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

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display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s1721E4C5 { margin-top:14pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }     SECOND SECTION DECISION Application no. 59494/09 Robert BRIGGS-PRICE 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 21 October 2009, 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 Robert Briggs-Price, is a British national who was born in 1954 and is detained in HMP Whitemoor. He was represented before the Court by Mr H. Milner of Henry Milner and Company, a firm of solicitors based in London. 2.     The Government of the United Kingdom (“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 background facts 4 .     On 22 June 2000 the applicant was charged under section 170(2) of the Customs and Excise Management Act 1979 (see paragraph 72 below) with conspiracy to evade the prohibition on the importation of heroin and conspiracy to cheat the public revenue in relation to excise duty and tax payable on imported cigarettes. 5 .     The applicant had also been charged under section 5(3) of the Misuse of Drugs Act 1971 (see paragraph 71 below) with a single count of possession of one kilogram of cannabis with intent to supply, a count relating to a particular day in October 1999. However, prior to trial the prosecution agreed that this charge would be left on the file. As a result, no charge was pursued against the applicant in relation to dealing in cannabis, although when the prosecution invited the Court to lay the indictment on the file it nevertheless made it plain that it intended to pursue confiscation proceedings in relation to trafficking in cannabis. 6 .     The applicant was tried in the Crown Court. In respect of the drug trafficking charges the prosecution case at trial was that the applicant had been a potential buyer and distributor of the heroin in the event of its being successfully imported into the United Kingdom. While it was accepted that no heroin had in fact been imported or purchased by the applicant, the prosecution alleged that he had been brought into the conspiracy because he already had a distribution network for the transportation and distribution of cannabis, something which the applicant disputed, and that this same network was to be used for the distribution of heroin. The prosecution relied on extracts from conversations picked up by covert listening devices placed in the applicant’s car and in his home. It also relied on the evidence of undercover police officers. 7.     The applicant gave evidence at his trial. It was the defence case that any smuggling activity discussed with the undercover police officers had been in relation to cigarettes. The applicant stated that he had built up his wealth honestly and over many years, he had been involved only in cigarette smuggling, he had never been involved in the trafficking of either heroin or cannabis, and there had been no pre-existing cannabis distribution network. He explained to the jury that he was a terrible bragger and exaggerator, and any reference by him in the conversations covertly recorded to involvement with drugs had been nothing but exaggeration and lies. 8.     The trial judge made clear to the jury in his summing-up that it was not necessary for them to resolve the cannabis distribution issue against the applicant in order to find him guilty in respect of the heroin conspiracy. 9.     The applicant was convicted on 14 April 2003 of conspiracy to import heroin and was sentenced to seventeen years’ imprisonment. 10.     On 19 April 2004 the applicant pleaded guilty to being concerned in the evasion of duty on imported cigarettes and received a sentence of four and a half years imprisonment to run concurrently with that imposed in relation to the drug trafficking offences. 11.     Applications for leave to appeal against conviction and sentence were dismissed by the Court of Appeal. Confiscation proceedings in the Crown Court 12.     Section 2 of the Drug Trafficking Act 1994 (“the 1994 Act”) gave the Crown Court the power to make a confiscation order where a defendant appeared before it to be sentenced in respect of one or more drug trafficking offences. The court was required to determine whether the defendant had benefited from drug trafficking and, if he had, the amount to be recovered (see paragraphs 61-63 below). 13 .     Pursuant to section 4(3) of the 1994 Act (see paragraph 66 below), in order to determine whether a defendant had benefited from drug trafficking and, if so, to assess the value of his proceeds, the court was required to make certain assumptions, namely that any property held by the defendant at any time since his conviction or transferred to him since the beginning of a six ‑ year period ending with the commencement of criminal proceedings against him was received by him as a payment in connection with drug trafficking; that any expenditure since the beginning of that period was made out of payments received by him in connection with drug trafficking; and that for the purposes of assessing the value of any property the property was received free of any other interests in it. The court was not to make the assumptions in relation to any particular property or expenditure if the assumption was shown to be incorrect or would result in serious injustice. Where the court did not make one of the specified assumptions, it was required to state its reasons. 