Saggar, Re Drug Trafficing Act 1994

This appeal raises the question whether alleged delay by Her Majesty’s Commissioners of Customs and Excise (the “Commissioners”) in seeking to reopen a defendant’s confiscation order, so as to increase the “amount which might be realised” under it, has caused a breach of article 6(1) of the European Convention of Human Rights and Fundamental Freedoms (the “Convention”); and if so, what the right remedy for such a breach might be.

The defendant in question is Sunil Saggar who was arrested in November 1993 in connection with the seizure of 600 kilos of cannabis. On 11 September 1995 he pleaded guilty to offences relating to the importation of drugs at the Crown Court at Plymouth. His sentence of 7 years imprisonment was subsequently reduced on appeal to 4 years. A confiscation order was made under the Drug Trafficking Offences Act 1986 (the “DTOA 1986”) in the sum £1,370. It was accepted that his sole realisable asset was the cash, in the amount of £1,371, which had been seized on his arrest. His proceeds from drug trafficking were assessed at £724,115.01. Since, however, it was accepted that the amount that might be realised was the smaller sum, the confiscation order was, as required by statute, made in that amount. Mr Saggar says that the £1,370 was a conventional sum agreed with the Commissioners, in circumstances where his means were arguably greater, to reflect the assistance which Mr Saggar rendered to them.

It is of course a standard feature of confiscation orders that the crown court is required to assess both the value of a defendant’s proceeds or “benefit” from (as here) drug trafficking, and the amount that he can realistically pay, which depends on an assessment of his realisable assets. Where the latter is less than the former, then the order only requires him to pay the lower amount. But he remains liable to be reassessed on his realisable assets, if the court can be persuaded to open up that issue at some later time, up to the amount of his benefit. The amount of benefit can also be reassessed.

On 13 September 1996 Mr Saggar was released from prison. He had in the meantime paid his confiscation order by means of the seized cash.

On 24 October 2003, over seven years after his release, Mr Saggar found himself in peril again when the Commissioners launched an application in the high court under section 16 of the Drug Trafficking Act 1994 (the “DTA 1994”, which had in the meantime replaced the DTOA 1986) for a certificate that the amount that might be realised from him was greater than the amount which was taken into account in making the confiscation order (the “application”).

On 17 November 2003 Crane J directed that a preliminary issue should be tried in the application, namely “the propriety and/or legality of this matter continuing”. This was because Mr Saggar had raised three matters why the application should be stayed: (i) “retrospectivity”, viz an argument that the DTA 1994 could not apply to a confiscation order made under the earlier DTOA 1986; (ii) “delay”, an argument that the application was a violation of the reasonable time guarantee contained in article 6(1) of the Convention and was thus unlawful pursuant to section 6 of the Human Rights Act 1998 (the “HRA 1998”); and (iii) “abuse of process”, an argument that Mr Saggar was given assurances that a confiscation order would not be pursued. After an exchange of evidence, the retrospectivity argument was dropped, and the abuse of process argument was left over for consideration, if necessary, before the crown court to which the matter would be remitted if the high court granted a section 16 certificate. Mr Saggar recognised that the abuse of process argument would involve a potentially lengthy investigation of the conflicting accounts of his dealings with the Commissioners. That left only the delay argument, on which Mr Saggar rested his case of opposition to the Commissioners’ application. It was accepted that, if Mr Saggar failed on delay, either in law or on the facts, then the high court must issue a certificate.

On 14 May 2004 Owen J determined that application in favour of the Commissioners by granting a section 16 certificate. He held that article 6(1) applies to the making of an original confiscation order, but not to the grant of a certificate under section 16. This was in his view because the terms of the DTA 1994 made it clear that there was to be no limit on the time within which an application to certify an increase in the amount of realisable property was to be brought. In any event, he found that the Commissioners had not delayed unreasonably in bringing their application. Mr Saggar appeals from both limbs of that decision.

