Re Maye

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD SCOTT OF FOSCOTE,LORD CARSWELL,LORD NEUBERGER OF ABBOTSBURY,BARONESS HALE OF RICHMOND,LORD BINGHAM OF CORNHILL
Judgment Date06 February 2008
Neutral Citation[2008] UKHL 9
Date06 February 2008

[2008] UKHL 9

HOUSE OF LORDS

Appellate Committee

Lord Bingham of Cornhill

Lord Scott of Foscote

Baroness Hale of Richmond

Lord Carswell

Lord Neuberger of Abbotsbury

In re Maye (AP)
(Appellant) (Northern Ireland)

Appellants:

James McNulty QC

Desmond Hutton

(Instructed by Thomas T Montague Solicitors)

Respondents:

Terence Mooney QC

Jonathan Lowry

(Instructed by Director of Public Prosecutions)

LORD BINGHAM OF CORNHILL

My Lords,

1

I have had the benefit of reading in draft the opinion of my noble and learned friend Lord Scott of Foscote. I am in full agreement with his reasoning and his conclusions and therefore, like him, I would dismiss the appeal.

LORD SCOTT OF FOSCOTE

My Lords,

2

This is an appeal from the Court of Appeal in Northern Ireland. The Statement of Facts and Issues, agreed and signed by counsel for both parties, identifies two issues of construction of the Proceeds of Crime (Northern Ireland) Order 1996 ("the 1996 Order") for your Lordships to decide. One of these your Lordships must decide; the other, in my opinion, does not arise on the facts of this case. It is convenient, therefore, before describing the issues, to outline the relevant facts.

The facts

3

At arraignments on 8 January 2002 and 15 January 2002 the appellant, Mr Maye, pleaded guilty to various counts of obtaining property by deception. Sentencing was adjourned in order, inter alia, to enable the court to consider making a confiscation order under article 8 of the 1996 Order and at a hearing on 26 June 2002 the court, first, determined that Mr Maye had benefited from his offences in the amount of £168,833 odd and, secondly, concluded that, for the purposes of article 5(1) of the Order, "the amount that might be realised" at that time out of Mr Maye's "realisable property" was £33,269.17. Accordingly the court made a confiscation order against Mr Maye in that sum, as it was bound to do (see article 8(2) of the 1996 Order).

4

Before the confiscation order had been made some relevant occurrences had taken place. First, both Mr Maye's parents died intestate, his mother on 21 July 2000, his father on 28 September 2001. On 26 June 2002, when the confiscation order was made, Letters of Administration to their respective estates had not yet been taken out. That did not happen until 29 July 2002. Mr Maye had several siblings and his share in his deceased parents' estates has been valued by agreement between the parties to this litigation at £18,000. It is not clear whether this or any other sum has yet been paid to him. Second, and also prior to the making of the confiscation order, Mr Maye suffered the unpleasant indignity of false imprisonment by persons for whose actions the Chief Constable of the Royal Ulster Constabulary was responsible. The false imprisonment occurred between 21 and 22 October 1999 and proceedings for damages were issued by Mr Maye in the High Court on some date in 2000. On 26 April 2004 the proceedings were settled by a payment to Mr Maye of £2,500.

5

In summary, therefore, Mr Maye had received, or become entitled to receive, two payments after the date on which the valuation of his realisable property at £33,269.17 and the confiscation order against him in that amount had been made. Both payments had, however, resulted from entitlements that had accrued to him before the valuation and confiscation order had been made. The facts that have been placed before your Lordships for the purposes of this appeal do not disclose what, if any, value was attributed to Mr Maye's interest in his parents' estates or to his cause of action for damages against the Chief Constable when the £33,269.17 valuation of his realisable property was made.

6

On 5 November 2002 the respondent ('the DPP') applied to the court pursuant to article 21 of the 1996 Order, for a certificate that the amount of Mr Maye's "realisable property" should be increased by the value of his inheritance from his parents' estates. A certificate to that effect was issued, with the agreement of both parties, on 6 August 2003. The certificate said that:

"…the said amount has been increased in the sum of £18,000, by way of family inheritance"…

The DPP then applied for a corresponding increase in the amount of the confiscation order. But at the initial hearing of the DPP's application counsel for Mr Maye took the point that the £18,000 constituted assets untainted by any criminality that had been acquired by Mr Maye after the confiscation order had been made and that article 21 of the statutory confiscation scheme, whereunder the original valuation of "realisable property" and the amount of the confiscation order could be increased, did not apply to such assets. The Recorder of Belfast, Judge Burgess, heard argument on the point and agreed to adjourn the DPP's application for an increased confiscation order in order to enable an application to be made by Mr Maye to the High Court to have the 6 August 2003 certificate set aside.

