L A W R E P O R T S Confiscation order breached rights

Welch v United Kingdom. European Court of Human Rights. 9 February 1995.

A confiscation order imposed pursuant to the Drug Trafficking Offences Act 1986 was in breach of the defendant's rights under article 7.1 of the European Convention on Human Rights because it retrospectively imposed a heavier penalty that applying at the time the offence was committed. The European Court of Human Rights unanimously held there had been a violation of the rights of Peter Welch under Article 7, in that he had been subjected to a confiscation order imposed on 24 August 1988, following his conviction for offences committed between 1 January and 3 November 1986, whereas the operative provisions of the 1986 Act had only come into force on 12 January 1987. He also received terms of 20 and 22 years' imprisonment for his offences.

Article 7.1 of the Convention provided that no one should be subject to a heavier penalty than that which was applicable at the time the offence was committed.

The court held that the confiscation order, under which Mr Welch was to pay £66,914 or face an additional two-year term of imprisonment in default, amounted to a "penalty" within Article 7.1 since it was dependant on a criminal conviction.

Looking at the realities of the situation, it was a more far-reaching detriment than that to which he was exposed at the time he committed the offences.

The court stressed, however, that its conclusion only concerned the retrospective application of the 1986 Act, and did not call into question the powers of confiscation conferred on the court as a weapon in the fight against the scourge of drug trafficking.

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