Re L

A confiscation order under the Drug Trafficking Act 1994 is a money order made against the defendant personally. The value of a gift caught by the Act forms part of the amount that might be realised, even though the defendant no longer owns or controls the gift.

A certificate of inadequacy addresses a later diminution in the position or value of property included in the original calculation. It cannot be used merely because the defendant cannot recover or realise a gift. The application was therefore refused.

The applicant had been convicted of conspiring to supply drugs and was made subject to a confiscation order under section 2 of the Drug Trafficking Act 1994. The order included the value of a payment made to a former partner towards the purchase of a property. The payment was treated as a gift caught by the Act.

The applicant sought a certificate of inadequacy under section 17, arguing that the gift was irrecoverable and that the Crown did not intend enforcement proceedings against the donee. The central issue was whether the inability to realise or recover the gift made the realisable property inadequate for the purposes of section 17.

The application for a certificate of inadequacy was refused. The applicant’s premise was misconceived: a confiscation order is a money order in personam, not an order concerning specific property in the defendant’s possession or control.

1. Under sections 5(3) and 6(1) of the Drug Trafficking Act 1994, the amount that might be realised includes both the value of realisable property and the value of gifts caught by the Act.
2. Under section 6(2), a gift caught by the Act is realisable property in the hands of the donee. The Act separates the defendant’s personal obligation to pay the confiscation sum from enforcement measures against property held by the donee.
3. Section 17 cannot be used to challenge the original finding that property or its value fell within sections 6(1) or 6(2). The applicant must show a subsequent change in the position or value of the property which informed the original order.
4. The donee’s unwillingness to return the gift did not change its value or the position of the relevant realisable property. A defendant cannot obtain a certificate of inadequacy merely because he cannot himself realise or recover a gift whose value was included in the order.

The judge added, obiter and without hearing submissions on enforcement, that section 31 should inform enforcement decisions. Before issuing a warrant of commitment, magistrates should consider available enforcement methods short of imprisonment, consistently with R v Harrow Justices ex parte Director of Public Prosecutions [1991] 1 WLR 395.