Harrison, R (on the application of) v Birmingham Magistrate's Court & Anor (Rev 1)

A forfeiture order may be quashed on judicial review where the person affected had no actual notice of the hearing and was thereby denied a fair opportunity to be heard. The supervisory jurisdiction is available even where the magistrates’ court acted properly and there was no misconduct by the police or other applicant. It is enough that the proceedings were objectively unfair.

Ostensible service under the Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002 does not prevent relief where the evidence establishes that notice was not in fact received, provided the person did not evade notice.

Police seized £5,000 from the appellant’s former home following her arrest. The Birmingham Magistrates’ Court later made a forfeiture order under section 298 of the Proceeds of Crime Act 2002 in her absence.

The appellant said that she had moved before the hearing, had not received notice of it, and would have contested forfeiture. She only discovered the order after the statutory period for an appeal to the Crown Court had expired. The Crown Court held that it lacked jurisdiction to entertain a late appeal. A deputy High Court judge then refused permission to seek judicial review, considering it unarguable that notice had not been served under the Rules.

The central issue on this appeal was whether the forfeiture order should be quashed because the appellant had no notice of the hearing.

1. Appeal allowed. The Court unanimously quashed the forfeiture order of 29 April 2008.

2. Hooper LJ held that, if the appellant had no notice of the forfeiture proceedings, the order should be quashed. A person whose property is forfeited without knowledge of the hearing is denied the opportunity to be heard. That is objectively unfair and contrary to natural justice, even if the magistrates and police acted honestly and with complete propriety. The Court applied the principles discussed in R v Bolton Justices, ex p Scally, [1991] QB 537, R (on the application of Marsh) v Lincoln District Magistrates’ Court, [2003] EWHC 956 (Admin), and R v Criminal Injuries Compensation Board, ex p A, [1999] 2 AC 330.

3. The evidence established that the appellant had moved away, was unwell for part of the relevant period, and did not learn of the hearing until later. Her account had not been specifically challenged and the police had no material on which to cross-examine her. The Court therefore determined the issue on the papers rather than remit it for an evidential hearing. It was unnecessary to decide whether she had notified DC Laming of her new address or whether service had technically complied with rule 9 of the Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002.

4. Munby LJ agreed, describing the deprivation of property without knowledge of the hearing as a plain denial of due process and the right to be heard. Pill LJ agreed and added that liaison should be maintained between officers handling criminal and forfeiture proceedings.

5. The £5,000 remained with the police. If they wished to retain it, detention could be determined afresh by the magistrates’ court. The Court also invited consideration of an amendment to the Rules to permit proof that ostensibly served notice was not actually received.

• Court of Appeal (Civil Division): allowed the appeal and quashed the Birmingham Magistrates’ Court forfeiture order: [2011] EWCA Civ 332.

• Administrative Court: Mr John Howell QC, sitting as a deputy High Court judge, refused permission to apply for judicial review on 1 July 2010.

• Crown Court: on 1 May 2009, HHJ Juckes QC held that it had no jurisdiction to entertain the late appeal because of section 299(2) of the Proceeds of Crime Act 2002.

• Birmingham Magistrates’ Court: made the cash-forfeiture order on 29 April 2008.