Re Peters
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE NOURSE,LORD JUSTICE MANN |
| Judgment Date | 25 April 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0425-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0349 |
| Date | 25 April 1988 |
[1988] EWCA Civ J0425-1
The Master of the Rolls
(Lord Donaldson)
Lord Justice Nourse
Lord Justice Mann
88/0349
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE McNEILL
Royal Courts of Justice
MR JOHN LAWS, instructed by the Solicitor for the Customs & Excise, appeared for the Appellants (Commissioners of Customs & Excise).
MR MICHAEL HOROWITZ, instructed by Messrs Roscoe-Phillips, appeared for the Respondent (Angela Isobel Windle).
This is the first occasion upon which this court has had to consider a restraint order made under section 8 of the Drug Trafficking Offences Act 1986. The appellants are H.M. Customs and Excise who complain of a variation order made by McNeill J. The purpose of the order was to enable Mr Peters to comply with a consent order made in divorce proceedings which required him to make a lump sum payment to his son to cover the estimated cost of his education and maintenance until he should reach the age of 18 in June 1989.
The Act itself is terminologically complex, but the legislative intention and the broad scheme whereby that intention is to be achieved are reasonably clear. The intention is that no-one convicted of drug trafficking offences shall be allowed to retain any part of the proceeds of his crime. The broad scheme involves the making of confiscation orders at the time of sentencing and of prior protective orders. The latter are designed to prevent an accused rendering a confiscation order inappropriate or nugatory by disposing of his assets between the time when an information is about to be laid against him and the making of a confiscation order in the event of conviction.
Sections 5 and 38 provide very necessary dictionaries. Sections 1–4 provide for the making of confiscation orders and contain guidance for the Crown Court as to the amount for which such an order should be made. Sections 7–10 give power to take protective measures by restraint orders (under sections 9 and 10). The exercise of these powers is, however, subject to section 13 and to R.S.C. Order 115.
For present purposes the important provisions are sections 8 and 13 and Order 115, rules 4(1) and 5(1). These are in the following terms:
" Restraint orders.
8.-(l) The High Court may by order (in this Act referred to as 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) A restraint order may apply—
(a) to all realisable property held by a specified person, whether the property is described in the order or not, and
(b) to realisable property held by a specified person, being property transferred to him after the making of the order.
(3) This section shall not have effect in relation to any property for the time being subject to a charge under section 9 of this Act.
(4) A restraint order—
(a) may be made only on an application by the prosecutor,
(b) may be made on an ex parte application to a judge in chambers, and
(c) shall provide for notice to be given to persons affected by the order.
(5) A restraint order—
(a) may be discharged or varied in relation to any property, and
(b) shall be discharged when proceedings for the offences are concluded.
(6) Where the High Court has made a restraint order, the court may at any time appoint a receiver—
(a) to take possession of any realisable property, and
(b) in accordance with the court's directions, to manage or otherwise deal with any property in respect of which he is appointed,
subject to such exceptions and conditions as may be specified by the court; and may require any person having possession of property in respect of which a receiver is appointed under this section to give possession of it to the receiver.
(7) For the purposes of this section, dealing with property held by any person includes (without prejudice to the generality of the expression)—
(a) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt, and
(b) removing the property from Great Britain.
(8) Where the High Court has made a restraint order, a constable may for the purpose of preventing any realisable property being removed from Great Britain, seize the property.
(9) Property seized under subsection (8) above shall be dealt with in accordance with the court's directions."
" Exercise of powers by High Court or receiver.
13.-(1) The following provisions apply to the powers conferred on the High Court by sections 8 to 12 of this Act, or on the Court of Session by sections 20 to 22 of this Act, or on a receiver appointed under section 8 or 11 of this Act or in pursuance of a charging order.
(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 such property.
(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.
(4) The powers shall be exercised with a view to allowing any person other than the defendant or the recipient of any such gift to retain or recover the value of any property held by him.
(5) An order may be made or other action taken in respect of a debt owed by the Crown.
(6) In exercising those powers, no account shall be taken of any obligations of the defendant or of the recipient of any such gift which conflict with the obligation to satisfy the confiscation order."
Order 115
"4.-(l) A restraint order may be made subject to conditions and exceptions, including but not limited to conditions relating to the indemnifying of third parties against expenses incurred in complying with the order, and exceptions relating to living expenses and legal expenses of the defendant, but the plaintiff shall not be required to give an undertaking to abide by any order as to damages sustained by the defendant as a result of the restraint order.
