Horne & Ors, R (on the application of) v The Central Criminal Court & Ors

Investigatory powers under Part 8 of the Proceeds of Crime Act 2002 may be used after a confiscation order has been made, provided they investigate the existence, extent or whereabouts of criminal benefit rather than the realisable amount needed to satisfy the order. The court must identify the true and dominant purpose of the application. Because search warrants and disclosure orders are intrusive, the statutory requirements concerning substantial value and public interest must be rigorously examined. A warrant need not identify in advance the material ultimately sought, but it must be sufficiently precise and understandable to those executing and affected by it. A reference to the statutory provision governing unidentified material may suffice where it causes no misunderstanding or disadvantage.

The claimants challenged ex parte orders made at the Central Criminal Court on 12 October 2010 under sections 352 and 357 of the Proceeds of Crime Act 2002. The orders authorised search warrants and a disclosure order directed to the wife, partner and son of Raymond May, who remained liable under a substantial confiscation order arising from his conviction for conspiracy to cheat.

The claimants argued that no confiscation investigation could continue after the confiscation order, that the orders were really directed to locating realisable assets, and that the warrants were insufficiently precise. The central issues were the scope and purpose of a confiscation investigation, the evidential threshold for intrusive orders, and the validity of the warrant’s terms.

1. Jurisdiction. The applications were dismissed. Sections 341, 352 and 357 of the Proceeds of Crime Act 2002 link the jurisdiction to a confiscation investigation. That investigation concerns whether a person benefited from criminal conduct, and the extent or whereabouts of that benefit. It does not extend to investigating realisable property merely to enforce payment of the confiscation order.
2. The statutory distinction between benefit and the realisable amount under the Criminal Justice Act 1988 remains material after a confiscation order. The investigative powers may nevertheless be used after the order has been made if the warrant or disclosure order is focused on locating criminal benefit. They may be used in aid of satisfaction of the order only in that limited sense.
3. True purpose and evidence. The court must identify the true and dominant purpose of the application. The orders would be unlawful if their real purpose were to locate general assets available to satisfy the order. Search warrants and disclosure orders affecting innocent third parties require particular care because they seriously invade privacy. The court must be satisfied that the statutory requirements of likely substantial value and public interest are met.
4. Although the financial transactions specifically relied on were insufficient by themselves, the wider evidence justified the orders. Raymond May had concealed the whereabouts of the criminal benefit despite numerous investigative steps. His close relationships with the claimants and the possibility that their premises or vehicles contained material showing how he might access the concealed benefit supplied reasonable grounds for the judge’s conclusions.
5. Warrant terms. A warrant must be sufficiently precise to be understood by those executing it and those whose premises are searched, without reference to another document. It need not identify with precision material that cannot yet be identified. The reference to section 353(6) adequately identified the statutory category and caused no material misunderstanding or disadvantage. The warrants therefore did not require quashing.

The judgment records the making of ex parte orders by His Honour Judge Forrester at the Central Criminal Court on 12 October 2010 and his refusal to set them aside on 9 November 2010. The Administrative Court dismissed the judicial review applications.