B, Re

On an application for a certificate of inadequacy, the defendant must prove on the balance of probabilities that his realisable property as a whole is inadequate to satisfy the confiscation order. The inquiry is not confined to assets said to have formed the basis of the original order.

Section 83 is a safety-net procedure for genuine post-confiscation changes in financial circumstances. It cannot reopen findings made at the confiscation hearing or provide a second opportunity to raise matters that could then have been advanced. Realisable property includes a chose in action or right to payment unless recovery is proved impossible. An unspecified compromise order does not limit the later inquiry to identified assets.

B had pleaded guilty to fraud-related offences and, in 2003, received a confiscation order under the Criminal Justice Act 1988 for £500,000. He later applied under section 83(1), asserting that assets transferred to a third party in Pakistan could no longer be recovered and that certain insurance policies could not be realised.

The Crown Court order followed a compromise which specified the benefit and realisable amount but did not identify the constituent assets. B had concealed material information at the confiscation hearing and later gave an unreliable account of transactions involving substantial sums. The central issue was whether he had proved that his realisable property was inadequate within section 83(1).

1. Application dismissed. B had not proved on the balance of probabilities that his realisable property was inadequate to pay the outstanding confiscation order.
2. The burden under section 83(1) concerned B’s realisable property as a whole at the date of the application. It was not confined to the particular funds which B claimed had been transferred to Pakistan. The court was entitled to require a detailed and transparent explanation, supported by documents or other evidence, of all relevant assets and closely connected transactions.
3. The civil court’s striking out of B’s claim against the third party was not a post-confiscation event of the kind contemplated by McKinsley v Crown Prosecution Service. B’s claim had been legally tainted and could have been raised, and rejected on the same basis, before the confiscation order was made. Section 83 could not be used to introduce matters which should have been advanced at the confiscation hearing.
4. The compromise order did not contain an agreed finding that the realisable assets were limited to specified or identified property, nor did it exclude hidden assets. B had chosen not to contest the realisable amount despite having the opportunity to do so. He could not therefore confine the section 83 inquiry to the proceeds of the Equitable Life policies.
5. B’s unexplained references to transfers of £500,000 and repayments of either £335,000 or £400,000, together with material inconsistencies and his admitted earlier untruthfulness, meant that his evidence was not sufficiently reliable. He had failed to discharge the statutory burden.
6. The argument under section 74(4) did not arise. In any event, that provision concerned valuation of realisable property, not the definition or identification of the property itself.