Revenue and Customs Prosecutions Office v Briggs-Price& Anor

Under the pre-POCA restraint-order regime, release of restrained assets for legal expenses remains a matter of judicial discretion. The court must respect the statutory aim of preserving realisable property for a confiscation order, but that aim does not create an absolute bar. A genuine appeal against a confiscation order is a legitimate legal purpose even after conviction where success could reduce the benefit figure or the default term. The court may consider alternative funding, proportionality and the merits of the proposed work. The appeal was dismissed.

The Revenue and Customs Prosecutions Office appealed against an order made by Wilkie J under the Civil Procedure Rules 1998, rule 69.6(1). The receiver had been directed to release restrained funds for the defendant’s legal expenses connected with confiscation proceedings, an appeal against the confiscation order and the application for directions.

The order was made under the pre-POCA provisions of the Drug Trafficking Act 1994 and the Criminal Justice Act 1988. The appellant argued that alternative funding should be exhausted and that the statutory policy of preserving assets for confiscation prevented further releases. The central issue was whether the judge had properly exercised his discretion.

Lord Justice Wall delivered the judgment, with Lord Justice Tuckey and Lord Justice Ward agreeing. The appeal was dismissed.

1. Statutory framework. The case was governed by the pre-POCA provisions of the Drug Trafficking Act 1994 and the Criminal Justice Act 1988. The later policy reflected in the Proceeds of Crime Act 2002 could not be used to construe the earlier legislation. Any order nevertheless had to comply with the statutory purpose of preserving realisable property for a confiscation order. The relevant discretion had to be exercised judicially and proportionately.
2. Legitimate purpose. The proposed expenditure related to an appeal against the confiscation order. Success could reduce the benefit figure and possibly the additional term of imprisonment for non-payment. Following Customs and Excise Commissioners v Norris [1991] 2 QB 293, it was wrong to assume that the confiscation order was necessarily valid and would remain in force while the appeal was pending. Although the conviction and original sentence were not in issue, the application was not a post-conviction case in the relevant sense.
3. Weight of prior expenditure. The appellant had consented to the restraint order, knew of the payments made under it and had not applied to vary its terms. The fees previously paid were no longer challenged as improper. Their effect was diminution, not dissipation, and the appellant could not rely on that history to defeat the present application.
4. Limits of the discretion. The court could refuse a pre-POCA application if the proposed work was manifestly unmeritorious or the expenditure clearly disproportionate. Those considerations did not apply. Public funding was unavailable for the renewed oral application, and the further costs were modest and capable of assessment. The court declined to give wider guidance on applications concerning proceedings outside the domestic criminal process.

• Court of Appeal (Civil Division) — In [2007] EWCA Civ 568, the appeal was dismissed.
• High Court — Wilkie J, in [2006] EWHC 2751 (Admin), permitted the receiver to release restrained funds for specified legal expenses and made consequential costs directions.