Welch v United Kingdom: ECHR 15 Feb 1995

The applicant was convicted in 1988 of drug offences committed in 1986. The judge passed a sentence of imprisonment but imposed a confiscation order pursuant to an Act that came into force in l987.
Held: The concept of penalty in Article 7 was an autonomous Convention concept and that to render the protection of Article 7 effective the court had to remain free to go behind appearances and assess for itself whether a particular measure amounted in substance to a ‘penalty’ within the meaning of the provision. Looking behind appearances at the realities of the situation, whatever the characterisation of the measure of confiscation, the applicant faced more far-reaching detriment as a result of the order than that to which he was exposed at the time of the commission of the offences for which he was convicted. The retrospective confiscation of the assets of a drug dealer was a penalty and was unlawful as a breach of his human rights.


Times 15-Feb-1995, Independent 22-Feb-1995, 17440/90, (1995) 20 EHRR 247, [1995] ECHR 4, [1996] ECHR 12, [1995] ECHR 4


Worldlii, Worldlii, Bailii, Bailii


European Convention on Human Rights 7.1, Drug Trafficking Offences Act 1986

Cited by:

CitedRegina v Field (Brian John); Regina v Young (Alfred) CACD 12-Dec-2002
Each applicant having been convicted of indecent assaults involving children, now appealed an order banning them from working with children.
Held: The orders were not penalties within article 7. The order was available in the absence of a . .
CitedMcFetrich, Regina (on the Application of) v Secretary of State for the Home Department Admn 30-Jun-2003
The defendant had been convicted of murder in Scotland. He requested a transfer to an English prison. The trial judge recommended a tariff of eight years which was eventually set at 12 years by the respondent. That figure also exceeded the maximum . .
CitedRegina v R (Sentencing: Extended licences) CACD 25-Jul-2003
The imposition of an extended period of licence in respect of offences committed before 1992 did not infringe the defendant’s human rights. The defendant had been convicted of offences from 1976 and 1982. The commencement date for the 1991 Act was 1 . .
CitedRegina on the Application of Uttley v Secretary of State for the Home Department CA 30-Jul-2003
Licence conditions imposed at the time of sentence would restrict the defendant after he had served his sentence and been released, and so operated as a heavier penalty, and section 33(1) was incompatible with the defendant’s Art 7.1 rights.
CitedUttley, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2004
In 1995 the defendant was sentenced to twelve years for rapes committed in 1983. He complained that the consequences of the later sentence were adverse because of the 1991 Act. He would now serve three quarters of the sentence rather than two . .
CitedCrowther v The United Kingdom ECHR 1-Feb-2005
The applicant complained of the delay by the Customs and Excise in enforcing a confiscation order against him of four years.
Held: The respondent had allowed almost four years to pass after the liability had been incurred without taking any . .
CitedMinistry of Defence v Foxley and others Admn 10-Dec-2007
In 1992, the claimant and members of his family were made subject to restraint orders after his conviction for corruption. They now applied for discharge of the orders claiming excessive delay. Nothing had moved forward since 1996, saying hey had in . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Updated: 20 May 2022; Ref: scu.90366