Glaves v Crown Prosecution Service

An applicant seeking a certificate of inadequacy bears the burden of proving that current realisable property is insufficient to discharge the confiscation order. The application must address a genuine post-order change in financial circumstances and cannot reopen the basis of the original order.

An inability to give a complete account of previously unidentified assets does not automatically defeat the application. The court must assess all the evidence, including the nature and scale of the unexplained assets, the applicant’s candour and the demonstrated change in identified assets. General assertions and the absence of corroboration may prove fatal on the facts, but neither is necessarily fatal as a matter of law. The court must maintain justice and proportion while giving effect to the confiscatory purpose of the statutory scheme.

A confiscation order under section 71 of the Criminal Justice Act 1988 required the respondent to pay £145,000. Part of the assessment represented cash withdrawals which he had failed to establish were unavailable to him. After making partial payments, he applied to the Administrative Court under section 83 for a certificate that his realisable property was inadequate to meet the outstanding balance.

Collins J determined a preliminary issue without investigating the disputed facts. He declared that the respondent could pursue the application despite the Crown Court’s treatment of unidentified assets. The Crown Prosecution Service appealed, contending that the application necessarily failed because the respondent could not give a further account of those assets. The central issue was whether that omission created an absolute legal bar to a certificate of inadequacy.

1. Appeal dismissed unanimously; declaration varied. Toulson LJ, with whom Wilson LJ and Arden LJ agreed, held that the respondent was entitled to a full hearing of his application. The declaration below was varied because the available material did not establish whether the Crown Court had made a specific finding of hidden assets.

2. The starting point is the confiscation order, whose basis cannot be reopened through a section 83 application. The applicant again bears the burden of proof and must establish a genuine post-order change in financial circumstances. The procedure is a safety net for later events, not an opportunity to present evidence or arguments which could have been advanced at the confiscation hearing.

3. Section 83 of the Criminal Justice Act 1988 does not impose an inflexible requirement that the applicant account fully for every previously unidentified asset. Such a requirement would add a restriction absent from the statute and could produce injustice. The inability to explain an asset may be powerful evidence against the applicant, but it is not an automatic legal bar.

4. The court must assess the applicant’s current realisable property as a whole and decide, on the totality of the evidence, whether a change of fortune probably prevents payment of the outstanding balance. Relevant matters include the applicant’s candour, the nature and scale of the unexplained property, the quality of any corroboration and the demonstrated change in identified assets. Different factual settings may properly receive different treatment.

5. The requirement for clear and cogent evidence does not make independent corroboration indispensable as a matter of law. Generalised assertions should be approached with appropriate scepticism, especially where credibility is doubtful, and may fail as a matter of fact. Their general character does not prevent acceptance where the court is satisfied that the applicant is candid.

6. [2004] EWCA Civ 1800 did not establish a rigid rule: the result depends on all the evidence and a sense of proportion. [2007] EWCA Civ 1385 applied no different principle and was materially different because of the scale and nature of the unidentified assets and the applicant’s choice not to identify them.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 69, the court unanimously dismissed the Crown Prosecution Service’s appeal but varied the declaration to state that the respondent was entitled to a hearing of his application for a certificate of inadequacy.
2. Administrative Court: Collins J declined to dismiss the application on a preliminary issue and declared that the respondent could pursue it despite the Crown Court’s treatment of unidentified assets. The factual hearing was adjourned.
3. Sheffield Crown Court: A confiscation order under section 71 of the Criminal Justice Act 1988 required payment of £145,000. No citation is stated.