N'Guessan, Re Drug Trafficking Offences Act 1986

Under section 14 of the Drug Trafficking Offences Act 1986, a certificate of inadequacy is not a vehicle for reopening the Crown Court’s assessment of realisable assets. A defendant who had the opportunity to contest that assessment cannot relitigate it in the High Court, even where the order assumed hidden assets. A receiver’s failure to recover those assets, or evidence repeating material available at the original hearing, does not by itself establish inadequacy. The Convention objection failed. There was no reversed burden in estimating realisable assets, and the policy considerations supporting the confiscation scheme applied equally to hidden assets.

The applicant had been convicted of conspiring to supply crack cocaine and received a confiscation order for £750,000, based on an assessed benefit of £1.3 million and realisable assets of £750,000. A receiver later recovered approximately £18,920.72.

The applicant sought a certificate under section 14 of the Drug Trafficking Offences Act 1986, relying on fresh evidence and asserting that no further assets existed. The Administrative Court struck out the application as an abuse of process. The applicant renewed his application for permission to appeal. The central issues were whether the application improperly reopened the original assessment, whether hidden assets required a different approach, and whether the confiscation scheme was Convention-compliant.

Disposition

Lord Justice Laws dismissed the renewed application for permission to appeal. The Deputy Judge had been correct to strike out the application as an abuse of process.

1. Relationship between the jurisdictions. The adopted reasoning relied on the division of responsibility between the Crown Court, which determines the confiscation order, and the High Court, which exercises civil jurisdiction in enforcement matters. That approach was consistent with Government of the United States of America v Montgomery [2001] 1 WLR 196 and Re Norris [2001] 1 WLR 1388. Although the question under section 14 is temporally different from the Crown Court’s inquiry under section 4, and therefore does not create strict issue estoppel, a defendant cannot use section 14 to relitigate matters decided when the confiscation order was made, after having had an opportunity to contest them.
2. Alleged fresh evidence. The receiver’s failure to recover assets was evidence only of non-recovery. It did not establish that the assets found to exist by the Crown Court were not realisable. The applicant’s affidavit substantially repeated evidence that was, or should have been, available at the original hearing. The approach was unchanged where the order was based on assumed hidden assets, as illustrated by Gokal v Serious Fraud Office, Ex parte B and Ex parte Anscombe.
3. Convention issue. The fairness of confiscation depended on the precise facts. The policy considerations identified in Phillips v the United Kingdom, including preventing criminals from profiting from crime and the defendant’s particular knowledge of his assets, applied equally to hidden assets. R v Rezvi had explained that the confiscation scheme under the Criminal Justice Act 1988 was compatible with the Convention, and that scheme was effectively identical to the drugs legislation. The burden of proof was not reversed in estimating realisable assets.
4. Order. The application was hopeless and was dismissed.

• Court of Appeal (Civil Division): Permission to appeal was refused on the papers on 26 November 2001. The renewed application was dismissed on 5 February 2002.
• High Court of Justice, Queen’s Bench Division, Administrative Court: On 26 September 2001, Deputy Judge Beatson QC struck out the application for a certificate of inadequacy under section 14 as an abuse of process.