Price v Crown Prosecution Service [2016] EWHC 455 (Admin)

Case No DTA/4/2011

[2016] EWHC 455 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 07/03/2016

Before

MR JUSTICE GARNHAM

Between

PriceApplicant

Crown Prosecution ServiceRespondent

Mr Jai Patel (instructed by Goldkorns Solicitors) for Applicant

Mr Michael Newbold (instructed by CPS Proceeds of Crime) for Respondent

Hearing Hearing dates: 25 th February 2016

Judgment

Introduction

[1]On 13 July 2005 Mr Simon Price was convicted after a trial of an attempt to import 693 kilograms of cocaine. He was sentenced to 28 years imprisonment, a sentence reduced on appeal to 25 years. On 20 March 2007 His Honour Judge Zeidman QC, who had presided over his trial, made a confiscation order against Mr Price in which he found that the value of the benefits he had derived from drug trafficking was £2,340,017.40 and that his realisable assets were in the same sum. Judge Zeidman gave the Defendant 15 months to pay that sum in default of which he was to be sentenced to a further 10 years in prison.

[2]Mr Price now applies to this court for a certificate of inadequacy, pursuant to Section 17 of the Drug Trafficking Act 1994. (It is common ground that, although the Act has been repealed, the saving provisions enable the application to be brought under this provision).

Recusal Application

[3]At the beginning of this hearing, Mr Jai Patel, who represents the Applicant in these proceedings, invited me to recuse myself on the ground of apparent bias. He pointed to the fact that, as disclosed by the Respondent, CPS, I had a previous connection with Mr David Frend, the lawyer acting for the CPS, who had sworn three statements on their behalf. I heard submissions on the point from both parties and then gave an ex tempore judgment, declining to recuse myself.

[4]That ex tempore judgment speaks for itself and I do not repeat here the views I expressed there. But, in essence, I ruled that the fact that I had represented Mr Frend, along with some 200 other military and civil service witnesses, at the Baha Mousa public inquiry, would not have led the fair-minded and informed observer to conclude that there was a real possibility that I was biased. I indicated that, nonetheless, I would keep the matter under review as the hearing progressed. I did so. At the end of the hearing I indicated that nothing had occurred during the hearing that had led me to change my mind.

The Statutory Scheme

[5]Section 2 of the 1994 Act sets out how a court should go about determining the benefit a convicted defendant has obtained from drug trafficking: “(1) Subject to subsection (7) below, where a defendant appears before the Crown Court to be sentenced in respect of one or more drug trafficking offences (and has not previously been sentenced or otherwise dealt with in respect of his conviction for the offence or, as the case may be, any of the offences concerned), then —(a) if the prosecutor asks the court to proceed under this section, or

(b) if the court considers that, even though the prosecutor has not asked it to do so, it is appropriate for it to proceed under this section, it shall act as follows. (2) The court shall first determine whether the defendant has benefited from drug trafficking. (3) For the purposes of this Act, a person has benefited from drug trafficking if he has at any time (whether before or after the commencement of this Act) received any payment or other reward in connection with drug trafficking carried on by him or another person. (4) If the court determines that the defendant has so benefited, the court shall, before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned, determine in accordance with section 5 of this Act the amount to be recovered in his case by virtue of this section. (5) The court shall then, in respect of the offence or offences concerned — (a) order the defendant to pay that amount;…

(c) subject to paragraph (b) above, leave the order out of account in determining the appropriate sentence or other manner of dealing with him… (8) The standard of proof required to determine any question arising under this Act as to — (a) whether a person has benefited from drug trafficking, or (b) the amount to be recovered in his case by virtue of this section, shall be that applicable in civil proceedings.” (a) if the prosecutor asks the court to proceed under this section, or (b) if the court considers that, even though the prosecutor has not asked it to do so, it is appropriate for it to proceed under this section, (a) order the defendant to pay that amount;… (c) subject to paragraph (b) above, leave the order out of account in determining the appropriate sentence or other manner of dealing with him… (a) whether a person has benefited from drug trafficking, or (b) the amount to be recovered in his case by virtue of this section,

[6]Section 4 requires the court to make certain assumptions (“the statutory assumptions”) when assessing the proceeds of drug trafficking: “(1) For the purposes of this Act —(a) any payments or other rewards received by a person at any time (whether before or after the commencement of this Act) in connection with drug trafficking carried on by him or another person are his proceeds of drug trafficking; and

(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards. (2) Subject to subsections (4) and (5) below, the Crown Court shall, for the purpose — (a) of determining whether the defendant has benefited from drug trafficking, and (b) if he has, of assessing the value of his proceeds of drug trafficking, make the required assumptions. (3)The required assumptions are — (a) that any property appearing to the court — (i) to have been held by the defendant at any time since his conviction, or (ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him, was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him; (b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him; and

