Bavi, R (On the Application Of) v Snaresbrook Crown Court [2013] EWHC 4015 (Admin)

[2013] EWHC 4015 (Admin)Case No CO/9176/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 December 2013
Before
THE HONOURABLE MR. JUSTICE COULSON
Between
Abdolmalek BaviClaimantSnaresbrook Crown CourtDefendantThames Valley PoliceInterested Party
The Queen on the Application of:
Ms Klentiana Mahmutaj (instructed by Corker Binning) for ClaimantNo representation or appearance for DefendantMr James Fletcher (instructed by Thames Valley Police Solicitors) for Interested PartyHearing Hearing date: 12 December 2013
JudgmentThe Hon. Mr Justice Coulson:
[1]INTRODUCTION The claimant, Mr Abdolmalek Bavi, seeks judicial review of the decision of Snaresbrook Crown Court dated 18 January 2007 (Ms Recorder C Booth QC, sitting with Justices) by which the sum of £18,500 in cash, seized from Mr Bavi at the Reading Festival on 27 August 2005, was forfeited under the Proceeds of Crime Act 2002 (“PoCA”). Unusually perhaps, in a case like this, Mr Bavi seeks not only the quashing of the original decision but its substitution with a fresh decision that the money should be returned.[2]As will become apparent, this case has had a long and tortuous history, culminating in the decision of the Court of Appeal on 28 November 2012 ([2012] EWCA Civ 1830) by which Mr Bavi was granted relief of various kinds, including permission to apply for judicial review of the decision of Snaresbrook Crown Court. It is therefore necessary to set out the procedural background, before going on to look at the legal framework, the decision of the Crown Court, and the grounds for challenging that decision. PROCEDURAL HISTORY[3]On 27 August 2005, Mr Bavi was apprehended on his way into the Reading Festival. His rucksack was searched and the sum of £18,500 in cash was seized by the Thames Valley Police. On 7 March 2006, the Reading Magistrates ordered the forfeiture of the cash under Section 298(2)(a) and/or Section 298(2)(b) of PoCA. Mr Bavi’s appeal against that order was heard at Snaresbrook Crown Court by way of a re-hearing. The appeal was dismissed on 18 January 2007. Mr Bavi’s application for permission to bring a judicial review claim in respect of that decision was refused on 1 December 2008. His application for permission to appeal was dismissed as being wholly without merit on 30 April 2009.[4]In March 2010, Mr Bavi was first diagnosed as suffering from Asperger’s Syndrome and Social Phobia and OCD. As a consequence of this diagnosis, the Court of Appeal granted Mr Bavi permission to rely on fresh evidence, in the form of an expert’s report from a psychiatrist, Dr Lachlan Campbell. This culminated in the decision of 28 November 2012, in which the Court of Appeal allowed Mr Bavi’s appeal; permitted him to amend his applicant’s notice, his judicial review claim form, his statement of facts and grounds of review; gave him permission to appeal against the decision refusing permission to apply for judicial review on 1 December 2008; and gave him permission to apply for judicial review of the decision of Snaresbrook Crown Court.[3]THE LEGAL FRAMEWORK[5]The relevant sections of PoCA are as follows:
“242. Property obtained through unlawful conduct (1) A person obtains property through unlawful conduct (whether his own conduct or another’s) if he obtains property by or in return for the conduct. (2) In deciding whether any property was obtained through unlawful conduct— (a) it is immaterial whether or not any money, goods or services were provided in order to put the person in question in a position to carry out the conduct, (b) it is not necessary to show that the conduct was of a particular kind if it is shown that the property was obtained through conduct of one of a number of kinds, each of which would have been unlawful conduct. … 298. Forfeiture (1) While cash is detained under section 295, an application for the forfeiture of the whole or any part of it may be made - (a) to a magistrates’ court by the Commissioners of Customs and Excise or a constable … (2) 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.” (a) it is immaterial whether or not any money, goods or services were provided in order to put the person in question in a position to carry out the conduct, (b) it is not necessary to show that the conduct was of a particular kind if it is shown that the property was obtained through conduct of one of a number of kinds, each of which would have been unlawful conduct. … (a) to a magistrates’ court by the Commissioners of Customs and Excise or a constable … (a) is recoverable property, or (b) is intended by any person for use in unlawful conduct.”
