In one of its final decisions before it is replaced by the new Supreme Court, the House of Lords has allowed a confiscation order against a criminal in a judgment that will come as a blow to others in the same line of business.

The man was convicted of conspiracy to import heroin, although the importation did not in fact occur. He was alleged by the Crown Prosecution Service to have also sold six tonnes of cannabis for £8 million, although he was not charged with that offence.

In court, the judge estimated that the man’s benefit from drug trafficking was in the region of £4 million. A confiscation order was made against him for £2.6 million. He appealed against the order, arguing that it was unfair as it applied to assets derived from an activity for which he had not been convicted. His contention was that this was a breach of his human rights, namely the right to a fair trial and the right to be assumed innocent until proven guilty.

The Lords did not agree, however, ruling that confiscation orders are part of the sentencing process and the Convention for the Protection of Human Rights and Fundamental Freedoms does not therefore apply. In confiscation order proceedings, the burden of proof required to demonstrate that someone has benefited from their criminal activity is the civil burden (balance of probabilities) and not the criminal one (proof beyond all reasonable doubt).

After a criminal has been convicted of acquisitive crime, he or she may face proceedings to have assets confiscated to the value of their supposed ‘profit’ on the criminal activity. It is not necessary that that profit is directly connected with the particular crime for which they have been convicted.