Harrison, R (on the application of) v Birmingham Magistrate's Court & Anor (Rev 1)

This is an appeal, with permission, against the decision of Mr John Howell QC sitting as a deputy High Court judge in the Administrative Court dated 1 July 2010. He refused the appellant, Nashika Harrison, permission to apply for judicial review to quash a decision of the Birmingham Magistrates' Court on 29 April 2008 to make a forfeiture order under section 298 of the Proceeds of Crime Act 2002 (“POCA”) in relation to the sum of £5,000 seized from 32 Kent Road, Wolverhampton.

Mr Howell granted the necessary extension of time to make the application for judicial review.

The seizure arose in the following circumstances. On 31 January 2008 the appellant was living at 32 Kent Road with her daughter. Uniformed police officers came to the house and arrested her for fraud in connection with an allegation that she had used false details to open a bank account. During the search of the house the officers found and took possession of £5,000 in £20 notes inside a bag inside a wicker box. Following her arrest she was questioned about the alleged fraud and released on police bail. As to the £5,000 she said that it belonged to a friend. The appellant admits that this was false.

She was also asked before her release about the £5,000 and the interview summary records:

DC Davis refers to the £5,000 cash in the laundry basket which Harrison states she received from Saga insurance as a result of a claim which was paid to her by cheque and she has taken out in varying amounts.

In a statement which the appellant later prepared for an (unsuccessful) appeal to the Crown Court, she explained that the £5,000 represented the proceeds of a negotiated settlement and that the money was to be used to pay for an operation which she could not get under the National Health Service. She gave an explanation as to why the money was in cash. She says that documentary evidence supporting this assertion was seized by the police at the time of her arrest. Mr Justice Ouseley on 28October 2009 wrote when giving directions:

There appears to be sound evidence to the effect that she did indeed receive such a sum for such reason.

On the day of her arrest the appellant signed a receipt for the money and DC Laming served on the appellant a form, the effect of which was that an order would be sought from a Magistrate under section 295(2) of POCA to authorise the continued detention of the £5,000. That order, which is an interim order only, was obtained ex parte on 4 February 2008. Both the receipt and the form gave the appellant’s address as 32 Kent Road.

Central to this appeal is the appellant’s evidence that she received no notice of the hearing at which the forfeiture order was made on 29 April 2008 and that if she had had notice she would have contested the application. In her application for judicial review, which contains a signed statement of truth, the appellant wrote: “I was unaware of the hearing which took place on the 29^th April”. She confirmed this in a statement dated 24 June 2010 which was also before Mr Howell.

She says that she moved from 32 Kent Road on 2 February to her mother’s address in Birmingham. She states:

On the 2^nd February 2008 DC Laming of Wednesfield Police Station was informed orally over the telephone that I was no longer residing at 32 Kent Road.  I provided him with my new address.  In addition, on 2^nd February 2008, I obtained a sick note from my GP bearing my new address and this was put in the post to DC Laming on the 2^nd February 2008.  This note is exhibited at document NH6B.  In addition I refer to my supplementary witness statement at document NH27.  I also sent an invoice from the removal and storage company which I had contracted to DC Laming.  This is exhibited at document NH8.

In a statement dated 16 July 2010 (over two years after the arrest) DC Laming denies that he was informed of a change of address. I have looked at the exhibit NH6A which appears to be an application in relation to benefit but does have the Birmingham address on it but I do not see a date on my indifferent copy. NH6B, a sick note for the period 2 February to 3 March 2008, does not contain an address and also seems to bear a much later date. NH8 does show on its face that the appellant was paying storage charges for the period 4 February to 4 June 2008. Whilst these exhibits do not necessarily support the appellant’s evidence that she notified DC Laming of her change of address, they do support her evidence that she moved out of 32 Kent Road to stay with her mother in Birmingham. We do not know the conditions of her police bail although we are told by DC Laming that she answered to her bail on May 11. It might be thought surprising that a person on police bail who answers to her bail would not have informed the police of a change of address.

The appellant also says that she informed the officer in charge of the (criminal) case, who was DC Laming, that she would be moving to stay with her family following a spell in hospital. The statement of DC Laming refers to the fact that he was informed that the appellant was in hospital for surgery.

