CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 juillet 2025

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display:inline-block } .sE208486F { font-family:Arial; color:#ff0000 } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s4F597665 { width:33.22pt; display:inline-block } .sEEEC397 { width:146.09pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }     SECOND SECTION DECISION Application no. 54241/12 Darren John BAGNALL against the United Kingdom   The European Court of Human Rights (Second Section), sitting on 8   July   2025 as a Chamber composed of:   Arnfinn Bårdsen, President ,   Saadet Yüksel,   Tim Eicke,   Péter Paczolay,   Oddný Mjöll Arnardóttir,   Gediminas Sagatys,   Juha Lavapuro, judges , and Hasan Bakirci, Section Registrar, Having regard to the above application lodged on 8 August 2012, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Darren John Bagnall, is a British national who was born in 1966. He was represented before the Court by Mr S. Ali of Judge   and Partners Solicitors, a firm based in Manchester, and by Mr   J.   Pickup KC and Mr S. Gurney, counsel. 2.     The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Wickremasinghe of the then Foreign and Commonwealth Office. 3.     The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s arrest, trial and conviction 4 .     On 21 November 2005 the applicant was arrested on suspicion of money laundering by officers of Her Majesty’s Revenue and Customs (“HMRC”). 5 .     Upon his arrest HMRC seized a number of documents from his hotel room. One of these documents – later to be known as CL/02 – detailed fifty ‑ two deal chains that the applicant had put together through various companies he owned and through which he had traded in mobile phones and computer processing units. 6 .     The applicant was charged with entering into or being concerned in an arrangement involving criminal property (“money laundering”) contrary to section 328 of the Proceeds of Crime Act 2002 (“POCA”). HMRC also considered prosecuting him for VAT fraud on the basis of the information contained in CL/02. However, on 14 July 2006 HMRC decided not to prosecute him for VAT fraud at that stage as it was not considered to be in the public interest, or a good use of limited resources, to delay proceedings for up to two years to conduct further investigations. 7 .     The trial commenced on 24 January 2007 and on 6 February 2007 a jury convicted the applicant of the section 328 offence. On 2   March 2007 he was sentenced to fifteen months’ imprisonment. 8.     CL/02 was not served in evidence at the trial nor did it form part of the prosecution’s case. The confiscation proceedings 9 .     Section 6 of POCA gave the Crown Court the power to make a confiscation order where a defendant was convicted of an offence or offences in proceedings before it. The court was required to determine whether the defendant had a criminal lifestyle, if he had benefited from his criminal conduct and, if he had, the amount to be recovered (see paragraph   46 below). 10.     If the court decided that a defendant had a criminal lifestyle, section   10 of POCA required it to make certain assumptions (“the statutory assumptions” – see paragraph 49 below) for the purpose of deciding whether he had benefited from his general criminal conduct unless those assumptions were shown to be incorrect or there would be a serious risk of injustice if they were made. In short, if a defendant was found to have a criminal lifestyle the court had to assume that any property transferred to him at any time after the relevant day was obtained as a result of his general criminal conduct; that any property held by the defendant at any time after the date of conviction was obtained by him as a result of his general criminal conduct; that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct; and that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it. The “relevant day” was normally the day six years before proceedings were started against the defendant (section 10(8) of POCA – see paragraph   50 below). Thus, any property transferred to the defendant at any time in the six   years before the criminal proceedings started would be assumed to have been obtained by him as a result of his general criminal conduct. 11 .     Confiscation proceedings were commenced against the applicant following his conviction. When ordered to serve a statement in those proceedings (pursuant to section 18 of POCA – see paragraph 54 below), the applicant contended that he had been conducting a legitimate trade in the wholesale distribution of mobile telephones and computer processing units throughout the relevant period. This was disputed by the prosecution. 12 .     On 12 July 2007 the prosecution served a statement pursuant to section 16 of POCA (see paragraph 52 below) in which it estimated that during the six years prior to conviction the applicant’s benefit from his general criminal conduct had been in excess of 50.9 million British pounds (“GBP”). This calculation was based on the money which had passed through the applicant’s personal bank accounts, which the prosecution suspected related in whole or in part to his criminal conduct, particularly VAT fraud and drug trafficking. 13 .     