McKinsley v Crown Prosecution Service

An application under section 17 of the Drug Trafficking Act 1994 addresses inadequacy caused by events occurring after a confiscation order. It cannot be used to challenge the Crown Court’s findings about the defendant’s realisable property, even where an alleged error is manifest or new evidence is available.

The proper means of challenging those findings is an appeal against the confiscation order. An applicant must instead demonstrate what has happened since the order to the property which the Crown Court found to be realisable. An attempt to reopen the original findings through inadequacy proceedings is an abuse of process.

Following his conviction for conspiracy to supply cocaine, the appellant was made subject to a confiscation order. The Court of Appeal (Criminal Division) subsequently reduced the order to £166,410.76.

The appellant applied to the Administrative Court for a certificate of inadequacy under section 17 of the Drug Trafficking Act 1994. He sought to prove that approximately £83,000 attributed to him as hidden assets had never existed. Toulson J held that the application could not challenge the Crown Court’s findings about his realisable assets.

The central issue was whether, and in what circumstances, an applicant for a certificate of inadequacy may go behind those findings.

1. Appeal dismissed. The Administrative Court had no jurisdiction in certificate-of-inadequacy proceedings to go behind the basis of the Crown Court’s confiscation order. The appellant’s attempt to do so was an abuse of process.

2. Section 17 of the Drug Trafficking Act 1994 provides a safety net for events occurring after a confiscation order. The confiscation hearing affords the defendant an opportunity to dispute benefit, the statutory assumptions, the value of realisable property and its sufficiency. Any error in the resulting order is to be corrected through the statutory right of appeal.

3. The structure of the Act confirmed that construction. Sections 13 to 17 presuppose a valid confiscation order. Under section 17, the order remains intact when a certificate is issued, although the Crown Court must then substitute such lesser recoverable amount as it considers just. Section 16 expressly permits account to be taken of property which was worth more than originally thought, whereas section 17 contains no equivalent language permitting reconsideration of assets previously assessed.

4. The applicant therefore had to accept as established the amount of realisable property found by the Crown Court and demonstrate what had happened to that property since the confiscation order. Neither evidence available but omitted at the original hearing nor material contradicting the original findings could turn section 17 into a further appeal.

5. The court followed the hard-edged rule established in Gokal v Serious Fraud Office [2001] EWCA Civ 368. Re Norris [2001] 3 All ER 961 did not undermine that rule. A third party’s proprietary claim is different because the High Court determines an issue which the Crown Court was not competent to decide against that third party. Clarification of such a third-party interest may properly constitute a post-order event.

6. The appellant’s previous confiscation appeal meant that any further challenge required a reference by the Criminal Cases Review Commission. Practical inconvenience and the possible effect of default imprisonment did not confer jurisdiction on the Administrative Court.

1. Court of Appeal (Civil Division): Dismissed the appeal and affirmed Toulson J’s ruling that the Administrative Court could not reconsider the Crown Court’s findings about realisable assets.

2. Administrative Court: Toulson J held on 22 November 2005 that the appellant could not challenge those findings in proceedings for a certificate of inadequacy.

3. Court of Appeal (Criminal Division): On 6 May 2004, allowed an earlier appeal against the confiscation order to a limited extent and reduced the order to £166,410.76.

4. Crown Court at Peterborough: Following the appellant’s conviction, Judge Coleman made a confiscation order which attributed hidden assets to him.