Before us also was a statement from the appellant’s mother confirming that the appellant moved from Kent Road to her home in Birmingham, giving the date of the move as 8 February and the date of departure as June 2008.

Given that the appellant in interview gave a lawful explanation for the presence of the £5,000 it might be thought unlikely that, if she had had notice of the forfeiture proceedings and given that she had a solicitor for the criminal proceedings, she would not have contested the application.

On 14 April 2008 DC Reynolds sent to the appellant at the address 32 Kent Road a Form G application for the forfeiture of the detained cash, together, so he was to tell the Magistrates’ Court, with a letter. The application was not sent to the solicitors representing the appellant in the criminal proceedings, the appellant at this time still being on police bail. Because that application contained an error another Form G application and letter was sent on 21April. We were provided with the 14 April Form G application and it does not give a date for the hearing.

The appellant states in her skeleton argument which formed part of her judicial review application that she retuned to 32 Kent Road in July 2008 and found a letter dated 21 April “notifying me of a directions hearing listed for 29^th April at Birmingham Magistrates’ Court”. This letter will have been sent to the appellant by the Magistrates’’ Court. We do not, I believe, have a copy of that letter sent by the Court but it is interesting to note that Rule 7(4) and (5) of the Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002 (the “2002 Rules”) made pursuant to section 144 of the Magistrates’ Courts Act 1980 (Footnote: ¹) provide, as amended:

(4)

The justices' clerk shall set a date for a directions hearing, which, unless he directs otherwise, shall not be earlier than seven days from the date on which it is fixed, and the designated officer (Footnote: ²) shall notify that date to the applicant [i.e. the police officer who made the application] and to every person to whom a copy of the application is required to be sent under paragraph (3). (Emphasis added)

(5)

At the directions hearing, the court may give directions relating to the management of the proceedings, including directions as to the date for the hearing of the application.

However sub-paragraph (6) goes on to state:

If neither the person from whom the cash was seized, nor any other person who is affected by the detention of the cash, seeks to contest the application, the court may decide the application at the directions hearing.

Rule 11 of the 2002 Rules provides:

(1)

At the hearing of an application under Chapter 3 of Part 5 of the Act, any person to whom notice of the application has been given may attend and be heard on the question of whether the application should be granted, but the fact that any such person does not attend shall not prevent the court from hearing the application.

(2)

Subject to the foregoing provisions of these Rules, proceedings on such an application shall be regulated in the same manner as proceedings on a complaint, and accordingly for the purposes of these Rules, the application shall be deemed to be a complaint, the applicant a complainant, the respondents to be defendants and any notice given by the designated officer under rules 5(3), 6(4), 7(4), 8(4) or 10(4) to be a summons: but nothing in this rule shall be construed as enabling a warrant of arrest to be issued for failure to appear in answer to any such notice.

(3)

At the hearing of an application under Chapter 3 of Part 5 of the Act, the court shall require the matters contained in the application to be sworn by the applicant under oath, may require the applicant to answer any questions under oath and may require any response from the respondent to the application to be made under oath.

(4)

The court shall record or cause to be recorded the substance of any statements made under oath which are not already recorded in the written application.

The reference in Rule 11(2) to the (Form G) application being deemed to be a complaint, the applicant a complainant, the respondents to be defendants and any notice given by the designated officer to be a summons would seem on the face of it to bring section 55 of the Magistrates’ Courts Act 1980 (as amended) into play. Mr Baran suggested in argument that section 55 might not apply because of the use of the word “summons”. However section 51 provides:

Where a complaint relating to a person is made to a justice of the peace, the justice of the peace may issue a summons to the person requiring him to appear before a magistrates' court to answer to the complaint.

Section 55 is in Part 2 which is headed “Civil jurisdiction and procedure”. Section 55 is headed “Non-appearance of defendant”. Section 55 (1) and (2) provides:

(1)

Where at the time and place appointed for the hearing or adjourned hearing of a complaint the complainant appears but the defendant does not, the court may, subject to subsection (3) below, proceed in his absence.

(2)

Where the court, instead of proceeding in the absence of the defendant, adjourns, or further adjourns, the hearing, the court may, if the complaint has been substantiated on oath, and subject to the following provisions of this section, issue a warrant for his arrest.