During the rest of 2007 there were further exchanges of statements, as well as further consideration of whether the applicant should be prosecuted for VAT fraud. However, the view was taken that, bearing in mind the fact that the applicant was likely to receive a custodial sentence in respect of the money laundering offence, it was not worth spending resources on a criminal prosecution for VAT fraud when his benefit could in any event be recovered by way of confiscation proceedings. 14 .     A further prosecution statement served on 17 December 2007 lowered the applicant’s alleged benefit to in excess of GBP 43.3 million. This figure was based on the transfers into the accounts of the applicant and his wife and transfers which could be traced to the applicant’s companies. HMRC alleged that the applicant had used the companies as vehicles for substantial and persistent orchestrated fraud. 15.     The applicant served three defence statements responding to the prosecution’s statements. 16 .     On 4 February 2008 the prosecution served a “position statement” which said: “In order to avoid any risk of ‘double jeopardy’ or any valid assertion thereof... a policy decision has been taken that this applicant will not face any prosecution for criminal conduct in respect of the apparent [VAT] frauds to which these proceedings now refer. However, this undertaking will not preclude the Crown from naming the applicant as a potential co-conspirator or accomplice in the event of criminal proceedings being instituted against those who are or may be identified as participating with him in the conduct that is asserted to amount to the fraudulent conduct that is now identified in these proceedings.” 17 .     The applicant sought to stay the proceedings on the basis that they were an abuse of process and/or incompatible with his Convention rights. He contended that the application of the various statutory assumptions set out in section 10 of POCA (see paragraph 49 below) would violate his rights under Article 6 §§ 1 and   2 of the Convention. In particular, he argued that the prosecution’s section   16 statements (see paragraphs 12 and 14 above) constituted a “criminal charge” with the offence of VAT fraud, in the autonomous meaning given to that term in the Convention. That being so, the application of the statutory assumptions would be incompatible with the presumption of innocence. Instead, there should be a burden upon the prosecution to prove to the criminal standard that he had committed this criminal offence. He also argued that to proceed with the VAT fraud allegations in the context of the confiscation proceedings, rather than by way of a prosecution, was an abuse of process. 18 .     A hearing began on 16 July 2008 to deal with these issues and the trial judge gave his ruling on 30 July 2008. He observed that the section 16 statement (see paragraphs 12 and 14 above) was designed to assist the court in assessing the extent to which a defendant had benefited from criminal conduct, and the person making the statement was obliged to provide such information which he believed to be relevant to the court’s determination of any of the confiscation issues – that is, whether the defendant had a criminal lifestyle, whether he had benefitted from his general criminal conduct and what that benefit was. According to the judge: “There are many cases in which the prosecutor does not know whether the defendant has committed other offences which have provided his assets but may have information which may assist the court in determining whether the defendant’s contention that he has acquired them honestly or not is true. There may be cases in which more positive information is available to the prosecutor to contend that the defendant’s claim of an honest origin is untrue. Is it to be suggested that if a prosecutor has information which strongly undermines the defendant’s contention that he has acquired the property honestly, he should not disclose it to the court or if he does so, the court must regard it as making a new charge within the autonomous meaning?” 19 .     For the judge, if the use of evidence of criminal offending in determining the source of a defendant’s assets were to amount to the making of a “new charge” it would severely restrict the scope of the confiscation proceedings in many cases. In the present case, although the terms of the section 16 statements (see paragraphs 12 and 14 above) made it clear that the prosecution believed the defendant had been involved in VAT fraud, the judge did not consider this to be “an official notification” of an allegation that he had committed a criminal offence. It was clearly set out in the context of confiscation proceedings and there was nothing to suggest that the applicant would be prosecuted. The judge therefore rejected the contention that it amounted to a new “charge” which attracted the protection of Article 6 § 2 of the Convention. 20 .     Having rejected the argument that the section 16 statements constituted a new charge, the judge found that it would not be in breach of the Convention to apply the statutory assumptions (see paragraph 49 below). Regarding the claim that the proceedings were an abuse of process, he considered it to be a matter for the prosecuting authority to decide if it wished to prosecute. That choice was afforded by law and it was impossible to criticize the authorities for choosing a course provided to them. 21 .     