[6]For some time, there was uncertainty as to the extent, if at all, to which the police or the relevant authority had to show that the money which was the subject of the forfeiture proceedings arose from any particular unlawful conduct. In Muneka v Commissioner of Customs and Excise [2005] EWHC 495 (Admin), Moses J (as he then was) held that the Crown did not have to show any particular criminal conduct. However, in Director of Assets Recovery Agency v Geoffrey David Green [2005] EWHC 3168 (Admin), Sullivan J (as he then was) did not accept that approach, although he distinguished Muneka on the basis that he was considering asset recovery in civil proceedings, rather than in cash forfeiture litigation, which was the subject matter of Muneka.[7]Subsequently, other decisions have indicated that, for money laundering allegations for example, it was not enough for the prosecution merely to rely on single possession of a large quantity of cash, and the Crown had to identify at least the class of crime in question: see R v NW [2009] 1 WLR 965. More recently, all of these authorities were considered by the Divisional Court in Carol Angus v UKBA [2011] EWHC 461 (Admin). In giving the judgment of the court, Nicola Davies J held that, “by reference to Section 242(2)(b) of PoCA, in a case of cash forfeiture, a customs officer does have to show that the property seized was obtained through conduct of one of a number of kinds each of which would have been unlawful conduct.” That has authoritatively set out the approach to be adopted under s.298(2)(a), namely that unlawful conduct which is said to have generated the money in question needs to be identified. There is no direct authority on the operation of s.298(2)(b) (the ‘intended’ unlawful conduct).[8]An issue which arose in a number of the cases identified above concerns the credibility of the person who is the subject of the forfeiture claim. The general approach has been that, if the person in question is found to have lied about the origins of the money or its intended use, then the court was entitled to draw an inference from that lie that the money had been obtained through, or was intended for use in, unlawful conduct. Subject to the requirement now that any unlawful conduct said to have generated the money in the first place has to be identified, it seems to me that that approach is reasonable, and in accordance with the purposes of PoCA.[4]THE DECISION OF THE CROWN COURT[9]Given that Miss Mahmutaj seeks an order, not only quashing the decision of the Crown Court, but its substitution with a decision in Mr Bavi’s favour, it is necessary to set out in some detail the decision of 10 January 2007.[10]The learned recorder set out the relevant findings of fact as follows:
“Mr Bavi told PC Clements that that money ‘is from a building job I did because I am a builder. The tickets do not say it’s illegal to bring money into the festival’. The officer’s notebook clearly shows that the respondent signed that statement as correct. He now accepts that he has never worked as a builder and that was untrue. That is not the only lie he has told. Mr Bavi was then kept for three hours in a police van without refreshment or access to a toilet in the midst of a hot summer afternoon. He is diabetic and this caused him distress. He complained to the police about this treatment and the recommendation was more should be done for people detained in these circumstances. Nevertheless, this treatment, which took place after he lied to PC Clements, could not explain away that lie or indeed his subsequent statements in interview which seemed to us to be more to do with the fact that he was struggling to find an explanation for his possession of the £18,500 than any actions by the police. Just before 7:00pm he was eventually taken to Reading Police Station and again lied in giving his occupation as a self-employed builder. At around midnight he was interviewed under caution by police officer Eliska Jackson-Smith and he made a number of statements which are recorded in the interview. In contrast what he told PC Clements that this was from a building job, in interview he said the money was from 40-50 building jobs and that his savings came from hard building work. This is more fantasy than reality. In fact, he goes into great detail in the interview about being a self-employed builder. He said this: ‘it’s not a company. We just deal with the Inland Revenue…I’ve been in the job for 10 years. If it’s winter work we do inside work, when it’s summer we do everything outside, painting decorating, from roof, plumbing electric tiling flooring, everything. I’ve got a big book of workers. I get paid in cash. A kitchen job can start from material from £1,000 it can go up to £20,000. To get hold of me I sometimes advertise on the internet. I don’t need a lot of advertising, you know. If a builder is advertising it’s not really a good sign. I’ve done maybe 40, 50 jobs. I prefer to advertise by word of mouth.’ All of this is complete fantasy and shows Mr Bavi doing what he had done on other occasions, embellishing his stories with fictitious details… In interview he was suggesting that he distrusted banks and was carrying the money around on his person. This does not fit with what we now know of him. He did mention to the police in interview the £12,500 Barclay loan and mentioned also that he did not owe any other bank any money and he didn’t use the overdraft facility that he had obtained. This does appear to be true, but it does not explain what happens to the loan. The reason he had the money with him, he said, was because he wanted to buy a van and thought it was cheaper outside London. Whilst we do accept that this is probably true that it is cheaper to buy a van outside London, it doesn’t explain why he needed to buy a van that particular day, particularly when he had used his car to get to the festival. Neither would you need to spend £10,000 on such a van. The balance of the money he claimed was for redecorating and buying some furniture for his house and for his teeth. We are not convinced of this and it doesn’t explain why he needed to take the furniture money or the teeth money to Reading that weekend.”
