Desmond Campbell v Bromley Magistrates' Court The Commissioner of Police of The Metropolis (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Lord Justice McFarlane |
| Judgment Date | 28 July 2017 |
| Neutral Citation | [2017] EWCA Civ 1161 |
| Docket Number | Case No: C1/2015/4075 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2017 |
[2017] EWCA Civ 1161
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice GOSS
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
— and —
Lord Justice McFarlane
Case No: C1/2015/4075
and
Ms Anne Studd QC (instructed by Bar Pro Bono Unit) for the appellant
Mr Kennedy Talbot QC and Mr James Byrne (instructed byDirectorate of Legal Service, the Metropolitan Police) for the interested party
The respondent was neither present nor represented
Hearing date: 11 July 2017
Sir James Munby, President of the Family Division:
This is an appeal, pursuant to permission granted by Hamblen LJ on 1 February 2017, [2017] EWCA Civ 208, from an order made by Goss J on 26 November 2015, [2015] EWHC 3424 (Admin), refusing the appellant permission to apply for judicial review of a decision of DJ(MC) Hunter sitting in Bromley Magistrates' Court on 10 March 2015. The District Judge was hearing forfeiture proceedings against the appellant pursuant to section 298 of the Proceeds of Crime Act 2002.
Before proceeding any further it is convenient to set out the relevant provisions of the Act. I start with section 294 which, so far as material, provides as follows:
"294 Seizure of cash
(1) … a constable … may seize any cash if he has reasonable grounds for suspecting that it is –
(a) recoverable property, or
(b) intended by any person for use in unlawful conduct."
Nothing turns for present purposes on the meanings of "recoverable property" or "unlawful conduct."
Section 295, so far as material, provides as follows:
"295 Detention of seized cash
(1) While the … constable … continues to have reasonable grounds for his suspicion, cash seized under section 294 may be detained initially for a period of 48 hours.
…
(2) The period for which the cash or any part of it may be detained may be extended by an order made by a magistrates' court …; but the order may not authorise the detention of any of the cash –
(a) beyond the end of the period of six months beginning with the date of the order,
(b) in the case of any further order under this section, beyond the end of the period of two years beginning with the date of the first order.
…
(4) An application for an order under subsection (2) … may be made by … a constable … and the court … may make the order if satisfied, in relation to any cash to be further detained, that either of the following conditions is met.
(5) The first condition is that there are reasonable grounds for suspecting that the cash is recoverable property and that either –
(a) its continued detention is justified while its derivation is further investigated …, or
(b) proceedings against any person for an offence with which the cash is connected have been started and have not been concluded.
(6) The second condition is that there are reasonable grounds for suspecting that the cash is intended to be used in unlawful conduct and that either –
(a) its continued detention is justified while its intended use is further investigated …, or
(b) proceedings against any person for an offence with which the cash is connected have been started and have not been concluded."
Section 297, so far as material, provides as follows:
"297 Release of detained cash
(1) This section applies while any cash is detained under section 295.
(2) A magistrates' court … may direct the release of the whole or any part of the cash if the following condition is met.
(3) The condition is that the court … is satisfied, on an application by the person from whom the cash was seized, that the conditions in section 295 for the detention of the cash are no longer met in relation to the cash to be released."
Section 298, so far as material, provides as follows:
"298 Forfeiture
(1) While cash is detained under section 295 … an application for the forfeiture of the whole or any part of it may be made … to a magistrates' court by … a constable …
(2) The court … may order the forfeiture of the cash or any part of it if satisfied that the cash or part –
(a) is recoverable property, or
(b) is intended by any person for use in unlawful conduct.
…
(4) Where an application for the forfeiture of any cash is made under this section, the cash is to be detained (and may not be released under any power conferred by this Chapter) until any proceedings in pursuance of the application (including any proceedings on appeal) are concluded."
There is no need for any detailed exegesis of these provisions. The statutory scheme is clear, moving through three stages: seizure (section 294), detention (section 295) and forfeiture (section 298). Detention for more than 48 hours and forfeiture require judicial sanction on carefully defined criteria and subject, as might be expected, to appropriate procedural safeguards.
Two particular points need to be noted. First, that provided the court is satisfied of the matters specified in section 295(4) or section 298(2), as the case may be, there is no requirement that the basis of the seizure, detention and forfeiture remains the same throughout. Thus, subject to proof of the relevant "suspicion", on the part of the constable, or of the relevant ground upon which the court is "satisfied", cash can, for example, be seized on suspicion of having been stolen, can thereafter be detained by the constable on suspicion, or by the court on being satisfied, that is the proceeds of a VAT fraud, and can eventually be forfeited by the court on being satisfied that it has been laundered: consider, for example, the words "while its derivation is further investigated" in section 295(5)(a). The second point to be noted is that the effect of section 298(4) is, for example, that the power to order release under section 297 is no longer exercisable once the forfeiture proceedings are under way.
The litigation has been protracted, with various applications by the appellant to the Administrative Court, but so far as material for present purposes the facts can be very shortly stated. On 10 January 2014, a constable, in the course of executing at the appellant's house a search warrant issued by DJ(MC) Fanning on 8 January 2014, seized a quantity of cash and arrested the appellant on suspicion of money laundering. On 17 February 2014, according to the police, a constable purported to re-seize the cash under section 294. Orders under section 295 were made by Bromley Magistrates' Court on 19 February 2014 (for one month) and on 14 March 2014 (for three months). During the currency of the latter order, the police applied under section 298 for a forfeiture order. I need not go through the history of that application. Eventually it came before DJ(MC) Hunter on 10 March 2015.
Amongst other matters the appellant wished to challenge before the District Judge, was the legality of what had happened on 17 and 19 February 2014. I need not go into the details but he accused the police of having knowingly misled the court. The District Judge refused to embark upon that investigation. On 27 March 2015, he made an order for forfeiture in the sum of £7,770.
On 27 May 2015, the District Judge stated a Case on various matters raised by the appellant. The Case Stated identified, as an issue the appellant wished to challenge, the District Judge's:
"failure to hold a preliminary hearing to address questions of law being:
a) The lawfulness of otherwise of the search warrant issued by my colleague District Judge Fanning on the 8 th January 2014;
b) The lawfulness of the Appellant's arrest which he contended was in breach of the Police and Criminal Evidence Act; and
c) The lawfulness of the re-seizure of the cash (assuming that points a) and b) were answered in the Appellant's favour)."
The District Judge went on to explain why he was not prepared to state a Case on these points. In the course of this he said:
"The correct avenue of...
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