Webber v Webber [2006] EWHC 2893 (Fam)

[2006] EWHC 2893 (Fam)

Case No BK04D00415

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

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

Date 16/11/2006

Before

SIR MARK POTTER

THE PRESIDENT OF THE FAMILY DIVISION

Between

WebberApplicant

Mrs Laureen Fleischmann (instructed by Messrs Campbell Hooper Solicitors) for Applicant

Miss Charlotte Lees (instructed by Messrs Wills Chandler Solicitors) for Respondent

Mr Peter Doyle QC and Mr Ben Fitzgerald (instructed by Crown Prosecution Service) for Intervenor

Hearing Hearing dates: 19 July 2006

Judgment

Sir Mark Potter, P:

[1]This is a reserved judgment giving reasons for my decision made on 19 July 2006 refusing an application made in ancillary relief proceedings by Mrs Fleischmann who represents the petitioner Angela Patricia Webber, the wife of Roy William Webber (“the husband”). In July 2005 the husband was convicted of serious drug offences and, at the time of the application, he was awaiting disposal of drug confiscation proceedings under the Proceeds of Crime Act 2002 (“POCA”) by the Crown Prosecution Service (“the CPS”) at the Central Criminal Court (“the CCC”) following the trial of his co-defendants before His Honour Judge Kramer QC and a jury. The husband was represented before me by Miss Charlotte Lees. The CPS were represented by Mr Peter Doyle QC and Mr Ben Fitzgerald appeared as intervenor in the proceedings in the following circumstances.

[2]The ancillary relief proceedings had, on 9 March 2006, been transferred to the High Court from the Basingstoke County Court under a consent order. On 15 March 2006, the parties obtained a consent order from Pauffley J giving directions for the final disposition of the matter, the main purpose of which was to ensure that the civil hearing to determine the wife’s share in the matrimonial home (which was the parties’ sole asset of substance) should be heard at the same time as the confiscation proceedings by a judge with experience both in criminal and family jurisdictions on lines similar to those commended by Munby J in the case of W v HandHer Majesty’s Customs and Excise

[2004] EWHC 526

(Fam/Admin)

[3]The relevant part of the order ran as follows:

“The confiscation [hearing] and the ancillary relief application shall be heard together at the Central Criminal Court on a date to be fixed by that court. His Honour Judge Kramer QC [the judge with the conduct of the case at the Central Criminal Court] shall be asked whether he has experience with dealing with ancillary matters and, if the answer is No, then either a Judge of the Central Criminal Court with the experience with ancillary relief matters or a judge of the Family Division who is also a nominated judge of the Administrative Court and/or a judge with experience of the Crown Court shall determine both matters. This order shall be served upon the Crown Prosecution Service and the Central Criminal Courts.”

This order shall be served upon the Crown Prosecution Service and the Central Criminal Courts.”

[4]Unfortunately, the CPS was not made party to the application before Pauffley J; nor was notice of it served until the last minute, too late for the attendance of any representative on behalf of the CPS.

[5]Upon receipt of the order, the CPS applied to set it aside upon the grounds that the procedure contemplated was incorrect, impracticable, contrary to the terms of POCA and would set an incorrect procedural precedent in respect of confiscation proceedings in the Crown Court.

[6]On 31 March 2006, Holman J set aside the relevant paragraphs of the order of Pauffley J and ordered that the case summary of Mrs Fleischmann served on that occasion should stand as a formal application (of which the CPS had notice) for an order in, or substantially in, the terms of the order of Pauffley J, such application to be heard by me on 19 July 2006, with permission to the CPS to intervene in the proceedings to the extent necessary to argue and be heard on all matters arising on the application.

[7]In order fully to understand all the issues arising it is necessary to set out the history in a little more detail.

Background and history

[8]The wife and the husband are aged 43 and 44 respectively. They were married in July 1984 and in 1991 purchased their family home for £123,000 with a mortgage of around £100,000, increased to £140,000 in May 2001. They have one child, a boy now aged 10.

[9]The parties separated, when the husband left the matrimonial home in January 2004, the wife having discovered his adultery. The last payment made towards the mortgage was in May 2004.

[10]In June 2004 the wife petitioned for divorce.

