In re Maye (AP) (Appellant) (Northern Ireland)

The House of Lords considered the meaning of "property" in the Proceeds of Crime (Northern Ireland) Order 1996 (the 1996 Order) and the scope of article 21. The court held that proprietary interests in unadministered estates (choses in action) and causes of action for damages of a personal character fall within the comprehensive definition of "property" in article 3(1), and that values attributed to such pre-existing interests after a confiscation order can be reflected by a mandatory article 21 certificate increasing the realisable amount. The court rejected the appellant's reliance on Commissioners of Stamp Duties (Queensland) v Livingston to argue that interests in unadministered estates were not "property" for confiscation purposes and rejected the attempt to import distinctions from bankruptcy law to exclude "personal" causes of action from the statutory definition.

Background and parties:

• The appellant, Mr Maye, pleaded guilty in January 2002 to obtaining property by deception. At a hearing on 26 June 2002 the court determined the benefit figure and fixed the defendant's "realisable property" at £33,269.17, making a confiscation order under article 8(2).
• After that date Mr Maye became entitled to and later received two payments traceable to entitlements that had accrued before the confiscation order: an agreed share in his deceased parents' estates, valued by agreement at £18,000, and a £2,500 settlement for a false imprisonment action.

Procedural history:

• The Director of Public Prosecutions applied under article 21 for certificates increasing the realisable amount to reflect the £18,000 and later the £2,500; Morgan J issued the certificates. Mr Maye sought to set aside the certificates; his applications were dismissed by Morgan J and, on appeal, by the Court of Appeal in Northern Ireland ([2004] NIQB 33). The case came to the House of Lords.

Issues framed:

1. Whether article 21 permits increases in the realisable amount by reference to assets that were not acquired by the defendant until after the confiscation order was made (the "after-acquired assets" issue).
2. Whether certain choses in action of a personal character (for example actions for damages for false imprisonment or personal injury) fall outside the definition of "property" in article 3(1) and so cannot be taken into account for confiscation purposes (the "personal" chose in action issue).

Court's reasoning:

• The court held that the definition of "property" in article 3(1) is comprehensive and includes "things in action"; an entitlement under an intestacy or a cause of action is a proprietary interest for the purposes of the 1996 Order even if the estate is unadministered at the time of the confiscation order. The Privy Council decision in Commissioners of Stamp Duties (Queensland) v Livingston was examined and held not to deny that such an interest is proprietary; the Lords relied also on Sudeley v Attorney General to show that a residuary interest is a proprietary chose in action.
• Article 6(1) requires value to be assessed by reference to market value; at the date of the confiscation order the market value of a not-yet-administered interest may be negligible, but if later a value can properly be attributed the mandatory terms of article 21 require issuance of a certificate increasing the realisable amount. Article 21 therefore applied to the £18,000 and to the £2,500, which represented the post-order realisation of pre-order causes of action.
• The court rejected the invitation to import the bankruptcy distinction between proprietary and personal causes of action into the confiscation scheme: that would be to rewrite the clear statutory language and to introduce uncertainty into administration of the scheme.

Relief sought and disposition:

• The appellant sought to set aside the article 21 certificates and to resist increases to the confiscation order. The House of Lords dismissed the appeal and upheld the certificates ordering increases in the realisable amount.

Appeal dismissed. The House of Lords held that the 1996 Order's definition of "property" (article 3(1)) embraces proprietary interests in unadministered estates and choses in action for personal torts; where a pre-existing interest later becomes capable of valuation, article 21 requires a certificate increasing the realisable amount and the confiscation order may be increased accordingly. The court rejected the proposed bankruptcy-style exception for "personal" causes of action and the appellant's reliance on Livingston was not accepted.

Confiscation order made at sentencing hearing 26 June 2002. Applications by the Director of Public Prosecutions under article 21 were dealt with by Morgan J (High Court) who issued certificates on 6 August 2003 and (in respect of the settlement) in April 2004; Morgan J dismissed the appellant's application to set aside the certificate (1 June 2004). The Court of Appeal in Northern Ireland dismissed the appellant's appeal ([2004] NIQB 33). The appellant's further appeal was dismissed by the House of Lords ([2008] UKHL 9).