The Director of The Assets Recovery Agency v Ashton Anr
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LEVESON,LADY JUSTICE HALLETT,LORD JUSTICE WALLER |
| Judgment Date | 19 October 2006 |
| Neutral Citation | [2006] EWCA Civ 1477 |
| Docket Number | C1/2006/1009 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 October 2006 |
[2006] EWCA Civ 1477
Lord Justice Waller
Lady Justice Hallett
Lord Justice Leveson
C1/2006/1009
MR M TURNER QC (instructed by Messrs Bakers) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
On 31 March 2006, following the hearing of a preliminary issue in proceedings brought by the respondent, the Director of Assets Recovery Agency, against the appellant, Paul Ashton, Newman J rejected the appellant's contention that civil recovery proceedings brought under the Proceeds of Crime Act 2002 ("the 2002 Act") , offended Article 7 of the European Convention on Human Rights on the grounds of retrospectivity; see [2006] EWHC 1064 (Admin). This is a renewed application for permission to appeal that decision following the refusal of Richards LJ on paper. Having regard to the challenge pressed by Mr Mark Turner QC on behalf of the appellant that the two judge constitution of this court in Director of Assets of Recovery Agency v Charrington [2005] EWCA Civ 334 was wrong, this court has deliberately been constituted as a court of three judges.
In order to provide the context within which this issue of law falls to be decided, the facts can be summarised very briefly. In October 1997 the appellant was sentenced to a term of eight years imprisonment for drugs offences committed between October 1995 and February 1996. In May 1999, a Confiscation Order was made under the Drug Trafficking Act 1986 in the sum of £89,078. This order was quashed on 4 February 2004 for entirely technical reasons unconnected with the merits. The 2002 Act having come into force in March 2003, two days after the Confiscation Order was quashed, the respondent sought civil recovery under its provisions. It is not challenged that the property which is the subject matter of the appeal was acquired before the 2002 Act came into force. On the basis that Section 266(3) of the 2002 Act makes it clear that the court may not make any provision in a recovery which is incompatible with the Convention, it is argued that no recovery arises in this case because such would amount to the retrospective imposition of penalty in contravention of Article 7. Article 7 of the convention provides:
"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."
As Newman J pointed out, whether confiscation in civil proceedings offends this provision is far from new, and there is an extensive jurisprudence which decides the point against the proposition that Article 7 is engaged. It is to these authorities that I now turn comparatively shortly. Newman J examines them in greater depth; see [2006] EWHC 1064 (Admin) paragraphs 7 to 39.
In the Director of Assets Recovery Agency v Jia Jin He and Dan Dan Chen [2004] EWHC 3021 (Admin) Collins J rejected the submission that Article 7 was engaged, and in so doing referred to decisions of the European Court of Human Rights including Engel v The Netherlands (No.1) [1976] 1 EHRR 647, Raymondo v Italy [1994] 18 EHRR 237264 at paragraph 43, and Arcuri v Italy (application number 52024/99) , inadmissibility decision 5 July 2001 (which concerned Italian legislation designed to frustrate the Mafia) . He also referred to condemnation forfeiture proceedings which are regarded as civil proceedings; see Goldsmith v Commissioners for Customs and Excise [2001] 1WLR 1673 and Regina (Mudie and Anr) v Dover Magistrates Court [2003] QB 1238. He went on:
"In Mudie reference was made to Butler v United Kingdom 41661/98 which concerned proceedings for the forfeiture of cash under the Drug Trafficking Act now contained in Chapter 3 of Part 5 of the 2002 Act and in which the European Court decided that such proceedings were civil not criminal."
He then cited the observation of Laws LJ in Mudie at page 1259(36) in these terms:
"It is certainly beyond contest that the concept of "criminal charge" possesses an autonomous meaning in the [European Court of Human Rights] jurisprudence. It is also true that the first of the three criteria, that is the domestic classification of the proceedings, is treated as no more than a starting point. But that proposition should not distract the court from the question whether, given the three criteria, the proceedings in issue are in substance in the nature of a criminal charge. Are they an instance of the use of state power to condemn or punish individuals for wrongdoing? The [European Court of Human Rights] and our own courts have held that condemnation proceedings are not in any such category. The emphasis on the in rem nature of such proceedings in Air Canada v The United Kingdom 20 EHRR 150, Lord Woolf's judgment in Goldsmith v Commissioners of Customs and Excise [2001] 1 WLR 1673, Lord Steyn's observations in the McCann case [2003] 1 App Cases 787 and the [European Court of Human Rights] own discussion in Butler v United Kingdom 27 June 2002, combine, in my judgment, to underline the force of that conclusion."
The matter next appears to be have been argued in a renewed application for permission to appeal another decision of Collins J in Director of Assets Recovery Agency in Charrington and Ors [2005] EWCA Civ 334. It was dealt with in short form, but following an adjournment so that the Director of Assets Recovery Agency could respond to the point, thus following argument from both sides. Laws LJ referred to Jia Jin He, which was not the subject of an appeal, and a Northern Irish case to which I shall shortly refer, but which reached a similar conclusion...
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