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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Singh v Director of the Assets Recovery Agency [2005] EWCA Civ 580 (17 May 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/580.html Cite as: [2005] EWCA Civ 580, [2005] 1 WLR 3747 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr JUSTICE McCOMBE
Strand, London, WC2A 2LL |
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B e f o r e :
VICE-PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
LORD JUSTICE LATHAM
and
LORD JUSTICE LLOYD
____________________
SATNAM SINGH |
Appellant |
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- and - |
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DIRECTOR OF THE ASSETS RECOVERY AGENCY |
Respondent |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
David Perry & Mark Sutherland-Williams (instructed by The Treasury Solicitor) for the Respondent
____________________
Crown Copyright ©
Lord Justice Latham :
"243 Proceedings for recovery orders ..
(1) Proceedings for a recovery order may be taken by the enforcement authority in the High Court against any person who the authority thinks holds recoverable property
."
"266 Recovery orders.
(1) If in proceedings under this Chapter the court is satisfied that any property is recoverable, the court must make a recovery order.
."
"304 Property obtained through unlawful conduct.
(1) Property obtained through unlawful conduct is recoverable property.
."
"241 "Unlawful conduct"
(1) Conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part.
."
"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.
"
"Property is not recoverable if it has been taken into account in deciding the amount of a person's benefit from criminal conduct for the purpose of making a confiscation order, that is
(a) an order under section 6, 92 or 156, or
(b) an order under a corresponding provision of an enactment mentioned in section 8(7)(a) to (g),
and, in relation to an order mention in paragraph (b), the reference to the amount of a person's benefit from criminal conduct is to be read as a reference to the corresponding amount under the enactment in question."
"A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement."
"(1) The Director must exercise his functions in the way which he considers is best calculated to contribute to the reduction of crime.
(5) In considering under sub-section (1) the way which is best calculated to contribute to the reduction of crime the Director must have regard to any guidance given to him by the Secretary of State.
(6) The guidance must indicate that the reduction of crime is in general best secured by means of criminal investigations and criminal proceedings."
"The Home Office proposals envisage the powers being used where there is strong evidence of the criminal origins of the property, but insufficient evidence for criminal conviction of the owners."
"The introduction of civil forfeiture must not perversely affect the priority of law enforcement activity, i.e. the prosecution and conviction of criminals. It is imperative that it is not used as a substitute for criminal proceedings where there is a reasonable chance of securing conviction. And performance measures for civil forfeiture must not drive the system to pursue a civil route for high value cases regardless of the additional benefits of following the criminal route. There should be a rigorous process to determine the reasons why a criminal prosecution was not appropriate before civil forfeiture proceedings alone are instigated."
"Where a criminal conviction has been obtained, the Secretary of State considers that criminal confiscation of the proceeds of crime will best contribute to the reduction of crime."
"If a case is to be considered for adoption for civil recovery, it must meet the following criteria:
? Criminal prosecution must have been considered and either failed or proved impossible to complete
....."
"The powers conferred by this Part" (which is the Part with which we are concerned) "are exercisable in relation to any property (including cash) whether or not any proceedings have been brought for an offence in connection with the property."
"If
(a) property has been taken into account in deciding the amount of a person's benefit from criminal conduct for the purpose of making a confiscation order, and
(b) the enforcement authority subsequently seeks a recovery order in respect of related property,
the confiscation order is to be treated for the purposes of this section as if it were a recovery order obtained by the enforcement authority in respect of the property referred to in paragraph (a)"
"The court is not to make a recovery order if it thinks that the enforcement authority's right to recover the original property has been satisfied by a previous recovery order or order under section 276."
Lord Justice Lloyd:
Lord Justice Brooke: