Injustice Caused by Restraint Order
| DOI | http://doi.org/10.1177/002201839906300621 |
| Published date | 01 December 1999 |
| Date | 01 December 1999 |
| Subject Matter | Article |
The
Journal
of
Criminal
Law
Appeal Office, as
the
Crown is
not
ordinarily represented where the
appeal is against sentence only.
Injustice Caused
by
Restraint
Order
In re
Andrews
[1999] 1 WLR 1236
The appellant and his son were arrested by excise officers and charged
with
VAT
offences and laterwith
PAVE
offences contrary to Part VIof the
than
£42,000 from the house of the father (the present appellant) and later
obtained from the court arestraint order in relation
not
only to that
property
but
also to
the
property of the company which was owned by
the son
and
in which
both
the
accused worked. In the event of con-
viction or on a later application, that property could (and
it
might be
expected that it would) be the subject of a confiscation order.
An
application was
made
for the appointment of a receiver in respect of all
the property, the reason being given that otherwise
the
son might
dissipate the assets. For that reason, areceiver was appointed, even in
relation to the property taken from the father's house, although no
allegation had been made as to his potential acts. The order was, how-
ever, made against
the
father. The terms of the receivership expressly
permitted the receiver to draw
her
expenses from
the
property which
she controlled on behalf of the court, although it was added that
if
the
property was insufficient to satisfy the claim for expenses, any shortfall
would be
met
by the Commissioners of Customs
and
Excise.
It
was also
stated that
the
agreement of
the
Commissioners would be required for
such expenses
and
that
it was only on a failure to reach agreement that
the
question would be determined by
the
court.
In
the
event, although the son was convicted, the father was
acquitted on all
the
charges brought against
him
and
he was allowed his
costs
out
of central funds. The determining officer, however, held that
the costs were to be confined to those incurred in the Crown Court
proceedings, so
that
the
costs of the receivership were excluded from the
award made by the Crown Court on his acquittal of
the
criminal charges.
Out
of the £42,000 taken from him, the appellant had received £32,000
for
the
expenses of his criminal trial, so that the determining officer's
decision left
him
some £10,000
out
of pocket, as a result of the
receivership.
the
court to make
aconfiscation order in certain circumstances and, as ancillary thereto, it
may appoint areceiver for
any
property made the subject of a restraint
order, in case a confiscation order may be applied for later. A receiver
thus appointed
under
s 77(8) of the Act controls the property as an
officer of the court, so
that
indirectly it is the court (not the prosecutor'
who
seized the property) which has control. RSC Ord 30 r 3 permits the
556
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