Criminal proceeds recovery and proof of offending

Even as we in New Zealand eagerly await 1 December 2009, when the new Criminal Proceeds (Recovery) Act 2009 will commence, a question about its meaning has become apparent. This question occurs to readers of R v Briggs-Price [2009] UKHL 19 (29 April 2009).

Our new legislation will replace that which exists. It will deal with forfeiture of two kinds: forfeiture of instruments used to commit qualifying offences, and forfeiture of proceeds of significant criminal activity. Proceeds are of two kinds: assets and profits.

To see the difficulty that Briggs-Price suggests, consider the provision for an order for forfeiture of profits, s 55:

"55 Making profit forfeiture order

(1) The High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that—

(a) the respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity; and

          (b) the respondent has interests in property."

The civil standard of proof applies to "has unlawfully benefited", but does it also apply to "from significant criminal activity" (an expression which the Act defines)?

It was argued for the appellant in Briggs-Price that the Crown should be required to prove beyond reasonable doubt the commission of particular qualifying offences when it relies on this sort of approach to forfeiture. Otherwise, the presumption of innocence would be breached.

The House of Lords split 3 – 2 on this, although they were unanimous in dismissing the appeal. That split alone is reason to avoid the same argument here by an amendment to make the point clear. I should acknowledge that the legislative intent was probably to apply the civil standard, not the criminal standard, and that is the natural meaning of the provision, and it conforms to the minority opinions in Briggs-Price. Certainly, the Parliamentary intent was to make the obtaining of a conviction unnecessary, as the Explanatory Memorandum accompanying the Bill (in 2006) stated.

Lords Rodger, Brown and Neuberger held that the criminal standard applied, and Lords Phillips and Mance would have applied the civil standard.

Lord Rodger held that if the criminal standard did not apply, "... 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." (77)

Lord Brown held that art 6(2) of the ECHR was engaged (95), and that although Geerings v Netherlands (2007) 46 EHRR 1222 applied (pursuant to which the criminal standard of proof had to be met) it was satisfied here because the Judge had found beyond reasonable doubt that the relevant criminal activity had occurred.

Lord Neuberger agreed (136) with Lord Rodger. The relevant UK legislation is referred to by Lord Phillips at para 5 – 7. It carries the same ambiguity as the New Zealand provision set out above, as s 2(8) of the Drug Trafficking Act 1994[UK] provides:

"The standard of proof required to determine any question arising under this Act as to–

(a) whether a person has benefited from drug trafficking, or

(b) the amount to be recovered in his case by virtue of this section,

shall be that applicable in civil proceedings."

Note that this clearly applies to "benefited" and to "amount", but is not clear on whether it applies to "from drug trafficking".