Paul John Asplin v DAS UK Holdings Limited

On an application to vary a restraint order after conviction and confiscation, the High Court has a discretion, exercised on the basis of the applicant’s burden of persuasion, to decide whether the proposed variation is just. The court must pursue the statutory purpose of making the value of realisable property available to satisfy the confiscation order, while allowing other persons to retain or recover the value of their property interests.

Those purposes must be considered together and in the round. A permissive variation may properly make one transaction conditional on completion of another where that condition provides a necessary incentive for the agreed realisation package to occur. The court may also preserve a liberty to apply so that the order can be revisited if circumstances change.

The applicant had been convicted and sentenced following a private prosecution. A confiscation order and a back-to-back compensation order were made, and the Court of Appeal later reduced their amounts. The High Court had made a civil restraint order under Part 6 of the Criminal Justice Act 1988.

The applicant sought variation of the restraint order concerning the family home and a rented house. The parties agreed that the rented house could be sold, with the interested party’s charge discharged and the remaining proceeds paid towards the confiscation order, and that the applicant’s interest in the family home could be bought out by his wife. The issue was whether the family-home buy-out should be permitted only after completion of the rented-house sale.

1. The application was granted in the form of a variation order which included the contested precondition. The variation was permissive: it allowed, but did not require, the sale of the rented house or the buy-out of the family home. The conditions in the order became mandatory if the permitted transactions were pursued.

2. The applicant bore the burden of persuasion. The question was whether the proposed variation was just, having regard to the statutory purpose of confiscating the entirety of the benefit obtained from criminal conduct: Serious Fraud Office v X and R v Wood.

3. Sections 82(2) and 82(4) of the Criminal Justice Act 1988 supplied the governing framework. In the post-conviction context, they operated as prescribed purposes. The first required the realisation of the value of the defendant’s realisable property for satisfaction of the confiscation order. That purpose was expressly subject to the second, which required the court to allow persons other than the defendant or a relevant gift recipient to retain or recover the value of their property.

4. The two purposes required an overall assessment. The court had to maximise the realisation of the applicant’s beneficial interests while also protecting the value of the interests of Barclays Bank, the interested party and the applicant’s wife. The two properties could not properly be viewed in isolation because the agreed variation was an interrelated package.

5. The precondition was justified because, without it, the applicant’s wife could proceed with the family-home buy-out while delaying or refusing to sell the rented house or disclaim her previously assessed beneficial interest. Requiring the rented-house sale first supplied the necessary practical incentive and best secured the agreed package. The concerns about accumulating mortgage interest and possible repossession did not outweigh that conclusion on the evidence.

6. Liberty to apply provided an important safeguard. If circumstances concerning either property, the mortgagee or the interested party changed, the parties could return promptly to the High Court for further variation or directions. There was no order for costs.

First-instance decision. The judgment records that the confiscation order and compensation order had previously been varied by the Court of Appeal, but no citation for that decision is given.