Secretary of State for the Home Department v Tuncel & Anor [2012] EWHC 402 (Admin)

Case No CO/13081/2010

[2012] EWHC 402 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 28 February 2012

Before

MR JUSTICE KEITH

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellant

(1) FILIT TUNCELRespondents

(2) SADIK BASBAYDARRespondent

(Transcript of the Handed Down Judgment of

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Mr Andrew Bird (instructed by the Cash Forfeiture and Condemnation Legal Team, UK Border Agency) for Appellant

Ms Sophie Shotton (instructed by Kilic Has & Onay LLP) for First Respondent

Mr Alexander Rooke (instructed by ADH Law) for Second Respondent

Hearing Hearing date: 21 December 2011

Judgment

Introduction

[1]Police officers, customs officers and accredited financial investigators may seize and detain cash if they have reasonable grounds for suspecting that the cash has been obtained through, or is intended for use in, unlawful conduct. They can then apply to a magistrates’ court for the cash to be forfeited. The court may order the cash to be forfeited if it is satisfied that the cash was obtained through, or was intended for use in, unlawful conduct. But what if the court is satisfied of that, but concludes that when the cash was originally seized, there were no reasonable grounds for suspecting that it had been obtained through, or was intended for use in, unlawful conduct? Is the court in those circumstances obliged to refuse the application for a forfeiture? That is the issue which this appeal by way of case stated raises. It arises in the context of customs officers seizing the cash of travellers passing through an immigration control point, but there are many other occasions when cash may be seized.

[2]The twist in the story is that none of the parties sought to argue that the absence at the time the cash was seized of reasonable grounds for suspecting that it had been obtained through, or was intended for use in, unlawful conduct should deprive the court of its power of forfeiture. The point was taken by the Crown Court of its own motion when it was hearing an appeal from an order for the forfeiture of the cash made by the magistrates’ court.

The relevant facts

[3]On 6 November 2008, Filit Tuncel and Sadik Basbaydar were due to travel from Heathrow to Istanbul on a Turkish Airlines flight. The luggage which they had checked in was searched by customs officers. In Mr Tuncel’s luggage £20,000.00 in £20 notes was found wrapped in tin foil. £30,000.00 in £10 and £20 notes was found similarly wrapped in Mr Basbaydar’s luggage. They were questioned by customs officers about the cash. The officers were not satisfied with the explanations they were given, and the cash was seized under section 294(1) of the Proceeds of Crime Act 2002 (“the Act”), which provides:

“A customs officer, a constable or an accredited financial investigator may seize any cash if he has reasonable grounds for suspecting that it is – (a) recoverable property, or (b) intended by any person for use in unlawful conduct.”

Recoverable property is defined in section 304(1) of the Act as property “obtained through unlawful conduct”.

[4]Following its seizure, the cash was detained pursuant to section 295(1) of the Act, which provides:

“While the customs officer, constable or accredited financial investigator continues to have reasonable grounds for his suspicion, cash seized under section 294 may be detained initially for a period of 48 hours.”

On the following day, i.e. 7 November 2008, and therefore before the expiry of the 48 hours, an application was made to a magistrates’ court for an extension of the period during which the cash could be detained by a further three months pursuant to section 295(2) of the Act, which provides (so far as is material):

“The period for which the cash or any part of it may be detained may be extended by an order made by a magistrates’ court …; but the order may not authorise the detention of any cash – (a) beyond the end of the period of six months beginning with the date of the order, (b) in the case of any further order under this section, beyond the end of the period of two years beginning with the date of the first order.”

In order to make such an order, the magistrates’ court had to be satisfied, amongst other things, that there were “reasonable grounds for suspecting that the cash [was] recoverable property” (section 295(5)) or “reasonable grounds for suspecting that the cash [was] intended to be used in unlawful conduct” (section 295(6)). The application for an extension of the period of detention was not opposed, and the magistrates’ court extended the period of detention for three months. Subsequent applications for further extensions were likewise not opposed, and the magistrates’ court on each occasion extended the period of the detention. (a) beyond the end of the period of six months beginning with the date of the order, (b) in the case of any further order under this section, beyond the end of the period of two years beginning with the date of the first order.”

