Webb v Chief Constable of Merseyside Police. ; Chief Constable of Merseyside Police v Porter and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LADY JUSTICE HALE,LORD JUSTICE PILL |
| Judgment Date | 26 November 1999 |
| Neutral Citation | [1999] EWCA Civ J1126-6 |
| Judgment citation (vLex) | [1999] EWCA Civ J1126-22 |
| Docket Number | Case No: 1998/1287 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 November 1999 |
[1999] EWCA Civ J1126-22
Lord Justice Pill
Lord Justice May
and
Lady Justice Hale
Case No: 1998/1287
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
H.H. JUDGE BERNSTEIN & MR A.J. ELLERAY Q.C.
Royal Courts of Justice
Strand, London, WC2A 2LL
MR MARK TURNER Q.C. & MR CHARLES DAVEY (instructed by Linskills & Middleweeks for Webb & the Porters )
MR ANDREW EDIS Q.C. Mr N.F. Riddle & Mr R. Warnock (instructed by Force Solicitor for The Chief Constable)
Friday, 26 November 1999
Introduction
In each of these two appeals, claimants brought proceedings against the Chief Constable of Merseyside for the return of money lawfully seized by the police on suspicion that it was the proceeds of drug trafficking. Two of the three claimants have not been convicted of drug trafficking offences. The third claimant was convicted of possessing a Class A drug but no drug trafficking inquiry was undertaken. The essential question which the appeals raise is whether, if the police establish in civil proceedings that the money is the proceeds of drug trafficking, they are entitled to refuse to return it when the purpose for which they seized it no longer applies.
Roy Webb appeals against the decision of Mr A.J. Elleray Q.C. sitting as an Assistant Recorder on the 9th September 1998 in the Liverpool County Court. The Assistant Recorder held that Roy Webb was not entitled to the return of £36,000. This was a decision after a trial in which the parties gave evidence.
The Chief Constable of Merseyside appeals against the decision of Her Honour Judge Bernstein on 25th September 1998 in the Liverpool County Court. She decided that Mrs Mary Porter and her son Christian Porter were entitled to the return of sums totalling £32,740. This was a decision upon an ill-defined preliminary issue and there are procedural complications.
The Webb case
The £36,000 which Roy Webb claimed was seized by the police on 10th December 1992. Roy Webb claimed its return or damages for conversion. By his defence, the Chief Constable accepted that he was liable to return the money to its owner. He put Roy Webb to proof of his ownership.
He said that on the balance of probabilities the money was the proceeds of drug dealing. On 29th March 1993, Roy Webb had issued a complaint in the Magistrates' Court under section 1(1) of the Police Property Act 1897 seeking the return of the money. He did not appear at the hearing of his complaint and the magistrates dismissed it. It is accepted that this did not prevent him from bringing civil proceedings in the County Court.
The Assistant Recorder heard and considered much detailed evidence. Roy Webb gave and called evidence in support of his case that he was in the business of property dealing. In short summary, his case was that he and a Mr Walsh were interested during 1992 in a development site on Greenbank Street and Bold Street in St Helens. The selling price was about £23,000, and Roy Webb and Mr Walsh hoped to sell it on for a substantially higher price. They were also interested in about October 1992 in acquiring from St Helens Borough Council for £8,000 a property called Link House, Elizabeth Street, St Helens, intending to develop it as a nursery. Roy Webb's evidence was that in November 1992 he was lent £35,000 or thereabouts in cash by a Mr Harrison. Mr Harrison gave evidence. He lived in the Isle of Man for tax reasons and said that on occasions he had very large sums of cash on him. His evidence was that he was with his wife at Gateacre Park Hotel when he lent £35,000 in cash to Roy Webb. Roy Webb said that he borrowed the money on an oral promise to use it to acquire the Greenbank Street and Link House properties and promised to pay Mr Harrison 50% of the profits made on those developments. It was an oral transaction unsubstantiated by any documents.
