Appeals - Forfeiture - Notices of hearing - Proceeds of Crime Act

R (on the application of Nashika Harrison) v (1) Birmingham Magistrates’ Court (2) Chief Constable of West Midlands: CA (Civ Div) (Lords Justices Pill, Hooper, Munby): 25 March 2011

The appellant (H) appealed against a decision refusing her permission to apply for judicial review of the decision of the first respondent magistrates’ court to make a forfeiture order under section 298 of the Proceeds of Crime Act 2002 in relation to a sum of £5,000 seized by police from her home.

On 31 January 2008 police officers arrested H at her house for alleged fraud. During their search of her house they found £5,000 in cash.

She was questioned about the alleged fraud and released on police bail. She initially told the police that the cash belonged to a friend.

She then admitted that was false and said it came from an insurance claim.

At a hearing on 29 April 2008 the magistrates’ court made a forfeiture order in respect of the cash.

H was not present at that hearing; her case was that she did not know about it because in February 2008, because of her own ill-health, she had moved in with her mother for a few months.

She claimed that in February she had given her change of address to the police officer involved in the fraud investigation, and that she received notification of the hearing only in July 2008 when she returned to her house.

In April the officer dealing with the forfeiture matter had written to her at her home address enclosing the forfeiture application; a copy was not sent to the solicitor acting for her in relation to the criminal investigation.

H claimed that she did not receive a copy of the forfeiture order.

In October 2008 she was told that she would not be charged with any offence.

She appealed against the forfeiture order to the Crown Court, which held in May 2009 that by virtue of section 299(2) of the 2002 act it had no jurisdiction to hear the appeal out of time. H then unsuccessfully sought permission to apply for judicial review.

Held: (1) Given that in interview H had given a lawful explanation for the presence of the cash and that she had a solicitor in relation to the fraud investigation, it seemed unlikely that if she had had notice of the forfeiture proceedings she would not have contested them.

The police accepted that they had no evidence to challenge H’s evidence that she had had no notice.

If there was any evidence that H had not moved out of her house or had received notice, it would probably have been found by the time of the instant hearing. She had produced evidence of her moving out of her home and in with her mother, and of her poor health at the time.

On the evidence and in light of the overly prolonged history of the case, it was right to conclude that H had not had notice of the forfeiture proceedings and the order of 29 April 2008 would be quashed.

If H was right in her denial of knowledge of the hearing then she had been the victim of a miscarriage of justice which the Court of Appeal would merely be compounding if it did not intervene; it was elementary that she had a right to be heard, R (on the application of Marsh) v Lincoln District Magistrates’ Court [2003] EWHC 956 (Admin) and R v Bolton Magistrates Court Ex p Scally [1991] 1 QB 537 QBD applied (see paragraphs 12, 44, 51, 54, 60-62 of judgment).

(2) It was a cause for concern that there was no safeguard for a person who did not know about a forfeiture hearing and only learnt about it too late to appeal to the Crown Court.

The court invited the lord chief justice to consider an amendment to the Magistrates’ Courts (Detention and Forfeiture of Cash) Rules 2002 to permit a person to show that, notwithstanding ostensible service, the purported recipient had not in fact received notice.

Pending any such amendment magistrates should be particularly prudent about continuing with an application for a forfeiture order in circumstances like the instant case in the absence of the person with a claim to the money.

If, as in H’s case, criminal proceedings were still ongoing, it might be thought worthwhile to give notice of the hearing to the solicitors dealing with the criminal case, albeit that those solicitors had not been instructed in the civil proceedings for forfeiture (paragraphs 41, 55, 56).

Appeal allowed.

James Dixon for the appellant; no appearance or representation for the first respondent; Colin Baran for the second respondent.