Bavi, R (On the Application Of) v Snaresbrook Crown Court

In cash-forfeiture proceedings, the authority must identify the kind or kinds of unlawful conduct said to have generated the cash. A court should apply the current interpretation of the Proceeds of Crime Act 2002 where an earlier decision has already been reopened. The position may differ for intended future unlawful conduct, because requiring precise identification may undermine the statutory scheme. A previously unknown medical condition capable of explaining apparently dishonest or irrational evidence may make the original decision legally unfair and justify quashing it. Substitution is available only where, without the error of law, the court or tribunal could have reached only one decision. Where disputed medical and factual evidence requires evaluation, the proper course is an expedited rehearing.

The claimant sought judicial review of Snaresbrook Crown Court’s dismissal of his rehearing appeal against forfeiture of £18,500 under section 298(2) of the Proceeds of Crime Act 2002. The cash had been seized at the Reading Festival and forfeited by the magistrates’ court. The Court of Appeal had subsequently allowed an appeal, admitted fresh psychiatric evidence and granted permission for judicial review: [2012] EWCA Civ 1830.

The claimant argued that the Crown Court had failed to consider his medical condition, applied the wrong approach to the need to identify unlawful conduct generating the cash, and applied the same approach to intended unlawful conduct. He also sought substitution of a decision returning the money. The central questions were whether the Crown Court decision should be quashed and whether the High Court could or should substitute its own decision.

1. Ground 1 allowed. The Crown Court decision was affected by an error of law because neither party knew of the claimant’s Asperger’s Syndrome, social phobia and OCD. The medical evidence was directly relevant to the lies, inconsistencies, fantasy and poor risk judgment relied upon by the Crown Court. The decision was therefore quashed on grounds of unfairness, applying the principle in E v Secretary of State for the Home Department [2004] QB 1044.
2. Ground 2 allowed. In light of the Divisional Court’s decision in Carol Angus v UKBA [2011] EWHC 461 (Admin), the authority must identify unlawful conduct of one or more kinds, each of which would have been unlawful conduct, where it relies on section 298(2)(a). The earlier approach in Muneka v Commissioner of Customs and Excise [2005] EWHC 495 (Admin) should no longer be followed. The prior reopening of the case meant that finality did not prevent application of the current law.
3. Ground 3 rejected as an independent ground. The court left open whether section 298(2)(b) requires identification of particular intended unlawful conduct. Intended future conduct may require a less stringent degree of specificity than past conduct said to have generated the money. The point could be argued at any rehearing, but there was no new authority requiring the original decision to be quashed on this ground.
4. Substitution refused. Section 31(5) and (5A) of the Senior Courts Act 1981 permit substitution only where the decision was made by a court or tribunal, was quashed for error of law, and only one decision could have been reached without the error. The medical evidence remained to be tested, and further evidence about unlawful conduct might be adduced. The statutory test for substitution was therefore not met.
5. The matter was remitted for an expedited rehearing. The judge stated that, if the medical evidence were accepted and no genuinely new evidence of unlawful conduct emerged, the forfeiture proceedings were likely to fail, and invited reconsideration of the Interested Party’s position.

• Court of Appeal: On 28 November 2012, the claimant’s appeal was allowed, fresh psychiatric evidence was admitted, and permission was granted for judicial review of the Crown Court decision: [2012] EWCA Civ 1830.
• High Court (Administrative Court): The claim was allowed on Grounds 1 and 2, the Crown Court decision was quashed, Ground 3 was not accepted as a separate quashing ground, substitution was refused, and an expedited rehearing was ordered.