[5]On 13 July 2009, Her Majesty’s Revenue and Customs (“HMRC”) lodged an application for the forfeiture of the cash with Uxbridge Magistrates’ Court pursuant to section 298(1) of the Act, which provides (so far as is material):

“While cash is detained under section 295, an application for the forfeiture of the whole or any part of it may be made … to a magistrates’ court by the Commissioners of Customs and Excise, an accredited financial investigator or a constable …”

That application had the effect of authorising the continued detention of the cash, because section 298(4) of the Act provides:

“Where an application for the forfeiture of any cash is made under this section, the cash is to be detained (and may not be released under any power conferred by this Chapter) until any proceedings in pursuance of the application (including any proceedings on appeal) are concluded”

. The application for the forfeiture of the whole of the £50,000.00 was made against Mr Tuncel alone, Mr Basbaydar being named in the application as someone who would be affected by an order for its forfeiture. That was done, I assume, because Mr Basbaydar had denied that the £30,000.00 found in his luggage was his. When the cash had been seized, he had told customs officers (so it was alleged) that Mr Tuncel was going to give him the £30,000.00 in Istanbul as a loan for his struggling business.

[6]The application for the forfeiture of the cash was heard at Uxbridge Magistrates’ Court on 2 and 3 June 2010. By then, the functions of HMRC in relation to the seizure and forfeiture of the cash had become exercisable by the Secretary of State for the Home Department: see sections 1(1) and 1(2) of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) and the scheme made on 3 August 2009 pursuant to section 26 of the 2009 Act. That explains the heading of this judgment, but since the executive agency within the Home Office which exercises these functions of the Secretary of State is the UKBA, I shall refer to the application as having been made by the UKBA.

[7]The question for the court was whether it was satisfied that the cash had been obtained through, or was intended for use in, unlawful conduct. That was because section 298(2) of the Act provides (so far as is material):

“The court … may order the forfeiture of the cash or any part of it if satisfied that the cash or part – (a) is recoverable property, or (b) is intended by any person for use in unlawful conduct.”

It is to be noted that there is no express requirement for the court to be satisfied that at the time the cash was originally seized there had to have been reasonable grounds for suspecting that the cash had been obtained through, or was intended for use in, unlawful conduct. All that is required is for the court to be satisfied that the cash was obtained through, or intended for use in, unlawful conduct. In the event, the magistrates’ court ordered the cash to be forfeited. It provided written reasons for its decision. It was satisfied that the £20,000.00 found in Mr Tuncel’s luggage was both recoverable property and “intended for criminal activity”. It was satisfied that the £30,000.00 found in Mr Basbaydar’s luggage was “intended to be used in criminal activity”.

[8]Mr Tuncel and Mr Basbaydar appealed against the order for the forfeiture to the Crown Court. The appeal was heard at Isleworth Crown Court by Judge Oliver and a magistrate on 28 and 29 October 2010. The appeal took the form of a re-hearing. In the course of the hearing, the judge raised the question whether, before an order for forfeiture could be made under section 298(2), the court had to be satisfied that at the time when the cash had been seized, there had to have been reasonable grounds for suspecting that the cash had been obtained through, or was intended for use in, unlawful conduct. That was, as I have said, not a point which had been taken by counsel for Mr Tuncel and Mr Basbaydar, but since the judge was concerned about the issue, he asked some of the customs officers who gave evidence on behalf of the UKBA whether the searches which they had made of the luggage of Mr Tuncel and Mr Basbaydar had been random searches or the result of information received. They gave what the judge in his ruling described as “the standard answer”, namely that they would neither confirm nor deny whether or not they had been acting on information received.

[9]At the conclusion of the evidence called on behalf of the UKBA, and before counsel for Mr Tuncel and Mr Basbaydar had been asked whether it was proposed to call evidence on their behalf, the court purported to rule that they had no case to answer. The judge’s ruling shows that the court’s view was that, before the court could be satisfied that the cash had been obtained through, or was intended for use in, unlawful conduct, and therefore before an order for the forfeiture of cash could be made under section 298(2) of the Act, the court had to be satisfied that the customs officers who had seized the cash had had reasonable grounds for suspecting that it had been obtained through, or was intended for use in, unlawful conduct. Since the court could not be satisfied of that, Mr Tuncel and Mr Basbaydar had no case to answer.