(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it. (4) The court shall not make any required assumption in relation to any particular property or expenditure if — (a) that assumption is shown to be incorrect in the defendant’s case; or (b) the court is satisfied that there would be a serious risk of injustice in the defendant’s case if the assumption were to be made; and where, by virtue of this subsection, the court does not make one or more of the required assumptions, it shall state its reasons…” (a) any payments or other rewards received by a person at any time (whether before or after the commencement of this Act) in connection with drug trafficking carried on by him or another person are his proceeds of drug trafficking; and (b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards. (a) of determining whether the defendant has benefited from drug trafficking, and (b) if he has, of assessing the value of his proceeds of drug trafficking, (a) that any property appearing to the court — (i) to have been held by the defendant at any time since his conviction, or (ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him, was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him; (b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him; and (c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it. (a) that assumption is shown to be incorrect in the defendant’s case; or (b) the court is satisfied that there would be a serious risk of injustice in the defendant’s case if the assumption were to be made;

[7]Section 17, pursuant to which the applicant makes this application, provides for the making of certificates of inadequacy: “(1) If, on an application made in respect of a confiscation order by(a) the defendant… the High Court is satisfied that the realisable property is inadequate for the payment of any amount remaining to be recovered under the confiscation order, the court shall issue a certificate to that effect, giving the court's reasons. (2) For the purposes of subsection (1) above — (a) in the case of realisable property held by a person who has been adjudged bankrupt or whose estate has been sequestrated the court shall take into account the extent to which any property held by him may be distributed among creditors; and

(b) the court may disregard any inadequacy in the realisable property which appears to the court to be attributable wholly or partly to anything done by the defendant for the purpose of preserving any property held by a person to whom the defendant had directly or indirectly made a gift caught by this Act from any risk of realisation under this Act. (3) Where a certificate has been issued under subsection (1) above, the person who applied for it may apply to the Crown Court for the amount to be recovered under the confiscation order to be reduced.” (a) in the case of realisable property held by a person who has been adjudged bankrupt or whose estate has been sequestrated the court shall take into account the extent to which any property held by him may be distributed among creditors; and (b) the court may disregard any inadequacy in the realisable property which appears to the court to be attributable wholly or partly to anything done by the defendant for the purpose of preserving any property held by a person to whom the defendant had directly or indirectly made a gift caught by this Act from any risk of realisation under this Act.

[8]“Realisable Property” is defined by Section 6(2) of the 1994 Act. It means:

“(a) Any property held by the Defendant; and (b) Any property held by a person to whom the Defendant has directly or indirectly made a gift caught by this act.”

The History

[9]The history of this case is substantially agreed between the parties.

[10]On 11 July 2005 Mr Price, the Applicant, entered a guilty plea, during the course of his trial, to one count of assisting the commission of an offence. On 13 July 2005, as noted above, the Applicant was found guilty by a jury of being knowingly concerned in the importation of cocaine. On 25 May 2006, Leveson J (as he then was) granted a restraint order replacing an earlier order made under the Proceeds of Crime Act 2002.

[11]On 20 March 2007 His Honour Judge Zeidman QC, the trial judge, made a confiscation order in the terms set out above.

[12]On 21 September 2007 the High Court granted an application by the prosecution to appoint a management receiver. On 6 May 2008 applications brought by Christopher and Laura Bond to vary the restraint and receivership orders so as to exclude from their effect a property in France at Le Cailletieres, in Genac were withdrawn. On 12 June 2008 applications were brought by Christopher and Laura Bond to vary the restraint and receivership orders. On 1 July 2009 Hickinbottom J dismissed an application by the Applicant to discharge the Receivership Order.

[13]The Applicant appealed against the confiscation order and against his sentence. On 14 December 2009 the appeal against sentence was allowed to the extent that a total sentence of 25 years was substituted for the 28 years imposed by Judge Zeidman. The appeal against the confiscation order was dismissed.

[14]On 21 October 2010 King J dismissed an application by the Applicant to vary the restraint and receivership orders. On 11 May 2011 Mitting J dismissed applications by Christopher and Laura Bond. An application for permission to appeal that order was refused on 23 May 2012. On 29 May 2012 the Applicant launched an application to vary the restraint and receivership orders. That application was dismissed by Ouseley J on 18 July 2013. I shall return below to the decision of Ouseley J.

[15]On 8 September 2014 the Criminal Cases Review Commission confirmed that it had decided not to refer the Applicant’s conviction to the Court of Appeal. On 16 October 2014 the Applicant’s application for permission to appeal the order of Ouseley J and Laura Bond’s application for permission to appeal Mitting J’s order were refused.

[16]On 15 May 2015 Dover Magistrates Court committed the Applicant to serve 10 years imprisonment in default of payment of the confiscation order. The Applicant will become eligible for release on licence from his original sentence at the end of December 2016. The 10 years imprisonment in default will run from that date.