In a further ruling the judge rejected the applicant’s submission regarding the appropriate standard of proof. The judge accepted that where there was an allegation of criminal behaviour the standard of proof was the criminal one of beyond reasonable doubt. However, in confiscation proceedings the court was not dealing with such an allegation but instead was investigating the provenance of property. If that involved by implication such allegations, the approach in R. v. Benjafield [2002] UKHL   2 (see paragraphs   57 and 58 below) and Phillips v. the United Kingdom (no.   41087/98, ECHR   2001   VII) was correct and the lower, civil standard of proof of the balance of probabilities applied. 22 .     During the remainder of 2008 the parties served further statements in respect of the assessment of benefit. 23 .     A hearing took place on 20 February 2009 to determine whether the applicant had benefitted from criminal conduct. The trial judge’s full written ruling was handed down on 14 August 2009. In that ruling he examined each of the applicant’s companies in turn. He found that the applicant had rebutted the statutory assumptions in section 10 of POCA (see paragraph 49 below) in respect of transfers of property related to two of those companies. However, in respect of property obtained by the applicant which was derived from two further companies the judge found that he had not displaced the assumptions because he was satisfied that the transactions set out in document CL/02 (see paragraph 5 above) were not genuine business transactions. 24 .     On 2 September 2009 the applicant served documents and evidence as to his realisable assets. 25 .     On 15 September 2009 the prosecution served their fourth statement, with a revised alleged benefit figure of approximately GBP 2.8 million. 26 .     In December 2009 a hearing took place to determine the available amount (see paragraph 51 below). 27 .     The trial judge handed down his final ruling on 23 February 2010. 28 .     The ruling first went through over one hundred items of property the applicant did not accept should be included in the benefit figure. The judge agreed that approximately half of these items should not be included because it would result in double accounting, because they were related to legitimate business, or because there would be a serious risk of injustice pursuant to section 10(6)(b) of POCA (see paragraph 49 below). He concluded that the benefit figure was GBP 1,818,619.97. 29.     In determining the recoverable amount (see paragraph 51 below) the judge, on the balance of probabilities, was not satisfied that the applicant had made a full and honest statement of his available assets. He therefore made the confiscation order for the full benefit figure. A period of six years’ imprisonment was fixed in default of payment. 30 .     At the end of his ruling the judge commented on the length of the proceedings: “I am sure that all concerned in these proceedings are only too well aware of the time which they have taken. I am bound to point out that the time which this case has taken has been partly due to logistical problems and partly due to the nature of the case. The logistical problems have involved making sure that counsel, solicitors and witnesses (including Mr Bagnall and [a witness from HMRC] have been available). My own availability has produced problems and the judgments have been lengthy. We have all had to work extensively in our own free time. But more especially, the statutory time ‑ scale does not envisage the type of arguments which have been raised in this case. There have been arguments about abuse of process which involved oral evidence. The autonomous meaning of the word ‘charge’ in European jurisprudence, the burden of proof, the approach to lifestyle cases; the approach to cases of general criminal conduct where it involves consideration of factual situations not prosecuted by the jury, the cases of R v Briggs-Price both in the Court of Appeal and House of Lords; all these have featured in these proceedings. This has been a truly exceptional, and arguably a unique case. I therefore make no apology for it.” The financial reporting order 31 .     The judge also imposed a financial reporting order on the applicant, pursuant to section 76 of the Serious Organised Crime and Police Act 2005 (see paragraphs 65-67 below), which required him to produce reports on the particulars of his financial affairs over a period of four years. 32 .     The judge observed that such an order should not be made lightly or routinely; it was not a tool to be used to assist in the enforcement of a confiscation order, but rather a means of assessing the risk posed by the defendant. According to the judge, it had to be based on evidence and not speculation. The relevant factors to be taken into account included the history of the offender, the circumstances of the offence or offences of which he had been convicted, his behaviour in relation to financial dealings following his arrest and conviction, and other business dealings which demonstrated his attitude towards business transactions. The judge considered that he was entitled to have regard to matters disclosed within the confiscation proceedings and the applicant’s attitude to the offence of which he had been convicted and towards the confiscation proceedings and the issues which arose in respect of them. 33 .     