If the argument in this court had taken a different course, it might have been necessary to set out the factual background in greater detail. As it is, it will suffice to present it as follows.

Evidence filed by the Commissioners revealed that in 1997 they had undertaken a study into the potential for reassessment of amounts which courts had ordered to be paid under confiscation orders. This was in response to an expression of concern by the National Audit Office about the difference between the assessments of benefit obtained by those involved in drug trafficking and the amount actually recovered from them under confiscation orders. In November 1997 the Commissioners determined that there was potential merit in reviewing cases, but there remained the difficulty of identifying those cases offering the best prospects of enhanced recovery.

About a year later, in late 1998, the Commissioners sought to develop a methodology for identifying candidates for “revisiting”. By February 1999 the Commissioners had drawn up a list of prospective candidates for revisiting, and Mr Saggar’s name was on that list. It was then thought that he had assets in the order of £29,000. However, soon thereafter the project was sidelined due to competing demands.

During this period, in October 1999, Mr Saggar was arrested along with others and charged with further drug trafficking offences. A restraint order over his assets was obtained by the Crown Prosecution Service (“CPS”). In the evidence led on behalf of the CPS for the purpose of obtaining the restraint order, a financial analyst employed by the National Crime Squad, Ms Gillian Barnett, gave details about Mr Saggar’s assets which included a home in Beckenham, Kent, which had been bought in October 1997 for £250,000 with the help of a £125,000 mortgage and had been advertised for sale in January 1999 at £575,000, thus indicating a potential equity of £450,000. Her witness statement went on to refer to the September 1995 confiscation order, in connection with which she commented: “I understand that HM Customs & Excise have no intention of proceeding further on this matter at this time.” In a subsequent witness statement dated 13 February 2004, made for the purpose of the application in these proceedings, Ms Barnett explained further that her comment had arisen out of a conversation she had had in October 1999 with a representative of the Commissioners who had understood that Mr Saggar was to be prosecuted by the CPS on those new charges. She continued:

“It is my belief it was considered that if HM Customs & Excise were actively seeking to collect against the existing Order then an application to restrain assets by the Police would not have been viable. It is my belief that my intention when referring to the existing Order not being proceeded with related only to that time and was not intended to be read as a permanent intention not to proceed.”

However, any prospect of a new confiscation order being made as a result of Mr Saggar being convicted in the new proceedings which had been brought against him ended in September 2000, when those proceedings were stayed as an abuse of process. The restraint order was thereupon discharged, and a defendant’s costs order was made in favour of Mr Saggar. On 21 May 2001 that order led to the payment to Mr Saggar of some £231,000 from central funds.

In October 2001, the exercise of identifying potential targets for further recovery under existing confiscation orders was resurrected by the Commissioners. Following further research, Mr Saggar was again identified (in December 2001) as a prospect for revisiting and in May 2002 investigation of his case was allocated to Mr Neil Ryan, a law enforcement officer with the Commissioners, who uncovered various property transactions including in particular the purchase in March 2003 of a home in Bromley, Kent, for £718,000 (plus stamp duty and legal fees), which became registered in the names of Mr Saggar and his wife (or partner), Suzanne. Mr Ryan’s investigations led to the launching on 24 October 2003 of the section 16 application which is the subject matter of these proceedings. Mr Ryan’s then evidence stated his belief that the equity in the Bromley home as of October 2003 was some £279,000, that it belonged entirely to Mr Saggar, and that in total the amount of Mr Saggar’s assets now identified was some £735,000. The section 16 application had been preceded by an application for a restraint order which McCombe J had granted ex parte on 1 July 2003.