14 .     The prosecution duly gave notice that it intended to seek confiscation orders in respect of the applicant’s convictions. It was common ground between the parties that the applicant had substantial assets, including a large hotel and a portfolio of local properties, some of which generated a substantial income.   The prosecution did not seek to assert that the applicant had any hidden assets. The applicant did not accept that his assets represented the proceeds of drug trafficking and was prepared to challenge the statutory assumptions under section 4(3) of the 1994 Act (see paragraph 66 below). In order to avoid a protracted and expensive dispute on this matter, the prosecution agreed with the applicant that the statutory assumptions would not be made. The judge accepted this agreement, although he did not provide a written statement of his reasons. 15 .     The applicant declined to give evidence in the confiscation proceedings. 16.     On 25 April 2005 the judge handed down two rulings, one assessing the benefit in respect of the heroin conviction, the other dealing with the benefit as regards the cigarette smuggling conviction. 17 .     Regarding the heroin conviction, the prosecution conceded that as no heroin was actually imported (see paragraph 6 above), it was inappropriate to make a confiscation order in relation to any benefit accruing to the applicant from his acquisition of heroin. The judge considered this concession to be plainly right. He continued: “2.     The Crown nevertheless submit that ... the Act oblige[s] the Court to determine whether [the applicant] has benefited from drug trafficking. This is not limited to the particular prohibited drug in respect of which he has been convicted. There was a considerable amount of evidence before the Court that [the applicant] was involved in other criminal activity including trafficking on a substantial scale in cannabis. He was originally indicted with an offence of possession with intent to supply approximately one kilo of cannabis but this matter was not proceeded with following his conviction on the heroin indictment ... The Crown made it clear when inviting the Court to lay that indictment on the file that it intended to pursue confiscation proceedings in relation to trafficking in cannabis. Further, it was part of the Crown’s case on the heroin indictment that [B.] combined with [the applicant] in relation to the heroin in order to take advantage of [the applicant’s] existing distribution network for cannabis and I ruled on the admissibility of such evidence and gave the jury directions as to the use they could properly make of such evidence in reaching their verdicts on the heroin allegation. It cannot therefore be sensibly suggested that this is a ‘new’ allegation, nor can I proceed in these confiscation proceedings on the basis that such evidence along with the [the applicant’s] response to it has not already been ventilated and there must be a possibility of appropriate inferences having been drawn by the jury.” 18 .     The judge considered the applicable legislation and human rights issues. He indicated that he was required to inquire into whether the applicant had benefited from drug trafficking and to grant him the opportunity to give evidence. The judge then had to reach a conclusion supported by evidence given in public, on a civil standard of proof, namely on a balance of probabilities. 19.     The judge turned to examine the evidence heard at trial relating to the applicant’s participation in cannabis trafficking. He noted that much of the evidence came from the applicant’s own mouth and was recorded on the covert tapes. He further noted that he had had the opportunity during the trial to form his own impression of the applicant’s character. He observed: “7.     ...   Although many of these matters were ventilated before the jury in the trial, the guilty verdict cannot in itself be determinative of all such matters. The jury’s verdict does not tell me anything as to their findings on the particular decisions I have to make ...” 20 .     Nonetheless, on the basis of his own appraisal of the evidence that he had heard, the judge found that he could reach no other conclusion than that the applicant was involved in the distribution of cannabis. He indicated that he had “no doubt that this was the case”. 21 .     As to the scale and extent of the applicant’s trafficking in cannabis, the judge accepted that the applicant had a legitimate source of income from his hotel and its activities but continued: “...   there is a very strong inference that he was dealing in substantial amounts of cannabis over a not inconsiderable period, that he determined this lucrative business was too risky and that is why he decided to combine with [B.] on the very high risk but much more profitable enterprise of heroin importation. It seems to me that no other rational explanation is possible from the evidence of the covert tapes as placed before the jury in the heroin trial ... The absence of additional evidence or the failure to discover substantial amounts of cannabis in his possession or under his control does not deflect me from such a conclusion given the well-established method of proceedings by [the applicant] ...” 22.     