Price v Crown Prosecution Service

An application for a certificate of inadequacy under section 17 of the Drug Trafficking Act 1994 concerns the defendant’s realisable property as a whole at the date of the application. The applicant bears the civil burden of proving that it is inadequate.

The application is a remedy for genuine post-confiscation change. It cannot reopen findings made when the confiscation order was imposed or provide a second opportunity to challenge the original assessment. The court must apply the statutory scheme with a sense of proportion, and may find inadequacy even where the applicant cannot account for every asset. But a wholly unsupported denial of previously found hidden assets will not discharge the burden.

The applicant had been convicted of a serious drug-trafficking offence and was subject to a confiscation order under the Drug Trafficking Act 1994. The order assessed both his benefit and his realisable assets at approximately £2.34 million. After only a small sum had been recovered, he applied to the High Court for a certificate of inadequacy under section 17.

He argued that his assets were now insufficient, relying on authorities concerning the court’s assessment of current assets and the need for proportionate justice. He also disputed his beneficial interest in a French property and its recoverability. The central issues were whether the application could challenge the original findings and whether subsequent circumstances established inadequate realisable property.

1. The application was dismissed. The applicant had to prove, on the balance of probabilities, that his realisable property as a whole was inadequate to meet the confiscation order. The relevant assets were those existing when the certificate application was made, including assets acquired after the original order.
2. The principles summarised in B [2008] EWHC 3217 applied to section 17 applications. They provided a starting point, but were principles developed to fulfil the statutory purpose and were not to be treated as statutory rules. The application could not reopen findings made at the confiscation hearing about the amount of realisable property. Any challenge to those findings had to be made by appeal.
3. The reasoning in Re O'Donoghue [2004] EWCA Civ 1800 and Glaves v CPS [2011] EWCA Civ 69 meant that an applicant could attempt to show that identified assets had diminished in value, even without a complete account of previously unidentified assets. The court had to assess the totality of the evidence and maintain a sense of proportion. That flexibility did not permit an attack on the original confiscation findings.
4. The applicant had not shown a genuine change in financial circumstances. His evidence amounted to a bare denial of the hidden assets found to exist in 2007 and contained no honest account of their source, movement or present location. The burden therefore remained unsatisfied.
5. The applicant could not relitigate his beneficial interest in the French property. Earlier findings established an equitable interest, and nothing demonstrated a substantive change since the confiscation order. The possible costs of enforcement did not alter the conclusion, particularly because the hidden assets independently exceeded the amount recoverable.
6. The Strasbourg decisions relied on did not alter the analysis. Geerings v the Netherlands Application Number 30810/03 concerned acquitted offences, and the fairness concern identified in Phillips v UK Application Number 41087/98 did not arise on the facts. R v Briggs-Price [2009] UKHL 19 concerned a different issue and did not require the criminal standard of proof here.

The judgment describes earlier confiscation, restraint and receivership proceedings, including an unsuccessful appeal against the confiscation order. Those proceedings were not reopened. The present application for a certificate of inadequacy under section 17 of the Drug Trafficking Act 1994 was dismissed by the High Court (Administrative Court).