Re Saggar (Confiscation Order: Delay)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lord Justice Carnwath,Lord Justice Mummery |
| Judgment Date | 24 February 2005 |
| Neutral Citation | [2005] EWCA Civ 174 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 February 2005 |
| Docket Number | Case No: C3/2004/1148 |
[2005] EWCA Civ 174
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
The Honourable MR JUSTICE OWEN
Lord Justice Mummery
Lord Justice Rix and
Lord Justice Carnwath
Case No: C3/2004/1148
Mr Tim Owen QC & Mr Andrew Bodnar (instructed by Messrs Hughmans) for the Appellant
Mr Collingwood Thompson QC & Mr James Dennison (instructed by H M Customs & Excise) for the Respondent
This appeal raises the question whether alleged delay by Her Majesty's Commissioners of Customs and Excise (the "Commissioners") in seeking to reopen a defendant's confiscation order, so as to increase the "amount which might be realised" under it, has caused a breach of article 6(1) of the European Convention of Human Rights and Fundamental Freedoms (the "Convention"); and if so, what the right remedy for such a breach might be.
The defendant in question is Sunil Saggar who was arrested in November 1993 in connection with the seizure of 600 kilos of cannabis. On 11 September 1995 he pleaded guilty to offences relating to the importation of drugs at the Crown Court at Plymouth. His sentence of 7 years imprisonment was subsequently reduced on appeal to 4 years. A confiscation order was made under the Drug Trafficking Offences Act 1986 (the "DTOA 1986") in the sum £1,370. It was accepted that his sole realisable asset was the cash, in the amount of £1,371, which had been seized on his arrest. His proceeds from drug trafficking were assessed at £724,115.01. Since, however, it was accepted that the amount that might be realised was the smaller sum, the confiscation order was, as required by statute, made in that amount. Mr Saggar says that the £1,370 was a conventional sum agreed with the Commissioners, in circumstances where his means were arguably greater, to reflect the assistance which Mr Saggar rendered to them.
It is of course a standard feature of confiscation orders that the crown court is required to assess both the value of a defendant's proceeds or "benefit" from (as here) drug trafficking, and the amount that he can realistically pay, which depends on an assessment of his realisable assets. Where the latter is less than the former, then the order only requires him to pay the lower amount. But he remains liable to be reassessed on his realisable assets, if the court can be persuaded to open up that issue at some later time, up to the amount of his benefit. The amount of benefit can also be reassessed.
On 13 September 1996 Mr Saggar was released from prison. He had in the meantime paid his confiscation order by means of the seized cash.
On 24 October 2003, over seven years after his release, Mr Saggar found himself in peril again when the Commissioners launched an application in the high court under section 16 of the Drug Trafficking Act 1994 (the "DTA 1994", which had in the meantime replaced the DTOA 1986) for a certificate that the amount that might be realised from him was greater than the amount which was taken into account in making the confiscation order (the "application").
On 17 November 2003 Crane J directed that a preliminary issue should be tried in the application, namely "the propriety and/or legality of this matter continuing". This was because Mr Saggar had raised three matters why the application should be stayed: (i) "retrospectivity", viz an argument that the DTA 1994 could not apply to a confiscation order made under the earlier DTOA 1986; (ii) "delay", an argument that the application was a violation of the reasonable time guarantee contained in article 6(1) of the Convention and was thus unlawful pursuant to section 6 of the Human Rights Act 1998 (the " HRA 1998"); and (iii) "abuse of process", an argument that Mr Saggar was given assurances that a confiscation order would not be pursued. After an exchange of evidence, the retrospectivity argument was dropped, and the abuse of process argument was left over for consideration, if necessary, before the crown court to which the matter would be remitted if the high court granted a section 16 certificate. Mr Saggar recognised that the abuse of process argument would involve a potentially lengthy investigation of the conflicting accounts of his dealings with the Commissioners. That left only the delay argument, on which Mr Saggar rested his case of opposition to the Commissioners' application. It was accepted that, if Mr Saggar failed on delay, either in law or on the facts, then the high court must issue a certificate.
On 14 May 2004 Owen J determined that application in favour of the Commissioners by granting a section 16 certificate. He held that article 6(1) applies to the making of an original confiscation order, but not to the grant of a certificate under section 16. This was in his view because the terms of the DTA 1994 made it clear that there was to be no limit on the time within which an application to certify an increase in the amount of realisable property was to be brought. In any event, he found that the Commissioners had not delayed unreasonably in bringing their application. Mr Saggar appeals from both limbs of that decision.
The factual background
If the argument in this court had taken a different course, it might have been necessary to set out the factual background in greater detail. As it is, it will suffice to present it as follows.
