Webber v Webber
| Jurisdiction | England & Wales |
| Judge | SIR MARK POTTER,THE PRESIDENT OF THE FAMILY DIVISION,Sir Mark Potter |
| Judgment Date | 16 November 2006 |
| Neutral Citation | [2006] EWHC 2893 (Fam) |
| Docket Number | Case No: BK04D00415 |
| Court | Family Division |
| Date | 16 November 2006 |
[2006] EWHC 2893 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Sir Mark Potter
The President of the Family Division
Case No: BK04D00415
Mrs Laureen Fleischmann (instructed by Messrs Campbell Hooper Solicitors) for the Applicant
Miss Charlotte Lees (instructed by Messrs Wills Chandler Solicitors) for the Respondent
Mr Peter Doyle QC and Mr Ben Fitzgerald (instructed by Crown Prosecution Service) for the Intervenor
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Hearing dates: 19 July 2006
SIR MARK POTTER THE PRESIDENT OF THE FAMILY DIVISION
This judgment is being handed down on 16 November 2006. It consists of 14 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
Sir Mark Potter, P:
Introduction
This is a reserved judgment giving reasons for my decision made on 19 July 2006 refusing an application made in ancillary relief proceedings by Mrs Fleischmann who represents the petitioner Angela Patricia Webber, the wife of Roy William Webber ("the husband"). In July 2005 the husband was convicted of serious drug offences and, at the time of the application, he was awaiting disposal of drug confiscation proceedings under the Proceeds of Crime Act 2002 (" POCA") by the Crown Prosecution Service ("the CPS") at the Central Criminal Court ("the CCC") following the trial of his co-defendants before His Honour Judge Kramer QC and a jury. The husband was represented before me by Miss Charlotte Lees. The CPS were represented by Mr Peter Doyle QC and Mr Ben Fitzgerald appeared as intervenor in the proceedings in the following circumstances.
The ancillary relief proceedings had, on 9 March 2006, been transferred to the High Court from the Basingstoke County Court under a consent order. On 15 March 2006, the parties obtained a consent order from Pauffley J giving directions for the final disposition of the matter, the main purpose of which was to ensure that the civil hearing to determine the wife's share in the matrimonial home (which was the parties' sole asset of substance) should be heard at the same time as the confiscation proceedings by a judge with experience both in criminal and family jurisdictions on lines similar to those commended by Munby J in the case of W v H and Her Majesty's Customs and Excise [2004] EWHC 526 (Fam/Admin)
The relevant part of the order ran as follows:
"The confiscation [hearing] and the ancillary relief application shall be heard together at the Central Criminal Court on a date to be fixed by that court.
His Honour Judge Kramer QC [the judge with the conduct of the case at the Central Criminal Court] shall be asked whether he has experience with dealing with ancillary matters and, if the answer is No, then either a Judge of the Central Criminal Court with the experience with ancillary relief matters or a judge of the Family Division who is also a nominated judge of the Administrative Court and/or a judge with experience of the Crown Court shall determine both matters.
This order shall be served upon the Crown Prosecution Service and the Central Criminal Courts."
Unfortunately, the CPS was not made party to the application before Pauffley J; nor was notice of it served until the last minute, too late for the attendance of any representative on behalf of the CPS.
Upon receipt of the order, the CPS applied to set it aside upon the grounds that the procedure contemplated was incorrect, impracticable, contrary to the terms of POCA and would set an incorrect procedural precedent in respect of confiscation proceedings in the Crown Court.
On 31 March 2006, Holman J set aside the relevant paragraphs of the order of Pauffley J and ordered that the case summary of Mrs Fleischmann served on that occasion should stand as a formal application (of which the CPS had notice) for an order in, or substantially in, the terms of the order of Pauffley J, such application to be heard by me on 19 July 2006, with permission to the CPS to intervene in the proceedings to the extent necessary to argue and be heard on all matters arising on the application.
In order fully to understand all the issues arising it is necessary to set out the history in a little more detail.
Background and history
The wife and the husband are aged 43 and 44 respectively. They were married in July 1984 and in 1991 purchased their family home for £123,000 with a mortgage of around £100,000, increased to £140,000 in May 2001. They have one child, a boy now aged 10.