Section 2 of the DTA 1994 provides for the making of a confiscation order as part of the sentencing of a person convicted of a drug trafficking offence. The crown court has to determine whether a defendant has benefited from drug trafficking (section 2(2)). Section 4 makes provision for assessing the proceeds of drug trafficking. Section 5 then provides that the amount to be recovered under a confiscation order is to be either the amount that the court assesses to be the value of the defendant’s drug trafficking proceeds or, if it is less, the amount that might be realised at the time of making the order. Section 9 requires the court to fix a term of imprisonment to be served in default of payment of the amount to be paid under the order. Where a defendant serves such a term of imprisonment in default of payment, the sum due under the order remains due and can still be enforced (section 9(5)), with interest (section 10).

There follow a number of sections which are concerned with reassessing the situation in the light of new evidence or changed conditions. Where the court has not proceeded under section 2, the prosecutor can nevertheless ask the crown court to do so if new evidence satisfies the court that it is appropriate (section 13(3)), but only if application is made within six years from the date of conviction (section 13(10)). Similarly, if the court has proceeded under section 2 but found the defendant had not benefited from drug trafficking, it can revisit that question if asked by the prosecutor to do so on the basis of new evidence, again within a limitation period of six years from the date of conviction (section 14(7)). If the court had originally assessed a figure as the benefit of drug trafficking, but the prosecutor is of the opinion that the real value of the defendant’s proceeds was greater than their assessed value, he can apply to reopen the assessment, but again a limitation period of six years from the date of conviction applies (section 15(15)).

Section 16, which is the section under which the Commissioners have proceeded against Mr Saggar, applies where the prosecutor seeks to obtain a reassessment of the amount which may be realised under an existing confiscation order. In this case, the prosecutor’s application must in the first place be made to the high court for a certificate that that court is satisfied that –

“the amount that might be realised in the case of the person in question is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased)…” (section 16(2)).

If the high court is so satisfied, then it must (“shall”) issue a certificate to that effect, giving its reasons (ibid). Armed with such a certificate, the prosecutor can then apply to the crown court for an increase in the amount that may be recovered under the confiscation order: and the crown court can (“may”) substitute an amount (up to the assessed value of the proceeds of drug trafficking) “as appears to the court to be appropriate having regard to the amount now shown to be realisable”, and, if it does so, can increase the period of imprisonment to be served in default (section 16(4)). In the case of section 16, however, there is no express limitation period for the making of the prosecutor’s application in either court. Nevertheless, section 25, which regulates the obtaining of a restraint order over the defendant’s assets in such circumstances (ie where proceedings for a drug trafficking offence have been instituted or an application under sections 13/16 has been made), provides by subsection (1)(a) that the court “shall not” exercise its restraint powers (found in sections 26/27) if it is satisfied –

“that there has been undue delay in continuing the proceedings or application in question”.

Section 41, the interpretation section, provides by subsection (3) that “Proceedings for a drug trafficking offence are concluded…(c) if a confiscation order is made against him in those proceedings, when the order is satisfied”. And subsection (6) states that a confiscation is satisfied “when no amount is due under it”. On this basis, it might be said that the original proceedings had been completed at latest in September 1995 when the confiscation order in the amount of £1,370 had been paid by means of the money seized at the time of Mr Saggar’s arrest. This gave rise to a submission on the part of the Commissioners that their section 16 application were new proceedings, whose progress in terms of unreasonable delay could only be judged from the time the application was first made, viz in October 2003. In other words the period from September 1995 until October 2003 simply fell out of account.

In response, on behalf of Mr Saggar, Mr Tim Owen QC might perhaps have submitted that in that case it was not open under the statute to commence section 16 proceedings at a time when the original proceedings had been concluded. However, he expressly stated that he did not so submit, since he accepted that the power to increase the amount which a person is ordered to pay could even so be reopened under section 16. The corollary, however, as he submitted, was that delay had to be judged throughout the whole period in question from the 1993 arrest onwards.

The DTA 1994 has now been superseded by the Proceeds of Crime Act 2002, but that does not apply to the current proceedings.