The judge therefore concluded that the applicant had benefited from drug trafficking and took the period of the benefit to be six months (the period to which the covert tapes referred). As to the amount of the benefit, the judge noted: “...   I do not pretend that this is an easy decision to reach given the degree of certainty required and rightly required in such proceedings ...” 23 .     The prosecution submitted that during this six month period the evidence established that the applicant had dealt in 6 tons of cannabis, selling this for a total of approximately 8.7 million British pounds (“GBP”). For the judge, the fact that it was impossible to determine precisely the amount of cannabis the applicant was trafficking did not mean that the court should make no finding as to the amount of his benefit. He continued: “...   If he had been involved with as much as 6 tons i.e. a ton every month for 6   months, I would be satisfied on the evidence of [a police officer] that the amount of his benefit would have been £8.7 million. The absence of assets to this amount does not deflect me from concluding that substantial profits were being made because I am by no means satisfied that the assets declared to the Receiver form the full extent of this defendant’s wealth, but I do not propose to involve myself with that aspect of the matter and will leave it ... to the Receiver to investigate such matters fully. However, I do not think that I can reach the conclusion which the Crown invites me to reach and say that I am sure on the balance of probabilities that [the applicant] has benefited from drug trafficking to the extent of 8.7 million pounds. I have to give effect to my conclusions that while substantial profits have been made by him from drug trafficking, an appropriate deduction should be made to take account of (1) the inconsistencies in his responses and statements on the covert tapes as to the amounts he was importing or otherwise obtaining, (2) the frequency of such importations and (3) the degree of exaggeration possibly present in some of the statements he makes on the covert tapes. Given the seriousness of the consequences of my findings, it seems to me that I should first reduce the Crown’s figure to £8 million then discount that sum by 50 per cent to 4 million pounds. This represents a fair conclusion bearing in mind the defendant’s own unguarded statements as to his activities and the value of the drugs he plainly admits he was dealing in.” 24.     The judge further observed that in certain cases it was appropriate to make a percentage discount to guard against possible injustice or inflation and explained that, given that his finding of benefit did not have the additional support of the discovery of either substantial amounts of drugs or cash, he had carefully considered whether a further discount would be appropriate in the applicant’s case. However, he concluded that the reduction he had already made took account of these considerations. 25 .     In a separate ruling, the judge found the benefit from the cigarette smuggling to be GBP 510,734. 26 .     On 30 June 2006 a further hearing took place to determine the recoverable amount which was to be the sum stipulated in the confiscation orders. In the context of these proceedings, the judge had regard to a report by the receiver setting out the extent of the applicant’s realisable assets. The applicant’s total assets were calculated to be GBP 3,139,224. The judge accordingly made a confiscation order in respect of the cigarette smuggling conviction for GBP 510,734 and a confiscation order in respect of the heroin conviction for GBP 2,628,490, which represented the value of the remainder of the applicant’s realisable assets after the cigarette smuggling order had been satisfied. 27 .     The confiscation order linked to the heroin conspiracy was to be paid by 31   October 2007 and in the event of non-payment a consecutive sentence of eight years’ imprisonment was to be imposed. Proceedings before the Court of Appeal 28.     The applicant was granted leave to appeal against the confiscation order linked to the heroin conspiracy on the ground that the manner in which the benefit had been assessed, namely by reference to alleged payments connected to uncharged and unproven cannabis smuggling allegations, had violated his rights under Article 6 § 2 of the Convention. 29 .     The Court of Appeal’s judgment was delivered by Lord   Justice   Richards on 22 January 2008. The court noted at the outset that “a point of central importance for the present appeal is that there was no charge against the applicant in relation to involvement in the distribution of cannabis or his having a cannabis distribution network There was a single count ... of being concerned in the supply of cannabis. That was not before the jury and ... was not proceeded with but was ordered to lie on the file following his conviction in respect of heroin conspiracy.” 30.     The court found the procedure adopted for the determination of the applicant’s benefit from drug trafficking to have been compatible with Article   6 § 2. It noted that the core of the Court’s judgment in Phillips v.   the   United Kingdom (no. 41087/98, ECHR 2001 ‑ VII) was that the confiscation procedure did not generally engage Article 6 § 2 at all since it was part of the sentencing process following conviction. In this regard, it observed: “41.     ...   