[17]The present application for a certificate of inadequacy was issued on 1 June 2015.

The Competing Arguments

[18]Mr Jai Patel, for the Applicant provided a helpful skeleton argument which he developed in oral submissions. He pointed out that of the £2,340,017.40 assessed as both the Applicant’s benefit and the amount that might be realised in this case, only £49,531.14 has been realised to date. The outstanding amount is therefore in excess of £2,290,486 plus interest (which is accruing at a rate in excess of £500 per day). As he observed, the realisable amount includes substantial unidentified, or “hidden”, assets and the only remaining identified asset not yet realised is the property in Genac, France, known as “Le Manoir”.

[19]It was common ground that the Court would only issue a certificate where the Applicant was able to satisfy the Court that, on the balance of probability, the realisable property is inadequate to meet the sum due under the confiscation order. It was also common ground that an Applicant cannot go behind the findings made at the confiscation hearing, or in the body of the confiscation order, as to the amount of the realisable assets and that it was insufficient for an Applicant simply to assert that his assets are insufficient to meet the confiscation order. It was necessary for him to demonstrate that what had happened since the making of the confiscation order justified a conclusion that the realisable property was inadequate to meet the order.

[20]Mr Patel advanced two substantive submissions. First, relying on the decisions of the Court of Appeal inRe O'Donoghue

[2004] EWCA Civ 1800

and Glaves v CPS

[2011] EWCA Civ 69

, he argued that this Court should approach the statutory test contained in Section 17 by considering all the evidence and “maintaining a sense of justice and proportion”. He argued that the Court could look at the position as it is today and that Glaves would entitle the Court to conclude that the assets now available to the Applicant were inadequate to meet the confiscation order.

[21]Mr Patel submitted that this Court was entitled to have regard to

Article 6 ECHR

in applying the approach indicated by the Court of Appeal in Glaves. He referred me in particular to the ECHR decision in Phillips v UK (Application Number 41087/98) and Geerings v the Netherlands (Application Number 30810/03). Mr Patel invited me, against the background of those decisions, to review critically Judge Ziedman’s conclusions that it was more likely than not that the drugs had been paid for by the Applicant out of the profits of other drug trafficking and that the Applicant had substantial hidden assets.

[22]In this context, he further submitted that Judge Ziedman applied the wrong standard of proof and that, following Geering, the Court should only have reached the conclusions it did if it had been satisfied to the criminal standard. Mr Patel also referred me to the decision of the House of Lords in R v Briggs-Price

[2009] UKHL 19

. Mr Patel argued that, following Glaves, I was entitled to consider the fairness of the proceedings before Judge Ziedman and to reach a conclusion that, regardless of the Crown Court Judge’s findings, the Applicant now has no assets and therefore satisfies the Section 17 test. Mr Patel acknowledged that there was a tension between this submission and his agreement to the proposition that an Applicant cannot go behind the findings made at the confiscation hearing.

[23]Secondly, Mr Patel directed particular attention to the Applicant’s interest in the French property, Le Manoir. He said that there was an evidential dispute as to the value of Mr Price’s interests, if any, in that property. And he argued that, in any event, the costs of recovering that property would diminish, or eliminate, its value.

[24]In those circumstances, Mr Patel contended that I could be satisfied that the realisable property would be inadequate for the payment of any amount due under the confiscation order, and that, accordingly, I should issue the certificate to that effect.

[25]Mr Michael Newbold, for the Crown Prosecution Service, resisted all of those arguments. His primary submission was that this application constituted an inadmissible attempt to re-litigate matters already decided by the Crown Court. That, he said, constituted an abuse of process.

[26]Second, he argued that even if the Court was entitled to look at the material referred to by Mr Patel, the evidence before the Court fell far short of establishing an inadequacy. He contended that in essence the Applicant’s case consisted of bare assertions. As to the facts, Mr Newbold emphasised that it was for the Applicant to satisfy the Court as to the extent of his assets. He argued that if the assets were indeed hidden, it was unsurprising that they had not been identified. Discussion The Proper Approach

Discussion

[27]Part VI of the Criminal Justice Act 1988 provided a statutory regime for the confiscation of the proceeds of offending. Section 83 provided arrangements for the variation of confiscation orders equivalent to that under s17 of the Drug Trafficking Act 1994. The proper approach to a s83 application was summarised by Mr David Holgate QC, as he then was, in B

[2008] EWHC 3217

. In my judgment, the summary applies equally to s17. At paragraph 74 Mr Holgate said:

