Webber v Webber

Under the Proceeds of Crime Act 2002 the Crown Court has exclusive jurisdiction over restraint, confiscation and enforcement proceedings. That does not remove the Family Division’s jurisdiction to make financial provision under the Matrimonial Causes Act 1973.

The statutory direction that powers be exercised “with a view to” preserving property for confiscation retains sufficient flexibility to permit proper provision for an innocent spouse. The ancillary relief and confiscation proceedings should not ordinarily be combined before a Family Division judge. Confiscation should generally be dealt with by the Crown Court judge who tried the criminal case, while any adjustment to the recoverable amount can follow the determination of the ancillary relief application.

The wife sought directions enabling her ancillary relief application to be heard together with her husband’s pending confiscation proceedings. The parties’ matrimonial home was subject to restraint proceedings under the Proceeds of Crime Act 2002. The Crown Prosecution Service accepted that the wife was not tainted by the husband’s criminality and was entitled to 50 per cent of the net proceeds, but she sought a greater share in the Family Division.

An earlier order had contemplated determination of both matters by a judge with family and criminal jurisdiction. The Crown Prosecution Service successfully obtained the setting aside of that order. The central issues were whether the Family Division retained jurisdiction to make a property adjustment order affecting the amount available for confiscation, and whether the two proceedings should be heard together.

1. Jurisdiction. The Family Division retained jurisdiction under Part II of the Matrimonial Causes Act 1973 to make a property adjustment order, even where the assets were subject to restraint or possible confiscation under the Proceeds of Crime Act 2002. The fact that the assets might be criminally tainted affected the exercise of the discretion, not the existence of the jurisdiction. The court applied the reasoning in Customs & Excise Commissioners v A [2002] EWCA Civ 1039.
2. Statutory balance. Section 69 of POCA retained the flexible “with a view to” formulation formerly found in the Drug Trafficking Act 1994. It required the courts to protect the value available for confiscation while allowing a person other than the defendant to retain or recover the value of an interest. It did not create an absolute priority for confiscation over proper financial provision for an innocent spouse.
3. Confiscation stage. At the stage of making a confiscation order, the Crown Court’s task was the arithmetical determination of the recoverable amount. A former wife’s unresolved application for ancillary relief was not an “interest” within section 69(3)(a) of POCA. The Crown Court therefore had no obligation at that stage to assess the practical consequences for the wife or child. The court applied R v Ahmed and Qureshi [2004] EWCA Crim 2599 and noted that third-party rights could be addressed at enforcement, consistently with Re Norris [2001] 1 WLR 1388.
4. Procedure and disposition. The Family Division had no jurisdiction to order that the proceedings be heard together. Even if it had possessed that jurisdiction, the court would have declined to make the order. Confiscation should generally be dealt with by the criminal trial judge, who is best placed to assess benefit, criminal roles and the relationship between sentence and confiscation. The wife’s ancillary relief application should instead be determined first, after which the Crown Court could determine the available amount and any necessary variation.

First-instance decision. The court refused the application for the ancillary relief and confiscation proceedings to be heard together before a Family Division judge.