The fact that benefit arising from other offences can be taken into account (indeed, under the operation of the statutory assumptions, that assets are assumed to derive from other offending) does not mean that the defendant is being charged with another criminal offence or is presumed to be guilty of another criminal offence. 42.     The principle does not appear to us to be fundamentally different where, instead of relying upon a statutory assumption that assets or expenditure derive from other criminal conduct, the Crown seeks to prove by evidence that the defendant has derived a benefit from other criminal conduct. That still takes place as part of the sentencing process and still does not involve charging the defendant with another criminal offence, let alone presuming him to be guilty of another offence.” 31.     As to the applicant’s reliance on the Court’s judgment in Geerings v.   the Netherlands (no. 30810/03, 1 March 2007), the Court of Appeal noted: “43.     It seems to us that the decision in Geerings needs to be approached with some care. The court gave two reasons for distinguishing the previous case law, notably Phillips . The second reason, namely that the confiscation order related to offences of which the applicant had actually been acquitted, plainly has no application to the present case but serves to underline how different Geerings was on its facts. The Dutch court’s order was in truth inconsistent with the acquittals and it is not in the least surprising that it was found for that reason to be in violation of Article 6(2). 44.     The first reason given for distinguishing the earlier cases is that in the instant case the Dutch court had found the applicant to have obtained unlawful benefit from the crimes in question, although he was never shown to be in possession of any assets for whose provenance he could not give an adequate explanation and that the court reached this finding ‘by accepting a conjectural extrapolation based on a mixture of fact and estimate contained in a police report.’ As the Strasbourg Court went on to say: ‘If it is not found beyond a reasonable doubt that the person affected has actually committed the crime, and if it cannot be established as fact that any advantage, illegal or otherwise, was actually obtained, such a measure can only be based on a presumption of guilt.’ We do not read the relevant passage... as holding that only an assets-based approach of the kind for which [Counsel for the applicant] has contended can be compatible with Article 6(2). Had that been the Court’s intention, we would have expected some clearer indication that the relevant provisions of the Dutch criminal code, which did not depend on an assets-based approach, were themselves incompatible with Article   6(2). It seems to us ... that the court’s concern was as to the absence of any proper factual basis in the particular case, whether by reference to assets or otherwise, for finding benefit from other offences ...” 32 .     The Court of Appeal found there to be no corresponding problem in the applicant’s case, in which the trial judge’s assessment of the benefit was based on a clear finding, reached in practice on the criminal standard of proof, that the applicant had engaged in the trafficking of cannabis. This finding was clearly reasoned and based on evidence the judge had heard from both the prosecution and defence during the trial, the allegation concerning the applicant’s cannabis distribution network having formed a central part of the case against him. The judge had also given detailed reasons, again based on the evidence, for assessing the level of benefit as he did, making discounts favourable to the applicant in order to avoid any unfairness. 33.     The Court of Appeal concluded: “...   As it seems to us, there is no problem in principle in finding in this way that benefit has been derived from drug trafficking, even if the [applicant’s] known assets are not assumed or shown to be derived from unlawful activity. We do not accept that the way in which the matter was approached involved a fresh or new charge against the [applicant] for Article 6 purposes. Everything fell within the scope of the normal confiscation procedure following on from the [applicant’s] conviction on the heroin count, and as such it was part of the sentencing process and Article 6(2) did not apply to it. In any event we do not consider that what happened involved in any way the application of a presumption of guilt, or a violation of the [applicant’s] rights under Article   6(2). We should perhaps add that although we do not consider that Article 6(1) is strictly before us, we see nothing in [counsel for the applicant’s] submissions to cause us any concern about the compatibility with Article 6(1) of the procedure that was adopted in this case.” 34.     The appeal was accordingly dismissed. Proceedings before the House of Lords ( R v. Briggs-Price [2009] UKHL 19) 35.     On 15 April 2008 the Court of Appeal certified a point of law of general public importance but refused leave to appeal. Leave to appeal was subsequently granted by the House of Lords. 36.     On 29 April 2009 their Lordships unanimously dismissed the applicant’s appeal, for different reasons. 37 .     Lord Phillips of Worth Matravers began by emphasising the exceptional nature of the case: “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. ... In this case the prosecution adopted an unusual approach to proving that the defendant had benefited from drug trafficking and the extent of that benefit. They proved that the defendant had committed drug trafficking offences other than that in respect of which he was convicted and invited the court to estimate the profit that he must have derived from these offences.” 