The parties’ submissions can be briefly outlined. On behalf of Mr Saggar, Mr Owen submits that the relevant proceedings are those which commenced with Mr Saggar’s 1993 arrest; that the delay over the intervening years has been unreasonable; that article 6(1) of the Convention is engaged throughout that period and remains engaged in the course of the section 16 application, despite the absence of any period of limitation applied by the statute to such an application; that the unreasonable delay constitutes a breach of article 6(1); and that the only proper remedy for that breach is to quash the section 16 certificate which he accepts is otherwise mandatory.

On behalf of the Commissioners on the other hand, Mr Collingwood Thompson QC submits that the section 16 application is an autonomous set of proceedings and that the preceding period therefore falls out of account; that even if that period were to be taken into account there has been no unreasonable delay; and that even if there has been some element of unreasonable delay, the proper remedy is not to quash a certificate, but to take the delay into account in the final assessment in the crown court as to how much, if any, should be added (within the limit set by the previously assessed amount of Mr Saggar’s proceeds from drug trafficking) to the amount which might be realised and is thus to be paid under the revisited confiscation order.

As for the dispute about delay, Mr Owen has submitted that the timetable which I have indicated above is clearly unreasonable. Up to November 1997 the Commissioners had done nothing. By February 1999, when the revisiting exercise was sidelined, they had still not resolved on any action regarding Mr Saggar, even though the exercise had identified him as a potential target. Between February 1999 and October 2001 the reason offered by the Commissioners for the pause in the exercise was that resources were diverted elsewhere, but that could not amount to a legitimate reason (cf R (Noorkoiv) v. Secretary of State for the Home Department [2002] EWCA Civ 770, [2002] 1 WLR 3284). In any event, in October 1999 the Commissioners had told Ms Barnett of the National Crime Squad that they had no intention of proceeding further with the confiscation order against Mr Saggar, and there had been no adequate explanation for any departure from that intention. That was a key date because, by then, as Ms Barnett’s evidence indicated, equity in the Beckenham home of some £450,000 had been identified. Finally, once the revisiting exercise had been put back on foot in October 2001, there was no reasonable explanation for the further period of delay from then until October 2003, when the section 16 application was finally made. The only reason for delay throughout had been either the absence of resources or the preference of other priorities. It was unfair of the state to proceed against Mr Saggar in the light of its conduct (eg in relation to the aborted 1999 proceedings) over the years, even in the absence of any evidence of prejudice.

Mr Thompson, however, submitted that there had been no unreasonable delay. The investigations had been difficult and complex. The judge had been right to find that the Commissioners’ submissions on this issue before him had been well founded. Thus as at February 1999 the only information available to the Commissioners was that there was a potential £29,000 available: but it was debateable whether section 16 proceedings would have been warranted then in comparison with the remaining potential liability of over £700,000, and, even if an application had then been made, it would have remained necessary for further applications to be made as and when further property came to the attention of the Commissioners. A decision to proceed only at the point when a substantial further recovery became available could not be described as unreasonable. The Commissioners’ position in October 1999 had only addressed the situation where Mr Saggar was facing new drug trafficking charges and was therefore in peril of a new confiscation order: it was not intended and could not have been understood as a statement for all time and circumstances. There was no evidence that the Commissioners were informed about the precise nature of the National Crime Squad’s information about Mr Saggar’s assets at that time. Mr Ryan only became aware of assets beyond the £29,000 in 2002. The question of unreasonableness and of any remedy for unfairness could not in any event be divorced from the question of whether Mr Saggar had suffered any prejudice. It was wrong to seek to stop the certification stage when all these issues could only properly be addressed in the crown court: for that was in effect to seek to say that the certification application was an abuse, whereas that question had been by agreement left over for the crown court.

In In re Barretto [1994] QB 392 Sir Thomas Bingham MR in this court pointed out (at 399) that –

“While it is true that a confiscation order is made before sentence is passed for the substantive offence, and the term of imprisonment in default is passed to secure compliance and not by way of punishment, these are in a broad sense penal provisions, inflicting the vengeance of society on those who have transgressed in this field.”

