Re Thomas
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,LORD JUSTICE LEGGATT,SIR DAVID CROOM-JOHNSON |
| Judgment Date | 15 May 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0515-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 May 1992 |
| Docket Number | 92/0467 |
[1992] EWCA Civ J0515-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(Mr. Justice Schiemann)
Royal Courts of Justice
Lord Justice Parker
Lord Justice Leggatt
and
Sir David Croom-Johnson
92/0467
MR. ANDREW MITCHELL (instructed by The Solicitor, H.M. Customs & Excise) appeared on behalf of the Respondent (Respondent).
MR. JOHN FARMER (instructed by Messrs Pearson & Starling, Norfolk) appeared on behalf of the Appellant (Applicant).
On the 1st May 1992 we dismissed, for reasons to be given later, the appellant's appeal from the order of Schiemann J. on the 3rd April 1992 whereby the appellant's application to vary the order of Webster J. made ex parte on the 29th October 1991, was dismissed. The appeal was brought by leave of the learned judge. There follow my reasons for dismissing the appeal.
The order of Webster J. was a restraint order made under section 8 of the Drug Trafficking Offences Act 1986 (the 1986 Act). The variation sought by the appellant was the deletion of paragraph 4 of the order. That paragraph reads:
"The defendant shall within seven days of the service of this Order upon him swear, file in this Honourable Court and serve on the Solicitor for the Customs and Excise 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 his own name or jointly with some other person or person's or by nominees or otherwise howsoever on his behalf."
The appellant's contention was that there was no jurisdiction to make the order for disclosure. Schiemann J. held that he was not bound by the decision of this court in In re O [1991] 2 QB 520, since that was a decision under the Criminal Justice Act 1988 (the 1988 Act). He could however see no satisfactory ground for distinguishing a disclosure order in support of a restraint order under the 1988 Act from a disclosure order in support of a restraint order under the 1986 Act. If, therefore, such an order could be made under the 1988 Act, as was held in In re O, so too could such an order be made under the 1986 Act.
That he should have reached such a conclusion is not surprising. In In re O Lord Donaldson of Lymington M.R.said at page 527:
"The jurisdiction to make restraint orders under the Drug Trafficking Offences Act 1986 is mirrored by that under the Criminal Justice 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 Act of 1988, but we have entertained an appeal under the Act of 1986: see In re Peters [1988] QB 871. 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 court then held that, although there was jurisdiction to make a disclosure order, there should, in order to preserve the defendant's right to be protected against the risk of self-incrimination, be included in disclosure orders in aid of restraint orders under the 1988 Act the following condition:
"No disclosure made in compliance with this order shall be used in evidence in the prosecution of an offence alleged to have been committed by the person required to make the disclosure or by any spouse of that person."
The basic points advanced on behalf of the appellant are:
(1) That although many of the provisions of the 1986 Act are mirrored in the 1988 Act, some are not. It is not correct to say that the provisions of the one are the mirror image of the provisions of the other.
(2) There is a fundamental difference between the two Acts in that, whereas the 1986 Act enables orders for payment to be made in respect of the proceeds of offences which are not the subject of any charge or conviction, the 1988 Act permits such orders only in respect of the proceeds of the particular offence or offences of which the defendant has been convicted.
(3) There is a further fundamental difference in that under the 1986 Act compliance with a disclosure order will or may lead to (a) the defendant being assumed to be guilty of drug trafficking offences in respect of which he has been neither charged nor convicted and (b) in effect, punished for those offences.
(4) That in those circumstances compliance with a disclosure order under the 1986 Act exposes a defendant to risk of self-incrimination which cannot be obviated by a provision of the kind which this court considered appropriate under the 1986 Act to obviate such risk."
It is in my view clear from the passage from Lord Donaldson's judgment immediately following the passage which I have quoted that his reference to a "mirror image" related only to the sections in the two Acts dealing with the jurisdiction of the High Court to make restraint and charging orders. Those sections are not identical but I can detect no difference in substance. In my judgment therefore, the first of the above points taken alone is of no importance. It was not indeed contended for the appellants that it was.
The sections conferring jurisdiction on the High Court must however be considered in their context and it is on the difference in context that the appellant's case is based. It is correct to say that there is the difference between the two Acts asserted in the second of the above points but the kernel of the appellant's case lies in the third point, consideration of which requires an examination of some of the provisions of sections 1 to 6 of the 1986 Act which deal with the powers and duties of the Crown Court.
Under section 1, before sentencing a defendant in respect of a drug trafficking offence the court must first determine whether he has benefited from drug trafficking. If it determines that he has so benefited it must, before sentencing, determine in accordance with section 4 the amount to be recovered under section 1 and order the defendant to pay that amount. It can then and only then proceed to sentence for the particular offence or offences of which the defendant has been convicted. In so doing it must take account of the order for payment before imposing any fine, any order involving payment, or any forfeiture order, criminal bankruptcy order or deprivation order under the Misuse of Drugs Act 1971 section 27 or the Powers of Criminal Courts Act 1973 sections 39 and 43. It must however, subject to the above, leave the order out of account in determining sentence.
It is thus apparent that the order for payment is no part of the sentence for the particular offence although its effect may be to relieve the defendant in whole or in part of sentences to which, had there been no order, he might have been exposed.
It is necessary to quote section 2(1), (2) and (3) in full:
"(1) For the purposes of this Act—
(a) any payments or other rewards received by a person at any time (whether before or after the commencement of section 1 of this Act) in connection with drug trafficking carried on by him or another are his proceeds of drug trafficking, and
(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards.
(2) The court may, for the purpose of determining whether the defendant has benefited from drug trafficking and, if he has, of assessing the value of his proceeds of drug trafficking, make the following assumptions, except to the extent that any of the assumptions are shown to be incorrect in the defendant's case.
(3) Those assumptions are—
(a) that any property appearing to the court—
(i) to have been held by him at any time since his conviction, or
(ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him, was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him,
(b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him, and
(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it."
For the appellant it is urged that the disclosure of assets will inevitably lead to self-incrimination. It will lead to an...
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