Having again referred to the loan of £12,500 in March 2005, the learned recorder went on:
“We agree with Thames Valley Police that the probability is that the cash that was withdrawn in March had been spent by August. Mr Bavi maintains that he just put this cash into a cash deposit box which he acquired on 11 November 2004 and kept it there until he withdrew it with his additional savings in July 2005. We find this surprising. The first time Mr Bavi revealed the safe deposit box was yesterday in court. He did not mention it to the police and, even more significantly, he did not mention it at all even when giving evidence in a Magistrates’ court. Indeed, at that time on questioning from the District Judge he said he had the money in a box in his flat and that he had bought the box from Rymans. We consider this is highly significant and casts real doubt on his case now. It is true that he did hold a safe deposit box between 1 November 2004 and October 2005. He closed it prematurely on 17 October 2005 even though he had paid for it up to the end of the year. It is typical of the way he embellishes his evidence that when he gave evidence of his acquiring the safe deposit box he said he got it at a specially reduced offer price of £95. When the manager of the company came to give his evidence he made it clear that there was no such offer and that he paid the usual price of £165 in cash with a rental going on to the end of the year of 2005. When he closed the account in October 2005 he got his £50 deposit back so the total cost was in fact £115. The list of visits to the box show that he came on a number of occasions, including twice in April when he claims to have put the loan monies in and then on 8th June and 5th and 18th July. He does not identify on which of these occasions he says are the one when he took the loan monies and, indeed, there is nothing in the fact that he went to the box which shows he took any money there at all. We reject his explanation that the loan was added to the money in the box and we accept that on the balance of probabilities the loan monies were more than likely disposed of shortly after they were withdrawn from the bank.”
[11]As to the law, the learned recorder said:
“Unlawful conduct is defined in Section 241…it is not necessary for the police to specify what unlawful conduct the cash is alleged to have come from or what the intended unlawful conduct is alleged to be (see Muneka)… In Muneka as well the court gave guidance as to the significance of lies. Lies may well establish the source of the cash as criminal activity. At paragraph 12 Moses J as he then was stated: ‘lies in the context of the issue may well establish that the source of the money is criminal activity’. She also referred to the unreported case of Nevin (unreported, 3/11/95) where Sedley J, as he then was, said that “a suspect who gives an account of his reasons for carrying the money which the justices reject as untruthful cannot complain if the justices go on to infer from other relevant evidence that by itself might not have been enough to satisfy them, that the true reason was the use of drug trafficking.”