[11]On 30 August 2004 the husband was charged with conspiracy to supply 60 kilos of Class C drugs, namely cannabis, being arrested and charged with a number of co-defendants.

[12]In October 2004, an order in favour of the mortgagee for possession of the home by 10 December 2005 was made in the Basingstoke County Court on the grounds of arrears of payment of the mortgage.

[13]On 17 December 2004, a restraint order was granted in the Central Criminal Court against the husband and the wife pursuant to section 41 of POCA, restraining them from disposing of, or dealing with, their assets, in particular their home or any proceeds of sale thereof.

[14]On 23 February 2005 there was an order by consent in the Basingstoke County Court for sale of the home with vacant possession at a price to be agreed between the parties and the CPS, the proceeds to be applied to redemption of the mortgages and the payment of the costs of sale and, following discharge of the parties’ joint debts to their bank, the remainder to be placed by the court in an interest bearing account. An order to similar effect was made in the criminal proceedings by way of variation to the restraint order of 17 December 2004.

[15]On 27 July 2005 the husband was sentenced to four years’ imprisonment and confiscation proceedings were instigated. An order was made for a directions appointment in respect of the confiscation hearing and for the wife to attend if so desired on 1 December 2005. At that hearing the CPS agreed to notify the wife’s solicitors whether they considered that the wife was tainted with knowledge of the defendant’s criminality in relation to her share of the balance of the proceeds of the home, that being the sole asset forming the available amount for confiscation under POCA.

[16]At a hearing at the Central Criminal Court on 24 February 2006, attended by Mrs Fleischmann on behalf of the wife, the CPS stated their acceptance that the wife was not tainted and that she was entitled to 50% of the proceeds of sale of the home. However, Mrs Fleischmann made clear at that stage that the wife sought a greater than 50% share in her ancillary proceedings. The CPS indicated that agreement between the husband and the CPS was imminent to the effect that the “available amount” for confiscation was 50% of the net proceeds of the house on the basis that that sum represented the husband’s interest. The confiscation proceedings were listed for mention on 29 March 2006 in that expectation.

[17]That agreement was swiftly reached and communicated to the wife’s solicitors.

[18]On 9 March 2006, in the light of the developing complications, the Basingstoke County Court made an order for transfer of the ancillary relief proceedings “to be listed before a Judge of the Family Division, and of the Administrative Court and (if possible) a Judge with experience of the Criminal Court”.

[19]The CPS was not informed of that order at the time. It only became aware of the transfer of the ancillary relief proceedings to the High Court following the order made by Pauffley J (see paras 2-4 above). By that time it was also aware that the wife proposed to argue in the ancillary relief proceedings that she was entitled to 100% of the proceeds of the sale of the house, which, if established prior to the disposal of the confiscation proceedings, would deprive them of any effect.

[20]These events were addressed at a hearing at the Central Criminal Court on 29 March 2006 when the confiscation proceedings were adjourned to 12 April 2006 to allow time for the CPS to set aside the order of Pauffley J.

[21]Following the setting aside of the order (see para 6 above) the further hearing of the confiscation proceedings was adjourned by the trial judge His Honour Judge Kramer QC to await the decision of this court.

The Powers of the High Court prior to POCA

[22]In this case the court is concerned with the position as it exists under the provisions of POCA. However, in the light of the argument raised by Mrs Fleischmann , it is necessary to summarise the powers of the High Court prior to the provisions of POCA coming into force, when restraint and confiscation proceedings were governed by the Criminal Justice Act 1988 (CJA 1988) and the Drug Trafficking Act 1994 (DTA 1994). Under that earlier regime, whereas confiscation proceedings were conducted in the Crown Court, the jurisdiction over the making of restraint orders, the appointment of receivers and the enforcement of confiscation orders rested with the High Court. In that context, the situation would arise in a number of cases whereby the claim of the divorced wife of a drug smuggler, money launderer or other criminal who sought ancillary relief under the Matrimonial Causes Act 1973 (MCA 1973) was in conflict with the claims of the Crown, represented either by the CPS or by Her Majesty’s Customs and Excise, to the extent that the making of a property adjustment order in the ancillary relief proceedings would have the effect of reducing the amount available for confiscation as provided for in DTA 1994.

