FIRST SECTION

DECISION

Application no . 52335/12 Mark PEACOCK against the United Kingdom

The European Court of Human Rights (First Section), sitting on 5 January 2016 as a Chamber composed of:

Mirjana Lazarova Trajkovska, President, Ledi Bianku, Kristina Pardalos, Linos-Alexandre Sicilianos, Paul Mahoney, Aleš Pejchal, Robert Spano, judges, and Andr é Wampach , Deputy Section Registrar ,

Having regard to the above application lodged on 15 August 2012 ,

Having regard to the decision of 15 December 2014 to communicate the complaint under Article 1 of Protocol No. 1 and to declare inadmissible the remainder of the application pursuant to Rule 54 § 3 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and to the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Mark Peacock, is a British national, who was born in 1969 and lives in Preston. He was represented before the Court by Tuckers Solicitors, a law firm based in London. The Government were represented by their Agent, Ms R. Sagoo, of the Foreign and Commonwealth Office.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The criminal conviction and the confiscation proceedings

3. On 7 January 1997 the applicant pleaded guilty at the Crown Court to conspiracy to supply drugs. On 8 January 1997 he was sentenced to twelve years ’ imprisonment. On 5 October 1998 the Court of Appeal reduced the sentence to ten years ’ imprisonment. Meanwhile, the prosecution applied for confiscation orders under section 2 of the Drug Trafficking Act 1994 (“the 1994 Act” – see paragraphs 22 -25 below).

4. On 10 July 1997 the Crown Court judge found that the applicant had benefited from drug trafficking in the sum of 273,717.50 pounds sterling (“GBP”). He was found to have realisable assets in the sum of GBP 823. A confiscation order was made for the latter sum to be paid within fourteen days. The applicant paid the order.

2. Subsequent developments

5. On 9 November 2000 the applicant was released from prison. He entered a business partnership with his father. The business was successful and the applicant acquired substantial assets.

6 . The prosecution subsequently became aware of the value of the applicant ’ s equity in the business. It applied to the High Court for a certificate under section 16(2) of the 1994 Act (see paragraph 23 below) declaring that the amount that might be realised from the applicant ’ s assets was greater than it had been at the time when the original confiscation order was made. On 18 May 2005 the High Court issued a certificate under section 16(2).

3. The second confiscation proceedings

(a) The application under section 16(4)

7 . The prosecution subsequently applied to the Crown Court under section 16(4) of the 1994 Act (see paragraph 24 below) for an increase in the amount to be recovered under the confiscation order.

8. A hearing took place over a seven-day period. Evidence was lodged of the further assets identified. The applicant lodged witness statements and gave oral evidence on oath. He accepted that he had acquired further assets since his release from prison but submitted that he had taken a conscious decision to live an entirely honest, law-abiding and hard-working life.

9. On 26 October 2007 the Crown Court judge handed down his judgment. He identified two issues: the first was a factual question as to the existence and value of further recoverable assets; the second concerned the exercise of the court ’ s discretion to order further payment and impose a term of imprisonment in the event of non-compliance. The judge indicated that his assessment of the applicant ’ s credibility would be a significant factor in both aspects of the case. He declined the prosecution ’ s invitation to take account of adverse credibility findings made in the context of the earlier confiscation proceedings, explaining that he began on the basis that convicted criminals were able to rehabilitate themselves and to turn from crime. However, taking into consideration the incomplete details of his assets in his first witness statement made in 2006 and his subsequent evasiveness when giving oral evidence, the judge concluded that the applicant was not a reliable witness.

10. After considering in some detail the applicant ’ s assets and business activities, the judge found the applicant to hold realisable assets to the value of GBP 348,315.54. However, he added:

“40. ... [T]hat is not, necessarily, the end of the matter. I preface this section by specific remarks about [the applicant ’ s] credibility ... [H]e failed, at the outset, to make proper disclosure of his finances. The discovered torn up paper relating to matters in Spain was revealing, particularly with its reference to a few business interests and to not wishing to declare matters. His explanations were risible. Furthermore, despite his protestations of honesty since his release from prison, there was clear evidence of fraudulent dealing with mortgage lenders in the supply of financial information ... I find [the applicant] to be an intelligent man, fully aware of all aspects of his business dealings. I find, too, that he has over a period dealt to a large extent in cash, with the specific intention of frustrating any enquiries by Authorities into his financial affairs ...”

