Zahid Mirza v Crown Prosecution Service

An application for a certificate of inadequacy under Criminal Justice Act 1988, s.83, requires the applicant to establish that his realisable property as a whole is inadequate to satisfy the confiscation order. The confiscation order is the starting point. The applicant must demonstrate a subsequent adverse change in financial circumstances. Section 83 is not a means of reopening findings made when the confiscation order was imposed, or of taking a second bite at arguments which could then have been advanced. An applicant who deliberately absconds and fails to engage with the confiscation proceedings is not placed in a better position. Bare assertions and denials will generally be insufficient where clear and cogent evidence is required. The application was dismissed.

The applicant had been convicted of offences concerning counterfeit medicinal products and sentenced in his absence after absconding to Pakistan. A confiscation order made by the Crown Court in 2009 assessed both his benefit and the available amount at £1,801,935. Following enforcement proceedings, a substantial balance remained outstanding.

After returning to the United Kingdom, the applicant applied to the High Court under s.83 of the Criminal Justice Act 1988 for a certificate that his realisable property was inadequate. He relied on serious ill-health, the realisation of two United Kingdom properties for less than their valuation, and the absence of other assets. The central issue was whether he had proved a subsequent deterioration in his financial circumstances sufficient to establish statutory inadequacy.

1. Application dismissed. The applicant failed to establish that his realisable property was inadequate to satisfy the confiscation order.
2. Section 83 creates a two-stage process. The High Court first decides whether realisable property is inadequate and, if so, issues a certificate. The Crown Court then decides whether, and to what extent, the amount recoverable should be reduced.
3. The principles summarised in Glaves v CPS and In re Adams applied. The burden was on the applicant, on the balance of probabilities. Realisable property meant his assets as a whole at the date of the application, including assets acquired after the confiscation order. The application had to be based on a genuine post-order change of circumstances and could not be used as a second bite at the confiscation hearing.
4. The applicant could not challenge through s.83 the Crown Court’s findings as to his benefit or available assets. Those findings could be challenged only by an appeal against the confiscation order. The fact that he had absconded and had not participated in the original confiscation proceedings did not improve his position.
5. The proper starting point was the Crown Court’s finding that the applicant had assets of £1,801,935, including unidentified or hidden assets. The applicant had not addressed what had happened to those assets. His evidence consisted substantially of assertions and bare denials, and did not provide clear or cogent evidence of his financial position since 2009.
6. The only proved change was the shortfall between the valuation and sale proceeds of the two United Kingdom properties, amounting to £93,736.37. That did not establish that his realisable assets as a whole were inadequate. The application was therefore dismissed.

The judgment describes the underlying Crown Court confiscation order and subsequent enforcement proceedings, but no appeal from that order was before the High Court.