[12]Setting out the court’s conclusions, the recorder said:
“We have considered carefully the evidence and the submissions of counsel and asking ourselves questions (1) is the £18,500 recoverable property, that is property obtained through unlawful conduct or, (2) is the £18,500 intended by Mr Bavi for use in unlawful conduct? We have concluded on the balance of probabilities that it is, for the following reasons: firstly, the circumstances in which the cash was found does not suggest that it was legitimate money. Such a large sum of legitimate cash is not carried to a large music festival which is attended by large crowds where the risk of theft and loss is far greater than merely carrying cash in the street. The cash was insecure in a backpack in a camera bag and wrapped in plain paper. On the balance of probability this does not suggest this money was for use for a legitimate purpose. The fact that Mr Bavi looked out of place and tried to minimise the amount of money he had on him when first detained by saying he had just a few thousand pounds suggests that he had something to hide. We do not need to speculate why he was there at the festival with that money, but we do not believe he was there to buy a van, furniture or get his teeth fixed. Mr Bavi has changed his story repeatedly. He initially told PC Clements that the money had come from a building job. He signed the officers’ notebook to that effect. This suggests a singular job. He then changed his story to suggest the cash was from a number of building jobs. He then suggested that it was from the loan and savings. We do not know exactly what happened to the loan, but we are not persuaded that it was represented in the money that he had with him on that day. Nor do we think that the money he had with him on that day represented his savings, even if he had any. As for the intended use for the money, he said it was for a vehicle and the surplus for redecorating his home, getting furniture and for the dentistry work. We do not accept this explanation. It is highly unlikely that a Reading Festival goer would carry that amount of money with him or indeed have the time or inclination to purchase a motor vehicle, still less items of furniture, materials for redecoration and certainly not dentistry. We conclude on the balance of probability that the intended use of this money was for an unlawful purpose.”
[5]THE ISSUES ON THIS APPLICATION[13]The claimant raises three separate reasons why the Crown Court decision should be quashed. They are:(a) Ground 1: that the decision was made in ignorance of established and relevant fact, namely the claimant’s medical condition, giving rise to an error of law;(b) Ground 2: that the court erred in law in deciding that, pursuant to s.298(2)(a), the police did not have to show that the cash had been obtained through unlawful conduct of a particular kind or kinds; and(c) Ground 3: that the court erred in law in deciding that, pursuant to s.298(2)(b), the police did not have to show that the cash was intended for use in unlawful conduct of a particular kind or kinds.[14]In addition, the claimant submits that, pursuant to Section 31 of the Senior Courts Act 1981, the court should exercise its discretion and substitute its own decision for the decision in question. Accordingly, I propose to deal firstly with the three grounds and then go on to deal with the real point between the parties, which was the issue of substitution.[6]GROUND 1: THE MEDICAL EVIDENCE[15]On behalf of the Interested Party, Mr Fletcher does not challenge the application to quash the decision of the Crown Court on Ground 1. It is accepted that the fact that, at the time of the hearing, neither side were aware of Mr Bavi’s medical condition gave rise to an error of law and that, in consequence, the decision should be quashed. Support for the proposition that an error of fact which gave rise to unfairness amounted to a point law can be found in paragraph 66 of the judgment of Carnwath LJ (as he then was) in E v Secretary of State for the Home Department [2004] QB 1044. However, even though this ground of challenge is accepted, because there remains a dispute as to whether this ground, or either of the others, justifies the substitution of the original decision with one of the court’s own, it is necessary to deal with Ground 1 in some detail.[16]In his judgment in the Court of Appeal last year (see paragraph 4 above), Tomlinson LJ had this to say about the medical evidence concerning Mr Bavi:
“8…In due course he was able to obtain further medical assistance and in November of last year there was prepared on his behalf a report by a Dr Lachlan B. Campbell, who is a consultant forensic neuropsychiatrist at the Blackfriars Medical Legal Consultancy. In that report, Dr Campbell gives reasons, having conducted an interview of Mr Bavi on his own, at the doctor’s London consulting rooms, for saying that Mr Bavi exhibits Asperger’s Syndrome, which Dr Campbell describes as a ‘developmental disorder of reciprocal social interaction’. Dr Campbell also indicated that, with maturity (and I mentioned earlier that Mr Bavi is now in his early sixties), he now presents mainly with obsessive-compulsive-type symptoms. Furthermore Dr Campbell reported that, arising from this condition, Mr Bavi has seemingly submerged himself in a fantasy existence and that his capacity to form reasoned judgements about his abilities and prospects is correspondingly compromised. 9. Dr Campbell explains that Asperger’s Syndrome is a developmental disorder which emerges in the first few years of life and that, in consequence, there is little doubt that Mr Bavi would have been impaired by this condition on and around the 27th August 2005, which was the date on which he attended the music festival. 10. Dr Campbell also explains that many of the features of Mr Bavi’s account which were found to be implausible are readily explicable in terms of the manifestations of Asperger’s Syndrome in Mr Bavi, in particular a tendency to compulsive saving and a tendency to fantasise about his ability to set up a business of his own in the construction world and matters of that sort. 11. In short, if Dr Campbell’s evidence is in due course accepted as reliable, and for the present there is no indication that it might not be, it might well offer a complete explanation for what was otherwise regarded by both the Magistrates’ Court and the Crown Court as an implausible explanation for his being found in possession of this large amount of cash at a music festival, in circumstances where it is clear that all concerned formed the view (rightly or wrongly) that the money was probably derived from unlawful activity and was further intended to be used in further unlawful activity, no doubt of the nature of drug trading at a music festival.”