However the power to issue a warrant is precluded by Rule 11(2). Sub-section 3 of section 55 provides:

The court shall not begin to hear the complaint in the absence of the defendant ... unless either it is proved to the satisfaction of the court, on oath or in such other manner as may be prescribed, that the summons [the notice sent by the designated officer] was served on him within what appears to the court to be a reasonable time before the hearing or adjourned hearing or ... .

It seems likely that the reference in this sub-section to the summons being served on the defendant is to be construed as a reference to it being served in accordance with any rules made pursuant to section 144 of the Magistrates’ Courts Act.

Rule 9 of the 2002 Rules provides:

Any notification or document required to be given or sent to any person under these Rules may be given by post or by facsimile to his last known address, or to any other address given by that person for the purpose of service of documents under these Rules.

At the hearing on 29 April DC Reynolds gave evidence on oath that he had sent the applications to the appellant at 32 Kent Road. He asked for the case to continue in the appellant’s absence, which the court agreed to do. The acknowledgment of service states:

... the note taken by the Legal Advisor records that DC Reynolds informed the court that as a result of the amended document being sent the claimant would have actually received two sets of correspondence.

Whilst that appears to be true, neither application contained the date of the hearing. The acknowledgment continues:

The District Judge noted that in addition to the letter sent by the police a further letter had been sent to the claimant by the court.  This letter stated that an application for the forfeiture of cash would be held before the Birmingham Magistrates Court on the 29^th April 2008.  It was sent out to the address of the claimant shown on the Form G (32 Kent Road) and was sent out on the 17^th April 2008.

The District Judge was also aware that the address of 32 Kent Road was the address from which the cash was said to have been seized.  He was therefore satisfied as to the service of documents.  The District Judge then proceeded to hear the application under Rule 7 of the Magistrates’ Courts (Detention and Forfeiture of Cash) Rules 2002.

It follows that the only document which told the appellant of the date of the hearing would have been the one sent by the designated officer and one which referred to a directions hearing. In the acknowledgment of service it is said that the court was told by the officer that 32 Kent Road was “the home and last known address” of the appellant.

According to the acknowledgment of service:

DC Reynolds ... relied upon written information in support of the police application which he confirmed and provided to the court, and in particular indicated that:

The claimant was believed to be involved in fraud by false representations. As a consequence of this, officers attended the claimant’s home address and she was later arrested. A sum of £5,000 was found in a laundry basket.

The claimant’s explanation at the time was that the money belonged to a friend, who the claimant refused to name. The claimant had later advised police that the money was from a previous insurance claim and she felt that the laundry basket was the best place for it.

The claimant had previous convictions for offences of shop theft as well as a conviction for attempting to obtain a pecuniary advantage.

The claimant’s partner was a serving prisoner convicted and sentenced for drugs offences in 2007. [The appellant disputes that this is accurate]

The claimant had been asked to provide evidence or proof regarding the source of the money. There had been no reply to this request from the claimant.

I am not aware of the evidence which supports the assertion that the appellant had been “asked to provide evidence or proof regarding the source of the money” although she may have been asked in the letter accompanying the form G.

The acknowledgment of service continues:

Having considered the evidence presented to the court, the District Judge made a forfeiture order for the sum of £5,000 including any accrued interest, having been satisfied that the money was recoverable property or intended for an unlawful purpose. In reaching this decision, he would have taken into account:

The amount of money seized and the place where it was found;

The claimant’s failure, either at the hearing or before, to provide a consistent and satisfactory explanation for the money source of the money, despite a specific request for her to do so;

Both the claimant and her partner have been involved in previous criminal activity.

As I have said, the appellant in her skeleton argument which formed part of her judicial review application states that she first learnt of the forfeiture order in July 2008:

July 2008.  I returned to Kent Road.  I found a letter dated 21^st April 2008 notifying me of a directions hearing listed for the 29^th April 2008 at Birmingham Magistrates Court.  I telephoned the court; I was told that the matter was dealt with in my absence, I asked what the outcome was; I was told that information could not be given and I should direct all my enquiries to the Police.

July 2008.  I contacted (by phone) DC Laming relative the court hearing (29-04-09) at Birmingham Magistrates Court.  I was told that the matter had been adjourned due to a delay in the CPS, who had yet to make a decision as to whether or not to charge me and what (if any) actions would be taken against me.

