R (Perinpanathan) v City of Westminster Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GOLDRING,MR JUSTICE SWEENEY |
| Judgment Date | 10 March 2009 |
| Neutral Citation | [2009] EWHC 762 (Admin) |
| Docket Number | CO/2547/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 March 2009 |
[2009] EWHC 762 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Goldring
Mr Justice Sweeney
CO/2547/2008
Mr N Yeo (instructed by Sohal & Co) appeared on behalf of the Claimant
Mr R Fortt (instructed by Metropolitan Police) appeared on behalf of the Interested Parties
: On 15th April 2006 Mrs Perinpanathan's daughter, who was 15, was stopped at Heathrow Airport. She was carrying some £150,000 in cash. The cash was detained by the police on the basis that there were reasonable grounds to suspect it was intended for use in unlawful conduct, namely terrorism. On 13th December 2007, following a two day hearing at Westminster Magistrates' Court, the Justices declined to order forfeiture of the cash. The interested parties had failed to prove, on the balance of probabilities, that the intention was to use the cash for unlawful purposes. This application for judicial review is in respect of the Justices' refusal to order the costs of the hearing against the second interested party.
The Relevant Statutory Provisions
The Proceeds of Crime Act 2002, section 240 and following set out the applicable provisions:
“ 240. General purpose of this Part
(1) This Part has effect for the purposes of—
(a) enabling the enforcement authority to recover, in civil proceedings before the High Court or Court of Session, property which is, or represents, property obtained through unlawful conduct,
(b) enabling cash which is, or represents, property obtained through unlawful conduct, or which is intended to be used in unlawful conduct, to be forfeited in civil proceedings before a magistrates' court or (in Scotland) the sheriff.
(2) The powers conferred by this Part are exercisable in relation to any property (including cash) whether or not any proceedings have been brought for an offence in connection with the property.
241. 'Unlawful conduct'
(1) Conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part.
(2) Conduct which—
(a) occurs in a country outside the United Kingdom and is unlawful under the criminal law of that country, and
(b) if it occurred in a part of the United Kingdom, would be unlawful under the criminal law of that part
Is also unlawful conduct.
(3) The court or sheriff must decide on a balance of probabilities whether it is proved—
(a) that any matters alleged to constitute unlawful conduct have occurred, or
(b) that any person intended to use any cash in unlawful conduct.
242. 'Property obtained through unlawful conduct'.
(1) A person obtains property through unlawful conduct (whether his own conduct or another's) if he obtains property by or in return for the conduct.
(2) In deciding whether any property was obtained through unlawful conduct—
(a) it is immaterial whether or not any money, goods or services were provided in order to put the person in question in a position to carry out the conduct,
(b) it is not necessary to show that the conduct was of a particular kind if it is shown that the property was obtained through conduct of one of a number of kinds, each of which would have been unlawful conduct …
294. Seizure of cash
(1) A customs officer or 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.
(2) A customs officer or constable may also seize cash part of which he has reasonable grounds for suspecting to be—
(a) recoverable property, or
(b) intended by any person for use in unlawful conduct
if it is not reasonably practicable to seize only that part.
(3) This section does not authorise the seizure of an amount of cash if it or, as the case may be, the part to which his suspicion relates, is less than the minimum amount.
295. Detention of seized cash
(1) While the customs officer or 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 or (in Scotland) the sheriff; but the order may not authorise the detention of any of the cash—
(a) beyond the end of the period of three 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.
(3) A Justice of the Peace may also exercise the power of a magistrates' court to make the first order under subsection (2) extending the period.
(4) An application for an order under subsection (2)—
(a) in relation to England and Wales and Northern Ireland, may be made by the Commissioners of Customs and Excise or a constable,
(b) in relation to Scotland, may be made by the Scottish Ministers in connection with their functions under section 298 or by a procurator fiscal
and the court, sheriff or justice 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 consideration is given to bringing (in the United Kingdom or elsewhere) proceedings against any person for an offence with which the cash is connected, 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 consideration is given to bringing (in the United Kingdom or elsewhere) proceedings against any person for an offence with which the cash is connected, or
(b) proceedings against any person for an offence with which the cash is connected have been started and have not been concluded.
(7) An application for an order under subsection (2) may also be made in respect of any cash seized under section 294(2), and the court, sheriff or justice may make the order if satisfied that—
(a) the condition in subsection ( 5) or (6) is met in respect of part of the cash, and
(b) it is not reasonably practicable to detain only that part.
(8) An order under subsection (2) must provide for notice to be given to persons affected by it …
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—
(a) to a Magistrates' Court by the Commissioners of Customs and Excise or a constable,
(b) (in Scotland) to the sheriff by the Scottish Ministers.
(2) The court or sheriff 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.
(3) But in the case of recoverable property which belongs to joint tenants, one of whom is an excepted joint owner, the order may not apply to so much of it as the court thinks is attributable to the excepted joint owner's share.
(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.
299. Appeal against forfeiture
(1) Any party to proceedings in which an order is made under section 298 for the forfeiture of cash who is aggrieved by the order may appeal—
(a) in relation to England and Wales, to the Crown Court,
(b) in relation to Scotland, to the Court of Session,
(c) in relation to Northern Ireland, to a county court.
(2) An appeal under subsection (1) must be made within the period of 30 days beginning with the date on which the order is made.
(3) The appeal is to be by way of a rehearing.
(4) The court hearing the appeal may make any order it thinks appropriate.
(5) If the court upholds the appeal, it may order the release of the cash …
302. Compensation
(1) If no forfeiture order is made in respect of any cash detained under this Chapter, the person to whom the cash belongs or from whom it was seized may make an application to the magistrates' court or (in Scotland) the sheriff for compensation …“
The relevant provision regarding costs is section 64 of the Magistrates' Court act 1980. That provision provides:
“ Power to award costs and enforcement of costs
(1) on a hearing of a complaint, a Magistrates' Court shall have power in its discretion to make such order as to costs—
(a) on making the order for which the complaint is made, to be paid by the defendant to the complainant;
(b) on dismissing the complaint, to be paid by the complainant to the defendant,
as it thinks just and reasonable …“
The Facts: more detail
They are helpfully set out in the grounds of the interested parties. The daughter had some £153,000 in Sterling and dollars. The claimant went to Heathrow to meet her daughter from the flight. The daughter was interviewed on the day of arrest. She made a number of what are described as “material assertions”. The claimant...
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