Re S
| Jurisdiction | England & Wales |
| Judge | THE DEPUTY |
| Judgment Date | 26 January 2011 |
| Neutral Citation | [2011] EWHC 3925 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 January 2011 |
| Docket Number | CJA/70/2009 |
[2011] EWHC 3925 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Rabinder Singh QC
(Sitting as a Deputy High Court Judge)
CJA/70/2009
Mr Simon Ward (instructed by Quist & Co Solicitors) appeared on behalf of the Claimant
Mr David Allan (instructed by CPS Reading) appeared on behalf of the Defendant
This is an application made to the High Court under section 83(1) of the Criminal Justice Act 1988. The reason why that provision remains relevant in this case is that the Proceeds of Crime Act 2002 does not apply to events taking place at the time of this case.
Section 83(1) provides:
"If, on an application made in respect of a confiscation order by the defendant … the High Court is satisfied that the realisable property is inadequate for the payment of any amount remaining to be recovered under the order the court shall issue a certificate to that effect, giving the court's reasons."
The factual background to this case, and the legal principles which are relevant, are not the subject of dispute before me. The factual background can be summarised for present purposes by reference to a chronology provided by the Crown, which, as I have said, is not in dispute by the defendant, as I shall call the applicant, reflecting the language of section 83.
The relevant confiscation order in this case was made by the Crown Court at Reading on 22 May 2008, following a three day hearing. For present purposes, the relevant property that I need concern myself with is one at 5 Edmunds Way, Slough.
On 8 January 2002, 5 Edmunds Way (or the property, as I will call it) was transferred to Kenan Abbasi. The purchase price was £127,500. A deposit of £19,500 was payable. The mortgage balance as at 19 January 2007 was noted to be £100,284. The mortgage at that time was with the Bank of Scotland.
On 1 December 2005, searches of the defendant's properties took place and the defendant was arrested. On 26 October 2006, the defendant pleaded guilty to various offences. On 19 January 2007, there was issued the first prosecutor's statement. The current mortgage balance on the property was noted to be £100,284 and the estimated value of the property was said to be £180,000.
On 1 March 2007, the property was transferred to Fahmida Khanom and the price paid was £200,000.
The original mortgage, I understand, was redeemed and a new mortgage was registered with Mortgage Agency Services, the amount borrowed now being £180,000, a difference of some £80,000.
On 17 March 2008, in the Crown Court proceedings, there was made the second prosecutor's statement, but there was no reference in this to the 2007 mortgage. At the hearing, which led to the confiscation order being made on 22 May 2008, again, I understand there was no reference by anyone to the 2007 mortgage.
The relevant legal principles, as I have said, are common ground and were helpfully summarised by Mr David Holgate QC sitting as a Deputy High Court Judge In the Matter of B [2008] EWHC 3217 at paragraph 74, where he cited from previous authorities and said as follows:
"A number of principles have been established with regard to the consideration of section 83 applications:
(1) The burden lies on the applicant to prove, on the balance of probabilities, that his realisable property is inadequate for the payment of the confiscation order (see Re O'Donoghue [2004] EWCA Civ 1800, per Laws LJ at para. 3).
(2) The reference to realisable property must be to 'whatever are his realisable assets as a whole at the time he applies for the certificate of inadequacy. If they include assets he did not have when the confiscation order was made, that is by no means a reason for leaving such fresh assets out of consideration.'…
(3) A section 83 application cannot be used to go behind a finding made at the confiscation hearing or embodied in the confiscation order as to the amount of the defendant's realisable assets. Such a finding can only be challenged by way of an appeal against the confiscation order. (See Gokal v. Serious Fraud Office [2001] EWCA Civ 368, Per Keene LJ at paras. 17 and 24).
(4) It is insufficient for a defendant to say under section 83 'that his assets are inadequate to meet the confiscation order, unless at the same time he condescends to demonstrate what has happened since the making of the order to the realisable property found by the trial Judge to have existed when the order was made' (see Gokal at para. 24 and Re O'Donoghue at para. 3).
(5) The confiscation hearing provided an opportunity for the Defendant to show that his realisable property was worth less than the Prosecution alleged. It also enabled the Defendant to identify any specific assets which he contended should be treated as the only realisable property. The section 83 procedure, however, is intended to be used only where there has been a genuine change in the Defendant's financial circumstances. It is a safety net intended to provide for post-confiscation order events. (See McKinsley v. Crown Prosecution Service [2006] EWCA Civ 1092 per Scott Baker LJ at paras. 9, 21-24, 31 and 35). [My emphasis.]
(6) A section 83 application is not to be used as a 'second bite of the cherry'. It is not an opportunity to adduce evidence or to present arguments which could have been put before the Crown Court Judge at the confiscation hearing (para. 38 of Gokal and paras. 23, 24 and 37 of McKinsley).
(7) The clarification of a third party's interest in property may be a post-confiscation order event. The extent of any such interest may have to be decided by a civil court. ( Re Norris [2001] UKHL 34 and McKinsley at para. 39). …"
In that context, I should make...
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