“(1) The burden lies on the applicant to prove, on the balance of probabilities, that his realisable property is inadequate for the payment of the confiscation order (see Re O'Donoghue [2004] EWCA Civ 1800, per Laws LJ at para 3). (2) The reference to realisable property must be to ‘whatever are his realisable assets as a whole at the time he applies for the certificate of inadequacy. If they include assets he did not have when the confiscation order was made, that is by no means a reason for leaving such fresh assets out of consideration’ (Ibid and see also Re Phillips [2006] EWHC 623 (Admin)). (3) A s83 application cannot be used to go behind a finding made at the confiscation hearing or embodied in the confiscation order as to the amount of the defendant's realisable assets. Such a finding can only be challenged by way of an appeal against the confiscation order. (See Gokal v Serious Fraud Office [2001] EWCA Civ 368, per Keene LJ at paragraphs 17 and 24). (4) It is insufficient for a defendant to say under section 83 ‘that his assets are inadequate to meet the confiscation order, unless at the same time he condescends to demonstrate what has happened since the making of the order to realisable property found by the judge to have existed when the order was made’. (See Gokal paragraph 24 and Re O'Donoghue at paragraph 3). (5) The confiscation hearing provided an opportunity for the defendant to show that his realisable property was worth less than the prosecution alleged. It also enabled the defendant to identify any specific assets which he contended should be treated as the only realisable property. The section 83 procedure, however, is intended to be used only where there has been a genuine change in the defendant's financial circumstances. It is a safety net intended to provide for post-confiscation order events. (See McKinsley v Crown Prosecution Service [2006] EWCA Civ 1092 per Scott Baker LJ at paragraphs 9, 21-24, 31 and 35). (6) A Section 83 application is not to be used as a “second bite of the cherry”

. It is not an opportunity to adduce evidence or to present arguments which could have been put before the Crown Court judge at the confiscation hearing (paragraph 38 of Gokal and paragraphs 23, 24 and 37 of McKinsley).”

[28]Neither party before me dissents from any of those propositions or suggests that they do not apply to applications under s17 as they did to applications under s83. But, as noted above, Mr Patel sought to modify their application to the facts of the present case by reference to the decisions of the Court of Appeal in Re O'Donoghue and Glaves.

[29]In Re O'Donoghue, Laws LJ said:

“… section 83(1) requires the defendant to satisfy the court that his realisable property will not satisfy the confiscation order. The reference must be to whatever are his realisable assets as a whole at the time he applies for the certificate of inadequacy. If they include assets he did not have when the confiscation order was made, that is by no means a reason for leaving such fresh assets out of consideration. Where a defendant has been in possession of an asset, such as the £35,500 here, the question obviously arises what he has done with it and whether, as might in the ordinary way well be the case, interest or “other fruits”, as the judge put it, have been obtained in respect of it. In that case, if the defendant is simply silent as to what has happened to the asset, the court on a section 83 application is liable to find that he has not satisfied the section's requirements and accordingly is not entitled to a certificate of inadequacy. Whether that conclusion is arrived at or not will obviously depend on the court's appreciation of all the evidence.”

[30]Pill LJ said:

“the judge has a fact-finding exercise to conduct under section 83(1) of the Criminal Justice Act 1988 . He has to assess the current value of realisable assets as a whole. All I would add, whilst expressing full agreement with what my Lord has said, is that the judge needs to keep a sense of proportion in conducting that exercise, however dishonest or uncooperative a defendant may have been with respect to what has been found to be one or more of his realisable assets. There could be cases where, on an overall view, it would be open to the judge to hold that the value was on balance of probability inadequate within the meaning of the section, even if the defendant has declined to condescend to give an explanation with respect to every single asset.”

[31]The passage from B set out above was cited with approval by Toulson LJ at paragraph 18 of his judgment in Glaves, but he went on to emphasise that those were principles developed by the courts:

“in order to fulfil the purpose of the statutory scheme in a way that does justice, but that the underlying objective is critical… such propositions, however eminent their source, are not to be equated with statutory rules.”

[32]In Glaves, a confiscation order had been made against the applicant under the Criminal Justice Act 1988 s71. In calculating the amount to be paid under the order, the Judge had taken into account both disclosed and hidden assets. The applicant argued that his disclosed assets had realised less than had been anticipated and that as a result he was unable to pay the amount outstanding. He asserted that he had no hidden assets and sought a certificate of inadequacy. The CPS contended that since the applicant had made no disclosure in respect of his hidden assets, his application was bound to fail as a matter of law. At first instance, Collins J rejected that argument and the CPS appealed.