11 . In the light of his findings, the judge then turned to consider how to exercise his discretion as to whether the confiscation order should be increased. He explained that had he found the applicant a credible witness, who had set out to lead a law-abiding and responsible life, he might have felt able to give sympathetic consideration to submissions that the court ’ s discretion should be exercised in his favour. However, he was satisfied that the applicant had lied to the court and had set out quite deliberately to deceive the court as to the truth as to his financial affairs and assets. In the judge ’ s view, this was entirely the type of case for which statute had provided the opportunity for society to recoup some of the damage caused to it by criminality. The judge also considered the length of time which had elapsed since the applicant ’ s release from prison but decided that this did not prevent the modification of the confiscation order. He accordingly exercised his discretion to substitute for the GBP 823 originally recoverable the full amount of the benefit previously assessed, namely GBP 273,717.50. The order was to be paid within six months, with a period of imprisonment of three years in the event of non-compliance.

12 . The applicant appealed to the Court of Appeal, contesting the calculation of his assets by the Crown Court judge and seeking a reduction in the recoverable amount. The appeal was dismissed by the Court of Appeal (Criminal Division) on 20 February 2009.

(b) The appeal to the Court of Appeal against the section 16(2) certificate

13 . The applicant subsequently appealed the decision of the High Court to issue a section 16(2) certificate (see paragraph 6 above). He argued that section 16(2) was not intended to allow confiscation of after-acquired assets (i.e. assets acquired after the date of conviction). If that had been the intention of Parliament, the statutory provision should have been unequivocal. He emphasised in particular that other provisions of the 1994 Act set a time-limit of six years to revisit a confiscation decision, but that no time-limit appeared in section 16(2). He contended that the definition of realisable property in section 6(2) of the Act was restricted to property held at the time of the original confiscation proceedings. Finally, he submitted that section 16 no longer had effect after the entry into force of the Proceeds of Crime Act 2002 in 2003 (see paragraph 22 below).

14 . The appeal was dismissed by the Court of Appeal (Civil Division) on 20 December 2010. The court held that section 16 applied to assets lawfully acquired post-conviction, referring to the absence of any time limitation in that section. This conclusion was not undermined by the fact that the Proceeds of Crime Act 2002 contained clearer provisions on the matter. Finally, the court held that the savings provisions in the relevant commencement order made under the 2002 Act clarified that section 16 remained in force for the purposes of the present proceedings.

(c) The appeal to the Supreme Court against the section 16(2) certificate

15 . The applicant appealed the December 2010 judgment to the Supreme Court. The agreed statement of facts and issues before the Supreme Court identified the issues which had arisen before the Court of Appeal as follows:

“i. Whether, having regard to the transitional provisions contained in the Proceeds of Crime Act 2002 (Commencement No. 5, Transitional Provisions, Savings and Amendment) Order 2003 ... , section 16 of the 1994 Act (which was repealed by the Proceeds of Crime Act 2002) was in force at the material time ( ‘ the Commencement Order issue ’ ).

ii. Whether the High Court had jurisdiction to issue a certificate under section 16 in respect of after-acquired assets ( ‘ the section 16 issue ’ ).

iii. whether in the Appellant ’ s case the delay between the making of the confiscation order and the application under section 16 amounted to a breach of the Appellant ’ s right to have his case heard within a reasonable time ( ‘ the reasonable time issue ’ ).”

16 . It clarified that the issues before the Supreme Court were the following:

“1. Whether section 16 of the 1994 Act was in force at the material time.

2. Whether the High Court has jurisdiction to issue a certificate under section 16 in respect of after-acquired assets.”

17 . The applicant ’ s written case included the following argument:

“C. The Compatibility Issue

The interpretation of the statute by the Court of Appeal ... is in conflict with a defendant ’ s rights under Article 6(1) of the Convention ... For a defendant to be liable in perpetuity to an increased penal sanction is submitted to amount to a clear breach of his right to determination of any criminal charge within a reasonable time, as well as raising issues under Article 8 ... and the First Protocol (protection of property). The construction of Article 16(2) contended for by the Appellant is compliant with the Human Rights Act whereas the interpretation adopted by the Court of Appeal arguably is not.”

18 . As regards the section 16 issue, in particular, the written case included the following statements:

“The definition of the words ‘ the amount that might be realised ’ in section 6 and 64 of the Act provide a clear definition of the scope of the legislation.”

“If, which is not accepted, there is any ambiguity in the words of the statute, an examination of the debates of the Bill in the House of Lords and the House of Commons and in the Home Affairs Committee Report make it clear that the scope envisaged did not include ‘ after acquired assets ’ .”