The judge acknowledged that the applicant had been convicted of one offence of money laundering and had no previous convictions of any relevance. Thus by itself there would be no question of making a financial reporting order. However, he sought to balance this fact against the negative findings made in the confiscation proceedings in respect of the applicant’s truthfulness and integrity and considered that he would wish to return as soon as possible to his previous luxurious lifestyle. The risk the applicant presented of committing another offence was therefore considered to be sufficiently high to justify the making of the order. The appeal proceedings 34 .     The applicant submitted his grounds of appeal on 22 March 2010. On 21   September 2010 he was granted permission to appeal in relation to the making of the confiscation order and the financial reporting order. Permission to appeal was refused on a number of other grounds, including a ground relating to excessive delay in the confiscation proceedings. Permission was refused on this ground since the delay had principally been due to the complexity of the facts and legal issues. The court did not, therefore, consider it arguable that there had been undue delay such as to violate the applicant’s Article 6 rights. 35 .     In January 2011 the applicant’s appeal was linked to R v. Nirmal Sharma , a case which raised similar issues. On 18 May 2011 the appeal hearing was postponed until the Supreme Court had handed down its judgment in Gale v. the Serious Organised Crime Agency (see paragraphs   63 ‑ 64 below). Judgment in that case was handed down on 26   October 2011. On 25 November 2011 the prosecution filed a supplementary skeleton argument and on 8 January 2012 the applicant filed a response. 36 .     The applicant’s appeal was heard on 13 and 14 March 2012. During the appeal the applicant renewed his application for permission to appeal in respect of one of the grounds on which permission had been refused (see paragraph   34 above). He did not, however, renew his application in respect of the delay ground. 37 .     On 18   April 2012 the appeal was allowed in part, with the confiscation order being reduced to approximately GBP 1.6 million. 38.     However, the Court of Appeal rejected the applicant’s grounds of appeal based on Article 6 §§ 1 and 2 of the Convention. The applicant had argued that to pursue the allegations of VAT fraud in the confiscation proceedings whilst declining to prosecute for them had violated his rights enshrined in Article 6 §§ 1 and 2 and, furthermore, amounted to an abuse of process. He also argued that the court ought not to have applied the assumptions set out in section 10 of POCA (see paragraph 49 below) because the prosecution, in the particular circumstances of this case, had “charged” him with a criminal offence other than that of which he had been convicted and was thus required to prove that offence to the criminal standard in order to safeguard his rights enshrined in Article 6 § 2 and, more generally, in Article   6 § 1 of the Convention. 39.     According to the Court of Appeal, the mere fact that the prosecution had accused the applicant of specific offences and adduced evidence to make that accusation good did not amount to the bringing of a new charge. The applicant had not been at risk of any further conviction, there was no finding of guilt and the finding reached by the trial judge, on the basis of the statutory assumptions in section 10 of POCA (see paragraph 49 below), merely went to the amount of the order that the court was obliged to make. 40 .     The court observed that the prosecution had been obliged to make a section 16 statement setting out information in their possession that was relevant in connection with the making by the court of the statutory assumptions under section 10 of POCA (see paragraph 49 below). As the applicant had sought to contend that the source of his assets was lawful trading in mobile phones and computer processing units, the prosecution had been entitled to produce what information and evidence it could in rebuttal of his assertions. It would be perverse if, where the prosecution relied upon the assumptions set out in section 10 (see paragraph 49 below), and there was no evidence to assist the court as to whether the assumptions were correct, the burden remained on the defence to establish that the source of the assets was lawful on the balance of probabilities, whereas if it had evidence to rebut any assertion that the source of the assets was lawful, the prosecution would be compelled to prove that the source was criminal beyond a reasonable doubt. 41.     The court also rejected the applicant’s claim that it was unfair and contrary to Article 6 § 1 for the prosecution to use the confiscation proceedings as a means of imposing the burden on him of having to disprove his involvement in VAT fraud. As the Court had observed in Phillips (cited above), the statutory assumptions were applied not to facilitate a finding of guilt, but rather to assess the amount of the confiscation order. The applicant had been entitled to rebut the assumption that the source of the assets was criminal, on the balance of probabilities, and in Phillips the Court had described this as a “principal safeguard”. There could therefore be nothing unfair in requiring the applicant to demonstrate that two of the companies through which he was trading were carrying out lawful business. 