[33]The Court of Appeal (Toulson, Wilson and Arden LJJ) dismissed the appeal. In his conclusions, Toulson LJ (with whom the other members of the Court agreed) held:

“52. The starting point for considering any application for a certificate of inadequacy is the confiscation order itself. Since the burden of proof at the time of the making of a confiscation order is on the defendant to show that his available assets are less than the benefit figure, it follows that there may be cases in which a confiscation order is properly made in a larger sum than the defendant is in truth able to pay, and this may result in him having to serve a period of imprisonment in default for failing to pay what he cannot pay. It may be that the defendant has been dishonest or cavalier in his evidence or it may be that, although truthful, he has not been able to produce evidence sufficient to discharge the burden of proof which rests on him. … 54. At the stage of an application for a certificate of inadequacy, the burden of proof is again on the defendant. He is unlikely to succeed unless the court is satisfied that he is being candid, and an application for a certificate of inadequacy is not intended to be a means of the defendant having a second bite at the same cherry. Those principles are clearly established. However, a rule of law which said that the court could not be persuaded that the defendant was unable to pay the outstanding amount by reason of a worsening of his financial circumstances unless he gave full disclosure of what had happened in the meantime to all his assets, including previously unidentified assets, would trammel the width of s83 by imposing a restriction which is not in the statute. It would also be capable of causing not merely hardship but hardship amounting to injustice. 55. In the case of previously unidentified assets, it is possible that a defendant may genuinely have no idea or only a dim recollection what had originally happened to them. He should be allowed to try to persuade the court, if this be the case, that his identified assets have shrunk in value and that as a result he is not able to pay the amount outstanding. What the court makes of that evidence will be a matter for its judgment. Much will no doubt depend on the nature of the case. Cases involving unidentified assets can vary greatly. The case of an international drug dealer with evidence of a lavish lifestyle, ready access to large sums of cash and connections with a web of offshore companies and bank accounts, may merit different treatment from the case of a defendant whose apparent circumstances and amount of unaccounted for assets are much more modest. It is for the court to consider the totality of the evidence before concluding whether it accepts that the defendant has suffered a change of fortune such that he is probably not able to pay the balance of the outstanding money. If the defendant is not permitted the opportunity of trying to establish this, there is a real risk that even though he can demonstrate a change in his circumstances, possibly very great, he may serve an additional period of imprisonment through failure to do that which is impossible by reason of his change of circumstances.”

[34]I draw the following four conclusions from the analysis of the Court of Appeal in these two cases:(i) The principles enumerated by Mr Holgate in B provide a convenient starting point for the Court’s consideration of a s17 application; those principles are not, however, to be construed as if they were statutory rules;

(ii) The statute contemplates that there will be cases when it will be possible for an applicant to establish that a confiscation order was properly made against him in a larger sum than in truth he is able to pay;

(iii) The burden of proof will be on him, but an applicant is entitled to try to persuade the court that his identified assets have diminished in value and that as a result he is not able to pay the amount outstanding; he is entitled to attempt that task even in circumstances where he cannot provide full disclosure of what had happened to all his assets, including previously unidentified assets; and

(iv) It is a matter for the judgment of the court, on the facts of an individual case, whether the applicant has made out such a case; in reaching that judgment the court must maintain a sense of proportion, however dishonest a defendant may have been about his assets.

[35]I do not read the judgments of the Court of Appeal in either case, however, as permitting an applicant to attempt this task by means of an attack on the findings of fact made by the Crown Court judge when he made the confiscation order. If the judge erred in those findings of fact, the remedy is an appeal to the Court of Appeal. The Applicant in the present case pursued such an appeal without success. He cannot now be heard to challenge those findings so far as they relate to circumstances existing at the time they were made. His focus, instead, has to be on what has happened since the judge’s order and what his position is now.

[36]In my judgment, the Strasbourg jurisprudence adds nothing to this analysis. In Geering the impugned order of the court related to offences of which the defendant had been acquitted; that was not the position here. In Phillips the ECtHR said that an issue relating to fairness might arise when the amount of a confiscation order was based on the value of assumed hidden assets. That was the position here but the procedure adopted, in my judgment, was conspicuously fair. The confiscation hearing was conducted by the trial judge who gave a lengthy, reasoned judgment setting out his conclusions; the Applicant was represented by experienced counsel who were able to test and challenge the Prosecution’s case. The Applicant was entitled to, and did, appeal that judgment and the Court of Appeal considered it closely. English domestic law entitles the applicant to bring the matter back to a court, as the Applicant is doing here, to seek amendment to the order in the light of subsequent developments. And when considering that application this court will be guided by the considerations set out by the Court of Appeal in Glaves.

[37]I see nothing whatsoever in Mr Patel’s point about Briggs-Price. In that case the House of Lords held that where a judge was considering whether a convicted person had benefited from a specific drug trafficking offence with which he had not been charged, the criminal standard of proof should be applied. That was not this case. I see nothing in the argument that the judge adopted the wrong standard of proof in determining confiscation; the standard of proof applied was that required by s2(8) of the Act (which is set out above).

The Hidden Assets

[38]In the present case, the Applicant maintains that has never had any hidden assets and has none now. He says he is unable give any further account of what has happened to the hidden assets he was found to have. In my judgment, neither of those propositions is sustainable. Judge Zeidman held that he had very substantial hidden assets and the Court of Appeal agreed.