[17]From my reading of the papers I respectfully agree with that analysis. The critical point is that Mr Bavi’s account of how he had the £18,500 and what he intended to do with it has to be considered against the medical evidence and, in particular, the symptoms of his condition, which include:(a) Submerging himself in a fantasy as to his capability, present occupation and plans for the future;(b) A compromised capacity to form reason judgments about his abilities and prospects;(c) A deep-seated tendency to preserve his self esteem when answering questions by a third party and maintaining and account consistent with his fantasies;(d) Great difficulty in forming rational judgments to risk and lacking any real appreciation of how to quantify and address risks;(e) An absence of inter-personal bonds between himself and other people.[18]In the light of that, I am no doubt that Ground 1 justifies the quashing of the decision of the Crown Court and that Mr Fletcher was quite right to make that concession. None of that can possibly be taken as a criticism of the recorder: she did not know that Mr Bavi had a directly relevant medical condition and therefore could not possibly have taken that into consideration in reaching her conclusions.[7]GROUND 2: s.298(2)(a)[19]As noted, Ground 2 is that, pursuant to s.298(2)(a), the Crown Court erred in finding that the police did not need to show that the cash had been obtained through unlawful conduct of a particular kind. Although this matter was not considered by the Court of Appeal, and although it might be regarded as slightly academic, since the decision of the Crown Court must be quashed anyway, it does seem to me that, in deference to the clear arguments of Ms Mahmutaj, I ought to deal with it.[20]For the reasons set out in paragraphs 6 and 7 above, although the underlying statute has not changed, there has been a clear shift in emphasis as to how the authorities should approach unlawful conduct as the alleged source of the cash in forfeiture cases. Muneka, on which the learned recorder properly relied in 2007, should not now be followed in the light of the decision in Angus. On the face of it, therefore, that change in judicial interpretation gives rise to a second ground for quashing the decision.[21]Although Mr Fletcher agreed that, if there was a re-hearing in the Crown Court, the court would be bound to apply Angus, rather than Muneka, he argued that it would be wrong for the original decision of the Crown Court to be opened up in this way, particularly as the Court of Appeal did not deal with the issue in November last year. He said that the principle of finality meant that this issue was not open to the claimant.[22]I do not agree. Taking it in stages:(a) Bestel and Others [2013] EWCA Crim 1305 is authority for the proposition that, in PoCA cases, decisions made under the law as it was then understood should not be disturbed unless substantial injustice would follow.(b) But this is a case which has already been ‘disturbed’ as a result of the decision of the Court of Appeal. Therefore the doctrine of finality does not apply here. In this case, there will either be a re-hearing or a substitution.(c) At that re-hearing or as part of my deliberations when considering substitution, I am bound to consider the law as set out in Angus. Anything else would be absurd. For all those reasons, therefore, I consider that, in the unusual circumstances of this case, Ground 2 is a further reason to quash the decision of the Crown Court.[8]GROUND 3: s.298(2)(b)[23]Ground 3 of the application is that, pursuant to s.298(2)(b), the Crown Court erred in finding that the police did not need to show that the cash was intended for use in any particular kind of unlawful conduct. At first sight this appears similar to Ground 2, albeit dealing with intended (i.e. future) conduct rather than past conduct which generated the money. But in truth the position is rather more nuanced than that.[24]I make clear at the outset that, if there is to be a further hearing de novo in the Crown Court, Ms Mahmutaj can argue that specific unlawful conduct needs to be shown for the purposes of s.298(2)(b) as well. But I decline to quash the decision on Ground 3 alone for a number of reasons. First, it is an academic point, since the decision is already being quashed as a result of Grounds 1 and 2. Secondly, it is agreed that there is no new authority, such as Angus, which suggests that the Crown Court may have been in error in approaching the law in a particular way.