The question there was whether section 16 of the Criminal Justice (International Co-operation) Act 1990, which was the forerunner and origin of section 16 of the DTA 1994, could apply retrospectively to a confiscation order which had been made before the 1990 Act had come into force. It was held that it could not, because it would interfere with settled rights and could also lead to a lengthened term of imprisonment in default.

The 1990 Act was itself enacted to give effect in English law to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (adopted in Vienna on 19 December 1988, the “Vienna Convention”). Sir Thomas Bingham MR said of this Convention (at 397):

“There can be no doubt that this Convention reflected the determination of the many signatory states to stamp out the international drug trade and strip drug traffickers of their ill-gotten gains.”

Article 5 of the Vienna Convention provided that –

“1.

Each Party shall adopt such measures as may be necessary to enable confiscation of:

(a)

Proceeds derived from offences established in accordance with article 3, paragraph 1, or property the value of which corresponds to that of such proceeds…

2.

Each Party shall also adopt such measures as may be necessary to enable its competent authorities to identify, trace, and freeze or seize proceeds, property, instrumentalities or any other things referred to in paragraph 1 of this article, for the purpose of eventual confiscation.”

R v. Tivnan [1999] 1 Cr App R (S) 92 concerned an application under section 16 of the 1990 Act, made after the defendant had served his default sentence, in respect of assets acquired after his conviction. It was submitted that the section did not apply to after-acquired assets, but the court disagreed. Rose LJ said (at 96/97):

“In our judgment, in relation to the question of statutory construction, the confiscation legislation relating to drug dealing, as it is now principally enshrined in the Drug Trafficking Act 1994, is, as has been repeatedly said previously by the courts, draconian. It is intended to strip those who deal in drugs of any possible profit from so doing, by depriving them of their realisable assets, whether or not these are the proceeds of drug trafficking, up to the amount by which they have benefited from drug dealing…It is to be noted, first, that [section 16] contains no words of limitation as to time. Secondly, it is expressed throughout in the present tense, by reference to the time of application for the further certificate and increased confiscation order. Fourthly, there is in the section no reference to the reason (whether culpable concealment, subsequent acquisition, or otherwise), why, “the amount that might be realised…is greater than the amount taken into account in making the confiscation order”.”

In Phillips v. United Kingdom (2001) 11 BHRC 280, [2001] Crim L R 817 the European Court of Human Rights (ECtHR) held that article 6(1) applied to confiscation proceedings under the DTA 1994, but that the relevant provisions there under review were in compliance with the Convention. No question of reasonable time was in issue. The ECtHR said (at para 32) that an application for a confiscation order –

“does not involve any new charge or offence in terms of national law. As the Lord Chief Justice observed in R v Benjafield (2000) BHRC 19 at 36 (para 25, above): ‘In English domestic law, confiscation orders are part of the sentencing process which follow upon the conviction of the defendant of the criminal offences with which he is charged.’

It added (at para 39):

“Article 6(1) applies throughout the entirety of the proceedings for ‘the determination of…any criminal charge’, including proceedings whereby a sentence is fixed (see, for a recent example, Findlay v UK [1997] ECHR 22107/93 at para 69). The court recalls its finding above (see para 32, above). It follows, therefore, that art 6(1) applies to the proceedings in question.”

In R (Lloyd) v. Bow Street Magistrates’ Court [2003] EWHC 2294 (Admin), [2004] 1 Cr App R 11 a defendant subject to a confiscation order which had been made in 1996 had paid part of it by 1997 when enforcement proceedings against him were commenced. A series of delays then occurred stretching into 2002. The defendant asked for a stay on the ground of breach of the reasonable time ingredient in article 6(1). It was held that a breach had been established and that the remedy was to say that committal to prison in default was no longer available. Dyson LJ said that (at para 25):

“It is potentially very unfair on a defendant that he should be liable to be committed to prison for non-payment of sums due under a confiscation order many years after the time for payment has expired, and long after he has been released from custody and resumed work and family life.”