[23]In Customs & Excise Commissioners v A

[2002] EWCA Civ 1039

[2003] Fam 55

, the Court of Appeal clearly disposed of the suggestion that the jurisdiction of the family court under Part II of MCA 1973 was ousted by, or obliged to take second place to, proceedings to enforce orders under DTA 1994.

[24]It made clear that the broad scheme of DTA 1994, like that of its predecessor the Drug Trafficking Offences Act 1986 (DTOA 1986) was governed by the intention that no one convicted of drug trafficking offences should be allowed to retain any part of the proceeds of his crime. “The broad scheme involves the making of confiscation orders at the time of sentencing and of prior protective orders. The latter are designed to render the accused rending a confiscation order inappropriate or nugatory by disposing of his assets between the time when an information is about to be laid against him and the making of a confiscation order in the event of conviction.” per Lord Donaldson of Lymington in Re Peters

[1988] QB 871

at 874D as quoted in para 14 of Customs & Excise v A.

[25]However, at paragraphs 12 and 13, Lord Justice Schiemann set out the position in relation to the jurisdiction of the court in civil proceedings to make an order under Part II of MCA 1973 in any case involving assets acquired by or derived from criminal activities as follows:

“12… The court is not obliged to exercise its powers under section 23 or 24: section 25(1) gives it a discretion to do so; (2) The fact that one or both of the parties to the marriage had been engaged in or convicted of trafficking in drugs is plainly a material circumstance of the case within section 25(1); and drug trafficking is almost certainly conduct which it would be inequitable to ignore. (3) The court would plainly be bound to have regard to any drug trafficking confiscation order and the financial obligation which one or both of the parties had under any such order; (4) The court equally and plainly must have regard to the extent to which the assets of the parties were the products of drug trafficking; and the extent to which their standard of living and respective financial contributions to the marriage derived from drug trafficking. 13.In short, in deciding whether to exercise its powers to make a property adjustment order under section 24 MCA 1973, the court would be bound fully to take into account any order made under DTA 1994 and to decide whether or not, in all the circumstances of the case it was appropriate to exercise the discretion under section 25 MCA to make a property adjustment order under section 24 MCA, or whether it was appropriate to decline to make such an order and to allow the DTA Order to be enforced. It is not difficult to envisage cases in which the latter would be the correct cause – an obvious example being where the matrimonial assets were the fruits of drug dealing in which both parties were engaged or complicit. That, however, is a wholly different question from whether the terms of the DTA 1994 prevent the court exercising its MCA 1973 jurisdiction at all.”

The court is not obliged to exercise its powers under section 23 or 24: section 25(1) gives it a discretion to do so; (2) The fact that one or both of the parties to the marriage had been engaged in or convicted of trafficking in drugs is plainly a material circumstance of the case within section 25(1); and drug trafficking is almost certainly conduct which it would be inequitable to ignore. (3) The court would plainly be bound to have regard to any drug trafficking confiscation order and the financial obligation which one or both of the parties had under any such order; (4) The court equally and plainly must have regard to the extent to which the assets of the parties were the products of drug trafficking; and the extent to which their standard of living and respective financial contributions to the marriage derived from drug trafficking.

[26]In Crown Prosecution Service v Richards and another

[2006] EWCA Civ 849

, the Court of Appeal rejected a submission that the court was deprived of its jurisdiction under MCA 1973 to make provision for a wife out of matrimonial assets, even though they were tainted. It held that where assets were tainted with the proceeds of crime and subject to confiscation they should not ordinarily, as a matter of public justice and public policy, be distributed. However, that was not to say that the court was deprived of jurisdiction to make a distribution in favour of the wife, nor to say that no circumstances could exist in which such order would be justified.

[27]Under DTA 1994, the power to make a prior restraint order in relation to confiscation proceedings (a “drugs Act Mareva” as it was described by Lord Donaldson in Re Peters at 879F), lay in the High Court and was exercised by judges of the Administrative Court. Section 26 of DTA 1994 empowered the High Court to make a restraint order prohibiting any person from dealing with realisable property which might or would be subject of confiscation. It also empowered the High Court to appoint a Receiver in respect of realisable property and manage it or otherwise deal with it as directed by the court. Sections 27-29 set out further powers of the High Court in dealing with restrained property.