[39]Mr Newbold provided a particularly helpful summary of the main elements of Judge Zeidman’s judgment. Mr Patel did not dispute the accuracy or fairness of that summary. I extract the following findings of relevance from it: i) The Defendant (now the Applicant) was in charge of the drug importation. It was “his operation”. He was “the boss”. He was the “principal organiser of the importation”, the “prime mover” and “the brains of the operation”.The “obvious and most likely explanation” was that he had paid for the drugs. The drugs would have cost millions of pounds, and it was “almost impossible to believe” that the Defendant would have funded the purchase of the drugs other than through previous drug dealing. ii) It was “inconceivable” that the Defendant would have carried out the present importation without previous smaller scale importations. The “scale, complexity and nature of the transaction” meant it was wholly unrealistic to conclude that this was the Defendant’s first involvement with drugs. iii) The drugs would have been bought at the lowest end of the valuations as the Defendant, being “shrewd and experienced”, would “use all his expertise to strike a hard bargain”. That amount was £1,907,812. iv) The Defendant was a man “clever and experienced in money laundering, and if his assertions were true and accurate there could and would be evidence available to prove them”. As such £255,728.43 in expenditure identified by the Prosecution was also assumed to have been money derived from drug trafficking. v) He had also gifted monies and vehicles to Laura Bond, his daughter, or alternatively had used her accounts to launder money. Applying the statutory assumptions, £22,589 seized from the Defendant at the date of his arrest was also benefit from drug trafficking, as was various property found at the property Le Cailletieres. vi) The Defendant was a “clever, sophisticated criminal, who has great experience in drug trafficking and a flare of dishonesty”. By 1994, “this highly intelligent defendant would have been well aware of the undesirability of having assets registered in his name” having been acquitted of involvement in relation to an allegation of involvement in producing ecstasy. vii) Nothing that the Defendant had said in evidence came “anywhere near to satisfying the burden that is placed upon him” of demonstrating the extent of his realisable property. The Defendant could not be believed. The Defendant had made arrangements in advance to hide his considerable assets. viii) “Given the nature, scale and longevity of his criminal career and given his acknowledged intelligence it would be bizarre and uncharacteristic if he had not attempted to do so”. In those circumstances, the judge was “as sure as one can ever be that the defendant will have the full amount of the confiscation order available, tucked away in a well disguised place”.

[40]Giving the judgment of the Court of Appeal, Moses LJ said this:

“28. … it is relevant in connection with the question of realisable assets to point out that the judge found that the defendant was responsible for purchasing the drugs… 29. … It is plain from the amount of drugs which the appellant sought to import that arrangements must have been made as to how they were to be paid for, how they were to be distributed and how the profits were to be shared. To this day the appellant remains silent on those all important features of a drug importation. It underlines how no reliance could be placed upon anything he says about his ability to meet the amount of benefit which was identified by the judge. There remained no reliable source as to the extent of his assets. 30. It is small wonder therefore that the judge was left with the contentions advanced by the Crown…in relation to the question as to whether his assets were hidden. The Crown was able to point out that he had, throughout his history of criminality, used a number of false identities, that he owned substantial property or had owned in France and that he had been in a position to either give substantial sums, at least to his daughter, Laura Bond, or to invest using her name. An example was given of almost monthly dealings of substantial sums, through a particular stockbroker. That evidence itself demonstrated an ability to disguise the name of the true beneficial owner of assets and cash. 31. Quite apart from that evidence, there was substantial evidence of the defendant boasting, in circumstances where he could have no justification or reason to boast, of the extent of his assets. To Customs officers, on 30th June 2004, he had stated that he had been a multi-millionaire for some 20 years, that he ran a gourmet cookery school, that he imported and exported cars, had property investments and operated both as a private individual and through a company in Luxembourg and Liechtenstein which he declined to name. All of this was a mere puff he told the judge. Further, when meeting officers of the Inland Revenue in March 1996, he had told them that he had stolen some £2 million in 1976 from a London airport and spoke of substantial funds in foreign bank accounts, both then and during the course of other interviews sometimes referring to £1.2 million, on another occasion in excess of £2 million… 33. (Counsel for the Appellant) contended that there was no evidence that he had ever hidden assets and that having spent some £1.9 million on the cocaine which he did not successfully import, it was obvious that he would have nothing like enough money left, having lost that sum, to meet the sum identified by way of benefit. We do not agree. We repeat, this defendant, from his own decision to contest this case in the way he sought to contest it, deprived himself of any opportunity of providing reliable evidence as to the assets that he had accumulated during his career. In those circumstances the judge was fully justified in concluding that he had not satisfied the burden, which the statute places upon him, of demonstrating that the amount of realisable assets were less than the amount of the benefit. Thus it was his own fault and his own failure to prove that which led to the order that was made. 34. In those circumstances, we reject (the) submission that the judge was not justified in rejecting the appellant's claim that his realisable assets were less than the amount of £2.342 million.”