That case, however, did not involve a reopening of a confiscation order, as distinct from its enforcement. A case on similar facts has recently been decided in the EctHR: see Crowther v United Kingdom (Application No 53741/00) (The Times, 11 February 2005), where, again, the delay was in enforcement. No award was claimed or made by way of remedy.

Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 WLR 1 concerned the reasonable time ingredient under article 6(1). The House of Lords considered what remedies a breach of the reasonable time requirement might entail, and in particular whether it demanded a stay or quashing of a conviction. The issue was encapsulated as follows by Lord Nicholls of Birkenhead (at para 36):

“In other words, does the breach lie in the holding of a trial after the lapse of a reasonable time? or does it lie solely in the state’s failure to hold the trial within a reasonable time?”

Lord Nicholls answered:

“39.

In my view the second interpretation of article 6(1) is preferable. It provides a better match with the underlying object of the reasonable time guarantee. The object of this guarantee is to provide protection against the adverse consequences of unreasonable pre-trial delay. While proceedings are pending there is bound to be suspense and uncertainty for parties. This cannot be avoided, even though suspense and uncertainty bring with them deleterious consequences for those concerned and their families. The reasonable time guarantee is aimed at protecting citizens against this undesirable, if inevitable, feature of court proceedings by confining the period during which it exists to a reasonable one…

41.

Of course if the pre-trial delay became so protracted that a fair trial could no longer be held, then the holding of the trial itself would on that ground be a breach of article 6. But that is a different case.”

Lord Bingham of Cornhill said (at para 25):

“The category of cases in which it may be unfair to try a defendant of course includes a case of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor’s breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant’s Convention rights.”

It has become common ground, if it was ever in issue, that the confiscation proceedings, being part of the sentencing process, are covered by the reasonable time requirements of article 6(1) of the Convention. The issue between the parties is whether time for relevant purposes began to run from the outset (there being no need in this case for finer distinctions as to exactly when such a starting-point is to be identified), or whether it only began in the second half of 2003 with the section 16 proceedings themselves (and again, for these purposes, it is not necessary to decide whether it is the July application for a restraint order in anticipation of a section 16 application or whether it is the October 2003 section 16 application itself which constitutes that starting-point).

In these circumstances there has been no debate between the parties as to whether the HRA 1998 applies at all. Both parties accept that, in principle, it does. Mr Thompson presumably does so at least on the basis that, on his case, the section 16 proceedings are autonomous new proceedings. Plainly therefore they fall to that extent within the regime of the HRA 1998. Mr Owen presumably has no interest in contending otherwise. Mr Thompson, however, has not contended that, if he is wrong in his analysis of the situation, and the proceedings are a continuation of the original confiscation proceedings, then the HRA 1998 does not apply retrospectively: cf R v. Lambert [2001] UKHL 37, [2002] 2 AC 545, R v. Kansal (No 2) [2001] UKHL 62, [2002] 2 AC 69. We therefore assume that the HRA 1998 applies to this case whichever analysis is correct.

In the present case, unlike Lloyd, the original confiscation order had been paid in full, so that, as Mr Thompson submitted, the original proceedings had been concluded. To fully understand this submission it is necessary to set out subsections (3) to (6) of section 41 in full:

“(3)

Proceedings for a drug trafficking offence are concluded –

(a)

when the defendant is acquitted on all counts;

(b)

of he is convicted on one or more counts, but the court decides not to make a confiscation order against him, when it makes that decision; or

(c)

if a confiscation order is made against him in those proceedings, when the order is satisfied.

(4)

An application under section 13, 14 or 19 of this Act is concluded –

(a)

if the court decides not to make a confiscation order against the defendant, when it makes that decision;

(b)

if a confiscation order is made against him as a result of that application, when the order is satisfied.

