Assets Recovery Agency v Singh

Property previously taken into account in a confiscation calculation is excluded from civil recovery only while the relevant confiscation order remains extant. Where that order has been quashed, the statutory exclusion does not prevent a recovery claim. Quashing operates prospectively, not ab initio.

An application made without notice is subject to full and fair disclosure. Material non-disclosure does not invariably require discharge where the omission was innocent, the order was otherwise justified, and discharge would not serve the justice of the case.

The defendant had been convicted of conspiracy to cheat the public revenue and made subject to a confiscation order under the Criminal Justice Act 1988. The order was later quashed on appeal and a restraint order was discharged. Before money seized from the defendant was returned, the civil recovery regime under the Proceeds of Crime Act 2002 came into force. The Assets Recovery Agency then sought a recovery order and an interim receiving order.

The defendant sought to strike out the recovery claim, relying on the statutory exception for property previously taken into account in confiscation proceedings, the good-faith disposal provision, and article 6 of the Convention. He also sought discharge of the interim receiving order for alleged non-disclosure on the without-notice application.

1. Strike-out application dismissed. The property identified in the recovery claim had been taken into account by the Crown Court when assessing the defendant’s benefit and realisable assets. However, section 308(9) of the Proceeds of Crime Act 2002 referred to an existing confiscation order. The parallel wording in section 278(9) supported that construction. A quashed order could not sustain the statutory exclusion.
2. Applying Hancock v Prison Commissioners [1960] QB 117, the quashing of the confiscation order did not make it void ab initio. It became null and ineffective for the future from the date of the Court of Appeal’s decision.
3. Section 308(1) did not assist the defendant. The proposed payment of solicitors’ fees had not been made, and the solicitors had notice of the relevant facts.
4. The article 6 complaint failed. The civil recovery proceedings were properly regarded as separate proceedings. In any event, the criminal proceedings, appeal delay and subsequent events did not establish a breach of the reasonable-time requirement.
5. The interim receiving order was not discharged. The duty of full and fair disclosure applied to the without-notice application. The failure to provide the hearing note promptly did not warrant discharge because it arose from a genuine misunderstanding, was relatively short-lived, and caused no demonstrated prejudice.
6. The failure to disclose the history of attempts to obtain repayment of the seized money was material, but innocent and attributable to the referring authority’s lack of knowledge. Applying Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350, the court declined to discharge the order because the claim otherwise had no substantive or balance-of-convenience defect. The application was dismissed.

The judgment records that the earlier confiscation order was quashed on 16 December 2002 and the restraint order was discharged on 16 January 2003. The present proceedings concerned the subsequent civil recovery claim and interim receiving order.