[25]Thirdly, and perhaps most important of all, it seems to me that there may be a difference between what has to be shown in relation to unlawful conduct that has already occurred, and has therefore given rise to the money which is now being forfeited, and intended unlawful conduct which, by its nature, cannot yet have happened. It seems to me that, in the latter case, it may be (I do not put it higher than that) that the requirement on the part of the authorities to show particular intended conduct is less stringent. It can often be difficult for the authorities to demonstrate unlawful conduct which has not yet happened but which is only ‘intended’. It might make a nonsense of sub-section (b) if the authorities had to show with precision what the unlawful conduct was that the defendant intended to carry out in the future.[26]I derive some support for that approach from the recent judgment of Lewis J in Fletcher v Chief Constable of Leicester Constabulary [2013] EWHC 3357, where distinctions were made between the requirements of sub-sections (2)a) and (2)b) and where Angus was distinguished as a case under sub-section (2)a), not (2)b).[27]For those reasons, although I make clear that Ms Mahmutaj can argue whatever she wishes on Ground 3 at any fresh hearing in the Crown Court, I decline to quash the original decision on this Ground.[9]SUBSTITUTION[28]Section 31 of the Senior Courts’ Act 1981 provides as follows:
“(5) If, on an application for judicial review, the High Court quashes the decision to which the application relates, it may in addition – (a) Remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the High Court, or (b) Substitute its own decision for the decision in question. (5A) But the power conferred by sub-section 5(b) is exercisable only if – (a) The decision in question was made by a court or tribunal, (b) The decision is quashed on the ground that there has been an error of law, and (c) Without the error, there would have been only one decision which the court or tribunal would have reached.” (a) Remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the High Court, or (b) Substitute its own decision for the decision in question. (a) The decision in question was made by a court or tribunal, (b) The decision is quashed on the ground that there has been an error of law, and (c) Without the error, there would have been only one decision which the court or tribunal would have reached.”
[29]Essentially, two issues arise on this application. The first is whether, without the error(s), there would have only been one decision which the court or tribunal could have reached. The second is whether, if that is the case, the court should exercise its discretion in favour of substitution.[30]In my view, on any rehearing, if the medical evidence is accepted by the court, and if there is no evidence concerning the unlawful conduct beyond that which was adduced last time (either concerning events prior to the Reading Festival or intended to be carried out at the Reading Festival), then this forfeiture application is very likely to fail and the money will be returned to Mr Bavi. But, much as I would like to, I cannot dismiss those caveats as fanciful, and therefore cannot say that, without Grounds 1 and 2, there would have been only one decision which the Crown Court could have reached in 2007. Indeed, that is always difficult when the error of law is, in reality, a matter of fact which nobody knew about.[31]I accept (as Tomlinson LJ accepted) that, on its face, the medical evidence appears to provide a complete answer to the lies and inconsistencies inherent in Mr Bavi’s account. But unless and until it is formally agreed in full, that evidence needs to be tested in the ordinary way. That is why Tomlinson LJ at paragraph 11 of his judgment (paragraph 16 above) expressly said that Ground 1 may lead to a different result “if Dr Campbell’s evidence is in due course accepted as reliable” and why, at paragraph 18, he said that “the condition suffered by Mr Bavi may – and of course I put it no higher – provide a complete explanation for his otherwise irrational behaviour.” That issue can only be determined in the Crown Court, having heard and evaluated that evidence.[32]The other element of this case which may need to be explored in a fresh hearing concerns the alleged unlawful conduct. It is a remarkable feature of the police’s case against Mr Bavi that that they appeared to go out of their way not to identify any particular unlawful conduct on his part. Instead they seemed content to rely on his lies and his inconsistencies as proving the case against him (although I accept that there were some documents before the court as well). In the light of Angus, such an approach is no longer appropriate, certainly in respect of unlawful conduct said to have generated the money.