There is no evidence contradicting these assertions.

The appellant in her skeleton argument denies that she was sent a copy. The Rule 4(7) does provide for a copy to be sent to the person whose property has been forfeited:

(7)

An order for the forfeiture of detained cash under section 298(2) of the Act . . . and a copy of the order shall be given by the designated officer to every person to whom notice of an order made under section 295(2) of the Act in respect of the detained cash has been given and to any other person known to be affected by the order.

The appellant also states that she only learnt about the order on October 2:

On the 2^nd October 2008, I attended Wednesfield Police Station to surrender to bail on the understanding that there was no further action being taken against me.  At the police station I was informed that I would not be charged with any criminal offence.  I spoke to DC Laming who returned some documents to me together with my purse.  I asked what had happened to all of the personal property that had been seized from my home.  I was informed that his had been given to an anonymous third party.  I asked what had happened to my £5,000 in cash.  I was informed that I had “forfeited” this money.

On 20 October 2008 she instructed Rogers and Company Solicitors to act on her behalf in this matter. They contacted the police and made a number of failed attempts to reach an agreement with them. Given that no agreement had been reached, a notice of appeal to the Crown Court was filed by Rogers and Company on 26 January 2009. On 2 February 2009 leave to appeal to the Crown Court out of time against the forfeiture order was granted. On 1 May 2009, the second respondent persuaded His Honour Judge Juckes QC that the Crown Court had no jurisdiction to entertain the appeal by virtue of section 299(2) of POCA which provides, with no power to extend:

An appeal ... must be made before the end of the period of 30 days starting with the day on which the court makes the order or decision.

On the appellant’s case she did not know about the decision of 29 April until after the 30 day period had expired.

Following a period in which the appellant was very unwell, the application for permission to apply for judicial review was made on 31 July 2009. At that time the appellant was representing herself. She made a number of allegations but one of her principal allegations was that she had no notice of the 29 April hearing and that she had told DC Laming of her change of address.

The application was refused on the papers by HHJ McKenna on 26 August 2009.

On 28 October 2009 Ouseley J identified at a directions hearing that the only possible course of action for the appellant was to renew orally her application for permission to apply for judicial review on the grounds that she had told DC Laming about the change of address and therefore there had not been proper service.

By the time of the oral hearing legal aid had been granted following representations made by TyndallwoodsSolicitors and Mr J Dixon represented the appellant.

In dismissing the renewed application for permission, Mr Howell said:

The Claimant contends that she informed DC Lanning that she had changed her address. The acknowledgment of service in this case denies that the West Midlands police knew of any such change of address. Plainly I cannot resolve on this application any issue as to whether DC Lanning was or was not told of the change of address, or was or was not supplied with those documents. The issue, however, is whether the applicant for the forfeiture order DC Reynolds was aware of the change in address. On that there is no evidence.

On behalf of the Claimant, Mr Dixon says that the difference between DC Reynolds knowing and DC Lanning knowing is a technicality. One should regard the application as in effect being made by the Chief Constable or by the West Midlands Police Force.

The application in fact has to be made by a constable. It could have been made by the Chief Constable but it was not in this case. As the forfeiture order records, it was made on the application of DC Reynolds. It may be the case that DC Reynolds was not told. He appears to have given evidence on oath to the Magistrates that the documents had been served on the last known address. There is nothing to suggest that in giving such evidence, he was not telling what he believed to be the truth to the Magistrates' Court. In those circumstances, albeit with some reluctance, it seems me that it is not arguable that the notice of the application was not served in accordance with the rules.

Mr Howell also dismissed an argument that evidence of relevance was not put before the court.

The appellant applied for permission to appeal to the Court of Appeal. Sedley LJ gave permission on the papers. His concern related to the issue of the (alleged) notification to DC Laming and the effect of that on the validity of service.

During the course of the hearing we expressed concern about the lack of any safeguard if a person did not know about a forfeiture hearing and only learnt about it too late to appeal to the Crown Court. That, of course, is this appellant’s case. Mr Baran accepted that there was no safeguard unless the decision could be quashed by way of judicial review.

