word in relation to the argument

that, had Mr B. retained his interests in the house and the

endowment policy, they would undoubtedly have been part of his

realisable property. It does not, however, automatically follow

that had the Crown Court been asked to consider them, those

assets would necessarily have been taken into account in

calculating the amount of the confiscation order; the power of

the Crown Court to make a confiscation order is discretionary,

not mandatory. More to the point perhaps is that even if, as I

imagine will normally be the case, the Crown Court does take such

assets into account, the High Court is not prevented, on an

application such as this from excluding from its order those

assets the realisation of which would lead to hardship for an

innocent wife."

The prosecution's application was consequently rejected as the

realisation of the matrimonial home and endowment policy was found to

cause Mrs B. undue hardship. Some days later, the Crown Prosecution

Service sought the applicant's imprisonment for failure to satisfy the

confiscation order.

On 25 January 1996, the High Court rejected the applicant's

request for a Certificate of Inadequacy under Section 83 of the

1988 Act.

On 3 February 1996, the Bow street Magistrates' Court issued an

order allowing the applicant's imprisonment for 365 days for failure

to satisfy the confiscation order.

On 22 August 1996, the applicant informed the Commission that he

had been discharged from prison.

COMPLAINT

The applicant complains under Article 7 of the Convention of the

retroactive application of the 1988 Act resulting in a confiscation

order against him.

THE LAW

The applicant complains under Article 7 (Art. 7) of the

Convention of the retroactive application of the 1988 Act resulting in

a confiscation order against him.

Article 7 (Art. 7) of the Convention reads as follows:

"1. 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.

2 This Article shall not prejudice the trial and punishment

of any person for any act or omission which, at the time when it

was committed, was criminal according to the general principles

of law recognised by civilised nations."

However, the Commission is not required to decide whether or not

the facts submitted by the applicant disclose any appearance of a

violation of Article 7 (Art. 7) of the Convention as, in accordance

with Article 26 (Art. 26) of the Convention, the Commission finds that

the final decision regarding the applicant's case was given by the

Court of Appeal on 26 March 1993, when it rejected the applicant's

appeal against his conviction and sentence and thus determined the

imposition of the confiscation order. This is more than six months

before the date on which the application was submitted.

This finding is not altered by the subsequent proceedings, as

these proceedings merely concerned the modalities of the execution of

the confiscation order imposed.

It follows that the application must be rejected under Article 27

(Art. 27) 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