“The Appellant ’ s case was not that Section 16(2) was unclear and ambiguous ... To the contrary, it was submitted that the words of the section clearly do not refer to assets acquired after the confiscation order was made.”

19 . On 22 February 2012 the Supreme Court delivered its judgment. On the question whether section 16 was still in force at the time of the second confiscation proceedings, the court was satisfied that it was.

20 . As to the correct interpretation of section 16(2), the justices were divided by three votes to two, with the majority finding that the section applied to after-acquired assets and dismissing the applicant ’ s appeal after careful consideration of the legislative framework. Lord Brown, for the majority, explained:

“29. As for the main argument, based on fairness and rehabilitation, naturally I recognise that Parliament could have chosen a different policy with regard to after-acquired assets. But it seems to me perfectly understandable that in fact Parliament decided (as indisputably it did when later enacting POCA [the Proceeds of Crime Act 2002]) to leave it open to the courts as a matter of discretion to mulct a defendant of his criminal gains on an ongoing basis irrespective of precisely how and when he came by any increased wealth.

30. That the court does indeed have a discretion in the matter is plain both from the wording of section 16(4) and from a number of authorities ... This is not, however, the occasion to explore the approach to the proper exercise of that discretion – or, indeed, the question whether its exercise could ever be affected by considerations arising under the Human Rights Act 1998. As already noted, there is no challenge here to the exercise of the Crown Court ’ s section 16(4) discretion, only to whether the section 16(2) certificate was lawfully issued.”

21 . Lord Hope, in the minority, referred to the general principle of construction that a statute should not be held to take away property rights without compensation unless the intention to do so was expressed in terms which were clear and unambiguous. He was therefore of the view that where assets were subsequently acquired entirely legitimately, it ought not to be assumed that Parliament intended their confiscation unless it provided for this in clear terms. While the relevant provision in the Proceeds of Crime Act 2002 satisfied this test, Lord Hope considered that section 16(2) of the 1994 Act did not.

B. Relevant domestic law and practice

22 . The applicable legislation at the time was the Drug Trafficking Act 1994. The 1994 Act has now been replaced by the Proceeds of Crime Act 2002.

23 . Section 16 of the 1994 Act allowed for the increase in the value of a confiscation order in certain circumstances. It applied where the amount which a person was ordered to pay by a confiscation order was less than the amount assessed to be the value of his proceeds of drug trafficking. Pursuant to section 16(2) and (3), if, on an application by a prosecutor, the High Court was satisfied that the amount that might be realised was greater than the amount taken into account in making the confiscation order, it had to issue a certificate to that effect, with reasons.

24 . Section 16(4) allowed a prosecutor who obtained a section 16(2) certificate to apply to the Crown Court for an increase in the amount to be recovered under the confiscation order. Upon such an application, the court had discretion to:

“(a) substitute for that amount such amount (not exceeding the amount assessed as the value referred to in subsection (1) above) as appears to the court to be appropriate having regard to the amount now shown to be realisable; and

(b) increase the term of imprisonment or detention fixed in respect of the confiscation order ... if the effect of the substitution is to increase the maximum period applicable in relation to the order ...”

25 . Section 6(1) of the Act provided that the amount that might be realised at the time a confiscation order was made was the total of the values at that time of all the realisable property held by the defendant, less the total amount of any obligations having priority, together with the total value of all gifts caught by the Act. Pursuant to section 6(2), “realisable property” meant any property held by the defendant and any property held by a person to whom the defendant had made a gift caught by the Act.

26 . The Human Rights Act 1998 (“the 1998 Act”) incorporates the Convention into United Kingdom law. Section 3(1) of the Act provides that so far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the Convention rights. Under section 7(1) of the Act, a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the Convention rights concerned in any legal proceedings. Section 2 of the Act requires a court determining a question which has arisen in connection with a Convention right to take into account the case-law of this Court.