38 .     With regard to Article 6 § 2 of the Convention, he observed: “24.     Article 6(2) does not spell out the standard of proof that has to be applied in discharging the burden of proving that a defendant is guilty of a criminal offence. It does, however, provide that he has to be proved guilty ‘according to law’. This requirement will not be satisfied unless the defendant is proved to be guilty in accordance with the domestic law of the State concerned. English law draws a clear distinction between the criminal and the civil standard of proof. The criminal standard requires proof beyond reasonable doubt. Section 2(8) of the Act provides that the standard of proof required to determine any questions in relation to whether a person has benefited from drug trafficking and the extent of such benefit arising under the Act is the civil standard. It is at least arguable that this will bring the Act into conflict with Article 6(2) if the prosecution adopt an approach to proving benefit that involves charging the defendant with a criminal offence. If so, the Act must be read down so as to prohibit such an approach. 25.     A similar issue arises in relation to article 6(3). English law has specific procedural requirements that satisfy this article in relation to a criminal prosecution. They were not applied in this case in relation to the cannabis offences. If the approach adopted by the prosecution amounted to charging the defendant with those offences, it is arguable that this was in conflict with article 6(3).” 39.     However, having considered in some detail relevant domestic and Court’s jurisprudence regarding confiscation proceedings and the presumption of innocence, he found: “40.     There is authority that establishes that both the adjective ‘criminal’ and the noun ‘charge’ are autonomous concepts but that the Strasbourg Court attaches significance to the way in which they are treated in domestic law and looks to the substance rather than to the form. Not without hesitation, I have concluded that the allegations that were made in relation to the cannabis offences did not constitute ‘criminal charges’. First they were not so treated under our law. Secondly, they could not and did not lead to criminal convictions. Thirdly, and most significantly, their consequence, the confiscation of the property of a convicted drug dealer, is precisely the same as that in Phillips and Grayson & Barnham. Those cases required a finding that the property confiscated was derived from criminal offending, albeit that the precise offences did not have to be specified but could be inferred. The Strasbourg Court accepted that the safeguards of Article 6(2) did not apply in such circumstances. It would seem illogical to impose them where the details of the offending are alleged with more particularity.” 40 .     Lord Phillips noted that the guarantees of Article 6 § 1 nonetheless applied to the confiscation proceedings. As to whether there had been a violation of this Article in the circumstances of the case, he found: “41.     ...   The requirements of a fair trial in confiscation proceedings are not poles apart from those imposed by Article 6(2) and 6(3). Where, as here, the prosecution rely on criminal offending to prove the existence of benefit, they have to prove that offending. The defendant is presumed innocent until proved guilty, albeit by the civil standard of proof. When, in Grayson and Barnham , the Strasbourg court set out the safeguards in our system that had led it to conclude that our procedure satisfied Article 6(1) it might well have been carrying out a check list of the relevant requirements of Article 6(3). 42.     The facts of this case are unusual. The prosecution, as part of their case on the conspiracy to import heroin, gave the defence particulars of evidence that they intended to adduce of other drug offences. The [applicant] challenged these at his trial and could have challenged them again in the confiscation proceedings. The judge was sure on the evidence that the relevant offences were proved. He deduced the benefit from the proved offending. In the Court of Appeal Richards LJ held that the procedure adopted was compatible with article 6(2). There is no basis for suggesting that the fair trial requirements of Article 6(1) were not satisfied. 43.     ...   It is open to the prosecution to prove the derivation of benefit from drug trafficking by proving the commission of drug trafficking not charged on the indictment ...” 41 .     Lord Rodger of Earlsferry considered that the case had a number of unsatisfactory aspects. First of all, the applicant had not been charged with being concerned in the supplying of cannabis contrary to section 4(3)(b) of the Misuse of Drugs Act 1971, even though much of the most important evidence at trial was designed to prove that he was engaged in distributing cannabis through a pre-existing network. He continued: “46.     In Scotland, the absence of a section 4(3)(b) charge would have rendered the evidence relating to the cannabis distribution network inadmissible, as being evidence of a crime not charged. In this case, however, the evidence was led at the trial and, on an application to the Full Court for leave to appeal on the basis that the judge should not have admitted evidence showing that the network was for the distribution of cannabis, the Court of Appeal (Thomas LJ, Jack J and HH Judge Radford) [2005] EWCA Crim 368 were unable to see that there was an arguable ground of appeal. 