Evidence was called on behalf of the Chief Constable that from 30th June 1992 Roy Webb, his brother Colin Webb, and others had been under observation by the police as part of a drug trafficking detection operation. Roy Webb had been observed making regular short visits to the continent, in particular to Belgium but also on at least one occasion to Holland. Roy Webb accepted that he had made these journeys and he gave innocent explanations for them. He accepted that on an occasion in August 1990 he had left £25,000 in cash in a left luggage locker at Maastricht railway station. He gave an improbable explanation of the reason for this as being that he had the cash in the expectation of buying an Aston Martin DB6 with it. The Chief Constable also called detailed evidence of observations in the St Helens area between June and December 1992, when Roy Webb and his brother Colin were seen acting suspiciously. They or others who appeared to be associating with them were on occasions seen to have or to hand over plastic bags which the observing officers suspected were concerned with drug dealing.
On 10th December 1992, Roy Webb was seen to leave his house at 135 St Helens Road at about 10 a.m. A little later, Colin Webb went to the house and after about 10 minutes left carrying a red and white plastic carrier bag. Colin Webb got into a blue Escort van and drove off. He was spotted and followed by two police officers in plain clothes driving an unmarked police vehicle. He went to a telephone box and when he came out of it the police went to speak to him. Put shortly, Colin Webb drove off and a chase ensued which ended with the police officers catching Colin Webb and arresting him on suspicion of supplying controlled drugs. He denied any knowledge of the bag which was near him on the ground when he was arrested. But it was obviously the bag which he had been seen to take from Roy Webb's premises. It was found to contain cash amounting to £23,020. Scientific investigation established that there were traces of amphetamines on both the bag and the notes in the bag. Later that afternoon, the police searched Roy Webb's house at 135 St Helens Road. They found £200 in bank notes in a book case. Meanwhile, other police officers visited Colin Webb's flat and also Colin's mother's house at 58 Astley Road, where Colin Webb still kept a bedroom. In that house, the police found a supermarket plastic bag containing about £13,000. This and the money in the plastic bag found when Colin Webb was arrested were the £36,000 which Roy Webb claimed in the proceedings.
On 12th December 1992, Roy Webb was arrested on suspicion of drug dealing. Neither he nor his brother Colin have been prosecuted to conviction for drug trafficking offences.
Roy Webb's case at trial was that the money was his and that most of it had been lent to him by Mr Harrison in the circumstances which I have briefly described. It had been divided into £23,000 and £13,000 because these were the approximate sums of money needed for the property transactions at Greenbank Street and Link House respectively. By the time of the trial, there was a formal disclaimer on behalf of Colin Webb to the effect that he claimed no entitlement to the money.
The Assistant Recorder very carefully considered all the details of the evidence, which I have only briefly summarised. He made two crucial findings of fact. Firstly, he rejected on the balance of probabilities the factual case that the money which the police seized had been lent by Mr Harrison to Roy Webb for the purpose of property dealing. Secondly, he found on the balance of probabilities that the money was the proceeds of dealing in drugs. In reaching these conclusions, he properly directed himself that it was for the police to establish that the money was the proceeds of drug dealing. He also properly directed himself that, this being a civil case, the standard of proof was the balance of probabilities and not the higher criminal test. He emphasised, however, that, "since the allegation of illegality is serious, and particularly absent any criminal trial of the relevant Plaintiff, a civil judge would need strong and cogent evidence of the relevant tainting of the money which the Plaintiff seeks to recover."
It was the Chief Constable's case that the money that Roy Webb wanted to recover was the proceeds of drug dealing in which he was involved. It was contended that in consequence as a matter of public policy he could not recover the money. The Assistant Recorder said that the courts had long refused to enforce illegal contracts and transactions. He referred to and discussed authorities including Thackwell v. Barclays Bank plc [1986] 1 A.E.R. 676 and Tinsley v. Milligan [1994] A.C. 340. He said that illegality as considered in Tinsley v. Milligan simply prevents reliance by a plaintiff on his own illegality in order to substantiate a claim. He said that nothing in Tinsley v. Milligan appeared to him to challenge what he referred to as the consequence of the first finding of fact in Thackwell and he held it to be the law that "one cannot seek to recover property … when the property in question was obtained by the illegality of the plaintiff." He held therefore that, if the police established that the money which Roy Webb claimed was the proceeds of illegal drug dealing, Roy Webb would not be entitled to recover the money. Having held, as I have said, that the money was the proceeds of unlawful dealings in drugs, the Assistant Recorder dismissed Roy Webb's claim. This finding, taken with the principle which the Assistant Recorder applied and his findings as a whole,...
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