[28]Section 31 of DTA 1994 provided that, in relation to decisions under sections 26-29 “(2) Subject to the following provisions of this section, the powers should be exercised with a view to making available for satisfying a confiscation order or, as the case may be, any confiscation order that may be made in the defendant’s case, the value for the time being in realisable property held by any person, by means of the realisation of such property… (4) The powers shall be exercised with the view to allowing any person other than the defendant … to retain or recover the value of any property held by him. (5) In exercising the powers, no account should be taken of any obligations of the defendant… which conflict with the obligation to satisfy the confiscation order”

[29]In relation to this provision Schiemann LJ concluded:

“43…there is nothing in the provisions of either MCA 1973 or DTA 1994 which requires the court to hold that either Statute takes priority over the other when the provisions of each are invoked in relation to the same property. Both statutes confer discretion on the courts, which the court may or may not choose to exercise, to make orders. The terms of those orders will depend on the facts of the individual case… 44. Equally, it does not seem to me to be axiomatic that it is more in the public interest to enforce an order under section 31 DTA 1994 than to make a property adjustment order under section 24 MCA 1973. If the former has the effect of forcing a spouse to sell her home and become dependent on the state for housing and housing support in order to meet a confiscation order in relation to property which was not acquired by the profits of crimes; if the wife has made a substantial financial or other contribution to the acquisition of that property; if the crime involved is one of which she was ignorant and by which she is untainted, it seems to me that the public policy argument may well go the other way. Each case must depend on its own facts. 45. Accordingly, the fact that section 31(2)–(6) DTA 1994 require the court’s powers for the realisation of property to be exercised in a particular way in enforcement proceedings under that Act does not, in my judgment, mean that by necessary implication that those sub-sections either exclude or take priority over powers of the court under MCA 1973 section 24. Unlike bankruptcy proceedings, the property which is subject to the confiscation order does not vest in the Receiver appointed under section 26 or 29 DTA 1994. It remains the property of the defendant drug trafficker, and is thus capable of being transferred to the defendant’s former spouse under MCA section 24.”

[30]The question for the court in Customs & Excise v A was whether the judge was prohibited by DTA 1994 from exercising his powers under MCA 1973 on the basis that, once a confiscation order had been made, DTA 1994 overrode and excluded the operation of the 1973 Act. In agreeing with the judgment of Schiemann LJ as quoted above, Judge LJ stated at paragraph 92 that:

“Looking at the matter generally, the outcome should not depend on whether an order made under the 1973 Act had been concluded in the wife’s favour before the confiscation was made against her husband. Carried to its logical conclusion that would offer a material advantage to a spouse who rushed into divorce and ancillary relief proceedings as soon as she discovered the slightest grounds for suspicion that her husband was involved in drug dealing and a corresponding disadvantage if she delayed…. A further consequence would be an unseemly competition between the prosecution and the Crown Court, where the wife would not be heard, and the solicitors acting for the wife in ancillary proceedings, from which the prosecution would be absent. First come, first served, would be unlikely to produce a just result. These are persuasive arguments for the view that, notwithstanding any perceived “priority”, the decision of the courts should not be confined to enforcement of a confiscation order first and exclusively, but even where a confiscation order has been made, provided the circumstances justify (for example, as here, where a wholly innocent spouse and property untarnished by drug dealing or its profits are involved), the enforcement process should at least acknowledge the existence of the 1973 Act and the power of the court to exercise its discretion by taking account of the interests of the innocent spouse as well as the criminal defendant.”

[31]The similar provisions of the CJA 1988 were explained In Re X

[2004] EWHC 861 (Admin)

at paras 10-12 per Davis J. He pointed out that section 82(2) and (4) of the CJA 1988 mirrored the terms of section 31(2) and (4) of the DTA 1994. At paragraphs 20 and 23 Davis J observed that the provision of section 82(2) requiring that the courts powers should be exercised “with a view to” making available for satisfaction from any confiscation order the value of realisable property introduced “a degree of elasticity” (para 20) so that: “the court certainly is required … to take into account what in Re Peters called the “legislative steer” to the effect that the value of realisable property should be maintained with a view to making it available to satisfy any confiscation order that may be made. But it is not, in my view … a conclusive consideration in all case.” (para 23)