Evidence filed by the Commissioners revealed that in 1997 they had undertaken a study into the potential for reassessment of amounts which courts had ordered to be paid under confiscation orders. This was in response to an expression of concern by the National Audit Office about the difference between the assessments of benefit obtained by those involved in drug trafficking and the amount actually recovered from them under confiscation orders. In November 1997 the Commissioners determined that there was potential merit in reviewing cases, but there remained the difficulty of identifying those cases offering the best prospects of enhanced recovery.
About a year later, in late 1998, the Commissioners sought to develop a methodology for identifying candidates for "revisiting". By February 1999 the Commissioners had drawn up a list of prospective candidates for revisiting, and Mr Saggar's name was on that list. It was then thought that he had assets in the order of £29,000. However, soon thereafter the project was sidelined due to competing demands.
During this period, in October 1999, Mr Saggar was arrested along with others and charged with further drug trafficking offences. A restraint order over his assets was obtained by the Crown Prosecution Service ("CPS"). In the evidence led on behalf of the CPS for the purpose of obtaining the restraint order, a financial analyst employed by the National Crime Squad, Ms Gillian Barnett, gave details about Mr Saggar's assets which included a home in Beckenham, Kent, which had been bought in October 1997 for £250,000 with the help of a £125,000 mortgage and had been advertised for sale in January 1999 at £575,000, thus indicating a potential equity of £450,000. Her witness statement went on to refer to the September 1995 confiscation order, in connection with which she commented: "I understand that HM Customs & Excise have no intention of proceeding further on this matter at this time." In a subsequent witness statement dated 13 February 2004, made for the purpose of the application in these proceedings, Ms Barnett explained further that her comment had arisen out of a conversation she had had in October 1999 with a representative of the Commissioners who had understood that Mr Saggar was to be prosecuted by the CPS on those new charges. She continued:
"It is my belief it was considered that if HM Customs & Excise were actively seeking to collect against the existing Order then an application to restrain assets by the Police would not have been viable. It is my belief that my intention when referring to the existing Order not being proceeded with related only to that time and was not intended to be read as a permanent intention not to proceed."
However, any prospect of a new confiscation order being made as a result of Mr Saggar being convicted in the new proceedings which had been brought against him ended in September 2000, when those proceedings were stayed as an abuse of process. The restraint order was thereupon discharged, and a defendant's costs order was made in favour of Mr Saggar. On 21 May 2001 that order led to the payment to Mr Saggar of some £231,000 from central funds.
In October 2001, the exercise of identifying potential targets for further recovery under existing confiscation orders was resurrected by the Commissioners. Following further research, Mr Saggar was again identified (in December 2001) as a prospect for revisiting and in May 2002 investigation of his case was allocated to Mr Neil Ryan, a law enforcement officer with the Commissioners, who uncovered various property transactions including in particular the purchase in March 2003 of a home in Bromley, Kent, for £718,000 (plus stamp duty and legal fees), which became registered in the names of Mr Saggar and his wife (or partner), Suzanne. Mr Ryan's investigations led to the launching on 24 October 2003 of the section 16 application which is the subject matter of these proceedings. Mr Ryan's then evidence stated his belief that the equity in the Bromley home as of October 2003 was some £279,000, that it belonged entirely to Mr Saggar,...
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Peacock and another
...have a discretion in the matter is plain both from the wording of section 16(4) and from a number of authorities, notably In re Saggar (Confiscation Order: Delay) [2005] 1 WLR 2693; R v Bates [2007] 1 Cr App R (S) 9; and R v Griffin [2009] 2 Cr App R (S) 587. This is not, however, the occas......
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Peacock and another
...an equivalent section under the previous legislation applied to assets which were acquired after conviction. Counsel also cited a case called Saggar [2005] EWCA Civ 174 where it appears the Court of Appeal had also proceeded on the basis that section 16 applies to after-acquired assets. 6.......
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R (E) v HM Revenue and Customs PROSECUTION OFFICE
...now advanced involves rewriting the statute. Second, Mr Bodnar drew attention to the decision of the Court of Appeal in Re Saggar (Confiscation Order: Delay) [2005] 1 WLR 2693. The court was there concerned with the question whether a power to reopen confiscation proceedings so as to increa......
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R v Dion Griffin
...from the later decision of the Court of Appeal Civil Division In the matter of the Drug Trafficking Act 1994, In the matter of Saggar [2005] EWCA Civ 174. In that case, at paragraph 44, Rix LJ referred to the public interest as set out in the Vienna Convention on Proceeds of Crime, upon whi......
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Obtaining Post-Acquired Assets Under POCA: Condemning Criminals To A Life Of Crime?
...the amount provides the defendant with procedural protection against delay, as required by Article 6(1) of the Convention. In Saggar [2005] EWCA Civ 174, Rix LJ held that the passage of time runs for the whole of the period of the proceedings for the offence(s) and not simply from the time ......