[41]In my judgment, the fact that he did have hidden assets in 2007, at the time of the confiscation proceedings, is not a matter the Applicant can be heard to dispute. No appeal to “a sense of justice or proportion” can entitle the applicant to challenge Judge Zeidman’s findings, particularly when those findings were so comprehensively upheld by the Court of Appeal. It follows that it cannot properly be said that the Applicant is “unable” to give any further account of what has happened to those assets; the only proper conclusion, consistent with those findings, is that he chooses not to do so.

[42]None of the particular matters advanced by Mr Patel, in his skeleton argument and orally, in support of the proposition that the Court should conclude that the Applicant’s assets are inadequate, bear examination. First, Mr Patel says that no hidden have been identified by the Receiver. But, first, the Receiver was not commissioned to hunt for hidden assets. And second, given the findings of Judge Zeidman, the fact that the assets have not been discovered simply serves to demonstrate how well hidden they were. In that context it is worth noting that the Applicant was described by the Judge as “clever and experienced in money laundering”.

[43]Second, he says that extensive investigations with the assistance of the authorities in France, Guyana and Luxemburg have not revealed the existence of any hidden assets. But, as Mr Newbold pointed out, some assets were found in all three of those countries. It can be concluded, therefore, that assets were kept in those countries and the fact that more was not found says little about whether further assets remain hidden.

[44]Third, it is suggested that there is no evidence that the Applicant has ever hidden assets. But first, the burden is on the Applicant to establish that he has not. And second, there is such evidence; Judge Zeidman found as a fact that the Applicant had £1.9 million available, prior to the offending, to purchase the drugs. Furthermore, applying the statutory assumptions, the judge found that he had obtained a further £400,000 from his criminal activities, none of which was held openly. The evidence referred to by the Court of Appeal underlines the point.

[45]Fourth, Mr Patel argues that there is no evidence that the Applicant has dissipated his assets. There is; it is the evidence accepted by the judge, notably in relation to the statutory assumptions.

[46]Fifth, it is said that this is not a case where known or identified assets, such as cash withdrawals from a bank account or property, have since disappeared and no explanation has been offered. Pointing out characteristics which this case does not exhibit takes the Applicant nowhere. In any event, the nature of hidden assets is such that it will often be the case that it is not known where those assets came from or where they have been moved to.

[47]Finally in this regard, Mr Patel says that although the Applicant was convicted of a very serious and high value drug trafficking offence there is and was no evidence of an extravagant lifestyle. Before the judge the Applicant asked “what would I be doing drawing social security for years if I had millions in the bank”. The judge did not find that point persuasive. Even if that finding was not decisive, it would be my judgment that he was right not to do so. As is apparent from the observations of Moses LJ, there was much to support the suggestion that the Applicant had been a wealthy man; the fact that he kept the tenancy of a council flat as well as maintaining a house abroad does not establish that he did not enjoy an extravagant lifestyle.

[48]Furthermore, as Mr Newbold points out, there is sound evidence in the papers to suggest that there were indeed aspects of the Applicant’s lifestyle that could properly be described as extravagant. There is a French police report dated 12 July 2004, which records the evidence of the Applicant’s stepson, Mr Christopher Bond. It is said there that the Applicant lived five or six months each year in France; he was renovating his house; the Applicant was planning to convert his French property into a guest house, and to give lessons in French cuisine. Mr Bond indicated he had no idea how the Applicant earned his living; he was said “to travel a lot”; several cars, including two Mercedes, a BMW, a Jaguar and two Range Rovers were found at the property; and the Applicant’s family were said to have taken holidays in Bali, Singapore and Asia in 1997.

[49]As noted above, Judge Zeidman noted in his confiscation judgment that when the Defendant was arrested in 2004 he was found to have on his person more than £22,000 in cash. When the French property was searched it was found to contain wines and spirits worth more than £7,900; entertainment equipment worth £5,000; and a gym and sun bed worth £1,500.

[50]This evidence certainly supports a suggestion that the Applicant led an extravagant lifestyle; it is moreover entirely inconsistent with a suggestion that he was simply living on social security in a council flat in North London.

[51]Mr Patel argues that I am entitled to conclude, whatever the views of Judge Zeidman, that the Applicant is now being candid. It is said that the Applicant is now 70 years of age. He is in poor health. He is coming to the end of his sentence of 25 years’ imprisonment, and the 10 year default sentence in relation to the confiscation order has now been activated. It is submitted that the Applicant has every incentive to pay the outstanding amount if he were able and that therefore I can safely conclude that he is not so able.

[52]I have already explained why, in my judgment, it is not open to the Applicant to seek to challenge Judge Ziedman’s findings. It is against the background provided by those findings that I must test whether the Applicant is now being candid and honest, and whether his financial position has changed significantly since the confiscation order was made.

