Director of Public Prosecutions v Patrick Bijou

Confiscation under Part 2 of the Proceeds of Crime Act 2002 and civil recovery under Part 5 address different questions. A confiscation order concerns the value of a defendant’s benefit from criminal conduct and the assets available to meet that liability. Civil recovery concerns whether particular property was obtained through unlawful conduct.

Parliament permits both procedures, subject to safeguards against double recovery. Section 308(9) prevents civil recovery only where property has been taken into account in determining the benefit from criminal conduct, not merely where it has been counted as available to satisfy a confiscation order. Subsequent civil recovery is not an abuse where the property was not included in the benefit figure and was not used to discharge the confiscation order.

The Director of Public Prosecutions obtained a property freezing order under section 245A of the Proceeds of Crime Act 2002 over assets associated with Patrick Bijou. The order supported intended civil recovery proceedings under Part 5.

Bijou had previously been subject to confiscation proceedings under Part 2. The Crown Court had increased the available amount to the full benefit figure, taking the disputed assets into account as available assets, but the confiscation liability was ultimately discharged from other funds. Bijou sought variation of the freezing order, arguing issue estoppel or abuse of process. The central question was whether the previous confiscation proceedings prevented civil recovery in respect of the disputed assets.

1. Application dismissed. The property freezing order was not varied to exclude the disputed assets.
2. There was no cause of action estoppel because confiscation and civil recovery involved different causes. Confiscation under Part 2 concerned the defendant’s benefit from criminal conduct and the amount available to satisfy the order. Civil recovery under Part 5 concerned whether identified property had been obtained, or represented property obtained, through unlawful conduct.
3. There was no issue estoppel. The Crown Court had considered whether the assets were available for confiscation. It had not decided whether they were obtained through unlawful conduct. That question was irrelevant to the calculation of the available amount.
4. The statutory scheme contemplated that both confiscation and civil recovery proceedings might be brought against the same person. Sections 7(4)(a) and 308(9) prevented double recovery in the situations specified by Parliament. Section 308(9) applied where property had been taken into account in determining the benefit figure, not merely where it had been taken into account in assessing the available amount. The disputed assets had not affected the benefit figure.
5. The court also considered the Henderson v Henderson abuse principles. A broad, merits-based assessment showed no abuse. The assets had not been identified when the benefit figure was assessed, the confiscation order was in personam, the order had been discharged from other assets, and Bijou could defend any civil recovery claim on its merits. There was no unjust harassment or double recovery.
6. The property freezing order could properly continue because the statutory good arguable case threshold under section 245A had been met.