Norris, In Re

The House of Lords held that the statutory scheme of the Drug Trafficking Offences Act 1986 distinguishes the functions of the Crown Court (to determine whether the defendant has benefited from drug trafficking and to fix the confiscation amount under sections 1–5) from the role of the High Court (to resolve third party interests when enforcement and realisation by a receiver are sought under sections 11–13). The court emphasised that section 11(8) gives third parties a right to a reasonable opportunity to make representations in the High Court and that it is not an abuse of process for a third party who has previously given evidence in the Crown Court to assert her civil proprietary rights in enforcement proceedings. The Crown Court's findings for the purpose of fixing a confiscation order are not generally conclusive against a third party in subsequent High Court enforcement proceedings where different issues, burdens and remedies apply.

Background and parties:

• The respondent, Clifford Norris, was convicted at the Crown Court and given a confiscation order under the Drug Trafficking Offences Act 1986. Mrs Teresa Wendy Norris (appellant) was the registered owner and occupier of the family home at 7 Berryfield Close.
• HM Customs and Excise applied ex parte under section 11 for appointment of a receiver and obtained an order including a declaration that the defendant held the beneficial interest in the house. Mrs Norris sought variation to protect her title or interest.

Nature of the application and relief sought:

• Mrs Norris applied in the High Court to vary the s.11 orders so as to recognise her beneficial title or interest in 7 Berryfield Close and to prevent its immediate realisation by the receiver.

Procedural history:

• Judge Brown in the Crown Court (Lewes) at sentencing rejected Mrs Norris's evidence and made the confiscation order (24 June 1996).
• Ex parte s.11 enforcement orders were made by Latham J (4 February 1999). Mrs Norris applied to vary them; Latham J struck out her application as an abuse of process. The Court of Appeal dismissed her appeal ([2000] 1 WLR 1094). She appealed to the House of Lords.

Issues framed by the House of Lords:

• Whether the High Court, in enforcement proceedings under ss.11–13 of the 1986 Act, is required to treat findings made by the Crown Court in confiscation proceedings as conclusive against a third party who was a witness but not a party.
• Whether it was an abuse of process for Mrs Norris to seek to litigate her proprietary interests in the High Court after giving evidence in the Crown Court.

Court's reasoning and disposition:

• The House of Lords analysed the statutory scheme: sections 1–5 relate to making confiscation orders in criminal proceedings while sections 7–13 and 15–18 confer enforcement powers on the High Court and provide for resolution of third party interests. Section 11(8) expressly requires that the High Court give persons holding an interest a reasonable opportunity to make representations before exercising powers to realise property.
• The Lords held that the Crown Court procedure and purpose (assessing the defendant's benefit and the amount which might be realised, with the burden on the defendant and statutory presumptions) are different from the civil questions the High Court must decide about third party proprietary rights (where presumptions against the third party are not applicable and the burden of proof rests on the applicant seeking to undermine the registered proprietor's title).
• Accordingly, it was not an abuse of process for Mrs Norris to pursue her claim in the High Court and she should be allowed to have her defence heard; the Customs and Excise must prove their case against her in the enforcement proceedings.

Appeal allowed. The House of Lords held that the statutory scheme of the Drug Trafficking Offences Act 1986 separates the Crown Court's role in fixing confiscation amounts from the High Court's role in determining third party proprietary interests; section 11(8) requires the High Court to give interested persons a reasonable opportunity to make representations and it was not an abuse of process to permit Mrs Norris to advance her claim in the High Court despite her having given evidence in the Crown Court.

Conviction and confiscation order at Lewes Crown Court (Judge Brown) 24 June 1996; ex parte s.11 High Court orders by Latham J 4 February 1999; Latham J struck out Mrs Norris's application; Court of Appeal dismissed Mrs Norris's appeal ([2000] 1 WLR 1094); House of Lords allowed the appeal ([2001] UKHL 34).