[53]It is right to say that the lifestyle evidence referred to above relates to events more than a decade ago, prior to his arrest. But the Applicant’s difficulty in persuading me either that he is being candid now or that his financial circumstances have changed, flows from his complete failure to explain either how he was able to live this high life prior to his arrest, or what has changed since. In short, there has been no attempt to be honest with the court. This is not a case of an Applicant, in the words of Pill LJ, declining “to condescend to give an explanation with respect to every single asset”;nor is it a case of an applicant recognising the judgment of the Crown Court and acknowledging that he had hidden assets in the past but, in the words of Toulson LJ, explaining that he no longer has any “idea or only a dim recollection what had… happened to them”. Instead, this is a case of an applicant refusing to acknowledge that he had ever profited from drug trafficking and telling the Court nothing at all about the assets he must have had in the past and those he still has today.

[54]In order to satisfy me, on the facts of this particular case, that the realisable property is inadequate to meet the confiscation order, the Applicant would have needed to provide an honest account of what profit he had made from his past criminal activities in the drug trade, precisely what he had done to earn those sums, where he had hidden those profits, what had become of all the monies he had acquired, and where the monies remaining are now kept. He has attempted to do none of those things. Instead, he has blandly ignored all the evidence that he had made substantial sums from the illegal trade in drugs in the past and has resorted to mere assertion that he is not in a position to meet the confiscation sum. That is plainly inadequate to discharge the burden on him.

Le Manoir

[55]The Applicant directs discrete submissions to the question as to the Applicant’s interest in the French property.

[56]Judge Zeidman had found that the Applicant had a beneficial interest in 50 per cent of the property Les Cailletieres, and that a deed of gift bearing the date 29 June 1990 had been fabricated. He held that the Defendant’s interest in the property would have amounted to £155,000 (on the basis of a valuation of the property at €460,000 or £311,618). Nonetheless, he said it would give rise to an injustice to require the Defendant to prove the source of the monies used to purchase the property in 1990 and therefore it would not form part of his benefit from drug trafficking.

[57]Mr Patel argued before me first, that the Applicant does not have an interest in the French property, and second that, even if he does, that interest cannot sensibly be realised to meet the confiscation requirement.

[58]He refers to the witness statement of Christopher Bond and the report of Jean-David Boerner which he says explains why the Applicant’s name remained in the Land Registry as co-owner of the property until December 2007, even though the Applicant no longer had an interest.

[59]Mr Patel acknowledges that the freezing order obtained by the prosecution on 19 May 2014 in the French Courts appears to state that the Applicant has an interest in the French property. But he says that, even if that is correct, the Applicant’s interest cannot be realised because legal ownership in the property is shared equally between Christopher Bond and Laura Bond; the Applicant’s 50 per cent interest cannot equate to 50 per cent of the value of the property in these circumstances. In any event, says Mr Patel, it is Christopher Bond’s evidence that the French property is encumbered with debts exceeding €200,000. In those circumstances, it is said, the freezing order cannot be relied upon as accurately representing the position now.

[60]Finally, the Applicant notes that the Receiver has said that “the costs... to realise the French property are disproportionate to the expected recovery” and that Mr Frend says in his statement that to enforce the confiscation order in France would necessitate litigation to determine ownership of the property and any third party interests.

[61]In my judgment there are three reasons which, whether taken together or separately, establish that this argument cannot avail the Applicant. First, set against the evidence as to the enormous sum represented by hidden assets, the amount represented by the Applicant’s interest in this property is insignificant. The judge valued his interest at £155,809. Inevitably he could not value the hidden assets because they were hidden; he simply found that they were sufficient to meet the whole of the benefit sum. In my judgment, that would also have been the case if the French property had been excluded from the calculation.

[62]Second, it is not open to the Applicant to dispute his interest in the property given the judgment of Ouseley J on his application to vary two orders made under the 1994 Act (see Re Price

[2013] EWHC 2859 (Admin)

). Ouseley J concluded, first (at paragraph 25) that Judge Ziedman had held that Le Manoir was a realisable asset; second (paragraph 27), that the judge had held that he had an equitable interest in the property; third, that the fact that the property was registered in the names of Christopher and Laura Bond did not mean that enforcement of the confiscation against his interest in the property was not possible (paragraph 32 and following). Mr Price attempted to appeal that decision. That appeal failed on procedural grounds as was set out in the order of Deputy Master Meacher.

[63]Third, there is nothing that I have been shown which could support a suggestion that the position has changed substantively since Ouseley J’s decision. On the facts, the Applicant has an equitable interest in the property and the confiscation order continues to bite upon it. I see no basis on which it can be said that its value is significantly different to what it was in 2007. It may be that costs will be incurred recovering the asset but that would always have been so.

Conclusion

[64]In those circumstances, this application must fail.