47.     Plainly, the evidence relating to the cannabis network was very relevant to the Crown’s case. And, if the indictment had included a count relating to that matter, all would have been well. The absence of such a count means, however, that the appellant was never charged with an offence relating to the cannabis network. And, although the evidence about the network formed an important part of the prosecution case at trial, the judge ... directed the jury that, even if they rejected that evidence, they could still convict the appellant of the count on the indictment. It is, accordingly, impossible to tell whether the jury were satisfied that the appellant was involved in the network. Putting the matter another way ... the approach adopted by the Crown meant that the jury were not given the opportunity, if so advised, to declare the appellant’s innocence of any involvement in a cannabis network by acquitting him of a count relating to it.” 42 .     According to Lord Rodger, the second unsatisfactory feature of the case was that those representing the prosecution and the applicant simply agreed to proceed with the confiscation proceedings on the basis that the assumptions in section 4(3) of the 1994 Act (see paragraph 66 below) should not be applied. If the judge had made his own decision that, for a reason covered by section 4(4) of the 1994 Act (see paragraphs 67-68 below), the assumptions should not be applied, there would have been no problem. However, while apparently accepting that the assumptions should not be applied, the judge did not make any determination in terms of section   4(4). Lord Rodger stated: “50.     In my view, the matter was mishandled. The requirement in section 4(2) to apply the assumptions binds the court. That is consistent with the wider position that it is the court which acts under section 2 – and which can indeed do so, even though the prosecutor has not asked it to. No unilateral action by the prosecution, or joint action by the parties, can relieve the court of its obligation under section 4(2) to apply the assumptions. ...” 43 .     Nonetheless, as the statutory assumptions were fairly draconian, Lord   Rodger considered that a failure to apply them could not be regarded as any kind of detriment to the applicant. On the contrary, because the judge did not apply the assumptions in this case, he had enjoyed the advantage of not having his hotel and other property, and all his expenditure over the preceding six years, deemed to have been derived from drug trafficking. What had led to the confiscation order being made against the applicant was not the failure to apply the assumptions. Rather, it was the fact that, even without the help of those assumptions, the judge was satisfied that he had benefited from drug trafficking. The judge’s conclusion to that effect had been based on the evidence which he had heard during the trial about the quantities of cannabis which were being bought for, and distributed through, the cannabis network. 44.     The applicant had sought to argue that where the court was considering an alleged benefit not deriving from an offence of which the defendant had been convicted, the structure of the 1994 Act meant that it could proceed only on the basis of the assumptions in section 4(3) (see paragraph 66 below). In Lord Rodger’s view, that was an impossible contention. The mere fact that the assumptions were not applicable did not mean that the defendant had not benefited from drug trafficking: it merely meant that the court could not use the assumptions to determine either that he had benefited, or that he had benefited to a particular extent. If there was evidence to show the benefit, then the court could use it. The statutory assumptions were not the only basis for confiscation proceedings under the 1994 Act. 45.     Consequently, Lord Roger had no doubt that under English domestic law the judge had been entitled to use the evidence led at the trial, and the additional information as to the selling price of bulk cannabis, to determine that the applicant had benefited from trafficking in cannabis and to assess the value of his proceeds at GBP 4 million (see paragraph 23 above). 46.     Lord Roger then turned to consider the applicant’s Convention arguments. He agreed that Article 6 § 2 did not apply to the confiscation proceedings, noting: “64.     ...   Nothing said or done by the prosecution or the court in the course of the confiscation proceedings was designed to convict or acquit the [applicant] of any other drug-related offence. So Article 6(2) was not engaged when the court was determining, as part of the sentencing procedure for the trigger offence, whether the [applicant] had benefited from drug trafficking, other than the drug trafficking comprising the trigger offence.” 47 .     Lord Rodger accepted that the presumption of innocence nonetheless applied as part of the guarantees inherent in Article 6 § 1 of the Convention, but considered that the Article was satisfied, noting: “74.     