Singh v Director of the Assets Recovery Agency

A confiscation order quashed because the criminal court lacked jurisdiction is void and cannot engage the exception in section 308(9) of the Proceeds of Crime Act 2002. Property previously taken into account under that purported order may therefore be pursued through civil recovery proceedings.

Section 308(9) prevents double recovery, rather than preventing a civil claim merely because criminal confiscation proceedings were previously attempted. Although the statutory scheme generally gives priority to criminal proceedings, that priority creates no legal bar to civil recovery where no valid confiscation order exists.

The appellant had pleaded guilty to conspiracy to cheat the public revenue. A confiscation order made under the Criminal Justice Act 1988 was later quashed by the Criminal Division because procedural irregularities meant that the criminal court lacked jurisdiction to make it.

After the relevant civil-recovery provisions of the Proceeds of Crime Act 2002 came into force, the Director obtained an interim receiving order and sought a recovery order over 15 items alleged to be, or represent, proceeds of crime. McCombe J dismissed the appellant’s applications to discharge the interim order and strike out the claim: [2004]EWHC 2335(Admin).

The appeal concerned whether section 308(9) barred civil recovery because the assets had historically been taken into account in making the subsequently quashed confiscation order.

1. Appeal dismissed unanimously. Latham LJ, with whom Lloyd LJ and Brooke LJ agreed, held that the exception in section 308(9) of the Proceeds of Crime Act 2002 did not apply.

2. A confiscation order quashed because the court lacked jurisdiction is void and of no effect. It follows that no order was made under a corresponding provision of the Criminal Justice Act 1988 for the purposes of section 308(9). The historical fact that the trial judge had taken the property into account could not satisfy that provision.

3. The purpose of section 308(9) was to prevent double recovery. It ensured that property taken into account under a valid confiscation order was recovered through that mechanism. It did not create a broader prohibition on civil recovery after an unsuccessful criminal-confiscation process.

4. The statutory preference for criminal investigation and proceedings, reflected in section 2 of the Proceeds of Crime Act 2002, described the Director’s general priorities. It did not impose a legal fetter on civil recovery powers. Section 240(2) expressly permitted those powers to be exercised whether or not proceedings for an offence had been brought.

5. The related-property provisions in section 278 did not assist the appellant. Their different function and wording did not alter the construction of section 308(9). Applying the purposive approach identified in R (Quintavalle) v Health Secretary, [2003] UKHL 13, the statutory language and purpose both allowed the Director’s civil claim to continue.

• Court of Appeal (Civil Division): Dismissed the appeal and upheld McCombe J’s refusal to discharge the interim receiving order or strike out the civil-recovery claim.

• High Court, Administrative Court: McCombe J dismissed the appellant’s applications: [2004]EWHC 2335(Admin).