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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)

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R.C. v. THE UNITED KINGDOM

R.C. v. THE UNITED KINGDOM

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