Muneka v Customs & Excise

Forfeiture of cash under the Proceeds of Crime Act 2002 may be ordered where, on the balance of probabilities, the evidence establishes that the cash was obtained through unlawful conduct or was intended for unlawful use. The prosecution need not identify the particular criminal offence or activity. Lies about the source or destination of the cash may be probative, especially where the questions were asked in a clear forfeiture context and the explanations are rejected as untruthful. Lies must be considered with the other evidence and do not remove the need for satisfactory evidence. An inference from the absence of a truthful explanation does not create a reverse burden of proof.

Bujar Muneka appealed by way of case stated from a district judge’s decision to forfeit £22,760 found in his possession at Heathrow Airport under section 298 of the Proceeds of Crime Act 2002. He had given differing explanations for the source of the money and its intended destination. The district judge rejected his evidence and found that the cash was recoverable property or intended for use in unlawful conduct.

The appeal argued that those lies were insufficient and that the prosecution had to identify the criminal source or intended offence. The central issues were whether the evidence satisfied the statutory balance-of-probabilities test and whether rejecting the appellant’s explanations improperly shifted the burden of proof.

1. Appeal dismissed. The district judge was entitled to find that the cash was recoverable property or was intended for use in unlawful conduct, and the forfeiture order stood.
2. Under sections 298(2), 304(1), 241 and 242 of the Proceeds of Crime Act 2002, the court had to decide on the balance of probabilities whether the cash was obtained through unlawful conduct or was intended for unlawful use. It was unnecessary to identify a particular kind of criminal conduct, provided the evidence established that the source was criminal conduct or that the intended use was criminal.
3. The appellant’s lies were not considered in isolation. The relevant context included the questions asked by Customs officers, the resistance to forfeiture, the absence of a satisfactory explanation for the source, the absence of a reasonable explanation for taking the money to Albania, and discrepancies in the accounts. Taken together, those matters entitled the district judge to infer both criminal source and criminal intention.
4. The court rejected the submission, based on Eric Williams v Chief Constable of the South Wales Police, that the prosecution was required to identify the criminal activity, source or intended offence. The statutory test required proof of criminality, not identification of its precise form.
5. The reasoning in Bassick and Osborne v Commissioners of Customs and Excise, Nevin v Customs and Excise and Butt v HM Customs & Excise supported the proposition that a rejected account may contribute to an inference that money came from criminal activity. The prescribed civil standard did not permit action without satisfactory evidence, but the fact-finder was not required to approach lies as a criminal jury would.
6. Although not argued, the judge clarified that there was no reverse burden of proof. The facts called for an explanation, and the absence of a truthful explanation assisted the factual inference; it did not transfer the legal burden.
7. Costs were awarded to the Commissioners in the sum of £5,103.50, excluding the fees of second counsel.

High Court (Administrative Court): The appeal by way of case stated from the district judge’s forfeiture decision was dismissed. The district judge’s answer that the forfeiture finding was not wrong in law was upheld.