Stannard, Re In the Matter of the Criminal Justice Act 1988

In a non-lifestyle confiscation case, the amount of the confiscation order is not reduced merely because property originally treated as realisable later proves to belong to a third party. The correct remedy may be a certificate of inadequacy, where the defendant cannot meet the order from his realisable assets, or an appeal through the proper criminal appellate route where the benefit figure is wrong. A defendant cannot use declaratory relief to bypass those procedures. An enforcement receiver may deduct reasonable remuneration, expenses and costs before payment towards the order where the court has given a clear direction under the Criminal Justice Act 1988. Detailed assessment of the receiver’s final remuneration is ordinarily premature before the receivership is complete.

Mr Stannard had been convicted of cheating the public revenue and was made subject to a confiscation order under the Criminal Justice Act 1988. The order was limited to the value of his realisable assets, although his assessed benefit was substantially greater. A property initially included among those assets was later found to belong beneficially to a third party.

An enforcement receiver had recovered funds, deducted remuneration and expenses pursuant to court directions, and paid the balance towards the order. Mr Stannard applied for declarations that the order had been reduced or satisfied, challenged the receiver’s deductions and settlement recovery, and sought an immediate detailed assessment. The central issues were whether the High Court could grant the requested relief, whether the receiver had acted lawfully, and when assessment should occur.

1. Application dismissed. The court permitted the application to be argued notwithstanding Mr Stannard’s continuing contempt, but dismissed it on all grounds. The pragmatic allowance of advocacy by his McKenzie friend was confined to the present application and created no precedent for an unqualified person to conduct litigation or for a contemnor to circumvent an outstanding committal warrant.
2. In a non-lifestyle case, the benefit figure and the amount available from realisable assets are distinct. The confiscation order was made for the amount the Crown Court considered recoverable, not for the whole benefit. The later removal of the Godalming property did not entitle Mr Stannard to have its former value treated as paid or to reduce the order by that amount. His proper route, if his realisable assets were insufficient, was an application for a certificate of inadequacy under section 83 of the Criminal Justice Act 1988. A challenge to the sentence or benefit figure lay through the Court of Appeal, potentially following a reference by the CCRC. The High Court had no jurisdiction to review or re-write the confiscation order.
3. The confiscation scheme did not involve a disproportionate interference with property rights under Article 1 of Protocol 1. Requiring repayment of criminal benefit to the extent the defendant could afford it was not disproportionate.
4. The receiver was entitled to deduct reasonable remuneration, expenses and legal costs from recovered assets before payment towards the order where there was a clear direction under section 81(1). Silber J’s order applied to funds already recovered but not yet paid into court. The receiver had acted in accordance with the existing orders.
5. The settlement payment relating to the Farm was received by the receiver in that capacity and was recoverable property for the purposes of enforcement. The validity of the arms-length settlement could not be reopened. The receiver’s remuneration should ordinarily be assessed under CPR 69.7 after completion of his duties. An assessment at this stage was premature and would create unnecessary duplication and expense.
6. The court granted the CPS’s application under CPR 81.30(3) to enable enforcement of the committal warrant, and declined to discharge the receivership.

The confiscation order was made by Southwark Crown Court on 17 October 2003. The Court of Appeal (Criminal Division) dismissed Mr Stannard’s appeal on all grounds on 1 November 2005: [2005] EWCA Crim 2717. Subsequent High Court orders varied and supervised enforcement of the receivership. The present court dismissed the application for declaratory relief and related orders.