European Court of Human Rights
Published October 2, 2008
Grayson v United Kingdom
(Application No 19955/05)
Barnham v United Kingdom
(Application No 15085/06)
Before L. Garlicki, President, and Judges Sir Nicolas Bratza, L. Mijovic, D. Thor Björgvinsson, J.Šikuta, P.Hirvelä and M. Poalelungi
Deputy Section Registrar F. Araci
Judgment September 23, 2008

It was not incompatible with the notion of a fair hearing in criminal proceedings for the onus of proof to be placed on the accused to provide a credible account of his financial situation, once it has been proved that he had been involved in extensive and lucrative drug dealing over a period of years.

The European Court of Human Rights so held, unanimously, in finding no violation of article 6 of the European Convention on Human Rights, guaranteeing the right to a fair trial, and of article 1 of the First Protocol of the Convention, protecting property.

The applicants were two British nationals, Mark William Grayson and John Barnham, who were serving prison sentences in, respectively, Nottingham and Ashwell for drugs offences. Mr Grayson was convicted of an offence involving the importation of over 28kg of pure heroin with a wholesale value of £1.2 million. Mr Barnham was described during his trial as the lead organiser in an international drug trafficking business.

The case concerned the applicants’ complaint that, in confiscation proceedings following their convictions, the English courts in making the confiscation orders assumed that the applicants had hidden assets in addition to the assets established by the prosecution to be in their possession.

Thus, the legal burden of proof was on the applicants to show that their realisable property was less than the amount to which they had been assessed to have benefited from drug trafficking.

The Court agreed with the domestic courts that it had been compatible with the notion of a fair hearing in criminal proceedings to have placed the onus on each applicant to give a credible account of his current financial situation.

Having been proved to have been involved in extensive and lucrative drug dealing over a period of years, it had not been unreasonable to expect the applicants to explain what had happened to all the money shown by the prosecution to have been in their possession.

Only the applicants could have had such knowledge and the burden on each of them would not have been difficult to meet if their accounts of their financial affairs had been true.

The Court therefore held unanimously that there had been no violation of article 6.1 in respect of either applicant. The requirement to pay money under a confiscation order therefore having been made in compliance with article 6.1, the Court found that there had been no disproportionate interference with the applicants’ right to peaceful enjoyment of their possessions. Accordingly, it also held, unanimously, that there had been no violation of article 1 of the First Protocol.

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