7

That application was accordingly made but was dismissed by Morgan J on 1 June 2004. The application had been made on the footing, accepted by counsel for the DPP, that Mr Maye's £18,000 constituted assets that had been acquired by him after the making of the confiscation order. The judge ruled that article 21 did apply to assets not acquired until after the making of the confiscation order and that the 6 August 2003 valuation certificate had been correctly issued.

8

While, however, Mr Maye's application was pending, Mr Maye's false imprisonment action had been settled and, on 26 April 2004, the settlement payment of £2500 had been made to Mr Maye. The DPP's reaction to this was to apply for a further increase, an increase of £2500, in the valuation of Mr Maye's "realisable property". This application by the DPP was made to Morgan J and dealt with by him at the same time as Mr Maye's application to have the 6 August 2003 certificate set aside was dealt with. It is not clear whether Mr Maye opposed the DPP's application in relation to the £2500. Presumably he did not, for Morgan J, without referring to any grounds of opposition, simply granted the application and ordered that a further article 21 certificate be issued increasing the valuation of Mr Maye's realisable property by £2500.

9

Mr Maye appealed to the Court of Appeal both against Morgan J's refusal to set aside the 6 August 2003 certificate and against the issue of the certificate increasing the valuation of his realisable property by the further £2500. The Court of Appeal agreed with Morgan J that article 21 did allow assets not acquired until after the original confiscation order had been made to be the basis of an increase in the valuation of a defendant's realisable property for confiscation purposes. In so deciding the Court of Appeal cited with approval the judgment of Rose LJ in R v Tivnan [1999] 1 Cr. App. R(S) 92. No reference was made by Nicholson LJ, who gave the judgment of the court, to any other ground of appeal that had been advanced on behalf of the appellant. So, presumably, there had been none. Mr Maye's appeal was dismissed.

10

The apparently sole ground of appeal that had been advanced before the Court of Appeal has been addressed also to your Lordships. The written Cases, both on behalf of Mr Maye and on behalf of the DPP, have gone at some length into the question whether article 21 of the statutory confiscation scheme imposed in Northern Ireland by the 1996 Order permits an increase in the amount of a confiscation order by reference to the value of assets not acquired by the defendant until after the confiscation order has been made. I shall refer to this issue as the "after-acquired assets" issue.

11

In addition, however, the certificate issued by Morgan J in relation to the £2,500 paid to Mr Maye in settlement of his false imprisonment action has been challenged on the ground that a chose in action of a personal nature, such as an action for damages for defamation, or an action for damages for pain and suffering or loss of amenities caused by an assault or by negligence, or any other tort action of a personal, as opposed to proprietary, nature, ought to be held to fall outside the class of assets that can constitute "realisable property" for confiscation purposes. An action for damages for false imprisonment is, it is submitted, of that nature. This challenge, not raised or referred to, so far as the judgments disclose, in either of the lower courts, is not based upon the language of the statutory confiscation scheme but upon an analogy sought to be drawn with the well-known rules in bankruptcy which allow to be excluded from the assets of a bankrupt that vest in his or her trustee in bankruptcy choses in action of the character described. And if it is right that Mr Maye's chose in action in damages for false imprisonment did not constitute an asset that could be taken into account for confiscation purposes, the £2500 that he received ought, it is submitted, to be regarded as an asset acquired after the confiscation order had been made. The after-acquired assets issue is relied on, therefore, not only in respect of the £18,000 but also in respect of the £2500.

The after-acquired assets issue

12

The after-acquired assets issue does not, in my opinion, arise either on the facts relating to the £18,000 or on the facts relating to the £2500. As to the £18,000 the agreed Statement of Facts and Issues states that:

"the assets to which the Certificate of 6th August 2003 relates were acquired by the Appellant after 26 June 2002 when the original confiscation order was made" (para.25(iv))

My Lords, the £18,000 to which the Certificate relates is the agreed value of Mr Maye's share in his deceased parents' estates. His entitlement to that share, unquantified in amount, accrued to him on his...

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