[10]In due course, the UKBA requested the Crown Court to state a case for the opinion of the High Court. The judge agreed to do so. In the normal course of events, the UKBA’s lawyers would have drafted the case, which, with any alternative case drafted on behalf of Mr Tuncel and Mr Basbaydar, would have been submitted to the judge. That in summary is the procedure provided for by rules 64.7(8)-(12) of the Crown Court Rules. However, the judge proceeded to draft and sign the case himself. Presumably he directed, as rule 64.7(7) of the Crown Court Rules entitled him to do, that it was appropriate in this case for the usual procedure not to be followed, but the consequence is that Mr Tuncel’s and Mr Basbaydar’s advisers had no part to play in the drafting of the case. In the event, the questions which the court posed for the opinion of the High Court were those which had been drafted by the UKBA’s advisers and had been included in the request for a case to be stated. They were:

“Whether, when hearing an application for a forfeiture of cash under section 298(2) of the Proceeds of Crime Act 2002 (or an appeal in relation to such an application), the court needs to be satisfied that there was a reasonable ground to suspect on the part of the authorities prior to search, questioning or seizure as to whether the money was recoverable property or intended for use in unlawful conduct. Whether, as a matter of proper construction of section 298(2) of the Proceeds of Crime Act 2002, there is a condition precedent to the power to order forfeiture, namely that the court must be satisfied that there were reasonable grounds for stopping, questioning and/or seizure.”

The answer to these questions is not unimportant because I was told that at least one other case has been adjourned to await the outcome of this appeal.

The reasoning of the Crown Court

[11]In the course of his ruling on whether Mr Tuncel and Mr Basbaydar had a case to answer, Judge Oliver said that the UKBA was relying on three things to prove that the cash had been obtained through, or was intended for use in, unlawful conduct:(i) the way the cash had been packed and the fact that it had been concealed,

(ii) the inconsistencies within the explanations which Mr Tuncel and Mr Basbaydar had given at the time and the fact that those explanations differed from the explanations given in their witness statements, and

(iii) “the lack of [an] audit trail”, which I take to mean the absence of documentary evidence supporting either the original explanations or the new ones. The judge thought that these facts, if proved, could not on their own justify the drawing of an inference that the cash had been obtained through, or was intended to be used in, unlawful conduct. It could well have been different, so the judge said, if the customs officers had been acting on information received. If they had been, that information could have enabled the UKBA to rely, for example, on such lies as Mr Tuncel and Mr Basbaydar had told about the provenance of the cash or the fact that it had been concealed. The UKBA’s ability to rely on things like that could only have been triggered, so the judge thought, if the customs officers had already suspected, on reasonable grounds, at the time the cash had been seized, that the cash had been obtained through, or was intended to be used in, unlawful conduct.

[12]The judge did not make it entirely clear whether the existence of such a reasonable suspicion was required as a matter of law, or whether it was simply evidentially not possible to infer that the provenance or the intended use of the cash was unlawful without some direct evidence (whether in the form of intelligence or otherwise) of its provenance or intended use. But the judge acknowledged that his conclusion had the effect of making the existence of reasonable grounds for suspecting that the provenance or intended use of the cash was unlawful a pre-condition to the exercise of the court’s power to forfeit the cash. It amounted to incorporating into section 298(2) the pre-conditions in sections 294(1) and 295(1) to the exercise by customs officers of their power to seize and detain the cash, and imposing an additional element to be proved.

[13]The judge reached that conclusion because he thought that otherwise the burden of proof would have shifted from the UKBA to Mr Tuncel and Mr Basbaydar, since it would have been incumbent on them(a) to explain how they got the cash and why they wrapped it and concealed it in the way they did, and

(b) to provide documentary support for the source of the cash. In the judge’s opinion, a number of authorities pointed to that conclusion, in particular Muneka v Commissioners of Customs and Excise

[2005] EWHC 495 (Admin)

and Director of the Assets Recovery Agency v Green

[2005] EWHC 3168 (Admin)