42 .     The court did not consider that it was an abuse of process to decline to prosecute the applicant for VAT fraud but rather to pursue him through confiscation proceedings (see paragraphs 13 and 16 above). The application by the prosecution (subject to control by the court and subject to a full right of appeal) to apply primary legislation could not amount to such an abuse, particularly when, under section 10(6)(b) of POCA (see paragraph 49 below), the court could not make any of the statutory assumptions if there would be a serious risk of injustice. 43 .     Finally, in respect of the financial reporting order (see paragraphs   31 ‑ 33 above), the applicant argued that the judge should have confined his consideration to the offence of which he was convicted rather than rely on his view as to the source of the defendant’s assets. The Court of Appeal dismissed the applicant’s appeal, noting the following: “[a financial reporting order] should only be made if there is a sufficiently high risk of the defendant committing another of the specified offences, such as cheating the Revenue. The argument advanced on behalf of the appellant was that the judge should have confined his consideration to the one offence of which Mr Bagnall was convicted, namely, money-laundering, rather than rely upon his view as to the source of his assets. Since this ground of appeal was advanced, this court has ruled that a judge is entitled to have regard to the whole picture of the defendant’s lifestyle (see, e.g., R v Webb [2011] EWCA Crim 882 paragraph 24 and its citation of Hancox v The Queen [2010] EWCA   Crim 102 and R v Bell [2011] EWCA Crim 2728). Those cases make it clear that the judge was entitled to take into account the defendant’s very high standard of living and luxury, and his evasive and dishonest evidence in relation to confiscation. There was a sufficiently high risk to justify the making of an Order. We dismiss the appeal against the Order.” 44 .     On 18 April 2012 the Court of Appeal declined to certify that its decision involved a point of law of general public importance and refused to grant the applicant permission to appeal. 45.     Thereafter, the applicant did not make any payments towards the confiscation order and he failed to make any reports during the currency of the financial reporting order. A warrant of arrest was issued but as the applicant had travelled to Dubai before it was made, and apparently remained there, at the date of the parties’ final pleadings to the Court (that is, 24 April 2015) he had not been arrested. RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law and practice The Proceeds of Crime Act 2002 46 .     Confiscation proceedings are governed by POCA. Section 6 provides, insofar as relevant: “(1)     The Crown Court must proceed under this section if the following two conditions are satisfied. (2)     The first condition is that a defendant falls within any of the following paragraphs— (a)     he is convicted of an offence or offences in proceedings before the Crown Court; ... (3)     The second condition is that— (a)     the prosecutor... asks the court to proceed under this section, or (b)     the court believes it is appropriate for it to do so. (4)     The court must proceed as follows— (a)     it must decide whether the defendant has a criminal lifestyle; (b)     if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct; (c)     if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct. (5)     If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must— (a)     decide the recoverable amount, and (b)     make an order (a confiscation order) requiring him to pay that amount. ... (7)     The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.” 47 .     Pursuant to section 75 a defendant has a criminal lifestyle if an offence is specified in Schedule 2 (which includes offences such as drug-trafficking and money laundering), if an offence constitutes conduct forming part of a course of criminal activity, or if it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence. 48 .     Under section 76(4), a person benefits from conduct if he obtains property as a result of or in connection with the conduct. Section   76(7) provides that if a person benefits from conduct, his benefit is the value of the property obtained. 49 .     Section 10 provides for the making of four assumptions for the purpose of deciding whether a defendant has benefited from his general criminal conduct and deciding his benefit from that conduct. Where relevant, it provides: “(1)     If the court decides under section 6 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of — (a)     deciding whether he has benefited from his general criminal conduct, and (b)     deciding his benefit from the conduct. (2)     The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him — (a)     as a result of his general criminal conduct, and (b)     at the earliest time he appears to have held it. (3)     The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him — (a)     as a result of his general criminal conduct, and (b)     at the earliest time he appears to have held it. (4)     The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct. (5)     The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it. (6)     But the court must not make a required assumption in relation to particular property or expenditure if — (a)     the assumption is shown to be incorrect, or (b)     there would be a serious risk of injustice if the assumption were made.” 50 .     