Johnson , Re

When deciding whether an enforcement receivership order should extend to assets outside the jurisdiction, the court must identify the most effective method of recovery. Relevant considerations include the prospects and timing of recovery, the receiver’s practical ability to investigate and realise assets, the likely cooperation of the defendant, the availability and uncertainty of letters of request, and the costs to public funds. A confiscation order remains in personam: responsibility for satisfying it remains with the defendant, irrespective of the enforcement method. The court may prefer enforcement by the receiver where that offers the better overall risk of recovery.

The defendant had been convicted of revenue, false-accounting and money-laundering offences. A confiscation order had been made for £26,060,383.17, following a finding of benefit exceeding £167 million. An enforcement receiver was appointed over the defendant’s assets, including assets outside the jurisdiction.

The Crown applied to vary the enforcement receivership order so as to exclude foreign assets. The defendant sought directions permitting the receiver to investigate and realise assets in the United Arab Emirates, Tanzania and the Republic of Ireland, at substantial cost. The central issue was the most effective method of recovering those assets.

1. The court refused the Crown’s application to exclude the out-of-jurisdiction assets and permitted the enforcement receivership order to continue in respect of them. Draft directions were to be considered after counsel had conferred.
2. The relevant question was the most effective method of realising the foreign assets. Letters of request might be effective, but their operation involved uncertainty as to recovery, repatriation of funds and the applicable foreign legal machinery. They had produced no recovery after more than a year.
3. The defendant’s assistance was an advantage whatever method was adopted. His business experience and office in Dubai gave him a practical advantage in locating and selling assets. The receiver’s restraint, willingness to work on a conditional-fee basis and exposure of his firm to commercial risk supported the conclusion that use of the receiver offered the better risk.
4. The Crown’s concern to protect public funds was legitimate. However, the court had to assess the comparative prospects of recovery rather than select the method with the lowest immediate public expenditure. On the evidence, the receiver’s proposed work in the United Arab Emirates, Tanzania and the Republic of Ireland was permitted.
5. The confiscation order was an in personam obligation. Its satisfaction remained the defendant’s responsibility, regardless of the enforcement receivership order or the method used to recover assets.