[14]I do not believe that those authorities support the judge’s conclusion at all. Muneka was a case, just like the present one, in which an application had been made to a magistrates’ court for the forfeiture of cash. The facts were that the appellant was found to be in possession of a large amount of cash at Heathrow Airport as he was on his way to Tirana via Hungary. He gave different explanations for his possession of the cash and what it was intended for to a customs officer at the time of seizure, and to the district judge at the subsequent hearing for the forfeiture of the cash. The issue for the High Court was whether the lies which the district judge found the appellant had told were sufficient to enable the court to be satisfied that the cash had been obtained through, or was intended for use in, unlawful conduct. Moses J (as he then was) had no doubt that they were. Noting that the standard of proof was the civil standard, Moses J said at [9]:

“… the fact that there was no explanation for the source of that money, no reasonable explanation as to why he was taking that cash to Albania, the fact that there were discrepancies in his explanations as to the source of the money and as to its destination, taken together, did establish, both source and intention. At least the district judge was entitled to conclude [that] on the balance of probabilities.”

Indeed, Moses J was unimpressed by the argument that the district judge’s approach shifted the burden of proof onto the appellant. At [13], he said:

“… it is plain that there was no reverse burden of proof properly so-called; all that happened on the facts was that the facts were so startling that they called for an explanation. No truthful explanation was given. That does not amount to a shift in any burden of proof.”

So Muneka did not support the approach Judge Oliver adopted. Far from it. It was contrary to it.

[15]The judge distinguished Muneka from the present case on the basis that in Muneka the appellant had been told by the customs officer who had questioned him that the officer had reasonable grounds to suspect that the cash had been obtained through, or was intended for use in, unlawful conduct, whereas there was no evidence that Mr Tuncel and Mr Basbaydar had been told that. That may have been so, but it was a factual distinction of no consequence whatever to whether the existence of reasonable grounds for suspecting that the provenance or intended use of the cash was unlawful had to be proved.

[16]In Green, the High Court had to decide two issues of principle in the context of civil proceedings in the High Court for the recovery of property under Part 5 of the Act. One was whether the specific criminal offence which had resulted in the property being obtained had to be identified. Sullivan J (as he then was) concluded that a specific criminal offence did not have to be identified, but that the kind of unlawful conduct involved had to be identified to avoid allegations of unlawful conduct being wholly unparticularised. The other was whether a claim for civil recovery could be sustained solely on the basis that the defendant had no identifiable lawful income to warrant his lifestyle. Sullivan J concluded that it could not be. Both these issues are some way removed from the question which Judge Oliver raised, and I have not seen anything in the judgment of Sullivan J in Green which helps on that question.

[17]In short, the authorities which Judge Oliver thought pointed to the conclusion he reached did no such thing. The fact is that his construction of section 298(2) of the Act involved reading words into it which were not there. There are good reasons why he should not have done that. The seizure and detention of cash will take place before the court has had any opportunity to consider whether it should have been seized and detained. Some mechanism has to be in place to ensure that it is not seized and detained on a whim. That is to be contrasted with the forfeiture of the cash. Cash cannot be forfeited until a court has sanctioned its forfeiture. Since it will not sanction its forfeiture unless it has been persuaded that the cash was obtained through, or was intended for use in, unlawful conduct, there is no need for any requirement about the reasonableness of the suspicions of the customs officers in the first place.

[18]It may be that the judge had something quite radical in mind. If the original seizure and detention of the cash had been unlawful, why should the UKBA be allowed to benefit from that? Should not the original illegality be regarded as infecting everything which happened thereafter and disabling the court from subsequently ordering its forfeiture, even if the court was satisfied that the provenance of the cash or its intended use was in truth unlawful conduct? An argument along those lines was considered in R (on the application of Hoverspeed Ltd) v Commissioners of Customs and Excise

[2003] QB 1041

. The relevant statutory regime in that case related to the power to seize goods liable for forfeiture under the Customs and Excise Management Act 1979, even if the stopping and search of the car in which the goods were found and which resulted in their subsequent seizure had been unlawful. The Court of Appeal concluded that the issue was one of statutory construction, and a proper construction of the relevant statutory regime was that the power to seize the goods was not dependent on the exercise of any power to stop and search the car, with the result that there was no unfairness in the seizure of the goods, even though their presence had been discovered in the course of an unlawful examination of the car. Applying that reasoning to the present case, there is no doctrine in cases concerning the forfeiture of cash denying the authorities the “fruits of the forbidden tree”, unless the relevant statutory regime made the forfeiture of the cash dependent on the cash having been lawfully seized and detained in the first place. For the reasons I have already given, I do not think that the relevant statutory regime did that.

