Gangar & Anor v Serious Fraud Office

An application for a certificate of inadequacy under section 83 of the Criminal Justice Act 1988 concerns the defendant’s realisable property as it exists when the application is made. The applicant must prove, on the balance of probabilities, that the property is insufficient to satisfy the confiscation order and must explain what has happened to assets previously found to be realisable. The procedure addresses genuine post-order changes in financial circumstances. It is not a second appeal or an opportunity to reopen findings made at the confiscation hearing. A defendant must make genuine and determined efforts to realise identified assets. Deliberate inactivity, concealment, or attempts to prove that assets are not beneficially owned will not establish inadequacy.

Shinder Singh Gangar and Alan White applied for certificates of inadequacy under section 83 of the Criminal Justice Act 1988. Their confiscation orders followed convictions for fraud and earlier confiscation proceedings in which substantial realisable assets were identified. The orders had been adjusted on appeal.

The applicants relied on alleged difficulties in realising assets, including funds held abroad, property proceeds, payments through companies and assets attributed to trusts or nominees. They also sought to rely on evidence and explanations which had not been advanced at the confiscation hearing. The central issue was whether the applicants had proved that their realisable property was inadequate for payment of the sums remaining due.

1. Applications dismissed. Neither applicant established that his realisable property was inadequate for payment of the confiscation order.
2. Under section 83 of the Criminal Justice Act 1988, the applicant bears the burden of proving inadequacy on the balance of probabilities. The relevant property is the applicant’s realisable property as a whole at the date of the application. This includes assets identified at the confiscation hearing and any assets acquired or identified subsequently.
3. The court cannot use a section 83 application to revisit findings embodied in the confiscation order. Such findings may be challenged only by appeal. The application is intended as a safety net for a genuine change in financial circumstances after the order, not as a second bite at the cherry. Evidence or arguments which could have been advanced at the confiscation hearing are inadmissible, absent an adequate explanation for their late production.
4. The applicants had to account for assets previously found to be realisable and demonstrate what had happened to them. Practical difficulty in recovering an asset does not itself make it non-realisable. The court may require evidence of the steps taken to recover it, and impossibility of recovery must be established rather than asserted.
5. The applicants had made no genuine or determined efforts to realise several assets, including the Banamex funds, proceeds connected with Pillar Rock, payments through the Coggia and Albaned accounts, and assets held through foreign foundations. Their efforts were directed principally towards denying beneficial ownership and persuading others not to pursue recovery. That conduct could not support certificates of inadequacy.
6. The court also rejected attempts to rely on untested statements prepared by Gangar, late evidence from potential witnesses, and repeated assertions contradicting findings already made by Langstaff J. The applicants remained responsible for taking active steps to realise assets identified as theirs, notwithstanding the involvement of liquidators, trustees or receivers.

• Crown Court: Gangar and White were convicted of fraud and later made subject to confiscation orders under the Criminal Justice Act 1988.
• Court of Appeal: The confiscation orders were adjusted on 21 June 2012 to correct double-counting of jointly held assets. Permission to appeal on various individual assets was refused or unsuccessful.
• High Court (Administrative Court): The applications for certificates of inadequacy were dismissed.