The parties separated, when the husband left the matrimonial home in January 2004, the wife having discovered his adultery. The last payment made towards the mortgage was in May 2004.
In June 2004 the wife petitioned for divorce.
On 30 August 2004 the husband was charged with conspiracy to supply 60 kilos of Class C drugs, namely cannabis, being arrested and charged with a number of co-defendants.
In October 2004, an order in favour of the mortgagee for possession of the home by 10 December 2005 was made in the Basingstoke County Court on the grounds of arrears of payment of the mortgage.
On 17 December 2004, a restraint order was granted in the Central Criminal Court against the husband and the wife pursuant to section 41 of POCA, restraining them from disposing of, or dealing with, their assets, in particular their home or any proceeds of sale thereof.
On 23 February 2005 there was an order by consent in the Basingstoke County Court for sale of the home with vacant possession at a price to be agreed between the parties and the CPS, the proceeds to be applied to redemption of the mortgages and the payment of the costs of sale and, following discharge of the parties' joint debts to their bank, the remainder to be placed by the court in an interest bearing account. An order to similar effect was made in the criminal proceedings by way of variation to the restraint order of 17 December 2004.
On 27 July 2005 the husband was sentenced to four years' imprisonment and confiscation proceedings were instigated. An order was made for a directions appointment in respect of the confiscation hearing and for the wife to attend if so desired on 1 December 2005. At that hearing the CPS agreed to notify the wife's solicitors whether they considered that the wife was tainted with knowledge of the defendant's criminality in relation to her share of the balance of the proceeds of the home, that being the sole asset forming the available amount for confiscation under POCA.
At a hearing at the Central Criminal Court on 24 February 2006, attended by Mrs Fleischmann on behalf of the wife, the CPS stated their acceptance that the wife was not tainted and that she was entitled to 50% of the proceeds of sale of the home. However, Mrs Fleischmann made clear at that stage that the wife sought a greater than 50% share in her ancillary proceedings. The CPS indicated that agreement between the husband and the CPS was imminent to the effect that the "available amount" for confiscation was 50% of the net proceeds of the house on the basis that that sum represented the husband's interest. The confiscation proceedings were listed for mention on 29 March 2006 in that expectation.
That agreement was swiftly reached and communicated to the wife's solicitors.
On 9 March 2006, in the light of the developing complications, the Basingstoke County Court made an order for transfer of the ancillary relief proceedings "to be listed before a Judge of the Family Division, and of the Administrative Court and (if possible) a Judge with experience of the Criminal Court".
The CPS was not informed of that order at the time. It only became aware of the transfer of the ancillary relief proceedings to the High Court following the order made by Pauffley J (see paras 2–4 above). By that time it was also aware that the wife proposed to argue in the ancillary relief proceedings that she was entitled to 100% of the proceeds of the sale of the house, which, if established prior to the disposal of the confiscation proceedings, would deprive them of any effect.
These events were addressed at a hearing at the Central Criminal Court on 29 March 2006 when the confiscation proceedings were adjourned to 12 April 2006 to allow time for the CPS to set aside the order of Pauffley J.
Following the setting aside of the order (see para 6 above) the further hearing of the confiscation proceedings was adjourned by the trial judge His Honour Judge Kramer QC to await the decision of this court.
The Powers of the High Court prior to POCA
In this case the court is concerned with the position as it exists under the provisions of POCA. However, in the light of the argument raised by Mrs Fleischmann, it is necessary to summarise the powers of the High Court prior to the provisions of POCA coming into force, when restraint and confiscation proceedings were governed by the Criminal Justice Act 1988 (CJA 1988) and the Drug Trafficking Act 1994 (DTA 1994). Under that earlier regime, whereas confiscation proceedings were conducted in the Crown Court, the jurisdiction over the making of restraint orders, the appointment of receivers and the enforcement of confiscation orders rested with the High Court. In that context, the situation would arise in a number of cases whereby the claim of the divorced wife of a drug smuggler, money launderer or other criminal who sought ancillary relief under the Matrimonial Causes Act 1973 (MCA 1973) was in conflict with the claims of the Crown, represented either by the CPS or by...
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