[19]It follows that the answers to the two questions posed for the opinion of the High Court are “No”.

The disposal of the appeal

[20]Counsel for Mr Tuncel and Mr Basbaydar argued that, however the court answered the questions posed for its opinion, the court should dismiss the appeal or, to be accurate and to track the language of section 28A(3) of the Senior Courts Act 1981 which deals with appeals by way of case stated to the High Court, to affirm the determination of the Crown Court that Mr Tuncel and Mr Basbaydar had no case to answer. That argument is based on the proposition that, on a careful reading of the judge’s ruling, the Crown Court concluded that they had no case to answer on the merits, even if the UKBA had not been required to prove that when the cash was seized the customs officers had reasonable grounds to suspect that the cash had been obtained through, or was intended for use in, unlawful conduct. Alternatively, should the judge’s ruling not be able to be read in that way, counsel for Mr Tuncel and Mr Basbaydar asked for the case to be remitted to the Crown Court for the hearing to continue. That course is only an option if it is possible to reconstitute the court with Judge Oliver and the magistrate with whom he was sitting. For its part, the UKBA asked for a different outcome. It wants the case to be remitted to the Crown Court for a rehearing before a different bench.

[21]Did the Crown Court consider whether Mr Tuncel and Mr Basbaydar had a case to answer, even if the pre-condition of reasonable suspicion had not been required? In the Case Stated itself,

Judge Oliver said at [3] under the heading “Facts found by the Crown Court”:

“This was an appeal from the Magistrates Court. Given that the issue to be decided was whether or not cash found in the Appellants’ bags should be forfeited and the court became concerned as to the test to be applied, no findings were made by the court other than those set out in the decision of the court, below.”

Since the passage in the case stated headed “Decision of the crown court” did not contain any findings of fact, one might be forgiven for concluding that the Crown Court did not consider whether Mr Tuncel and Mr Basbaydar had a case to answer, even if the pre-condition of reasonable suspicion had not been required. However, Judge Oliver made the point in the Case Stated at [10] that “[a] reasoned decision was given by the court on the day of the hearing and so this is a recollection of what was said at the time and not a repetition of the decision maybe on the transcript should one be obtained for the High Court.” It is when one looks at the transcript of the ruling that counsel for Mr Tuncel and Mr Basbaydar argue that the court concluded on the facts that Mr Tuncel and Mr Basbaydar did not have a case to answer. Two passages are relied on, and I deal with each in turn.

[22]First, at p. 9B-D of the transcript of the ruling,

Judge Oliver said:

“In asking ourselves today: ‘Is it shown to us that the source of the money was from a criminal offence in the United Kingdom?’ The answer has to be: ‘No. We have no evidence to that effect.’ ‘Is there any evidence it was intended for criminal use either here or in Turkey?’ The answer to that has to be: ‘No. We have heard no evidence from anybody to that effect.’”

That is, at first blush, a finding that there was insufficient evidence to establish that the cash had been obtained through, or was intended for use in, unlawful conduct. But the passage has to be seen in the context of the ruling as a whole, and it is plain, I think, that the judge thought that there had been insufficient evidence to establish that, because there had not been sufficient evidence that the customs officers had had reasonable grounds for suspecting that the provenance or intended use of the cash was unlawful.

[23]A more compelling point is that, later in his ruling (at p. 12D of the transcript), referring to what Sullivan J had decided in Green, the judge said that there was no evidence establishing “the class of offence said to constitute alleged unlawful conduct”. In my view, that can only be read as amounting to a finding that the kind of unlawful conduct involved had not been identified. That would, in the light of Green (and on the assumption that the principle in Green applied to applications to the magistrates’ court for the forfeiture of cash, and not just to civil proceedings in the High Court for the recovery of property), have been a sufficient basis for the judge to find that Mr Tuncel and Mr Basbaydar did not have a case to answer. However, that presupposes that it had been open to the judge to consider whether they had a case to answer, and here it is critical to remember that these were civil proceedings. Special rules apply to submissions of no case to answer in civil cases: see the observations of Mance LJ (as he then was) in Boyce v Wyatt Engineering

