Linda McCracken v Crown Prosecution Service

A restraint order securing assets potentially available to satisfy a confiscation order should remain in force where the proposed transaction creates a real risk of dissipation. Personal hardship does not, without more, displace the public interest in recovering the proceeds of crime. The court must exercise its powers with a view to making available the value of realisable property. A proposed sale below market value may justify restraint, particularly where a later certificate of inadequacy may not be available. Any disproportionate consequences for the offender or third parties should ordinarily be considered when enforcement or sale is proposed.

The applicant sought to discharge or vary a restraint order made without notice under section 77 of the Criminal Justice Act 1988. The order restrained dealings with her share in a house occupied by her and her disabled grandson. She argued that the Crown Prosecution Service had failed in its duty of full and frank disclosure and that there was no real risk of dissipation. The respondent maintained that the proposed sale to the grandson was substantially below market value and could undermine enforcement of the confiscation order.

The central issue was whether the restraint order remained appropriate after consideration of the evidence.

1. The application to discharge or vary the restraint order was dismissed. The court held that the order remained appropriate because the applicant’s proposed sale of her interest at a substantially below-market price created a sufficient risk that assets available for confiscation would be dissipated.

2. The respondent had not breached any duty to the court. It was unnecessary to provide every detail of the correspondence where the additional material could not improve the applicant’s position. The respondent was not required to adopt the same approach in relation to the applicant as it had taken in relation to her son. Each case had to be considered on its own facts in the public interest.

3. Even if there had been a breach of full and frank disclosure, discharge would not automatically follow. Where the respondent acts in the public interest, the court must determine whether the restraint order is appropriate after considering all the evidence: see Jennings v Crown Prosecution Service [2005] EWCA Civ 7466, paras 62 and 64.

4. The applicant had produced no evidence of a tenancy or other interest that should reduce the open-market value of her share. Her age, caring responsibilities and long residence in the property were understandable considerations, but they did not outweigh the strong public interest in recovering the proceeds of crime.

5. Under section 83 of the Criminal Justice Act 1988, a certificate of inadequacy might not be available if the property was capable of realisation at a substantially higher value. The respondent was entitled in the public interest to seek the appointment of a receiver to enforce a sale at market value, subject to reimbursing the grandson for his share.

6. Under section 82(2) of the Criminal Justice Act 1988, the court was required to exercise its powers with a view to making available the value of realisable property for satisfaction of the confiscation order. The interests of the applicant and third parties, including any disproportionate consequences, could be balanced when a receiver sought authority to enforce a sale.