Begum v West Midlands Police

Forfeiture under section 298(2)(b) of the Proceeds of Crime Act 2002 requires the particular cash to be intended for application in unlawful conduct. It is insufficient that the cash is retained, concealed or held in a form which helps conceal savings and thereby facilitates a false benefits claim. Because summary forfeiture of lawfully obtained property is a draconian measure, any ambiguity in the statutory language must be construed narrowly. The question is whether the cash itself is intended to be used in the unlawful conduct, not merely whether the owner intends to commit unlawful conduct while possessing it.

The appellant appealed by way of case stated from a decision of Birmingham magistrates. The justices found that she had retained £7,150 in cash, exceeding the savings limit relevant to her benefits, and intended not to disclose it in future benefit applications. They concluded that keeping the money in cash was the means by which the unlawful conduct would be committed and ordered forfeiture under section 298(2)(b) of the Proceeds of Crime Act 2002.

The High Court had to determine whether cash kept at home, which the appellant intended not to declare because disclosure would reduce her benefits, was intended for use in unlawful conduct.

1. The court answered the case stated question no and held that the justices had erred in law.
2. The appellant’s admitted intention not to disclose savings exceeding £6,000 in future benefit claims involved intended unlawful conduct, because it would deliberately deceive the benefit authorities. The issue was therefore whether the particular £7,150 was intended for use in that conduct.
3. Section 298(2)(b) concerns the application of the cash for the purpose of intended unlawful conduct. Although the forfeiture procedure is civil, forfeiture of lawfully obtained property is draconian. Any doubt or ambiguity in the provision’s scope must therefore be construed narrowly.
4. The unlawful conduct was concealing the existence of savings above the permitted limit so that benefits would not be reduced. That conduct would have occurred whether the money was held in cash or in a bank account. The cash was not positively applied to deceive the authorities; retaining it in cash merely concealed its existence. That was the opposite of using it in the unlawful conduct contemplated by section 298(2)(b).
5. The cash was accordingly not forfeitable on the stated ground. The appellant was entitled to release of the cash and to a detailed assessment of her legally aided costs.

• High Court (Administrative Court): appeal by way of case stated from the Birmingham magistrates’ decision; the justices’ conclusion was held to be erroneous in law and the case stated was answered “no”.