[2001] EWCA Civ 692

at [4]-[6]. If the judge is to rule on whether the defendant has a case to answer, the defendant has to elect not to call evidence in the event of the judge ruling that there is a case to answer. There are two reasons for that. First, it may be difficult for the judge to keep an open mind about the impact of any further evidence to be called if he has already ruled that the defendant has a case to answer. That concern does not arise in criminal cases – at any rate, in criminal cases in the Crown Court – in the light of the different functions of the judge and jury. Secondly, if the defendant is not put to his election and if the claim is eventually dismissed, there may be a successful appeal against the judge’s view of the merits, and that may result in the case having to be remitted for a new trial before a different judge.

[24]In this case, two things happened which made it inappropriate for the judge to consider whether Mr Tuncel and Mr Basbaydar had a case to answer. First, by the time the judge came to consider that, evidence had already been called on behalf of Mr Basbaydar. A witness for Mr Basbaydar had been interposed during the evidence of the UKBA’s witnesses as a matter of convenience, but it had not been interposed on the basis that it was to be without prejudice to Mr Basbaydar’s right to elect not to call any evidence but to submit no case to answer instead. Moreover, although Mr Tuncel and Mr Basbaydar had not given oral evidence, the court had read their witness statements. That is apparent from the following comment at p. 5G of the transcript of the ruling:

“I have to say at this point we have no evidence as to what the origin of the money was, other than that contained in the defendants’ statements.”

I was told that the reference to “the defendants’ statements” was a reference to Mr Tuncel and Mr Basbaydar’s witness statements. Secondly, before ruling on whether Mr Tuncel and Mr Basbaydar had a case to answer, the judge did not put either of them to their election. As I have said, he had had to do that if he was to consider whether they had a case to answer. In the circumstances, it was not appropriate for the court to consider whether Mr Tuncel and Mr Basbaydar had a case to answer. It follows that it is not appropriate for the High Court to affirm the determination that they had no case to answer. The only appropriate course is for the case to be remitted to the Crown Court.

[25]But should it be remitted for the hearing to continue before Judge Oliver and the magistrate with whom he was sitting (assuming, of course, that they are both available) or for a re-hearing before a different bench? Two grounds are advanced by Mr Andrew Bird for the UKBA in favour of a remission of the appeal for a re-hearing before a different bench. The first relates to the time which has elapsed since the hearing in the Crown Court. I do not regard that as a particularly persuasive point. It frequently happens that the courts have to return to a case many months after an earlier hearing in it. The lapse of time in the present case will have been much longer than usually occurs, but Judge Oliver will have made a note of the evidence, and he can remind himself and the magistrate of what it was.

[26]Mr Bird’s other point is potentially more compelling. That is that there is evidence which the UKBA wishes to call which was not before the Crown Court, and which suggests that the unlawful conduct which the cash had been obtained through or which it was intended for use in was the supply of drugs. There was some evidence about that already before the Crown Court. One of the customs officers had been advised by the Serious Organised Crime Agency that Mr Basbaydar had been due to appear in court in Istanbul in October 2009 charged with being concerned in the supply of two separate amounts of heroin, amounting to about 7 kgs and 14 kgs respectively, in December 2008. Indeed, Mr Basbaydar referred to that in his witness statement. He said that he had been arrested in Istanbul following a later trip to Turkey in February 2009, but the charges against him were eventually dropped. The additional evidence which the UKBA now wishes to call relates to the facts underlying the charges which Mr Basbaydar faced, in order to ground an argument that the cash Mr Basbaydar was taking with him was intended to be paid to his associates for the purchase of heroin, and that applied to the cash Mr Tuncel had had with him as well, since they had been travelling together and the cash had been wrapped in a similar way. If that evidence is accepted, the court could order the forfeiture of the cash on the basis that the cash had been intended for use in unlawful conduct, even if it had been obtained quite lawfully. It is accepted that that evidence has not yet been obtained, but it is said to be likely that such evidence will be available, if only because of the specific quantities of heroin whose supply Mr Basbaydar was charged with having been concerned in.

