P, Re

For the purposes of a certificate of inadequacy under section 83(1)(a) of the Criminal Justice Act 1988, property which is legally classified as realisable property remains relevant even if it is difficult or impossible in practice to realise. Gifts caught by the confiscation legislation therefore count towards the property available to meet the confiscation order. The defendant’s actual ability to recover or sell the gifted property does not make that property inadequate within section 83(1)(a). The provision reflects the deliberately draconian policy of treating certain gifts as realisable property.

The applicant had been convicted of conspiracy to cheat Her Majesty’s Customs and Excise and was subject to a confiscation order. He applied for a certificate of inadequacy, arguing that property gifted to his former wife could not be sold because she refused to sell it.

Penry-Davey J dismissed the application on 9 February 2001. The applicant renewed his application for permission to appeal. The central issue was whether gifted property which was legally realisable but practically unrealisable could be treated as inadequate under section 83(1) of the Criminal Justice Act 1988.

1. Application dismissed. Permission to appeal was refused. There was no order as to costs.
2. The gifts were realisable property by virtue of section 74(1)(b) of the Criminal Justice Act 1988. The applicant accepted that point.
3. Once property in the form of a gift is shown to be realisable property, its practical realisability is irrelevant to whether it is inadequate for payment under section 83(1)(a). The statutory question is whether the property falls within the statutory category, not whether it can in fact be sold or recovered.
4. The court followed the reasoning in R v Liverpool Magistrates’ Court ex parte Ansen [1998] 1 All ER 692, which treated property as realisable notwithstanding practical or legal difficulty in recovering it.
5. Section 83(2)(b) was not directly applicable because the applicant was not alleged to have done anything to preserve the property held by his former wife. That did not affect the conclusion under section 83(1)(a).
6. The statute was deliberately draconian. Treating gifted property as irrelevant merely because it could not later be realised would undermine the statutory policy. The court also observed that the better view was that an application for a certificate of inadequacy was not a criminal cause or matter, but permission would have been refused on the merits in any event.

• Court of Appeal (Civil Division): Renewed application for permission to appeal dismissed; no order as to costs.
• High Court: Penry-Davey J dismissed the application for a certificate of inadequacy on 9 February 2001.