R v Briggs-Price
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Tuckey,Lord Justice Ward |
| Judgment Date | 14 June 2007 |
| Neutral Citation | [2007] EWCA Civ 568 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 June 2007 |
| Docket Number | Case No: C1/2006/2424 |
[2007] EWCA Civ 568
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HON. MR JUSTICE WILKIE
SITTING AS IN CHAMBERS ON 3 NOVEMBER 2006
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Tuckey and
Lord Justice Wall
Case No: C1/2006/2424
David Perry QC and Mark Sutherland Williams (instructed by Revenue and Customs Prosecution Office) for the Appellant
Clare Montgomery QC and Tim Kendal (instructed by Henry Milner & Co.—Solicitors)) for the 1st Respondent
Barry Stancombe (instructed by Blake Lapthorn Tarlo Lyons – Solicitors) for the 2 nd Respondent
The appeal
With permission granted on paper by Laws LJ on 12 December 2006, the Revenue and Customs Prosecution Office appeals against an order made by Wilkie J sitting in chambers on 3 November 2006 under the Drug Trafficking Act 1994 (DTA 1994) and the Criminal Justice Act 1988 ( CJA 1988) arising out of criminal proceedings instituted against Mr. Robert William Briggs- Price (the defendant) for drug trafficking offences and the evasion of excise duty on imported cigarettes. In the proceedings before the judge, Mr. Nicholas O'Reilly (the receiver) was acting as the court appointed receiver and manager of the defendant's assets pursuant to a restraint order (the restraint order) made by Newman J on 5 July 2000.
Wilkie J's order, which was made on an application by the receiver for directions pursuant to CPR Part 69.6(1) granted him permission to release funds held pursuant to the restraint order to Messrs Henry Milner & Company, solicitors instructed by the defendant:—
for legal expenses actually, reasonably and properly incurred in connection with:—
(a) the hearing of the application for a confiscation order on 30 June 2006
(b) any appeal against the making of that confiscation order; and
(c) the present application.
The order went on to record that there was no obligation upon the receiver to make any such payment unless he was satisfied that the expenditure had “actually, reasonably and properly been incurred”. The judge ordered the appellant to pay the defendant's costs of the application, and directed that the receiver's costs of the application should be treated as costs in the receivership. The judge refused the appellant's application for permission to appeal.
The appellant challenges the judge's order on four succinct grounds. They are:—
1. that as a matter of law, the judge failed to give proper weight to the modern approach to applications of this type, namely that all sources of alternative funding should be exhausted before recourse should be had to restrained assets that would otherwise be used to satisfy the confiscation order;
2. that as a matter of law, the judge failed to give proper weight to the legislative steer set out in CJA 1988 section 82(2) and DTA 1994 section 31(2) which dictate that any order made should be made with a view to preserving the defendant's assets for the confiscation order;
3. that as a matter of fact, the judge failed to give appropriate weight to the factual history in this matter, which has already seen the amount available for confiscation diminished by almost £1,000,000;
4. that as a matter of fact, the judge failed to give proper weight to the public policy argument that a defendant should not be allowed to dissipate assets post conviction.
Both the appellant and the defendant were represented in this court by leading counsel. The defendant resists the appeal. The receiver, who was represented by junior counsel in this court (as he was below) adopts the same stance as he adopted before the judge, namely that of neutrality.
The Statutory Framework
It is, I think, important to record at the outset of this judgment that this appeal arises under DTA 1994 and CJA 1988 and not under the provisions of the Proceeds of Crime Act 2002 ( POCA). The latter, as is common ground, changed the law. To put the matter in simple terms, if the offences in the present case had been committed after 24 March 2003 (the date the provisions of POCA came into force) a combination of POCA sections 40 and 41(3) to (5) (which I need not set out) would have meant that any exception to a restraint order which made provision for reasonable legal expenses would have to exclude provision for any legal expenses relating to the offences:—see the decision of this court in Re S (Restraint Order: Release of Assets) [2004] EWCA Crim 2374, [2005] 1 WLR 1338.