The “relevant day” referred to in subsections (2) and (4) is normally the day six years before proceedings were started against the defendant (section 10(8)). 51 .     Section 7 provides guidance on fixing the recoverable amount: “(1)     The recoverable amount for the purposes of section 6 is an amount equal to the defendant’s benefit from the conduct concerned. (2)     But if the defendant shows that the available amount is less than that benefit the recoverable amount is– (a)     the available amount, or (b)     a nominal amount, if the available amount is nil.” 52 .     As regards the conduct of confiscation hearings, section 16 allows the court to order the prosecution to give it a statement of information. Section   16(3)–(5) defines the statement of information in these terms: “(3)     If the prosecutor ... believes the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor ... believes are relevant in connection with deciding these issues— (a)     whether the defendant has a criminal lifestyle; (b)     whether he has benefited from his general criminal conduct; (c)     his benefit from the conduct. (4)     A statement under subsection (3) must include information the prosecutor ... believes is relevant— (a)     in connection with the making by the court of a required assumption under section   10; (b)     for the purpose of enabling the court to decide if the circumstances are such that it must not make such an assumption. (5)     If the prosecutor ... does not believe the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor ... believes are relevant in connection with deciding these issues— (a)     whether the defendant has benefited from his particular criminal conduct; (b)     his benefit from the conduct.” 53 .     The court may order that a defendant respond to a section 16 statement of information. Section 17 governs the response and, insofar as relevant, provides: “(1)     If the prosecutor ... gives the court a statement of information and a copy is served on the defendant, the court may order the defendant— (a)     to indicate (within the period it orders) the extent to which he accepts each allegation in the statement, and (b)     so far as he does not accept such an allegation, to give particulars of any matters he proposes to rely on. ... (6)     No acceptance under this section that the defendant has benefited from conduct is admissible in evidence in proceedings for an offence.” 54 .     Section 18 empowers the court to first order a defendant to provide information necessary to help it in carrying out its functions. Its terms mirror those set out in section 17. In particular, it includes a guarantee that information given under this section which amounts to an admission by the defendant that he has benefited from criminal conduct will not be admissible in evidence in proceedings for an offence. Case-law in respect of confiscation (a)    HM Advocate and Another v. McIntosh [2003] 1 AC 1078 55.     In McIntosh the Scottish High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”) had held, by a majority of two to one, that a confiscation procedure similar to that applied in the present case was incompatible with Article 6 § 2 of the Convention. In particular, it found that in asking the court to make a confiscation order the prosecutor was in fact asking it to conclude that the defendant had committed a criminal offence, even though there had been no indictment or complaint, and no conviction. As the allegation against the defendant was unspecific and based on no evidence, his need for the presumption of innocence had been all the greater. The operation of the statutory assumptions had therefore offended against the presumption of innocence. 56.     However, on 5 February 2001 the Judicial Committee of the Privy Council, on appeal, held unanimously that Article 6 § 2 of the Convention did not apply, since during the confiscation proceedings the accused was not “charged with a criminal offence” but was instead faced with a sentencing procedure in respect of the offence of which he had been convicted. Even if Article 6 § 2 could be said to have applied, the Privy Council held that the assumption involved in the making of the confiscation order was neither unreasonable nor oppressive. (b)    R v. Rezvi [2002] UKHL 1 and R v. Benjafield and Others [2002] UKHL 2 57 .     