COMPLAINT

27 . The applicant, relying on Article 1 of Protocol No. 1 to the Convention, contended that the interference with his right to peaceful enjoyment of his possessions, such as it derived from the issuing and upholding of the section certificate under section 16(2) of the 1994 Act, was (i) not subject to “conditions provided for by law” because the 1994 Act had been repealed by the 2002 Act; and (ii) not “provided for by law” because section 16 of the 1994 Act merely allowed for deprivation of assets held at the time of the making of the original confiscation order. He also submitted that the quality of the applicable domestic law did not meet the standards required by the Convention in terms of its foreseeability, precision or clarity; and that the rule embodied in that legislative provision, as interpreted by the courts, failed to strike a fair balance between public ‑ policy considerations and individual rights, thus excluding a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

THE LAW

28. Article 35 § 1 provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...”

A. The parties ’ submissions

29 . The Government argued that the applicant had failed to exhaust domestic remedies because he did not invoke before the national courts his right under Article 1 of Protocol No. 1. They explained that the applicant had not cited that Article before the Court of Appeal in support of his argument that the section 16(2) certificate was unlawful. Before the Supreme Court, he had not included Article 1 of Protocol No. 1 in the list of agreed issues falling for consideration (see paragraph 16 above). He had then made brief reference to the right of property as protected under Protocol No. 1 in his written case (see paragraph 17 above), which had prompted the Government to intervene in the proceedings before the Supreme Court. However, at the hearing, through his leading counsel, he had expressly abandoned any reliance on the Convention. The Supreme Court did not, therefore, determine the point, it being common ground that the appropriate forum in which an offender ’ s human rights might be considered was at the second stage of the process, namely when the Crown Court judge had to decide whether to exercise his discretion to increase the amount of the confiscation order (see paragraph 24 above). This was the reason why neither the majority nor the minority of the Supreme Court had considered the issue. It was further significant that it was apparent from his written case that he did not argue that the domestic provisions lacked clarity; on the contrary, his case was that they clearly excluded after-acquired assets (see paragraph 18 above).

30 . The applicant accepted that no argument was specifically advanced on his behalf in court in respect of Article 1 of Protocol No. 1. However, he argued that the substance of the submissions made was to the effect that the legislation lacked sufficient foreseeability, precision and clarity. For instance, he explained, the main thrust of his argument on Parliamentary intention and foreseeability were the same. It had also been contended in oral argument that the legislation was arbitrary and discouraged an offender from leading a fruitful and honest life. Such discouragement was at odds with the stated objectives of sentencing to be found in the relevant domestic legislation and was certainly not in the public interest or necessary. It had moreover been argued that, absent clear and unambiguous language such as that to be found in the Proceeds of Crime Act 2002, it would be wrong to interpret the 1994 Act in a manner that took no account of the various pronouncements in Parliamentary debates. There was also oral argument on the fairness of making people liable for life for the artificially-inflated benefit figure and to require payment out of future legitimate earnings.

31 . In any event, the applicant submitted, the Human Rights Act 1998 (see paragraph 26 above) and Supreme Court case-law made it clear that domestic courts had to read all legislation in a Convention-compliant way.

B. The Court ’ s assessment

34. In his application to this Court, the applicant ’ s position was that the decision to grant a section 16(2) certificate was incompatible with his property rights as guaranteed by Article 1 of Protocol No. 1 because it did not comply with the legality and proportionality requirements of that Article (see paragraph 27 above). The Court must determine whether he has properly raised this grievance before the domestic courts.

35. Before the Court of Appeal, the applicant adduced three arguments. Two of his arguments concerned the correct interpretation of domestic law. The third explicitly invoked his right to a hearing within a reasonable time (see paragraph 15 above).

36. In the agreed statement of facts and issues before the Supreme Court, only two issues were identified, namely whether section 16 was in force at the material time and whether the High Court had jurisdiction to issue a section 16(2) certificate in respect of after -acquired assets (see paragraph 16 above). In his subsequent written case, the applicant made a passing reference to his right to a hearing within a reasonable time and his rights under Article 8 of the Convention and Article 1 of Protocol No. 1. He stated, without any further explanation, that the interpretation of section 16(2) for which he argued was “compliant with the Human Rights Act” while the interpretation adopted by the Court of Appeal “arg uably [was] not” (see paragraph 17 above). According to the Government, leading counsel for the applicant expressly abandoned any reliance on Convention rights at the hearing before the Supreme Court (see paragraph 29 above). The applicant did not deny this. Indeed, he confirmed that no argument under Article 1 of Protocol No. 1 was specifically advanced in court (see paragraph 30 above).

39. Finally, the Court rejects the applicant ’ s argument based on the domestic courts ’ duty to interpret legislation in a Convention-compliant way. The 1998 Act creates rights for claimants to enable them to advance such arguments before the domestic courts. The adversarial nature of proceedings in the United Kingdom imposes on claimants the very limited burden of asserting the grounds for challenge in their case and any rights upon which they seek to rely (see paragraphs 26 and 31 above).

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 28 January 2016 .

Andr é Wampach Mirjana Lazarova Trajkovska Deputy Registrar President