[32]Given that, whereas confiscation proceedings were conducted in the Crown Court, it was the High Court which had jurisdiction over the making of prior restraint orders and the subsequent enforcement of confiscation orders, and that the High Court, via the Judges of the Family Division, had jurisdiction in respect of applications and orders under the MCA 1973, it was recognised to be desirable that ancillary relief proceedings launched under MCA 1973 and any resulting application to vary the restraint order be dealt with by a single High Court Judge who was both a judge of the Family Division and a nominated judge of the Administrative Court. Guidance for best practice in such situations was handed down by Munby J after consultation with the other judges of the Family Division who were also nominated judges of the Administrative Court in W v H, and Her Majesty’s Customs & Excise

[2004] EWHC 526

[33]In that case it was stated that, as soon as it became apparent that an ancillary relief case involved conflict with the Crown in relation to contemplated confiscation proceedings, the case should be transferred to the High Court to be listed for directions together with the Administrative Court proceedings before a judge of the Family Division who was also a nominated judge of the Administrative Court. At the same time directions were to be given for the participation of the CPS or H. M. Customs & Excise and in particular for obtaining statements from them whether or not it was accepted that the wife had any, and if so what, beneficial interest in the assets claimed by her; whether or not it was accepted that she should be granted the ancillary relief sought; and whether or not it was asserted that any of the assets being claimed by her were acquired by criminal activity in which she was involved or were otherwise “tainted” by her husband’s criminal activities so far as she was concerned.

The regime under POCA

[34]A number of significant changes to the confiscation regime were effected by POCA. In particular, jurisdiction over the making of restraint orders, the appointment of receivers and the enforcement of confiscation orders is now exercised by a Judge of the Crown Court, and the jurisdiction of the High Court in this discrete area has been removed. The structure of POCA is as follows.

[35]Section 6 requires the Crown Court to proceed with the making of a confiscation order following satisfaction of the conditions set out in section 6(2) and (3). Section 6(4) deals with the matters which the court must decide at a confiscation hearing in respect of any benefit received by a defendant from his criminal conduct. In a qualifying case, the court must make a confiscation order requiring the defendant to pay the “the recoverable amount”: section 6(5). The “recoverable amount” is the defendant’s benefit from his criminal conduct, unless he shows that the “available amount” is a lesser sum: section 7. If the defendant shows that the available amount is less than the defendant’s benefit from criminal conduct, the recoverable amount is the available amount or (if the available amount is nil) a nominal amount: section 7(2).

[36]The scale of the defendant’s benefit is calculated by reference to section 8 in relation to which, if the court has decided that the defendant has a criminal lifestyle, it must make the assumptions set out in section 10. One of those assumptions is that any property held after the date of his conviction was obtained by him as a result of his general criminal conduct: section 10(3). That provision is applicable in this case.

[37]The “available amount” is determined in accordance with section 9 and this amount includes the total value of all free property held by the defendant and all “tainted gifts”: section 9(1)(b).

[38]By section 23, in a situation where the court has made a confiscation order and the defendant applies to the Crown Court to vary the order on the grounds that the available amount is inadequate for the payment of any amount payable under the confiscation order, the court may vary the confiscation order “by substituting for the amount to be paid such smaller amount that the court believes is just”: section 23 (3).

[39]Section 41 of POCA confers on the Crown Court the power to make a restraint order prohibiting any specified person from dealing with any realisable property held by him and the subsequent sections 41-60 deal with the Crown Court’s powers in relation to restraint, receivers and enforcement of confiscation orders. However, section 58 provides generally that “(5) If a court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.” Sub-section (6) provides that, before exercising any power conferred by sub-section (5), the court must give an opportunity to be heard to the applicant for the restraint order (i.e. in this case the CPS).

[40]Section 42(3) of POCA permits an application to discharge or vary a restraint order to be made to the Crown Court by the person who applied for the restraint order or any person affected by that order (such as the wife in this case).

