Re O (Restraint Order: Disclosure of Assets)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE GLIDEWELL,LORD JUSTICE RALPH GIBSON |
| Judgment Date | 21 November 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1121-5 |
| Docket Number | 90/1032 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 November 1990 |
[1990] EWCA Civ J1121-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE McCULLOUGH)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Glidewell
Lord Justice Ralph Gibson
90/1032
In the Matter of the Criminal Justice Act 1988
MR. TIMOTHY SISLEY instructed by Messrs. Warren Murton, London Agents for Messrs. Martin Cray & Co., Hove, East Sussex) appeared for the Appellants.
MR. WALTER AYLEN Q.C. and MR. A. MITCHELL (instructed by the Crown Prosecution Service, Central Confiscation Unit) appeared for the Respondent.
On 26th September 1989 McCullough J. made a restraint order against the O'C's ("the appellants") under section 77 of the Criminal Justice Act, 1988. It was wholly general in its terms, but specifically mentioned various real properties. It made provision for the expenditure by the appellants of £100 per week on living expenses and £500 for legal costs. The order was varied on 29th September 1989 to exclude one of the specified properties.
On 31st January 1990 Macpherson J. made a further order requiring the appellants to swear an affidavit "disclosing the full value of any salary, money, goods or other assets whatsoever within and without the jurisdiction identifying with full particularity the nature of all such assets, their whereabouts and whether the same be held in their own names or jointly with some other person or persons or by nominees or otherwise howsoever on their behalf".
The origin of this order was an application by the appellants for a variation of the restraint order to permit them to spend £500 per week on living expenses, this figure being related to their normal earnings from their employment. The Crown Prosecution Service urged the judge not to agree to the variation, unless and until there was full disclosure of the appellants' assets. Although it was the appellants' application which triggered this order, we were told that disclosure orders are now normally sought in all cases in which restraint orders are made. The judge adjourned the application to vary the restraint order pending compliance with the disclosure order. The appellants now appeal against the disclosure order.
As the order complained of was interlocutory in character, the appellants needed leave to appeal. They also needed an order extending the time for giving notice of appeal. Neither application was opposed by the C.P.S. and it was clearly right not to do so. However there was an obvious jurisdictional question, namely, whether the right of appeal was excluded by section 18(1) of the Supreme Court Act, 1981, which provides that:-
"No appeal shall lie to the Court of Appeal—
(a)…from any judgment of the High Court in any criminal cause or matter".
With the assistance of counsel for the appellants and the C.P.S., we considered this question and concluded that this was not such an order and that the court accordingly had jurisdiction to entertain the appeal.
I have now to give my reasons for reaching this conclusion. Essentially the issue in such cases as this is whether the order sought to be appealed was a judgment in a criminal cause or matter or merely a judgment collateral to a criminal cause or matter. If it is in the former category, the court has no jurisdiction. If it is in the latter category, there is jurisdiction. Reference is made in the Supreme Court Practice 1991 at note 59/1/21 to some of the many cases in which this point has arisen for decision. The best illustration of the dividing line for present purposes is probably provided by a comparison between Bonalumi v. Secretary of State for the Home Department (1985) 1 Q.B. 675 and Gooch v. Ewing (1986) 1 Q.B. 791.
In Bonalumi's case the High Court had made an order under the Bankers Books Evidence Act, 1879. The Secretary of State had exercised his powers under section 5 of the Extradition Act, 1873, to require the Guildhall Justices to take and transmit to him evidence in furtherance of a commission rogatoire issued in support of Swedish criminal proceedings. The order was sought in order that the evidence might be placed before the Justices for onward transmission to the Secretary of State and transmission by him to the Swedish court. This court held that the Guildhall Justices were exercising a criminal jurisdiction and that the order under the Bankers Books Evidence Act, being designed to produce evidence in those proceedings, was an order made in a criminal cause or matter. Consistently with this decision, although apparently in ignorance of it, this court in Carr v. Atkins (1987) Q.B. 963 held that an order for the production of evidence under the Police and Criminal Evidence Act, 1984, was an order made in a criminal cause or matter.
In Gooch v. Ewing (supra) the clerk to the magistrates' court obtained a garnishee order nisi from the High Court in order to enforce the payment of a compensation order made in criminal proceedings. This court held that section 87 of the Magistrates' Courts Act, 1980, invoked a civil enforcement procedure at the conclusion of the criminal proceedings and that the order was not therefore made in a criminal cause or matter.
The jurisdiction to make restraint orders under the Drug Trafficking Offences Act, 1986, is mirrored by that under the Criminal Justices Act, 1988 and a decision in relation to one Act will apply equally to the other. This is the first occasion upon which this court has been called upon to consider the 1988 Act, but we have entertained an appeal under the 1986 Act (Re Peters (1988) 3 All E.R. 46). We were told that the question of whether this court had jurisdiction was raised by counsel in that appeal, but it was not referred to in the judgments and that decision is therefore of no assistance.
The outstanding feature of the legislation is the clear dichotomy made between sections 71 to 75, which confer jurisdiction upon the Crown Court and Magistrates' Courts to make confiscation orders in criminal proceedings and provide for enforcement procedures thereafter and sections 76 to 82 which confer jurisdiction upon the High Court to make restraint and charging orders designed to preserve assets upon which the orders of the criminal courts may bite at a later stage. In Gooch v. Ewing (supra) it was the magistrates' court which, having concluded criminal proceedings, embarked by the agency of its clerk on seeking a remedy which was civil in character. In the present appeal the division is clearer, because the court concerned with criminal matters is not involved at all. It is the C.P.S. which applies for the restraint order. In my judgment the regime provided by sections 76 to 82 is wholly collateral to the criminal regime provided by sections 71 to 75 and is civil in character. I reach this conclusion with relief, because were it otherwise third parties such as banks and alleged donees of gifts would be left with no avenue of appeal if they were aggrieved at the orders of the High Court.
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