Commissioner of Police for the City of London, R (on the application of) v City of London Magistrates' Court & Anor

Once an application for forfeiture of detained cash has been made under Proceeds of Crime Act 2002, the magistrates’ court has no power to release any of the cash until the forfeiture proceedings, including any appeal, are concluded. The statutory release powers do not override that prohibition. The court’s jurisdiction cannot be created by agreement or apparent limitation of the proposed forfeiture. The statutory regime was compatible with Article 1 of the First Protocol because it provided a balanced procedure for testing allegations that cash was criminally tainted. A forfeiture application made in bad faith could, in principle, be challenged by judicial review.

The City of London Police sought judicial review of a direction made by the City of London Magistrates’ Court on 4 September 2014. The direction authorised release of detained cash to fund the interested party’s criminal defence while forfeiture applications under section 298 of the Proceeds of Crime Act 2002 remained outstanding. The central issue was whether the magistrates’ court had jurisdiction to order release in those circumstances, including where the parties appeared to agree that some cash would not form part of the forfeiture application.

1. The application for judicial review was allowed and the relevant part of the magistrates’ order was quashed. The court had no power on 4 September 2014 to direct release of any detained funds.
2. Section 298(4) of the Proceeds of Crime Act 2002 required cash in respect of which a forfeiture application had been made to remain detained until the proceedings, including any appeal, were concluded. The provision prohibited release under any power conferred by the relevant statutory chapter.
3. The release power in section 297 had no application once the forfeiture application had been made. The statutory conditions for detention had not been displaced by any finding under section 297, and no application to withdraw the forfeiture proceedings had been made.
4. The parties’ agreement, or an investigator’s understanding that only part of the cash might be pursued for forfeiture, could not confer jurisdiction on the magistrates’ court. The order was unqualified and its effect was to authorise release before conclusion of the forfeiture proceedings.
5. The reasoning in Customs and Excise Commissioners v Harris [1999] 163 JPR 408 supported the conclusion that there was no implied power of release. The statutory regime did not violate Article 1 of the First Protocol. The regime provided a balanced means of testing whether cash was criminally tainted. A forfeiture application made in bad faith could, in principle, be challenged by judicial review.

The judgment does not state any prior appellate decision. Permission to bring the judicial review claim was granted by McGowan J on 8 December 2014.