P, Re

Section 16 of the Drug Trafficking Act 1994 applies to assets acquired after the original confiscation order. The High Court was bound, or in practice bound, by R v Tivnan, which construed materially identical legislation in that way. Where the statutory conditions for enforcement are met and the respondent offers no realistic alternative, appointment of a receiver is appropriate. The court may, however, suspend the receiver’s enforcement powers for a short period to allow an expedited application for permission to appeal.

The respondent had been convicted of drug-trafficking offences and was subject to a confiscation order. Following discovery of further property, the Crown Court increased the realisable amount under section 16 of the Drug Trafficking Act 1994. The Court of Appeal (Criminal Division) dismissed his appeal on 2 April 2009.

In proceedings concerning appointment of a receiver and declarations of beneficial ownership, the respondent argued that the court had no jurisdiction over property acquired after the original confiscation order. The central issue was whether section 16(2) extended to such after-acquired assets.

1. Jurisdiction. The court held that section 16(2) of the Drug Trafficking Act 1994 applies to assets acquired after the original confiscation order. In R v Tivnan [1999] 1 Cr App R(S) 92, the Court of Appeal had construed materially identical wording in section 16 of the Criminal Justice (International Corporation) Act 1986 as applying to assets whenever acquired. The High Court was strictly bound by that decision, or in practice bound by its persuasive force.
2. The fact that the House of Lords had left the equivalent issue open in Re Maye (AP) Northern Ireland [2007] UKHL 9 and May [2008] UKHL 28 did not displace the authority of Tivnan. Those decisions recognised that the question should be decided in a case where it required determination.
3. Receiver and declaration. In the absence of realistic proposals from the respondent, the court should appoint a receiver. The legislative policy required persons who had benefited from drug trafficking to disgorge that benefit, whether the relevant property was acquired directly from trafficking or from another source. The evidence supporting the respondent’s 50 per cent beneficial interests in the identified properties was overwhelming, and declarations were therefore made.
4. The receiver’s powers to enforce sales were suspended until 22 February 2010. This gave the respondent a short period to seek expedited permission to appeal. A further application could be made to extend the suspension if that appeal application succeeded.
5. Costs of £6,518.07 were ordered against the respondent and intervener, apportioned equally. The order was suspended on the same terms.

• Court of Appeal (Criminal Division): On 2 April 2009, dismissed the respondent’s appeal against the increased confiscation order.
• High Court (Administrative Court): Appointed a receiver, made declarations as to beneficial ownership, suspended enforcement powers temporarily, and made an equal costs order.