Lords judgment: R v Biggs-Price

applies to confiscation proceedings in which the prosecution tries to prove uncharged offences have been committed (for the purpose of going after the proceeds of those offences). The majority held that article 6(2) doesn’t apply, since even in these unusual circumstances confiscation proceedings do not involve the defendant being charged with a criminal offence for human rights purposes. But in any event, article 6(1) does apply, and with it an implied presumption of innocence. Fair enough.

But the majority goes a further step (see paras. 76-79 of Lord Rodger’s speech), and says that, since there is a presumption of innocence, therefore the defendant must be proved guilty according to law on the offence if it is to be take account of by the judge on confiscation, applying the words of article 6(2) by analogy; and that means the offence must be proven beyond reasonable doubt because, in Lord Rodger’s words (para. 76):

that is how people are “proved guilty according to law” in this country.

Lord Brown agrees, without as far as I can see any adequate reasoning, in paras. 95-97 – he says at para. 94 that he’ll return to the standard of proof issue, but where in paras. 95, 96 or 97 does he actually explain why the criminal standard is required? Lord Neuberger simply states his agreement (para. 152).

There are two problems with this. First, and most importantly, the majority are surely wrong to read article 6 as requiring anything to be proven to the criminal standard. Yes, the general rule in criminal proccedings is indeed that offences must be proved beyond reasonable doubt. Of course. But these aren’t criminal proceedings, even for human rights purposes; and anyway, what’s more important is that the applicable standard of proof is that laid down in section 2(8) of the Drug Trafficking Act 1994:

The standard of proof required to determine any question arising under this Act as to—
(a) whether a person has benefited from drug trafficking, or
(b) the amount to be recovered in his case by virtue of this section,
shall be that applicable in civil proceedings.

The majority simply does not deal with the argument that in these non-criminal proceedings proof to the civil standard, that is on the balance of probabilities, is quite clearly according to law under section 2(8). That argument seems to me unassailable, and the majority says nothing to counter it.

The Lords have fallen into error here. Arguably what the majority held on this point is obiter, since it’s not strictly necessary to answer the question before the court; I’d like to think prosecutors would be bold enough to treat it as non-binding. Unfortunately I suspect the Revenue and Customs Prosecutions Office may feel unable to be so bold.

Less crucially, but also importantly, the majority held that section 2(8) must be interpreted, contrary to its own wording, as requiring proof beyond reasonable doubt – which it’s absolutely right they should consider doing under section 3 of the Human Rights Act if article 6 really required it – but without going through the proper section 3 reasoning, applying the principles laid down in the leading case, Ghaidan v Godin-Mendoza. I’m not saying their conclusion on interpretation would be wrong (if they were right on article 6), but I think it’s a pretty poor show that they failed entirely to address the key question whether the civil standard of proof might be a fundamental principle of the 1994 Act.

Not their Lordships’ best judgment.