[33]I cannot discount the possibility that, because of Muneka, this was a deliberate omission on the part of the police. If there is to be a de novo hearing, to consider the medical evidence, and the issue of unlawful conduct under the law as it now stands, then it would be appropriate to give both sides the opportunity of putting in any further evidence, should they so wish, on the question of unlawful conduct. Then the Crown Court can weigh up, on the one hand, the medical condition, and on the other the evidence of unlawful conduct, and reach a view, applying the new approach to s.298, as to whether the police’s case had been made out.[34]Although Ms Mahmutaj argued that the claimant would be a vulnerable witness and should not be put through the ordeal of another hearing, it seems to me that he can be properly protected by the directions of the judge hearing the appeal in the Crown Court. There is no suggestion that he is unfit to plead or cannot tell the difference between right and wrong. Without hearing evidence, I cannot substitute my own decision simply because of the strong written material concerning the claimant’s medical condition.[35]I must say that I reached a firm conclusion on discretion. If I had been of the view that, allowing for the errors, the only possible outcome was one in favour of Mr Bavi, I would have exercised my discretion in favour of substitution. There can be no doubt that, on the evidence, Mr Bavi has suffered considerably (both financially and mentally) as a result of this forfeiture and it is important now for the matter to be resolved as soon as possible.[10]LIKELY DISPOSITION[36]I consider that by far the most likely disposition of this case at the Crown Court hearing is as follows. Dr Campbell’s evidence will be accepted. That will almost certainly provide a complete explanation for the lies and other oddities within Mr Bavi’s answers and previous evidence. As to any unlawful conduct said to have generated the cash, since there was never any real evidence of any particular unlawful conduct (as opposed to unanswered questions about what happened to the loan), and the police now have to be much more specific about this, it must be likely that the first aspect of the forfeiture proceedings will simply fall away. After all, if there had been positive evidence of any unlawful conduct said to have generated this cash, that evidence would have been put to Mr Bavi long ago. And if it was now said that there was specific misconduct, years after the event, it would lead to all sorts of questions as to why that evidence had not been raised before. The suggestion in Mr Fletcher’s skeleton that the police would now want to investigate how the loan was obtained smacks of desperation; not only was that not raised before, but it seems likely that the forfeited cash was largely made up of that loan, the inability to repay which has caused so much difficulty for Mr Bavi. As things presently stand, I consider that the police case under s.298(2)(a) would be unlikely to succeed.[37]That leaves the intended unlawful conduct. As I have already said, the police seemed anxious not to identify what the intended unlawful conduct might have been. Inevitably, I think, the police will have to say that the intended unlawful conduct related to the buying and selling of drugs. On the face of it, Mr Bavi seems a very unlikely candidate for a drug dealer. If the medical evidence is accepted, particularly in relation to his predilection for saving and for hoarding, then there would appear to be an innocent explanation for his odd conduct, rather than any intended involvement in drugs. If so, that would be the end of the police case under s.298(2)(b) as well.[38]In short, if the detail of the medical evidence is accepted or agreed, then in the absence of something entirely new demonstrating unlawful conduct (which would lead to plenty of questions as to why it had not arisen before), I consider that these forfeiture proceedings are likely to fail. Whilst, for the reasons that I have given, I cannot substitute my own decision for that of the Crown Court, and there therefore needs to be a re-hearing, I would urge the Interested Party to reconsider its position and, in the absence of anything new, give careful consideration to releasing this money back to Mr Bavi without further delay. If that does not happen, and the rehearing goes as I have indicated, there will be an obvious risk that the Interested Party will be liable for indemnity costs.[39]I order a rehearing which must be expedited. I would ask the parties to draw up the order based on this Judgment and agree all ancillary matters.