Forte & Anior v R

A determination of a third party’s property rights under Proceeds of Crime Act 2002 section 10A is civil in character. The prosecution bears the civil burden of proving that the defendant has the alleged beneficial interest, and the third party must receive a fair opportunity to make representations.

Legal ownership of a matrimonial home is the starting point, not an immutable answer. Beneficial ownership depends on the facts. Cohabitation as a married couple, shared financial arrangements, and unrefuted evidence may justify an inference of common intention to share the property. A party’s silence may strengthen an evidentially grounded case, but it cannot create proof without a reasonable basis in the evidence or inherent probabilities.

The first appellant had been convicted of conspiracy to defraud. At confiscation proceedings in the Crown Court at Southwark, HHJ Robbins made a confiscation order for £615,000 and determined that he held a 50% beneficial interest in Hillside Lodge, although the legal title was in Evelyn Vale’s sole name. The judge also found that £115,000 in an account held in Ms Vale’s mother’s name belonged beneficially to him.

Mr Forte appealed against the confiscation order. Ms Vale appealed under section 31 of the Proceeds of Crime Act 2002 against the section 10A determination concerning the house and sought to advance further grounds, including fresh evidence and alleged deficiencies in her former representation. The central issue was whether the evidence established Mr Forte’s beneficial interest in the property.

Disposition

1. The appeals were dismissed. Mr Forte had no independent basis to challenge the confiscation order. On the evidence before the Crown Court, an order higher than £615,000 could have been justified. Neither appellant had a sufficient interest to challenge the determination concerning the bank account held in Ms Vale’s mother’s name.
2. A section 10A determination concerning a third party is civil in character. The prosecution bore the burden of proving that Mr Forte had the alleged beneficial interests, to the civil standard. Section 10A required a reasonable opportunity for representations, and the procedure adopted had to satisfy Article 6 fairness. The court rejected any suggestion that the provision was confined to simple cases; a Crown Court could resolve a substantial contested property issue at the confiscation stage if the procedure was fair.
3. There was no statutory adverse-inference regime under section 35 of the Criminal Procedure and Public Order Act 1994. The court had to decide the case on the evidence available. However, it could take account of a party’s failure to answer evidence about matters within that party’s knowledge where there was a reasonable evidential or inherent-probability basis for the allegation. Applying the approach in Prest v Petrodel [2013] 2 AC 415, the parties’ silence was capable of confirming the prosecution’s case.
4. The sole legal title to Hillside Lodge was the starting point for beneficial ownership, not its conclusion. The judge was entitled to infer a common intention that Mr Forte and Ms Vale shared the matrimonial home. They had cohabited there as husband and wife; the divorce was properly found to be a sham; their financial affairs were not in fact separate; and the evidence about forged documents was unanswered. It was unnecessary to prove that the purchase funds came from Mr Forte or from crime.
5. Section 23 of the Criminal Appeal Act 1968 did not govern Ms Vale’s appeal. The relevant fresh-evidence power was paragraph 7 of the Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003, SI 2003/82. Given the essentially civil context, a strict approach was appropriate. The proposed documents could with reasonable diligence have been adduced below and would not have altered the result, particularly without evidence from Ms Vale. Leave on the additional grounds was refused.

• Court of Appeal (Criminal Division) — in Forte & Anior v R [2020] EWCA Crim 1455, dismissed Mr Forte’s appeal against the confiscation order and Ms Vale’s appeal against the section 10A determinations. It also refused leave on Ms Vale’s additional grounds.
• Crown Court at Southwark — on 24 August 2018, HHJ Robbins made a £615,000 confiscation order against Mr Forte and determined under section 10A of the Proceeds of Crime Act 2002 that he held a 50% beneficial interest in Hillside Lodge and a 100% beneficial interest in the bank funds.