…..
5.-(l) Any person or body on whom a restraint order or a charging order is served or who is notified of such an order may apply by summons to discharge or vary the order."
In the light of the later confluence of matrimonial and criminal proceedings, the story begins with the marriage of Mr and Mrs Peters in May 1970 and the birth of their son in June 1971. Mr Peters was arrested in France in 1981 and was convicted of the illegal possession and importation of cocaine, being sentenced to a fine of 96,000 francs and five years' imprisonment. He was released in February 1984. Two months later, in April 1984, Mrs Peters filed a petition for divorce upon the grounds of irretrievable breakdown of the marriage and behaviour such that she could not reasonably be expected to continue to live with Mr Peters. Inter alia she relied upon the French criminal offence or offences and their consequences.
In September 1984 Mr Peters filed an answer and cross-petition in which he admitted the French conviction and sentence and the breakdown of the marriage, although denying that the one was the consequence of the other, and sought a divorce upon the ground of two years' separation and consent. In the same month the matrimonial home was sold, the net proceeds being divided equally between Mr and Mrs Peters. At about the same time the son was sent to a private fee-paying boarding school. Pending the hearing of the petitions, Mr Peters made appropriate payments covering the cost of his son's education and maintenance, but did not support his wife.
In May 1986 the marriage was dissolved on Mr Peters' cross-petition and the parties were given joint custody of the son who was to live with Mrs Peters. The decree was made absolute in June 1986. No order appears to have been made at that stage regarding the cost of the education and maintenance of the son, but Mr Peters continued to meet this expense.
Mr Peters was arrested in this country on drug trafficking charges on 10th July 1987 and on 31st July 1987 H.M. Customs and Excise applied for and obtained from Schiemann J. an ex parte order restraining him generally from "removing from the jurisdiction of this court or from otherwise disposing of, diminishing or otherwise in any way dealing with any money, goods, property or other assets within or without the jurisdiction" and in other more detailed respects. The order also imposed a legal charge upon Mr Peters' house. Both under the terms of section 8(1) and under those of Order 115, rule 4(1) the court may subject a restraint order to conditions and exceptions and the order of Schiemann J. expressly permitted Mr Peters to draw on a named bank account to such extent as might be necessary to enable him to meet the mortgage payments due in respect of his house.
On 26th November 1987 application was made to Nolan J. for a variation of the restraint order in order to enable Mr Peters to make the following payments: (a) £2,200 per term in respect of his son's school fees; (b) £300 per term in respect of miscellaneous expenses connected with his son's education; (c) £200 to enable him to replace lost clothing; and (d) £500 plus VAT for legal fees. The making of such a variation order is authorised by section 8(5) of the Act and by Order 115, rule 5(1). Nolan J. varied the restraint order...
To continue reading
Request your trial
-
Dawn Satterswaite v The Assets Recovery Agency
...there is nothing in the statute that introduces the notion that realizable property is restricted to tainted property. She referred to In re Peters [1988] QB 871 and Jennings v Crown Prosecution Service [2005] EWCA Civ 746; [2006] 1 WLR 182 in support of these 215 Much of the submissions......
-
Serious Fraud Office v Lexi Holdings Plc
...any significant change in statutory policy or underlying principle from the pre-2002 Act regime, and agreed with the reasoning of Davis J in In re X [2005] QB 133, a decision on the provisions of the Criminal Justice Act 1988. He gave a number of reasons for that conclusion, including the ......
-
Commissioners of Customs and Excise v A
...or one which was in the public interest; James v James (15 March 1995, unreported) overruled; Harman v Glencross [1986] Fam 81, Re Peters [1988] QB 871 and Ahmad v Ahmad [1999] 1 FLR 317 (2) The judge had reached his conclusion on the meaning of s 31(4) of the 1994 Act by reading the words ......
-
OB v The Director of the Serious Fraud Office
...order might not inaccurately be referred to as a "drugs Act Mareva", in the context of the Drug Trafficking Offences Act 1986: see, In re Peters [1988] QB 871, at 879. 34 In DPP v Scarlett [2000] 1 WLR 515, the Court of Appeal dismissed an appeal from an order attaching a repatriation requi......