THOMAS JOSEPH O’CONNOR v CROWN PROSECUTION SERVICE

On an application under section 83 of the Criminal Justice Act 1988, the applicant bears the burden of proving, on the balance of probabilities, that his realisable property is inadequate to satisfy the confiscation order.

The application is a safety net for a genuine post-order deterioration in financial circumstances. It cannot reopen findings made when the confiscation order was imposed or provide a second opportunity to advance evidence and arguments that could then have been presented. The court must consider the totality of the evidence and need not impose a rigid requirement for a complete account of every previously unidentified asset. The application failed because the applicant did not explain the hidden assets or establish that they had depreciated or ceased to be available.

The applicant had been convicted of conspiracy to cheat the Revenue and was subject to a confiscation order for £4,257,008. He applied under section 83 of the Criminal Justice Act 1988 for a certificate of inadequacy, asserting that his realisable assets were insufficient to meet the outstanding amount.

The issue was whether the applicant had proved that his realisable property had become inadequate since the confiscation order, including in circumstances where the Crown Court had found that he possessed substantial hidden assets.

1. Application dismissed. The applicant failed to prove on the balance of probabilities that his realisable property was inadequate to pay the confiscation order.
2. Section 83 places the burden on the applicant. The court must begin with the confiscation order and cannot go behind findings made at the confiscation hearing about the amount of realisable property. An application under section 83 is not a second bite at the cherry.
3. The statutory procedure is intended to address a genuine change in financial circumstances after the confiscation order. It is not subject to an inflexible rule requiring full disclosure of what happened to every previously unidentified asset. The court must assess the totality of the evidence and retain a sense of justice and proportion.
4. The applicant’s transfers of interests in Irish properties to his wife were gifts caught by section 74(1) of the Criminal Justice Act 1988. The properties therefore remained realisable property. The evidence did not establish that the properties were unavailable because of the registered judgments against them.
5. Although some identified assets had diminished or been realised, the applicant had not explained what happened to the hidden assets or the substantial benefit derived from the fraud. There was no new evidence demonstrating that those assets had depreciated in value or were no longer available.