Adams, In the matter of the Criminal Justice Act 1988

On an application for a certificate of inadequacy, the defendant bears the burden of proving, on the balance of probabilities, that his current realisable property is insufficient to satisfy the outstanding confiscation order. The court assesses realisable assets as a whole, including assets acquired or concealed after the order was made.

The procedure is a safety net for a genuine post-order deterioration in financial circumstances. It cannot be used by a defendant to reopen findings underlying the original confiscation order. However, the Crown may rely on assets presently available without proving that they existed when the original order was made. A defendant must provide full and candid disclosure.

Terence Adams applied under section 83 of the Criminal Justice Act 1988 for a certificate that his realisable property was inadequate to meet the balance of a £750,000 confiscation order.

He had pleaded guilty to conspiracy to conceal criminal proceeds and had been sentenced in 2007. Assets realised after the order produced £364,489.60, leaving £651,611 outstanding. Adams contended that his assets had been exhausted and that the Crown could not assert that he had possessed further hidden assets when the order was made. The Crown alleged that he and his wife continued to have access to undisclosed funds. The central issues were the burden of proof, the scope of section 83, and the relevance of assets whose origin and timing were uncertain.

1. The application was refused. Adams had not proved on the balance of probabilities that his current assets were worth less than the outstanding balance of the confiscation order.
2. Section 83 of the Criminal Justice Act 1988 requires the applicant to establish that current realisable property, considered as a whole, is inadequate. The burden remains on the defendant. The court must assess the totality of the evidence, including the defendant’s candour, financial dealings, expenditure and access to cash.
3. The principles summarised in Glaves v Crown Prosecution Service [2011] EWCA Civ 69 were applied. A certificate-of-inadequacy application cannot be used as a second attempt to challenge the Crown Court’s original findings. The appropriate route for correcting an error in the confiscation order is an appeal against that order.
4. The court explained the scope of In re McKinsley [2006] 1 WLR 3420. That decision concerned a defendant seeking to go behind the original order. It did not establish that the Crown is barred from relying on assets presently available where it does not seek to reopen the original finding or require the court to determine when the assets were acquired.
5. The evidence showed unexplained loans, payments, business arrangements, extensive cash expenditure and a lifestyle inconsistent with the asserted absence of assets or income. The court was not satisfied that Adams had given full and candid disclosure. The evidence supported the conclusion that an unidentified reserve was available to him and his wife.

• Crown Court: On 9 March 2007, following Adams’s guilty plea, a confiscation order of £750,000 was made.
• Court of Appeal: The financial reporting order was considered in R v Adams [2009] 1 WLR 301.
• High Court (Administrative Court): The application for a certificate of inadequacy under section 83 of the Criminal Justice Act 1988 was refused.