Webb v Chief Constable of Merseyside Police (Porter v Chief Constable of Merseyside Police)

Property acquired through an illegal transaction may be recovered where the claimant can establish a possessory or proprietary right without relying upon the illegality. The emergence of illegality in evidence does not itself defeat the claim.

Once the statutory purpose for retaining lawfully seized property has expired, the police cannot retain it merely because it is proved on the civil standard to be the proceeds of crime. Confiscation requires clear statutory authority. The exception for goods which are inherently unlawful to deal in does not extend to money.

In two conjoined appeals, the police had lawfully seized cash suspected of being the proceeds of drug trafficking. Their statutory purposes for retaining it had expired, and they claimed no title to it.

In Webb, an Assistant Recorder found on the balance of probabilities that £36,000 was the proceeds of drug dealing and dismissed the claimant’s action on grounds of illegality. In Porter, a judge determined without hearing evidence that illegality would not defeat the claimants’ title to £32,740.

The central questions were whether a claimant could establish a sufficient right to possession and, if so, whether illegality or public policy entitled the police to refuse its return despite the absence of an applicable statutory confiscation power.

1. Disposition. The court unanimously allowed Webb’s appeal and ordered the return of the money, subject to the determination of interest. It allowed the Chief Constable’s appeal in Porter only to the extent of remitting the unresolved question of entitlement to possession for trial before a different judge.

2. May LJ, with whom Pill LJ and Hale LJ agreed, applied the majority principle in Tinsley v Milligan [1994] 1 AC 340. A claimant may enforce a property right acquired through an illegal transaction if the claimant can establish the right without relying upon the illegality. It is immaterial that the illegality is pleaded or emerges in evidence. Webb relied upon his right to possession against a defendant who asserted no title, rather than seeking enforcement of any unlawful transaction.

3. The exception identified in Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65 for goods which are unlawful to deal in at all did not apply. Money is not inherently unlawful property. The court reserved, without deciding, whether relief might exceptionally be refused where it would assist or encourage completion of a criminal act. Returning this money would not complete an earlier crime.

4. The police had lawfully seized the cash under section 23(2) of the Misuse of Drugs Act 1971 or section 19 of the Police and Criminal Evidence Act 1984. Their power of retention had nevertheless expired. They were not genuinely retaining the money to identify another lawful owner under section 22(2)(b) of the 1984 Act.

5. Public policy did not authorise confiscation outside the statutory schemes enacted by Parliament. Consistently with Malone v Metropolitan Police Commissioner [1980] QB 49, deprivation of property for punishment, forfeiture or restitution requires express and unambiguous statutory authority. A civil defence based upon suspected criminality could not supply an omitted confiscation power.

6. Webb had the better right to possession. No other person claimed the money, and Colin Webb had disclaimed any entitlement. In Porter, however, ownership and entitlement remained disputed and could not be resolved on the preliminary issue without evidence.

1. Court of Appeal: In Webb, allowed the claimant’s appeal from the Liverpool County Court and remitted only the question of interest if agreement proved impossible. In Porter, allowed the Chief Constable’s appeal only to the extent of remitting entitlement to possession for determination by a different judge.
2. Liverpool County Court — Webb: An Assistant Recorder dismissed the claim after finding that the money was the proceeds of drug dealing and that illegality prevented recovery.
3. Liverpool County Court — Porter: Her Honour Judge Bernstein decided a preliminary issue in favour of the claimants, holding that proof that the money was the proceeds of drug dealing would not constitute a defence. She heard no evidence on the disputed entitlement to possession.