Butt v Customs & Excise

Forfeiture proceedings under section 43 of the Drug Trafficking Act 1994 are civil proceedings and attract the civil standard of proof. That standard remains flexible. The court may apply it with greater strictness where the allegation is serious or the consequences of proof are significant, but the test does not become the criminal standard or a standard akin to it. A direction to decide the issue on the civil standard, while exercising great care and considering the consequences of forfeiture, is legally sufficient.

Money found in the possession of the applicant’s nephew was ordered to be forfeited under section 43 of the Drug Trafficking Act 1994. The applicant appealed through the Crown Court and the Divisional Court, both of which treated the proceedings as civil and applied the civil standard of proof. The applicant sought permission for a second-tier appeal, arguing that the alleged drugs connection required the criminal standard, or a standard very close to it. The central issue was whether the lower courts had applied the correct standard.

1. The application for permission to appeal was refused. The Court of Appeal held that there was no realistic prospect of a successful further appeal.
2. Proceedings for forfeiture under section 43 of the Drug Trafficking Act 1994 are civil proceedings. Parliament had expressly provided for the civil standard of proof.
3. The applicable test was whether it was more probable than not that the money represented the direct or indirect proceeds of drug trafficking, or was intended for use in drug trafficking. The seriousness of the allegation did not convert that test into the criminal standard or a standard akin to it.
4. The civil standard is flexible and may require greater or lesser strictness according to the seriousness of what must be proved and the implications of proving it. That flexibility concerns the care and strictness with which the evidence is assessed, rather than a change to the legal standard.
5. The references by the Crown Court and the Divisional Court to exercising great care were to be understood in the context of the civil-standard test stated in B v Chief Constable of Avon & Somerset. The courts had properly taken account of the seriousness of the allegations and the substantial sum at stake.

Application refused.

• Court of Appeal (Civil Division): refused permission for a second-tier appeal from the Divisional Court.
• Divisional Court: dismissed the appeal by way of case stated from the Crown Court.
• Crown Court at Canterbury: dismissed the appeal from the forfeiture order made by Dover Magistrates’ Court.
• Dover Magistrates’ Court: ordered forfeiture of approximately £410,000 under section 43 of the Drug Trafficking Act 1994.