Peacock

Section 16 of the Drug Trafficking Act 1994 applies to assets lawfully acquired after conviction. It asks whether the amount that might be realised when the application is made exceeds the amount taken into account in the original confiscation order. The provision contains no limitation based on when assets were acquired or on their source. The High Court issues the increase certificate, while the Crown Court decides whether the confiscation amount should then be increased. The Court of Appeal followed R v Tivnan [1999] 1 Crim L Rep (S) 92. Later legislation, time limits applicable to other provisions and policy arguments did not create ambiguity in section 16.

The appellant had been convicted of drug-trafficking offences and received a confiscation order under the Drug Trafficking Act 1994. The amount ordered was less than the assessed benefit because the realisable assets identified at the time were limited. After his release, the appellant acquired further assets through lawful activity.

Mitting J issued a certificate under section 16 in 2005. Following further Crown Court proceedings concerning the assets, Pitchford J appointed a receiver in 2009 and suspended the receiver’s powers to allow an appeal. The central issue was whether section 16 gave jurisdiction to certify an increase by reference to assets acquired after conviction, and whether the repeal of the 1994 Act affected the proceedings.

1. Appeal dismissed. The appeal was unanimous. Arden LJ gave the leading judgment, with Thomas LJ and Etherton LJ agreeing.
2. Section 16 of the Drug Trafficking Act 1994 is engaged where the original confiscation order was less than the assessed value of the defendant’s proceeds, as certified under section 5(3). Its language is directed to the amount that might be realised when the later application is made. It contains no temporal restriction and does not distinguish between concealed assets, changes in value and assets acquired after conviction.
3. The court was bound by R v Tivnan [1999] 1 Crim L Rep (S) 92. The substantive conclusions in that decision were alternative grounds for the decision and were not merely obiter because the appeal had involved an issue concerning the proper division between the Criminal and Civil Divisions. Section 16 therefore covers lawfully acquired post-conviction assets.
4. The High Court’s function under section 16(2) is limited to certifying that the amount which might be realised has increased. The Crown Court must then decide under section 16(4) whether the amount recoverable should be varied. R v Saggar [2005] EWCA Civ 174 was relied on for that division of functions.
5. The observations in Re Maye (AP) Northern Ireland [2007] UKHL 9 and R v May [2008] UKHL 28 that the issue was difficult or had not arisen for decision did not undermine Tivnan. The clearer provisions of the Proceeds of Crime Act 2002, the six-year limits in sections 13 to 15, and policy concerns about rehabilitation and lawful earnings did not create ambiguity in section 16. The saving provisions in articles 3 and 10 of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 preserved the operation of section 16 for these proceedings.

• Court of Appeal (Civil Division): Appeals against the orders of Mitting J dated 18 May 2005 and Pitchford J dated 18 December 2009 were dismissed.
• High Court: Mitting J issued a certificate under section 16 of the Drug Trafficking Act 1994. Pitchford J subsequently appointed a receiver and suspended the receiver’s powers pending appeal.