R Gareth Etienne v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 19 March 2019 |
| Neutral Citation | [2019] EWHC 804 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/5189/2018 |
| Date | 19 March 2019 |
[2019] EWHC 804 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice Elisabeth Laing DBE
No. CO/5189/2018
THE CLAIMANT appeared in Person.
THE DEFENDANT did not appear and was not represented.
Mr J. Goss (instructed by MPS Directorate of Legal Services) appeared on behalf of the First Interested Party.
( )
This is an application for permission to apply for judicial review of a decision of Westminster Magistrates' Court made on 22 October 2018 by Deputy District Judge (Magistrates' Courts) Miller (“the DJ”). Pepperall J refused an application for interim relief on 21 December 2018.
This application for permission to apply for judicial review was listed for an oral hearing by Ouseley J on 29 January 2019. Ouseley J suggested in his observations that as well as the question of permission to apply for judicial review, the court on the hearing should also consider whether the first defendant and the second interested party, in particular, should be parties to this claim. On 26 February the claimant applied for the second interested party to be removed from the proceedings. In light of that application, I consider that, whatever else I may say in this judgment, the second interested party should be removed from the proceedings and I so order. Having listened to the argument as it proceeded, I also consider that the first defendant should be removed from the proceedings and I so order.
The claimant has also applied for summary judgment against the defendant for interim relief and for disclosure.
The claimant has represented himself. The first interested party has been represented by Mr Goss. I am grateful to the claimant and to Mr Goss for their oral and written submissions. Neither the defendant nor the second interested party has attended the hearing. Both defendants acknowledged service and both indicated in their acknowledgements of service that they were taking a neutral position. There has been no acknowledgement of service from the second interested party.
I take the facts from the decision of the District Judge. He described the application as an application by the first interested party in these proceedings under s.298 of the Proceeds of Crime Act 2002 (“the 2002 Act”) for the forfeiture of three sums of cash seized from the claimant; that is €58,500 (“the euros”) and £3,300, both seized on 9 May 2012, and £47,735.53 (“the William Hill cheque”) seized on 26 October 2015.
As the DJ recited, the claimant owns or owned a number of properties which were bought between 2005 and 2007 with the help of fraudulently obtained mortgages. The total value of those mortgages, after making allowances for re-mortgaging, was about £650,000. On 9 May 2012 the claimant went to a money services bureau intending to change a large amount of cash. He was stopped by the first interested party's territorial support group and the euros were seized. He was arrested.
A search of his property under s.18 of the Police and Criminal Evidence Act 1984 discovered an envelope containing £3,300 in sterling, a holdall containing (among other things) financial correspondence in the claimant's name, electronic devices, a passport in the name of Christina Piatti, a driving licence in the name of Eva Ilves and a birth and marriage certificate in the name of Lorraine Grande.
In interview the defendant gave an account about the source of the euros, saying they had been lent to him by a friend to buy a car. He made no comment when asked questions about the holdall and its contents. Enquiries with Her Majesty's Revenue and Customs produced no evidence of declared PAYE or self-employment income for the defendant in the previous six years. An investigation of the claimant's computers and mobile phones yielded extensive evidence of a variety of fraudulent schemes, including fraudulent credit card transactions to a sham company, the receipt of stolen cheques and identity fraud.
On 23 January 2014 the defendant was charged with money laundering offences. On 14 February 2014 he was charged with a further ten offences, including in relation to the fraudulently obtained mortgages. On 17 November 2014 the defendant pleaded guilty to five offences; an offence of converting criminal property, an offence of obtaining a money transfer by deception in respect of one of the fraudulently obtained mortgages, an offence of obtaining a money transfer by deception in respect of a second fraudulently obtained mortgage, an offence of possessing a false or improperly obtained identity document with an improper intention in relation to Ms Ilves' driving licence, and possession of articles for use in fraud in respect of Ms Piatti's passport, Ms Grande's birth and marriage certificates and his laptop.
On 4 October 2015 the defendant placed bets totalling £5,416.66 at a branch of William Hill. This transaction gave rise to suspicion and William Hill contacted the first interested party. At least some of the defendant's bets were successful and the bets with his winnings totalled £47,735.53. William Hill produced a cheque for that amount but handed it to the first interested party on 26 October 2015. That cheque was then seized by the first interested party under s.294 of the 2002 Act. On the same day the first interested party applied to the Westminster Magistrates' Court under s.298 of the 2002 Act, seeking forfeiture of the cash. I should explain that the 2002 Act includes cheques in the definition of “cash”.
On 5 April 2016 DC Wilson produced a statement under s.16 of the 2002 Act for confiscation proceedings arising out of the defendant's convictions. The Crown Prosecution Service were unable to bring the confiscation proceedings to a conclusion within the statutory time limit of two years from the date of conviction. That meant that the claimant was not made the subject of a confiscation order.
The claimant gave evidence at the hearing in front of the DJ. He accepted in his evidence that the funds which formed the subject matter of the application were not derived from lawful activity. He drew the DJ's attention to a statement dated 10 October 2018 and other statements made by him in the relevant proceedings, and said that he relied on submissions made in those statements. The DJ recorded, in essence, that the claimant's case was that the Crown had failed to pursue the confiscation proceedings following his pleas of guilty at the Crown Court and they were now estopped from pursuing the forfeiture application as to do so would amount to the Crown having a second bite of the cherry. That that would amount to an abuse of the court's process. The DJ said that for such a submission to succeed would require him to find that there was no lawful basis for the forfeiture application and also to be satisfied that the Crown Court jurisdiction to hear confiscation proceedings and the civil jurisdiction exercisable by the Magistrates' Court were mutually exclusive.
The law
Section 298 of the 2002 Act makes provision for the Magistrates' Court to forfeit cash. In order to understand s.298 one needs also to take into account s.294 and s.295. Section 294 gives a constable or an accredited financial investigator power to seize cash if he has reasonable grounds for suspecting that it is recoverable property or intended by any person for use in unlawful conduct. Section 295(1) enables a constable or accredited financial investigator, while he continues to have reasonable grounds for his suspicion, to detain cash seized under s.294 initially for a period of 48 hours. Section 298 provides that when cash has been detained under s.295 an application for forfeiture of that or any part of it may be made to a Magistrates' Court on application by an accredited financial investigator or constable. The court may order the forfeiture of the cash, or any part of it, if it is satisfied that the cash, or any part “(a) is recoverable property or (b) is intended by any person for use in an unlawful conduct.”
Section 298(2)(d) provides that where an application is made for forfeiture of cash under...
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