Re G [2019] EWHC 1737 (Admin)

In Re G [2019] EWHC 1737 (Admin), Mr Justice Mostyn granted an application for a certificate of inadequacy under section 83 of the Criminal Justice Act 1988, finding that the applicant was unable to pay any part of a confiscation order standing at over £1.3 million.

The applicant had been convicted in March 2005 of serious immigration offences, specifically relating to false marriages in India involving highly vulnerable and exploited women. She was convicted of two offences by jury verdict and pleaded guilty to two further offences, receiving a total custodive sentence of eight years. On 5 June 2006 a confiscation order was made against her under section 71 of the 1988 Act in the sum of £849,300. With accrued interest at approximately £150 per day, the outstanding sum had reached £1,352,911.10 by the time of the application. The applicant had been making payments of £20 per month towards the debt, derived from social security benefits for herself and her seriously impaired son.

Following conviction a restraint order had been made over the applicant’s assets, reciprocally enforced in India in respect of two bank accounts at the State Bank of Bikaner & Jaipur and IDBI Bank, both in Chandigarh. Those accounts were never believed to contain more than approximately £7,000. A receiver had been appointed but achieved no success in realising the sums, and in about 2015 the Crown consented to discharge of both the receivership and restraint orders. The magistrates had also accepted that in view of the passage of time it would be an abuse to imprison the applicant for failure to discharge the confiscation order, such that the order had acquired a largely abstract or symbolic character save for the modest monthly payments being made.

The confiscation order of £849,300 had been calculated by reference to visible sums within the jurisdiction, which were computed and subtracted from a figure representing the overall benefit from criminality, leaving £503,000 attributed to assets hidden in India. Those assets comprised bank accounts containing, on the direct evidence, only about £7,000, and agricultural land and property about which there was virtually no evidence beyond a passing remark of ownership made by the applicant during her criminal trial in early 2005. The properties and land had never been identified, their formal title had never been identified, and their realisability had never been established.

The Crown opposed the application, contending that the applicant had failed to discharge the burden of demonstrating that she did not have adequate means to pay all or part of the sum due. Mr Justice Mostyn addressed the applicable standard of proof, noting that under section 83 of the 1988 Act the burden lay on the applicant to satisfy the court to the normal civil standard of the balance of probabilities that the realisable property was inadequate for payment of any amount remaining under the confiscation order. He acknowledged that some authorities had suggested that, given the applicant was ex hypothesi a criminal whose credibility had been impeached, the burden would only be discharged by clear and cogent evidence, but he cautioned against adopting that approach too literally lest it tacitly elevate the standard of proof. He emphasised that the applicant had to demonstrate by relevant admissible evidence that it was more likely than not that she lacked the means to discharge the sum due or any part of it.

The judge was satisfied that the applicant’s attempts to identify the sums in the Indian bank accounts, evidenced by letters at tab 11 of the bundle, were reasonable and proportionate and that she could not have been expected to do more. He observed that the court could take notice of the fact that assets in India, if they existed, would likely be held under the arrangement of the Hindu Undivided Family and would be well-nigh impossible to realise without the cooperation of other family members, which would be doubly difficult given that the applicant’s parents had both died comparatively recently. In relation to the land and property, Mr Justice Mostyn noted that the applicant was almost being asked to prove a negative and that, whilst she might be the author of her own misfortune by having apparently confirmed ownership during her trial, nothing that had happened since demonstrated that these assets actually existed in the real world.

Mr Justice Mostyn held that he was satisfied on the balance of probabilities, that is to say more likely than not, that at the present time and on the present state of the evidence the applicant did not have the means to discharge any part of the sum due under the confiscation order. He went further and found that she could not reasonably be expected to pay £20 per month from her benefits towards the sum. He observed that this was a drop in the ocean and that the court could take notice that benefits were provided to meet essential subsistence needs, which did not extend to discharging a confiscation order in excess of £1.3 million.

The judge recorded a concession made by Mr Di Francesco, counsel for the applicant, that were the applicant to be the beneficiary of an adventitious windfall such as a lottery win or inheritance, the finding expressed in the certificate of inadequacy would not prevent appropriation of those funds towards the confiscation order. Mr Justice Mostyn emphasised that the certificate of inadequacy did not extinguish the confiscation order but was simply a statement, on the present evidence, of what the applicant could realise to put towards it. Similarly, it was accepted that were it to transpire that the applicant could in fact access funds in India, the certificate would not operate to prevent appropriation of those funds towards the sum due.

In short, Mr Justice Mostyn granted the application for a certificate of inadequacy, finding that on the balance of probabilities the applicant lacked the means to discharge any part of the confiscation order, subject to the proviso that the certificate would not prevent appropriation of any future windfall or subsequently discovered assets towards the outstanding sum.