Angus v United Kingdom Border Agency

In cash-forfeiture proceedings under the Proceeds of Crime Act 2002, the enforcement authority must prove that the cash was obtained through conduct of one or more identifiable kinds, each of which would constitute unlawful conduct. It is insufficient to establish only that the cash came from unspecified criminal activity. Section 242(2)(b) applies the same test to both High Court civil-recovery proceedings and magistrates’ court cash-forfeiture proceedings. The statutory wording does not permit separate tests according to the form of proceedings.

The appellant challenged by way of case stated the dismissal of her appeal against an order forfeiting £40,000 seized at Gatwick airport. The lower courts found that the appellant had lied about the money’s source and concluded that it had been obtained through criminal activity, but did not identify the conduct relied upon. The parties agreed that the finding amounted to a conclusion that the cash derived from unspecified criminal activity. The central issue was whether that conclusion satisfied section 242(2)(b) of the Proceeds of Crime Act 2002.

1. Appeal allowed. The lower courts’ finding that the cash derived from criminal activity, without identifying the kind or kinds of unlawful conduct, did not satisfy the statutory test.
2. Cash-forfeiture proceedings are civil proceedings. The applicant bears the burden of proving on the balance of probabilities that the cash is recoverable property or is intended for use in unlawful conduct.
3. Under section 242(2)(b) of the Proceeds of Crime Act 2002, it is unnecessary to identify one specific offence. However, the property must be shown to have been obtained through conduct of one of a number of kinds, each of which would have been unlawful conduct. A wholly unparticularised allegation of criminal activity is insufficient.
4. The same interpretation applies to both statutory regimes in Part 5: High Court civil recovery and magistrates’ court cash forfeiture. The Act does not distinguish between them in the provisions defining what must be proved. Creating different tests for the same words would give section 242(2)(b) a strained and incorrect meaning.
5. Muneka v Commissioner of Customs and Excise [2005] EWHC 495 (Admin) had not addressed section 242(2)(b) and did not support the respondent’s broader interpretation. The reasoning in The Director of Assets Recovery Agency and Others v Jeffrey David Green and Others [2005] EWHC 3168 (Admin), as upheld and followed in the civil-recovery authorities, supported the required approach. The criminal money-laundering decision in R v Anwoir & Others [2008] EWCA 1354 was of limited assistance because it concerned different provisions in Part 7.

• High Court (Administrative Court): allowed the appeal by way of case stated from the Lewes Crown Court’s dismissal of the appellant’s appeal against the magistrates’ court forfeiture order.