(5)

An application under section 15 or 16 of this Act is concluded –

(a)

if the court decides not to vary the confiscation order in question, when it makes that decision; or

(b)

if the court varies the confiscation order as a result of the application, when the order is satisfied.

(6)

A confiscation order is satisfied when no amount is due under it.”

In my judgment, Mr Thompson is correct to submit that, on the true construction of these provisions of the DTA 1994, the original proceedings were concluded when the 1996 confiscation order was satisfied, viz when the sum due under it had been paid in full. It is clear that “proceedings for a drug trafficking offence” and applications under section 13, 14, 15, or 16 are separate proceedings, although they may overlap where a confiscation order is made and has not yet been satisfied at a time when a subsequent application is made. Thus applications under sections 13, 14 and 15 have their own limitation period (starting from the date of conviction) which limits the time for their initiation and they have their own conclusions, as also defined. Section 16 does not have any limitation period, but it is not disputed that an application under it may be initiated after an existing confiscation order has been satisfied, thus concluding the drug trafficking proceedings. Where despite conviction the court decides to make no confiscation order (section 41(3)(b)), the “proceedings for a drug trafficking offence” will have been concluded, even though there may well be a subsequent application under section 13 (“Reconsideration of case where the court has not proceeded under section 2”) or section 14 (“Re-assessment of whether defendant has benefited from drug trafficking”). Similarly, as it seems to me, where a confiscation order has been made but satisfied, the “proceedings for a drug trafficking offence” will have been concluded (section 41(3)(c) and (6)), even though there is still power to re-open the confiscation order either under section 15 (“Revised assessment of proceeds of drug trafficking”) or section 16 (“Increase in realisable property”).

However, that does not necessarily mean that these provisions of the domestic statute are determinative of the article 6(1) issue. The question for these purposes is still whether the defendant to a criminal charge has received a fair and public hearing within a reasonable time. It is well established that these requirements encompass both the sentencing and the appeal processes which follow a conviction. In my judgment, where the state grants to itself the right to reopen the issue of confiscation, a fortiori to reopen the issues of the amount of benefit or the amount that might be realised where a confiscation order has been made, then the reasonable time requirement extends throughout the period in question. In this context the case of a reopening under section 16 seems to me to be especially cogent. After all, in the light of the statutory provisions as a whole, the fixing of the amount of benefit is a signpost that the defendant will, without any express period of limitation, remain liable to have the amount which he is required to pay reassessed and increased, should hidden assets be discovered or after-acquired property come to light. If it were otherwise and time only began to run from the moment when the application to reassess a defendant’s realisable property was initiated, the state could delay unreasonably and unfairly in bringing its section 16 application, even where a defendant had, acting entirely openly, made a new and honest life for himself and acquired new assets in doing so.

Moreover, it is not as though an entirely new confiscation order is made where there has been an increase under section 16 in the amount which might be realised. What appears to happen is that the new figure is substituted in the original confiscation order: see the language of section 16(4).

That is, of course, to say nothing about how the facts of any particular case will work out in practice. Where a defendant has, at the time of his original confiscation proceedings, managed to hide the extent of his benefit or the extent of his wealth and has achieved continued success in retaining secrecy over his affairs, he should not be able to complain successfully if the state has only discovered the truth after some considerable time. Even so, under the domestic statute, the state will be barred from further application under sections 13(10), 14(7) and 15(15) after six years from the date of conviction. If, on the other hand, the state sits on its hands after significant and clear evidence about the defendant’s means or realisable property comes to its attention, it should not be able to avoid criticism of unreasonable and unfair delay merely by the expedient of an argument that everything which preceded its new application is irrelevant for the purposes of the new proceedings. Even though the original proceedings may have been concluded with the payment of the sum due under the original confiscation order, that order still stands under the legislation as the basis for a new reassessment of realisable property.

