F & Anor, Re

An application for a certificate of inadequacy under section 83 of the Criminal Justice Act 1988 requires the defendant to prove, on the balance of probabilities, that current realisable property cannot meet the outstanding confiscation sum. The court assesses all current realisable assets, including assets acquired after the confiscation order. The procedure addresses genuine post-order changes and is not a second opportunity to challenge the original findings. A defendant must give a candid and sufficiently particular account of current assets and explain what has happened to substantial assets previously found to exist. Although a certificate may be granted without an explanation for every asset in an appropriate case, total lack of candour and silence about substantial hidden assets will generally defeat the application.

Each claimant had been convicted of conspiracy to defraud and was subsequently made subject to a confiscation order. The Crown Court had found a benefit of £5,524,149 in each case but made materially lower orders because the realisable property was assessed as less than the benefit.

The claimants applied to the High Court for certificates of inadequacy under section 83 of the Criminal Justice Act 1988. They relied on the loss or unavailability of particular assets identified at the confiscation hearing and argued that the remaining assets were insufficient. The central issues were whether they had discharged the burden of proving their current asset position and whether the court could revisit substantial hidden assets found at the original hearing.

1. Applications dismissed. Each claimant failed to establish that his current realisable property was inadequate to meet the outstanding amount under the confiscation order.
2. Under section 83 of the Criminal Justice Act 1988, the burden rested on the applicant. The applicant had to prove the present value of all realisable property, not merely show that particular assets identified at the confiscation hearing were no longer available.
3. The relevant principles, summarised in Re B [2008] EWHC 3217, included the following. Current assets must be considered as a whole, including assets acquired after the confiscation order. The court cannot use section 83 to reopen findings embodied in the original order. The applicant must explain what has happened to assets previously found to exist. The procedure is intended for genuine changes in financial circumstances and is not a second bite at the confiscation hearing.
4. The court accepted the observations in Re O'Donoghue [2004] EWCA Civ 1800 that a certificate could, in an appropriate case, be granted without an explanation for every individual asset. That qualification did not assist these claimants. Both had failed to provide a candid or particularised account of their current assets, despite evidence of employment, vehicles, credit facilities, bank activity and property connections.
5. The original findings that each claimant had hidden assets worth approximately £200,000 were binding in the absence of an appeal. Neither claimant had attempted to explain the identity, disposition or current value of those assets. The court was not entitled to treat the loss of other assets as automatically establishing inadequacy.
6. The court also considered the need to assess the current value of unidentified assets, as explained in Telli v Revenue and Customs Prosecution Office [2007] EWCA Civ 1385. The applications failed independently because of the claimants’ lack of candour and their failure to address the hidden assets.
7. Costs were ordered against each claimant in favour of the Crown Prosecution Service: £4,028.72 against Mr S and £4,375.97 against Mr F. Liberty to apply in writing was granted in relation to costs by 4 pm on Friday.

The judgment describes confiscation orders made by the Crown Court at Middlesex in April 2002. No appeal from those orders was pursued in relation to the hidden-asset findings. The present decision concerned first-instance applications to the High Court under section 83 of the Criminal Justice Act 1988.