The judgment is also likely to force ministers to change legislation which governs seizure of all criminals' assets and hamper its current proposals to end the sometimes luxury lifestyle of their families. Yesterday the Home Office would only say it was studying the implications.
Coming two weeks after a European Commission ruling forcing the Government to pay out millions in compensation to hundreds of poll-tax defaulters who were illegally jailed, yesterday's ruling will fuel Euro-sceptics' anger at what they see as further meddling with Britain's legal system.
But MPs on both sides of the Commons and constitutional lawyers said these embarrassing judgments would be avoided if the United Kingdom adopted the Convention on Human Rights into its legislation.
Sir Ivan Lawrence, chairman of the Commons Select Committee on Home Affairs, said: "I would much rather the European Convention on Human Rights, with which I agree, become a part of British law so we didn't have to take our appeals to the continent and have them dealt with in this way."
The latest case involved Peter Welch, a rock musician jailed for 22 years in 1988 for masterminding a multi-million pound drug-smuggling ring, who was caught attempting to land a £4m cannabis consignment on to a Welsh beach. The judge, Mr Justice Mars-Jones, under the Drug Trafficking Offences Act 1986, also imposed a confiscation order on Welch of £66,000 or two years in default.
Yesterday, the European Court ordered Britain to repay £59,914 and legal costs of £13,000 after it ruled the compensation order violated the convention. So far the Government has seized about £55m under its provisions.
The 13 judges found the compensation order amounted to a criminal penalty and therefore could not be applied retrospectively as it had been in Welch's case. That means the criminal standard of proof - that is that it was beyond reasonable doubt that the assets were illegally gained - should apply, not the civil standard of "probability" which is currently applied.
Adding to the Government's red face over the legislation is the fact that it had been warned while the Drug Traffickers Offences Act was being drafted that it was a breach of the convention by Lord Hooson, the Liberal Democrat peer.
The warnings have been repeated by the High Court and the Court of Appeal. In 1989, Lord Lane, then Lord Chief Justice, described the Act's provisions, which allow the court to assume that any property held by a defendant in the six years ending with hisor her arrest is the proceeds of the drug trade, was "draconian".
t Many of Britain's senior judges including the Lord Chief Justice, Lord Taylor of Gosforth, Lord Woolf and Lord Browne-Wilkinson, both Law Lords, and the Master of the Rolls, Sir Thomas Bingham, believe the European Convention on Human Rights should be incorporated into British law, writes Stephen Ward.
If that happened, judges in British courts could give much earlier rulings on whether laws contravened the convention, rather than leaving the interpretation to a large panel of international judges years later.
A Private Member's Bill proposing the change was introduced by Lord Lester of Herne Hill and given a second reading in the Lords last month. It is due to reach the Committee Stage next week.Reuse content