Although the [applicant] was not ‘charged’ with the cannabis network offence, evidence of his involvement in the network was led by the prosecution at his trial for the conspiracy count. The [applicant] was represented by counsel. Before trial, he would have been supplied with police statements and other material from which it would have been clear that the prosecution was intending to lead evidence about his involvement in the cannabis distribution network at his trial. The [applicant] has never suggested otherwise. The trial judge held that that evidence was admissible and the Court of Appeal held that there was no arguable appeal against that ruling. Counsel for the [applicant] had every opportunity to cross-examine the relevant witnesses and to lead evidence to counter the prosecution evidence relating to the cannabis distribution network. At the trial, accordingly, any requirements of Article 6(1) and   (3) were surely satisfied in respect of the allegations relating to his involvement in that network. 75.     In the context of the confiscation proceedings the judge had regard to this evidence which had been led at the trial and, on that basis, had ‘no doubt’ that the [applicant] had indeed been involved in running the network. So, in this case, there is no question of the judge proceeding on a presumption that the [applicant] had been involved in the cannabis network – indeed, the judge plainly thought that the [applicant’s] involvement had been proved to the criminal standard, beyond a reasonable doubt. On any view, therefore, the presumption of innocence in Article   6(1) was fully respected in the confiscation proceedings.” 48.     However, unlike Lords Phillips and Mance, Lord Rodger considered that the relevant standard of proof was “beyond reasonable doubt”, observing: “77.     ...   If a presumption of innocence is implied into Article 6(1), then it, too, must require that the person be proved guilty according to law. In the context of a criminal trial, the standard of proof, according to our law, is beyond reasonable doubt. Indeed, if that were not the position, the Crown could ask the court to make a confiscation order on the basis of an alleged benefit from a specific offence of which the defendant would have been acquitted if he had been prosecuted for it.” 49 .     On whether that standard had been satisfied in the present case, Lord   Rodger noted: “79.     By virtue of section 3 of the Human Rights Act 1998, I would accordingly read section 2(8)(a) of the 1994 Act as applying the civil standard of proof to any question as to whether a person has benefited from drug trafficking, but not to any question as to whether a person has committed a specific drug trafficking offence. 80.     Admittedly, Judge Stokes could not point to any assets or expenditure of the [applicant] which were directly linked to the trafficking through the cannabis distribution network. But, as I have explained, expenditure and assets are only the likely indicia of profitable drug trafficking. What the judge had to determine was not whether the [applicant] had profited from drug trafficking, but whether the [applicant] had benefited from drug trafficking, within the meaning of section 2(3). Even in the absence of such indicia, it was open to the judge, on the available evidence, to find that the [applicant] must have benefited from drug trafficking – in the sense that he had received payments or rewards from his involvement. Such a finding involves no violation of Article 6(1) or (2). So far as the amount of the benefit is concerned, the judge was careful to reduce his estimate so as to allow for any margin of error in that calculation. Again, it is hard to see how that calculation could possibly give rise to a violation of Article 6(1) or (2), especially given that the [applicant] does not criticise the judge’s estimate or the way that it was arrived at. In no sense can it be said, in this case, that the court’s conclusions as to the benefit derived by the [applicant] from drug trafficking were based on a presumption of guilt: they were based on evidence. 81.     In short, nothing in the European Court’s judgment in Geerings suggests that what the judge did in this case involved a violation of any of the appellant’s article 6 Convention rights. More particularly, when making the confiscation order as part of the sentencing process, the judge did not proceed on the basis of any presumption as to the appellant’s guilt. There was accordingly no violation of the presumption of innocence as contained in either article 6(1) or 6(2).” 50 .     Lord Neuberger of Abbotsbury agreed fully with Lord Rodger as regards the Convention issues arising in the appeal. He added: “150.     I have some sympathy with the argument, developed more fully by Lord   Rodger, that it was surprising that the prosecuting authorities decided to charge the appellant only with the diamorphine conspiracy if evidence of his cannabis trafficking was intended to be given at trial, and then invoked for the purposes of any subsequent confiscation order. However, I would not want to say much about that aspect, as the detailed facts and implications of that issue were not debated before your Lordships. Indictments should not be overloaded, and it would be more than unfortunate if any criticism of the course taken in this case led to the prosecuting authorities feeling obliged to charge a defendant with every conceivable drug ‑ trafficking offence they might be relying on in any contingent confiscation proceedings. Such a course would be inappropriate and inconsistent with the purpose of the 1994 Act. All I would say is that, without suggesting that I think that there would have been anything in the argument, it would have been open to Mr   Briggs ‑ Price to argue either that he should be charged with cannabis trafficking if it was to be relied on in any subsequent confiscation procedure, or that the cannabis trafficking should not be relied on in any such procedure. If such an argument had been raised, the Judge no doubt would have considered it on its merits.” 