Ojebode (aka Benedicta Ojebode Oluremilekun Thomas), Criminal Justice Act 1988

On an application for a certificate of inadequacy under Criminal Justice Act 1988, the applicant must prove on the balance of probabilities, by clear and cogent evidence, that her realisable property is inadequate to meet the amount outstanding under the confiscation order.

The court assesses realisable property as at the application date and considers the totality of the evidence, including post-order changes in value and assets not included in the original schedule. The application is not a second opportunity to challenge findings made when the confiscation order was imposed. However, the court must avoid imposing a rigid requirement for complete accounting of every asset where the evidence shows a genuine deterioration in financial circumstances. A certificate may therefore be issued despite serious defects in the applicant’s evidence, if the court is ultimately satisfied that the property is inadequate.

The applicant had been convicted of benefit and identity fraud and was made subject to a confiscation order in the Crown Court at Snaresbrook. The order assessed her benefit at £1,094,151.27 and her available assets at £665,425, resulting in a confiscation order of £655,425.

Most scheduled assets had been realised, but a substantial balance remained outstanding. The applicant applied to the Administrative Court under section 83 of the Criminal Justice Act 1988, relying on the reduced value and partial realisation of her remaining home and her alleged lack of other sufficient assets. The Crown argued that she had undisclosed assets or income, including resources used to service personal loans. The central issue was whether her realisable property was inadequate to pay the amount remaining due.

1. Application granted. The court issued a certificate of inadequacy under section 83(1) of the Criminal Justice Act 1988. The certificate entitled the applicant to apply to the Crown Court under section 83(3) for variation of the confiscation order. The High Court was not required to determine the precise shortfall.
2. The applicant bore the burden of proving inadequacy on the balance of probabilities. The evidence had to be clear and cogent. The court had to consider the totality of the evidence, including evidence from the Crown, and draw appropriate inferences.
3. The relevant property was assessed at the date of the certificate application. The inquiry was not confined to assets listed when the confiscation order was made, but the section 83 procedure could not be used to reopen or challenge the Crown Court’s findings as to assets then available. It was intended to address genuine post-order changes and was not a second bite at the cherry.
4. The court rejected a rigid rule requiring a complete account of every previously unidentified asset before inadequacy could be established. Such a rule would restrict the statutory jurisdiction and could produce injustice. The court nevertheless had to approach unsupported or evasive evidence cautiously, particularly where the applicant’s credibility was damaged by previous dishonesty.
5. Although the applicant’s evidence concerning personal loans, loan repayments, savings and shareholdings was seriously unsatisfactory, the scheduled assets had largely been exhausted, the remaining equity in her home could not meet more than a small part of the balance, and the evidence did not establish undisclosed assets sufficient to discharge the outstanding sum. On the evidence as a whole, inadequacy was proved.
6. The Crown Court would decide whether, and to what extent, the confiscation order should be varied. The applicant was warned that substantially better and more credible documentary evidence would be needed for a meaningful reduction.

• Crown Court at Snaresbrook: confiscation order made on 10 January 2017 following the applicant’s convictions.
• Court of Appeal: on 16 November 2017, the default term of imprisonment was reduced from seven years to four years.
• High Court (Administrative Court): certificate of inadequacy issued under section 83(1) of the Criminal Justice Act 1988.