In the Matter of Ian Howard; Re Drug Trafficking Act 1994

An acceptance made in confiscation proceedings is not conclusive under section 11 of the Drug Trafficking Act 1994 unless the court accepted or determined the matter to which it relates. Where the confiscation order could be made without investigating ownership of an asset, statements about ownership were not thereby accepted as conclusive. Inconsistent positions taken by the prosecution do not establish abuse of process without evidence of deliberate misconduct; confusion or muddle is insufficient. A complaint about an earlier order must ordinarily be pursued by appealing that order, rather than through later proceedings concerning the restrained property.

Mr Kirkitar renewed his application for permission to appeal from a judgment of Dyson J refusing relief concerning a restraint order made in drug-trafficking proceedings against Mr Howard. The order restricted dealings with a property registered in Mr Kirkitar’s name, while the respective interests of Mr Howard and Mr Kirkitar remained unresolved.

Mr Kirkitar argued that the Crown Prosecution Service had adopted inconsistent positions about ownership, amounting to abuse of process. He also relied on an alleged acceptance of ownership in his own confiscation proceedings, invoking section 11 of the Drug Trafficking Act 1994. He further complained about an earlier hearing before Kay J. The central issues were whether those matters disclosed an arguable error by Dyson J and a basis for permission to appeal.

The renewed application for permission to appeal was dismissed. Lord Justice Buxton held as follows.

1. The evidence entitled Dyson J to find that the prosecution’s inconsistent positions resulted from muddle and confusion, rather than a deliberate plan to change its case according to convenience. The Court of Appeal would not go behind that finding. The alleged abuse of process therefore disclosed no realistic prospect of success.

2. Section 11 of the Drug Trafficking Act 1994 permits the court to treat a defendant’s acceptance of an allegation in a prosecutor’s statement as conclusive of the matters accepted. That provision did not assist Mr Kirkitar. His confiscation order was limited to £570, and the court had no need to investigate the ownership or realisable value of the property. Nothing he said about the property had therefore been accepted by the court as conclusive.

3. The complaint about the hearing before Kay J could not properly be determined in the present proceedings. Any challenge to that decision required an appeal from the decision itself, with proper evidence of what had occurred. It did not provide a ground for permission to appeal from Dyson J’s later judgment.

There was no prospect that the Court of Appeal would differ from Dyson J’s conclusions.

• Court of Appeal (Civil Division): renewed application for permission to appeal dismissed, [2001] EWCA Civ 47.
• High Court, Queen’s Bench Division (Dyson J): refused the application to vary or discharge the restraint order and declined to grant the relief sought.
• High Court (Kay J): permitted sale of the property but directed that the proceeds be held pending further order.
• High Court (Ognall J): made the restraint order on 8 October 1998.