[41]Section 69 of POCA provides the following legislative steer to courts exercising powers under sections 42-60. “(2) The powers –(a) must be exercised with the view to the value of the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been made or may be made against the defendant;

(b) must be exercised, in a case where a confiscation order has not yet been made with a view to securing that there is no diminution in the value of the realisable property…. (3) Sub-section (2) has effect subject to the following rule – (a) the powers must be exercised with a view to allowing a person other than the defendant or recipient of the tainted gift to retain or recover the value of any interest held by him…” (a) must be exercised with the view to the value of the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been made or may be made against the defendant; (b) must be exercised, in a case where a confiscation order has not yet been made with a view to securing that there is no diminution in the value of the realisable property…. (a) the powers must be exercised with a view to allowing a person other than the defendant or recipient of the tainted gift to retain or recover the value of any interest held by him…”

[42]By use of the phrase “with a view to”, the language of section 69 of POCA retains the same terminology as that which appeared in section 31 DTA 1994 and there is nothing in the wording of POCA to suggest that the meaning of those words is different, or should be applied any differently, from the interpretation of the Administrative Court in Customs & Excise v A [see paras 23-25 above]. The phrase retains such “elasticity” as to permit a diminution in the available amount and it contemplates striking an appropriate balance between the same competing public policy considerations between confiscating the proceeds of crime and making proper financial provision for a wife. For the reasons given in Customs & Excise v A, injustice may be caused by too rigid an application of the confiscation principle where the interests of an “innocent” or former spouse are concerned. Removal of the discretion of the High Court to make financial provision in such circumstances would be a substantial change in the law and the jurisdiction of the High Court and it is clear to me that the effect of MCA 1973 remains unaltered in that respect.

[43]Thus, at the time that the matter came before me, it was clear that the High Court had the power to make a property adjustment order in favour of the wife to an extent which went beyond the half share conceded by the CPS not to be tainted as the proceeds of crime.

[44]So far as concerns the representation of a third party, such as the wife in this case, in relation to confiscation proceedings in the Crown Court, there is no provision contained in POCA for representation or argument to be presented by the third party at the stage when the confiscation order is made. In this respect the position is the same as that which existed under the CJA 1988 and DTA 1994. This is because, when making a confiscation order, the Crown Court must disregard what a former wife may obtain in other proceedings over and above any interest which she holds at the time of the confiscation order is made. The mere right of the wife to apply for relief under MCA 1973 does not amount to “an interest” falling within the terms of section 69(3)(a) of POCA: see section 84(2)(f). At that stage, the Crown Court has no regard to, and makes no allowance for, any possible adverse consequences for a former spouse and her child when deciding the amount to be confiscated. The court’s function is simply to conduct an arithmetical exercise to determine the assets available for confiscation: see R v Ahmed and Qureshi (C.A.)

[2004] EWCA Crim 2599

[45]In that case Latham LJ stated:

“11. ….The court is merely concerned with the arithmetic exercise of computing what is, in effect, a statutory debt. That process does not involve any assessment, in our judgment, of the way in which that debt may ultimately be paid, any more than the assessment of any other debt. No questions therefore arise under Article 8 at this stage in the process. 12. Different considerations, will, however arise if the debt is not met and the prosecution determine to take enforcement action, for example by obtaining an order for a Receiver. As the House of Lords explained in Re Norris[2001] 1WLR 1388, this is the stage of the procedure in which third party’s rights can not only be taken into account but resolved…. It would be at that stage that the court would have to consider whether or not it would be proportionate to make an order selling the home in the circumstances of the particular case… The court would undoubtedly be concerned to ensure that proper weight is given to the public policy objective behind the making of confiscation orders, which is to ensure that criminals do not profit from their crime. And the court will have a range of enforcement options available with which to take account of the rights of third parties such as other members of the Ahmed family.”

[46]By way of contrast with the position at the stage the confiscation order is made, POCA gives a right to an affected third party make representations in relation to the making, variation etc of restraint orders and the enforcement of confiscation orders: see sections 42(3), 49(8), and 53(8). These provisions give effect to the requirement in section 69(3) to allow persons other than the defendant and the recipient of the tainted gift to retain or recover the value of his or her interests. Albeit POCA treats the function of the Crown Court at the confiscation stage as a limited one which does not involve the consideration of the practical effects of an order properly made on third party interests, if a property adjustment order is made in favour of a third party such as the wife in this case, the Crown Court must have regard to it in determining the “available amount”. Similarly, if a property adjustment order is made after the confiscation order but before enforcement, the Crown Court must, on the application of the CPS or the defendant, have regard to it in adjusting “the available amount” under section 23 of POCA.