In R. v. Rezvi the House of Lords unanimously held that a similar confiscation scheme under the Criminal Justice Act 1988 was compatible with Article 6 § 1 of the Convention. Lord Steyn, with whom the other Law   Lords agreed, observed: “It is a notorious fact that professional and habitual criminals frequently take steps to conceal their profits from crime. Effective but fair powers of confiscating the proceeds of crime are therefore essential. The provisions of the 1988 Act are aimed at depriving such offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to deter the commission of further offences and to reduce the profits available to fund further criminal enterprises. ... It is clear that the 1988 Act was passed in furtherance of a legitimate aim and that the measures are rationally connected with that aim ... The only question is whether the statutory means adopted are wider than is necessary to accomplish the objective. Counsel for the appellant submitted that the means adopted are disproportionate to the objective inasmuch as a persuasive burden is placed on the defendant. The Court of Appeal [2001] 3 WLR 75, 103 carefully considered this argument and ruled: ‘The onus which is placed upon the defendant is not an evidential one but a persuasive one, so that the defendant will be required to discharge the burden of proof: see Lord Hope’s third category of provisions in R v Director of Public Prosecutions, Ex Kebilene , [2000] 2 AC 326, 379. This is therefore a situation where it is necessary carefully to consider whether the public interest in being able to confiscate the ill-gotten gains of criminals justifies the interference with the normal presumption of innocence. While the extent of the interference is substantial, Parliament has clearly made efforts to balance the interest of the defendant against that of the public in the following respects: (a)     It is only after the necessary convictions that any question of confiscation arises. This is of significance, because the trial which results in the conviction or convictions will be one where the usual burden and standard of proof rests upon the prosecution. In addition, a defendant who is convicted of the necessary offence or offences can be taken to be aware that if he committed the offences of which he has been convicted, he would not only be liable to imprisonment or another sentence, but he would also be liable to confiscation proceedings. (b)     The prosecution has the responsibility for initiating the confiscation proceedings unless the court regards them as inappropriate... (c)     There is also the responsibility placed upon the court not to make a confiscation order when there is a serious risk of injustice. As already indicated, this will involve the court, before it makes a confiscation order, standing back and deciding whether there is a risk of injustice. If the court decides there is, then the confiscation order will not be made. (d)     There is the role of this court on appeal to ensure there is no unfairness. ... [I]n our judgment, if the discretions which are given to the prosecution and the court are properly exercised, the solution which Parliament has adopted is a reasonable and proportionate response to a substantial public interest, and therefore justifiable.’ (Emphasis supplied) For my part I think that this reasoning is correct, notably in explaining the role of the court in standing back and deciding whether there is or might be a risk of serious or real injustice and, if there is, or might be, in emphasising that a confiscation order ought not be made. ... In agreement with the unanimous views of the Court of Human Rights in Phillips v   United Kingdom (Application No 41087/98) 5 July 2001 I would hold that Part VI of the 1988 Act is a proportionate response to the problem which it addresses.” 58 .     In R. v. Benjafield the House of Lords unanimously held that the equivalent confiscation scheme under the Drug Trafficking Act 1994 (subsequently considered in Phillips , cited above) was also compatible with Article 6 § 1 of the Convention. (c)    R v. Briggs-Price [2009] UKHL 19 59 .     In R v. Briggs-Price confiscation proceedings under the Drug Trafficking Act 1994 had commenced after the defendant was convicted on charges of conspiracy to evade the prohibition on the importation of heroin. Originally, he had also been charged with possession of one kilogram of cannabis with intent to supply, but prior to his trial the court acceded to the prosecution’s request to lay this charge on the file. In doing so, the prosecution made it plain that it intended to pursue confiscation proceedings in relation to trafficking in cannabis. In addition, it was part of the prosecution’s case at trial that the defendant had been brought into the heroin conspiracy because he already had a distribution network for the transportation and distribution of cannabis, and that this same network was to be used for the distribution of heroin. During the confiscation proceedings which followed the defendant’s conviction the statutory assumptions were not made. Instead, the prosecution sought to prove that the defendant had trafficked in cannabis and invited the court to estimate the profit that he must have derived from those offences. In making a confiscation order, the judge indicated that he had “no doubt” that the defendant had also been involved in the supply of cannabis. 60.     Lord Phillips of Worth Matravers began by emphasising the exceptional nature of the case at hand: “In confiscation proceedings the prosecution has to satisfy the court that the defendant has benefited from drug trafficking and the extent of such benefit. The normal way of doing this is to prove that the defendant possesses, or has possessed, property and to invite the court to assume that the property in question represents or represented benefit derived from drug trafficking. The Act expressly provides that the court must make this assumption unless it is shown to be incorrect or would involve a serious risk of injustice. 