Both in civil and criminal law there are numerous safeguards to enable a person against whom a ruling has been made in his absence to show that he had not known about the proceedings and to have the proceedings reopened. The Magistrates’ Courts Act in those parts of the Act dealing with criminal proceedings has a specific provision to enable a defendant to show this: section 14 which is headed “Proceedings invalid where accused did not know about them”. See also section 142. My researches show the following rules applicable to civil proceedings in the Magistrates’ Court which provide for ostensible service to be proved ineffectual by the purported recipient: rule 7(1), Magistrates' Courts (Anti-Social Behaviour Orders) Rules 2002, rule 3(4), Magistrates' Courts (Foreign Travel Orders) Rules 2004, rule 3(5), Magistrates' Courts (Notification Orders) Rules 2004, rule 3(5), Magistrates' Courts (Risk of Sexual Harm Orders) Rules 2004. There are probably others. If a defendant convicted in the Crown Court showed that he had no notice of the proceedings and had not taken steps to prevent notice being given to him, it is difficult to imagine that a conviction would be upheld on appeal. The CPR also provide a number of remedies in civil proceedings where orders are made without notice.

During the course of the hearing, we drew the parties’ attention to two cases: R v Bolton Justices ex p Scally [1991] QB 537 and R (on the application of Marsh v Lincoln District Magistrates’ Court [2003] EWHC 956 (Admin).

In the second of those two cases Munby J, as he then was, looked at a great number of cases including Scally. From the cases Munby J drew a number of conclusions:

37.

In the first place, and as ex p Fox-Taylor and ex p A show, the jurisdiction is not confined to, although it is no doubt most frequently exemplified by, criminal cases where the judicial process has been distorted by some failure on the part of the prosecution. So the fact that in the present case the Justices were not exercising their criminal jurisdiction is not, of itself, any reason why a quashing order should not be made.

38.

Secondly, it is now clearly established that a conviction or other judicial finding by an inferior tribunal is amenable to quashing by certiorari even if it was obtained without unfairness by the tribunal and without malpractice by the prosecutor or other complainant: see the formulation of the issue by Watkins LJ in ex p Scally at p 547H. In an appropriate case, as Watkins LJ went on to demonstrate by reference to the authorities I have mentioned, the jurisdiction is exercisable even if the tribunal has behaved with complete propriety – which is, after all, the characteristic feature of all these cases – and, more to the point, even if there has been no fraud, collusion, perjury, bad faith or dishonesty on the part of the prosecutor or complainant.

39.

Thirdly, certiorari can in principle go if there has been an irregularity producing an unjust or potentially unjust result. This is best exemplified by ex p Scally and ex p A, two of the cases to which Mr Giffin very properly took me.

40.

In ex p Scally at p 549G Watkins LJ described what had gone wrong: “I would regard the mischief here as arising from a regrettable failure, in the police stores or other place under the control of the police, to take the simple precaution of ascertaining whether, having regard to the use for which the swabs were intended, [the] swabs were … suitable … It was as simple and unfortunate as that … it is not suggested that dishonesty entered this affair at any stage.” Quashing the conviction he said at p 556C: “What happened here was that, there being no dishonesty, the prosecutor (a combination of police and CPS) corrupted the process leading to conviction in a manner which was unfair, for it gave the defendants no proper opportunity to decide whether to plead guilty or not guilty; indeed it wrongly denied them a complete defence to the charge.”

41.

Previously, at p 554H, Watkins LJ had held that “irregularity” in this context was not confined to fraud. “Grounds other than fraud or collusion can obviously, … providing they are analogous to such conduct, be regarded as irregularities at the trial as ex p Hawthorn, ex p Khanna and ex p Goonatilleke show.” Hutchison J said much the same thing at p 557D: “I do not consider that … we are improperly extending or distorting that special category of cases, analogous to fraud, and exemplified by the decision in Hawthorn’s case [1979] QB 283, where relief is available even in the absence of error or misconduct by the tribunal. It is clear … that it can include cases of unfairness in the conduct of the proceedings because of a failure on the part of the prosecutor, even where there has not in fact been fraud or dishonesty. It seems to me that the present cases are readily to be accommodated within that special category”.

42.