What then is the significance of the fact that section 16, unlike the other sections, contains no six year or any other limitation period built into it? The judge thought that this was crucial: but in my judgment all that it signifies is that, other things being equal, a defendant’s realisable means to disgorge the proceeds of his crimes will always be relevant to the extent that they fall within the band of those proceeds. That still leaves open the question of whether the state has moved without unreasonable delay in reopening the issue of his means to disgorge his proceeds of crime. That this is so is itself reflected in the provisions of section 25(2)(a), whereby the high court is told not to grant a restraint order (“shall not”) if it is satisfied that there has been undue delay in making the application in question. Thus, whereas the Commissioners in their submissions have emphasised the contrast between the limitation provisions of sections 13, 14 and 15 and the absence of any similar provision in section 16, the existence of section 25(2)(a) which operates whenever a restraint order is sought seems to me to underline the concept that, whether within any limitation period or not, the state cannot act unreasonably or unfairly in sitting on its hands.

In my judgment it is neither necessary nor possible to answer this question at this preliminary stage. It is not necessary because, were a certificate to be granted by the high court, which is the burden of the current application, the crown court would subsequently be fully able to take the reasonable time ingredient into account at the section 16(4) stage, when that court has a discretion to substitute an increased figure “as appears to the court to be appropriate” in the light of all the circumstances then prevailing. That discretion may be contrasted with the very limited power of the high court when it is asked to give a certificate under section 16(2): it “shall issue” a certificate to the required effect if it is satisfied that the amount that might be realised is greater than the amount taken into account in making the original confiscation order. It is clear that this preliminary stage is intended to be confined in its scope. Mr Owen accepts that his submissions could be taken into account by the crown court, but he says that in a case like this, matters can, and should, be stopped here and now.

However, it is in any event not possible to accede to Mr Owen’s submissions at this stage. This is because it has been agreed by the parties that the issue of abuse is to be reserved to the crown court stage, should that be reached. In my judgment, however, it is not possible to resolve the delay issue currently under consideration divorced from the issue of abuse. This is for two intertwined reasons. First, Mr Owen’s submissions have touched upon issues of abuse, for instance the significance, if any, of the fact that Ms Barnett was told by a representative of the Commissioners in October 1999 that they had no intention of proceeding further with the matter of confiscation at that time. But Mr Owen has not fully opened his case on abuse in the way in which he would if the issues had not been separated. Secondly, on the question of remedy, Attorney General’s Reference (No 2 of 2001) demonstrates that a remedy for breach of the reasonable time requirement must be tailored to the circumstances, and that it is only in a case of abuse of process or something akin to it, where it can be said that it would be unfair to proceed against a defendant, that the remedy need extend to quashing proceedings. In these circumstances, it is neither possible to get fully to grips with all the ramifications of an argument on reasonable time, nor to consider what the right remedy might be in the case of breach, divorced from the issue of abuse. In the crown court, however, all such considerations can be fully taken into account.

For these reasons, I would hold, in respectful disagreement with the judge, that the reasonable time requirement of article 6(1) is engaged by an application under section 16 of the DTA 1994, and that for these purposes the period of time which must be considered is the whole period of these drug trafficking offence proceedings and not only the time from the institution of the section 16 application in 2003. However, I would also hold that the question of whether there has been any breach of the reasonable time requirement cannot be considered at a time and in a manner divorced from any argument on abuse of process and consequential submissions as to an appropriate remedy. At that stage the merits of the arguments can be considered as a whole from the point of view of two possibly but not necessarily conflicting public interests: the public interest in making drug traffickers disgorge the full proceeds of their crimes, as expressed in the Vienna Convention, domestic statute and Tivnan on the one hand, and the public interest expressed by article 6(1) on the other hand.

It follows that, albeit for reasons different from those of the judge below, the section 16 certificate must be issued, so that all such matters can in due course be debated in the crown court. However, the judge’s obiter conclusion that there was no breach of article 6(1) in any event is superseded by this judgment.

I agree.

I also agree.