The grounds of the application

[47]Before me, Mrs Fleischmann accepted that the existence of the wife’s unresolved application for ancillary relief did not confer any property rights upon her over and above her (conceded) 50% legal interest in the property; until it was resolved, the application was simply an invitation to the Family Court to exercise its discretion at some future time, not yet fixed, to make a property adjustment order in her favour against her husband’s interests. She also acknowledged that, under POCA, the Crown Court is obliged to make an order requiring the defendant to pay the recoverable amount which, unless or until the ancillary relief proceedings were concluded in favour of the wife would be for 50% of the proceeds of sale of the matrimonial home. She submitted that, in those circumstances, it would be unsatisfactory for the ancillary relief and the confiscation proceedings to be determined other than at the same time. Only by this means would one avoid the need for the wife, if successful, to return to the Crown Court after the making of the confiscation order, but prior to enforcement, in order to discharge the restraint order under section 42(3)(b) of POCA, in conjunction with an application by the CPS or the defendant to vary the confiscation order by substituting for the amount required to be paid (i.e. 50% of the proceeds of sale) a nominal order, or other appropriate sum.

[48]Mrs Fleischmann submitted that the necessity for such a procedure would be cumbersome and costly and could not have been the intention of the Act. She submitted that the failure of POCA to have specific regard to the interests of an innocent wife seeking an order for ancillary relief under MCA 1973 against a criminal husband and, in particular, to provide for a means whereby the application can be determined at the same time as the making of the confiscation order and the determination of the “available amount”, represents a lacuna which should be filled by adopting or adapting the procedure set out by Munby J in W v H.

Conclusion

[49]I have no doubt that the procedure adopted pre-POCA whereby, in relation to restraint and enforcement proceedings, if ancillary relief proceedings were pending, the matter was dealt with by a single High Court Judge with appropriate expertise, was a thoroughly sensible, convenient, and cost-saving procedure. However, it is equally clear to me that, the sole jurisdiction to deal with all matters of restraint, confiscation, and enforcement now resides in the Crown Court (save that the High Court is the venue for applications made by the enforcement authority for recovery orders pursuant to section 243 POCA). Thus, the Family Division of the High Court has no jurisdiction to make the order sought by Mrs Fleischmann.

[50]The procedure to be adopted in confiscation proceedings is exclusively a matter for the Crown Court and, in particular, a matter properly dealt with by the trial judge seized of the case, following which the confiscation proceedings are dealt with. The practical consequences of the course proposed by Miss Fleischmann would have a profound effect on the general conduct of criminal cases where confiscation orders are made, in particular in relation to complex drugs cases involving co-defendants and lasting weeks or months. It is essential in such cases that confiscation is dealt with by the trial judge and, wherever practicable, this course should be followed. Findings usually have to be made as to the precise role of several defendants in a case, the positions of each in the hierarchy of criminality, what drugs each was in possession of and when, and whether to apportion “benefit” as between the defendants. Such issues can only be satisfactorily resolved by the trial judge having formed a view of the case in the course of the trial and, if evidence is given in the course of the confiscation hearing, by acting as both judge of both fact and law. Only thus can there be proper consistency between the views of the judge taken at sentence and upon confiscation.

[51]Upon that basis I conclude that, even if I enjoyed the jurisdiction to do so, I would decline to make the order sought by Mrs Fleischmann.

[52]So far as this case is concerned, it was clear to me at the hearing that, with a view to saving both time and costs, it was plainly preferable that the ancillary relief application should be disposed of first. By that means, on restoration of the adjourned hearing of the confiscation proceedings in the Crown Court, His Honour Judge Kramer QC would be in a position to judge whether the amount available was 50% of the proceeds of sale, as conceded by the CPS, or required adjustment in the light of the findings of the High Court judge hearing the ancillary relief application.

[53]It was also desirable that the confiscation proceedings should take place before the earliest release date in respect of the husband, namely 20 December 2006. Accordingly, I made listing arrangements for the hearing of the wife’s application to take place on 23 August 2006 for that purpose. That hearing having taken place, the Crown Court will now be in a position to dispose of the confiscation proceedings and/or any necessary variation in the restraint order prior to the husband’s release.