[27]A re-hearing of the appeal before a different bench would not be justified if that evidence could reasonably be expected to have been called when the appeal was first heard. The critical issue is whether it could reasonably be expected to have been called then. Mr Bird argued that it could not be. That is because, at the time of the appeal, it was thought that on an application to a magistrates’ court for the forfeiture of cash, as opposed to civil proceedings in the High Court for the recovery of property, the kind of unlawful conduct which the cash had been obtained through or had been intended for use in did not have to specified. That was based on what Moses J had said in Muneka on the topic. At [10], he said:

“… insofar as it is suggested that it is incumbent upon the prosecution to identify the criminal activity, the source of the money or the criminal offence for which it is intended to use the money, that, in my judgment, is incorrect.”

Similarly at [12], he said:

“… it is not necessary to identify any criminal activity such as drug trafficking; all that has to be identified is that the source was criminal activity or the intended destination was use for criminal activity.”

[28]However, the law has changed since Muneka. In Angus v UKBA

[2011] EWHC 461

Admin, it was held that on an application to a magistrates’ court for the forfeiture of cash, what had to be established, if the kind of unlawful conduct involved could not be identified, was that the property had been obtained through, or was intended to be used in, conduct of one of a number of kinds, each of which would have been unlawful conduct. The judgment in Angus was only handed down on 11 March 2011, i.e. after Mr Tuncel and Mr Basbaydar’s appeal had been heard in the Crown Court, and it is therefore contended on behalf of the UKBA that it was entitled to proceed on the basis that the only evidence necessary to establish an entitlement to the forfeiture of the cash was that which had been called in the Crown Court.

[29]For their part, counsel for Mr Tuncel and Mr Basbaydar argued that Angus did no more than restate the law as it was known to be at the time of the hearing of the appeal. They point out that the observations of Moses J in Muneka hardly sit well with Green, or with subsequent cases such as R v W (N)

[2009] 1 WLR 965

and R v Anwoir

[2009] 1 WLR 980

, in which the reasoning in Green (which had also been approved by the Court of Appeal in Director of Assets Recovery Agency v Szepietowski [2008] Lloyds Rep FC 10) had been applied to criminal cases in which the issue was whether the transfer of money had amounted to the transfer of “criminal property” within the meaning of section 340 of the Act. However, the difficulty with that argument is that by the time the present case was being heard in the Crown Court, the courts had not had to decide whether the principle established in these cases applied to applications to the magistrates’ court for the forfeiture of cash. So by then the only case which addressed whether the kind of unlawful conduct had to be identified on such applications was Muneka, and that had decided that it did not have to be identified. If that is why the evidence which the UKBA now wishes to obtain and rely on had not previously been obtained – and Mr Bird says that it was – the evidence which the UKBA now wishes to call could not reasonably be expected to have been called when the appeal was heard.

[30]However, that does not necessarily mean that the case should be remitted to the Crown Court for a re-hearing before a different bench. In civil proceedings, it is open to the court to admit further evidence from the claimant after the claimant’s case has closed if it is appropriate to do so. If the case was remitted to Judge Oliver and the magistrate who sat with him, it would be open to them to decide whether, in the light of the subsequent clarification in Angus of what the law required, i.e. namely that the passages at [10] and [12] of Moses J’s judgment in Muneka were per incuriam,the UKBA should be permitted to call evidence which it could reasonably have regarded it did not have to call. That is not for the High Court to decide. It is something which the Crown Court – indeed, the constitution of the Crown Court seized of the appeal – can decide for itself in the light of this judgment.

Conclusion

[31]For these reasons, in addition to answering “No” to the two questions posed for the opinion of the High Court, I allow this appeal, I reverse the determination of the Crown Court that Mr Tuncel and Mr Basbaydar did not have a case to answer by setting aside that determination, and I remit the case to the Crown Court with a direction that it continues the hearing of the appeal in the light of this judgment. If it is not possible for the Crown Court to be reconvened with Judge Oliver and the magistrate who was sitting with him, the case will have to be remitted to the Crown Court for re-hearing before a different bench.

[32]I wish to spare the parties the trouble and expense of attending court when this judgment is handed down. I leave it to the parties to see if they can agree an appropriate order for the costs of this appeal. If they cannot, they should notify my clerk of that in writing within 14 days of the handing down of this judgment. I will then decide what the appropriate order for costs should be without a hearing on the basis of such written representations as the parties choose to make.