POCA only applies to offences committed after 23 March 2003. Parliament plainly could have made it applicable to offences committed before that date, but chose not to do so. This case, accordingly, is governed by DTA 1994 and CJA 1988. The position under these statutes is different. Section 77 of CJA 1988 provides that:
(1) The High Court may by [a restraint order] prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in the order.
(2) Without prejudice to the generality of subsection (1) above, a restraint order may make such provision as the court thinks fit for living expenses and legal expenses.
DTA 1994, section 26 both deals with restraint orders and makes provision for the appointment of a receiver in cases in which a restraint order is made. DTA 1994 section 26(1) is in identical terms to CJA 1988, section 77(1).
In my judgment, therefore, the judge directed himself correctly as a matter of law when, having set out the terms of POCA section 41(4) he added: —
By reason of this provision a clause such as clause 14 (of the restraint order – see below) could no longer be included in a restraint order made pursuant to that statute. By legislating in those terms Parliament made a clear statement of change of policy and the facts of this case provide disturbing evidence as to why that change of policy was thought desirable. This application, however, is made under the old legislation and I must apply that legislation subject to guidance provided by cases on those provisions and on analogous arrangements.
That, however, is not quite the end of the matter, because, as we have already seen, Mr. David Perry QC, for the appellant, whilst properly recognising that it would be impermissible to construe DTA 1994 and CJA 1988 by reference to the terms of POCA section 41(4), nonetheless advances as paragraph 2 of his grounds of appeal what he submits was the judge's failure to have regard to “the legislative steer” in both CJA 1988 section 82(2) and (6) and DTA 1994, section 31(2) and (6). These are in identical terms, and read:—
(2) Subject to the following provisions of this section, the powers shall be exercised with a view to making available for satisfying the confiscation order or, as the case may be, any confiscation order that may be made in the defendant's case, the value for the time being of realisable property held by any person by the realisation of that property.
(6) In exercising those powers, no account shall be taken of the obligations of the defendant… which conflict with the obligation to satisfy the confiscation order'.
I shall address the question of the “legislative steer” later in this judgment.
The background
In order to understand the arguments addressed to this court, it is necessary to set out the somewhat unusual background to the case. I take the essential facts from paragraphs 4 to 8 of the judge's judgment, which is reported at [2006] EWHC 2751 (Admin):—
4. The underlying facts can be briefly stated. On 22 June 2000 the defendant was charged with a number of drug trafficking offences and with the evasion of excise duty on imported cigarettes. On 5 July 2000 the restraint order was made. In April 2003 the defendant was convicted after a trial of drug trafficking offences and sentenced to 17 years imprisonment. On 19 April 2004 he pleaded guilty to being concerned in the evasion of duty on imported cigarettes and received a sentence of 4 1/2 years imprisonment to run concurrently with that imposed in relation to the drug trafficking offences. The defendant sought leave to appeal against his conviction but leave was refused.
5. On 28 April 2005 the judge at Nottingham Crown Court made a ruling in connection with confiscation proceedings as to the benefit the defendant had made for the purposes of those proceedings. That ruling was that his benefit was £510,000 odd in relation to the evasion of import duty on cigarettes and £4 million in relation to the drug trafficking matter. On 30 June 2006 a confiscation order was made against the defendant in the sum of £510,000 odd in relation to the cigarette matter and £2.628 million pounds odd in relation to the drug matter. He was given until 31 October 2007 to pay that confiscation order with the total term of 8 years imprisonment in default. That figure represented the then realisable assets found by the judge to be available and it took into account the depletion of the assets subject of the restraint order by reason of payments of the order of £1 million made by the receiver pursuant to clause 14.
6. The defendant's legal representation had varied from time to time. At the time of the making of the restraint order the defendant was represented by Miss Sarah Gathercole a sole practitioner. She was privately instructed in relation to the criminal proceedings and the restraint proceedings until, on 1 July 2002, he obtained community legal funding in relation with the criminal...
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