51.     Lord Brown of Eaton-under-Heywood agreed that the applicant was wrong to contend that the only way of determining the benefit from drug trafficking (except, of course, in respect of an offence of which the defendant had been convicted) was on the basis of the section 4(3) assumptions (see paragraph 66 below), and he was content to assume that the course adopted in this case was consistent with domestic legislation, notwithstanding the obvious discordance between the judge’s finding of cannabis dealing to the criminal standard of proof and section 2(8) of the 1994 Act, which provided that it was the civil standard of proof which was to apply to the determination of any question arising as to whether a person had benefited from drug trafficking (see paragraph 69 below). 52.     Lord Brown alone found that Article 6 § 2 did apply in the circumstances of the case. He noted: “87.     I confess, however, to somewhat greater difficulty regarding the compatibility of the confiscation proceedings here with Article 6(2). I cannot regard Phillips v   United Kingdom (2001) 11 BHRC 280 (which endorsed the Privy Council’s decision in McIntosh v Lord Advocate [2003] 1 AC 1078) as conclusive of the Article   6(2) argument. McIntosh ... was based squarely on confiscation proceedings where the benefit of drug trafficking was determined by reference to identified property (a process ... akin rather to tracing than to finding the defendant to have been engaged in criminal conduct). And Phillips too was concerned with the statutory assumptions under which benefits are calculated by reference to identifiable property.” 53.     He then reviewed subsequent case-law of the Court and concluded: “91.     ...   With no less hesitation I have come to a different conclusion [from that of Lord Phillips]. Geerings seems to me to stand for more than merely the prohibition against reliance on criminality of which the defendant has actually been acquitted. That was separately identified as the second of the two reasons given by the Court for distinguishing Phillips and (rightly or wrongly) Van Offeren ... The first reason is that contained in paras 46 and 47 of the Court’s judgment ... ‘that the applicant [in Phillips and Van Offeren ] demonstrably held assets whose provenance could not be established; that these assets were reasonably presumed to have been obtained through illegal activity; and that the applicant had failed to provide a satisfactory alternative explanation’. 92.     ...   [T]he Court stated what was objectionable in the Dutch court’s findings in Geerings which distinguished it from Phillips and Van Offeren : ‘that the applicant had obtained unlawful benefits from the crimes in question although [he] was never shown to hold any assets for whose provenance he could not give an adequate explanation, [such finding having been reached] by accepting a conjectural extrapolation based on a mixture of fact and estimate contained in a police report’. 93.     That seems to me to describe the present case precisely. Then ... the court ruled out the confiscation of benefit calculated by reference to assets which are not known to have been in the possession of the person affected, the more so if the measure concerned relates to a criminal act of which the person affected has not actually been found guilty... The Court continued, ‘If it is not found beyond a reasonable doubt that the person affected has actually committed the crime, and if it cannot be established as fact that any advantage, illegal or otherwise, was actually obtained, such a measure can only be based on a presumption of guilt. This can hardly be considered compatible with article   6(2).’ 94.     That again (with one important exception, the standard of proof, to which I shall return) seems to me to describe this case. ... I understand the Court’s reasoning in paras 46 and 47 [of Geerings ] to amount to this: the prosecution must either demonstrate that the defendant holds or has held assets the provenance of which he cannot satisfactorily explain (as in Phillips and Van Offeren – see para 44), or must establish beyond reasonable doubt that the defendant has committed some other offence (or offences) from which it can be presumed that he obtained advantage. In the latter case, of course, article 6(2) applies but is satisfied. 95.     The obvious difference between Geerings and the present case is that in the present case the appellant, so far from having been acquitted of the cannabis offence, was found by the judge beyond reasonable doubt to have committed it. On this basis and on this basis alone I would regard Geerings as distinguishable and article 6(2), albeit engaged here, to be satisfied. The fact that the cannabis offence was not treated under domestic law as a criminal charge and did not lead to a criminal conviction is not in my judgment a sufficient basis for holding it not to be a charge within the