CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 22668/93                     by R. C.                     against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 6 April 1994, the following members being present:             MM.   A. WEITZEL, President                C.L. ROZAKIS                F. ERMACORA                E. BUSUTTIL                A.S. GÖZÜBÜYÜK           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV             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 20 September 1993 by R. C. against the United Kingdom and registered on 23 September 1993 under file No. 22668/93;        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   a.    Particular circumstances of the case        The applicant is a British citizen born in 1937 and currently serving a term of imprisonment in HM Prison Downview. He is represented before the Commission by Mr. Paul Robinson, a solicitor practising in London and Mr. Ben Emmerson, a barrister practising in London.        The facts as submitted by the applicant may be summarised as follows.        The applicant was arrested on 11 January 1988. He was charged with drugs offences with eleven co-defendants. The charges related to an international operation spanning several years to smuggle herbal cannabis into the United Kingdom.   A total of 14 importations was attributed to the operation, commencing in July 1983 and continuing up until January 1988.        The applicant pleaded not guilty to a single count alleging a conspiracy fraudulently to evade the prohibition on the importation of cannabis contrary to section 1 of the Criminal Law Act 1977. The conspiracy was alleged to have occurred between 1 January 1983 and the 29 February 1988.        The trial took place between 13 September 1989 and 22 February 1990. The applicant was convicted of conspiracy on 22 February 1990. His case was then adjourned for a confiscation inquiry under the Drug Trafficking Offences Act 1986 (the 1986 Act).        On 28 September 1990, the judge proceeded to sentence the applicant. He took the view that the applicant had occupied a central position in the early part of the operation and had been involved in six of the importations the last of which took place on 14 November 1986. He sentenced the applicant to 13 years' imprisonment and pursuant to the 1986 Act, imposed a confiscation order of £856, 694 with a consecutive term of five years' imprisonment in default of payment.        The applicant's application for leave to appeal against sentence to a single judge of the Court of Appeal was refused. On 23 March 1993, his renewed application was rejected by the full Court of Appeal.     b.    Relevant domestic law and practice        Conspiracy offences        The offence of conspiracy is defined in section 1 of the Criminal Law Act 1977 as follows:        "...if a person agrees with any other person that a course      of conduct shall be pursued which, if the agreement is      carried out in accordance with their intention, either        (a) will necessarily amount to or involve the commission of      any offence or offences by one or more of the parties to      that agreement...        he is guilty of conspiracy to commit the offence or      offences in question."        Pursuant to established case-law, it is not necessary for the prosecution to prove that an accused is a party throughout the duration of an agreement. A conspiracy is deemed to continue so long as there are two or more parties to it, intending to carry it into effect. A conspirator may accordingly be convicted for his part in a conspiracy which has been continued by others after his withdrawal.        The Drug Trafficking Offences Act 1986        Section 1 of the 1986 Act 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..."        The Act received the royal assent on 8 July 1986.   Its provisions were brought into force by various orders of the Secretary of State.   With the exception of section 1(3) (which entered into force on 30 September 1986) section 1 entered into force on 12 January 1987.        Section 38(4) of the 1986 Act provides:        "References in this Act to offences include a reference to      offences committed   before the commencement of section 1 of      this Act;   but nothing in this Act imposes any duty or      confers any power on any court in or in connection with      proceedings against a person for a drug trafficking offence      instituted before the commencement of that section."        Imprisonment in default        After a confiscation order has been made, the Crown Court decides upon the period of imprisonment which the offender has to serve if he fails to pay. This will not be activated until after such time within which the Court has ordered the offender to pay. The maximum periods of imprisonment are set down in section 31 of the Powers of Criminal Courts Act 1973. The maximum period for an order between the sums of £ 250,000 and £ 1 million is 5 years.     COMPLAINTS        The applicant complains of the confiscation order and the term of imprisonment in default of payment. He alleges that this constitutes the retrospective application of a criminal penalty. The last importation in which the applicant was involved entered the United Kingdom on 14 November 1986. The relevant provisions of the Drug Trafficking Offences Act 1986 came into force on 12 January   1987. Consequently, the applicant submits that his rights under Article 7 para. 1 of the Convention have been violated since a heavier penalty has been imposed than the one which was applicable at the time when he committed his offence.     THE LAW        The applicant complains that the confiscation order with a sentence of imprisonment in default of payment constitutes the imposition of a retrospective criminal penalty in violation of Article 7 para. 1 (Art. 7-1) of the Convention.        Article 7 (Art. 7) of the Convention provides as relevant:        "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..."        The applicant submits that the acts in respect of which he was convicted - six importations of cannabis into the United Kingdom - had terminated by November 1986 whereas the statutory provision pursuant to which a confiscation order was imposed on him only came into force after that date, namely, on 12 January 1987.        The Commission notes however that, notwithstanding the specific acts in which the applicant participated, the offence in respect of which the applicant was charged and convicted was a conspiracy which existed between the dates of 1 January 1983 and 29 February 1988. The relevant provisions of the 1986 Act came into force during the subsistence of this conspiracy.          The Commission finds therefore that since the conspiracy was in existence at and after the date on which the legislation came into force, it cannot be said that a heavier penalty was imposed on the applicant than the one which was applicable at the time the criminal offence was committed.        It follows that the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   For these reasons, the Commission by a majority   DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (A. WEITZEL)