61.     Therefore, in that case the Lordships were not concerned with the operation of the statutory assumptions. Relying, inter alia , on Phillips (cited above), they proceeded on the basis that the operation of the statutory assumptions did not constitute a “new charge” within the meaning of Article   6 § 2 of the Convention, and did not render the confiscation proceedings unfair within the meaning of Article 6 § 1. 62 .     Furthermore, four of the five Lordships found that on the facts of the case before them the use of direct evidence of criminal offending to prove that the defendant had benefitted from drug trafficking and to calculate the extent of such benefit did not give rise to a new criminal charge. In this regard, Lord Mance said the following: “104.     The assumptions required under s.4(2) et seq. are simply one aspect of one and the same overall scheme. The scheme operates by reference to the benefit made from drug trafficking and the value of the proceeds of drug trafficking. The assumptions, where they apply, do no more than assist to prove these matters. It is a fallacy to describe them as some form of separate assets-based recovery. They are means of proving the receipt of proceeds from drug trafficking by pointing to particular property or expenditure and requiring an explanation for its origin. The defendant is entitled to rebut the assumptions in relation to any particular property or expenditure, by showing them to be incorrect in its case. S.4(3)(b) caters for cases where there may be a serious risk of injustice if the assumptions are made – take a defendant suffering from some mental infirmity or whose records have all been destroyed in a fire and s.4(5) specifies cases where the assumptions can never be made. 105.     The assumptions are for the Crown’s and so the community’s benefit. Parliament’s resolve is underlined by the requirement to make them under the   1994   Act, in contrast with the predecessor legislation where they were discretionary (Criminal Justice Act 1988, s.72AA(3)). But the assumptions are no more than one way of proving that a defendant has benefited by drug trafficking and the value of his proceeds of drug trafficking for the purposes of s.2(4), 5(1) and 4(1). That the Crown is entirely free to prove such benefit in other ways or at a time preceding the six year period covered by the assumptions is clear from the general structure of Part I. ... Further, in cases where the assumptions are not permitted to be made either under the statutory provisions or in the interests of justice by the court, the Crown must be able to prove the benefits and proceeds by other means. ... 106.     It is therefore clear, almost beyond sensible argument, that Part I involves a single overall scheme, in which the assumptions play a potential evidential role. But the assumptions are no more than one way of proving certain aspects of the benefit and proceeds at which the scheme aims. They apply only in relation to property held or acquired or expenditure made since a date six years before the institution of proceedings. To the extent that they do not apply, the Crown has to make its case without their assistance. But the essential enquiry is the same: what if any benefit was made and proceeds received? And the ultimate order is always limited to the lesser of the proceeds received and the amount realisable at the date of the order.” (d)    Gale v. the Serious Organised Crime Agency [2011] UKSC 49 63 .     In October 2011 the Supreme Court, which in October 2009 had replaced the Appellate Committee of the House of Lords as the highest court in the United Kingdom, gave judgment in a case concerning the applicability of Article 6 § 2 of the Convention to proceedings for the recovery of the fruits of criminal activity. The relevant provisions of POCA permitted the recovery of the fruits of criminal activity irrespective of whether anyone had been convicted of the activity that produced them. Pursuant to section 241(3) of POCA, the court had to decide on a balance of probabilities whether it was proved that any matters alleged to constitute unlawful conduct had occurred or that any person intended to use any cash in unlawful conduct. 64 .     The appellants in the case before the Supreme Court had been acquitted in Portugal of charges related to drug trafficking and money laundering. Before the Supreme Court they argued that the application of the civil standard of proof in the recovery proceedings, rather than the criminal standard of beyond reasonable doubt, had breached their right to a fair trial under Article 6 of the Convention. However, the Justices were unanimous in finding that the appropriate standard of proof had been the civil standard. Financial reporting orders 65 .     Financial reporting orders are governed by the Serious Organised Crime and Police Act 2007 (“the 2007 Act”). 66 .     Pursuant to section 76 of the 2007 Act, a court sentencing or otherwise dealing with a person convicted of a “lifestyle offence” specified in Schedule   2 of POCA was entitled to make a financial reporting order in respect of him if it was s