In ex p A Lord Slynn of Hadley referred at p 343G to what had happened: “It is not suggested that the officer gave her inaccurate evidence deliberately, let alone fraudulently. Yet it is plain that in a matter of crucial importance, the board was led to proceed on evidence which was wrong and they did not have the true facts.” Quashing the decision Lord Slynn continued at p 345C: “I … decide the matter on the … basis … that what happened in these proceedings was a breach of the rules of natural justice and constituted unfairness. It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness.” He concluded at p 347A: “I consider therefore that, on the special facts of this case and in the light of the importance of the role of the police in co-operating with the board in the obtaining of evidence, there was unfairness in the failure to put the doctor’s evidence before the board and if necessary to grant an adjournment for that purpose. I do not think it possible to say here that justice was done or seen to be done.” Agreeing, Lord Nolan referred at p 348B to what he called “the appearance of unfairness”. Lord Hobhouse of Woodborough said at p 348D: “There was an inadequate observance of the principles of natural justice.”

43.

As Mr Giffin correctly pointed out, Lord Nolan recognised at p 348B that the House was taking an “exceptional course” in ex p A. Properly Mr Giffin also took me to the passages in ex p Bates where Buxton J said that “the standard that this court has laid down for considering such applications is an extremely stringent one” and, referring to “this very exceptional jurisdiction”, said that “one should look for cases that can properly be described as being analogous to fraud, or where there has been a serious error on the part of the prosecutor.”

44.

I do not dissent from any of that. But such observations have to be put in a context which was, as it seems to me, best expressed by Watkins LJ in ex p Scally. Having acknowledged at p 555C “how necessary it is to recognise clearly the principle we have to observe and how careful this court must be in its application in any particular case”, he continued with these important words: “At the same time the overriding principle, in my view, must surely be that justice should be done and if it be demonstrated that another principle rigidly applied is or would seem to be getting in the way of doing justice, the bounds of that principle require to be very critically examined in a modern light and without the so often deployed floodgates argument being given undue prominence. That is not to suggest that the principle is lightly to be thrust aside in order to cure a glaring injustice, however great the temptation may be. It is to assert that instances of the proper application of the principle are various and are more likely than not to increase in that respect.” I respectfully agree.

45.

And at the end of the day there is the simple statement of principle by Lord Slynn: “It does not seem to me to be necessary to find that anyone was at fault … It is sufficient if objectively there is unfairness.”

Having read the two cases which we showed the parties, Mr Baran conceded that the application for permission was arguable. Following this concession we said that permission would be granted.

He seemed to accept that if the appellant had had no notice of the proceedings then the court would be entitled to quash the order of 29 April. He did point to what Buxton J said in Bates (see paragraph 43 of the quotation from Marsh). I agree with what Munby J had to say about that.

In my view, if the appellant had had no notice of the proceedings, then the court, on the facts of this case, should quash the order of 29 April. It might be different if she was taking steps to prevent notice being given to her, but that is not this case.

Mr Baran asked for the matter to be remitted to the Administrative Court for the issue of notice to be resolved. He accepted that he had no evidence to challenge the appellant’s evidence that she had had no notice of the application. I accept that permission was granted by us and that the live issue in the court below was whether she had told DC Laming that she had changed address. But nonetheless if there was any evidence that she had not moved out of the house or had received the notice of the hearing, then one would have expected it to have been found by now.

As I have pointed out, the only notice of the hearing that the appellant would have received at 32 Kent Road was the notice which, according to the second respondent, was sent out to her at that address. It will be remembered that the appellant stated that in July on returning to 32 Kent Road:

I found a letter dated 21^st April 2008 notifying me of a directions hearing listed for the 29^th April 2008 at Birmingham Magistrates Court.

Mr Dixon offered to call the appellant, who was present at the hearing, to give evidence. We declined that offer.

The appellant has certainly produced evidence of moving out of Kent Road and moving in with her mother and there is evidence of her state of health being bad – she was in hospital for part of this time.

It is unusual for a court considering judicial review to permit oral evidence.

In my view we do not need to resolve whether the appellant told DC Laming about the change of address. If she had done so, that could provide a further reason for exercising the jurisdiction discussed by Munby J in Marsh (as well perhaps as supporting the proposition that service was not effected on the defendant’s last known address).

In my view we should, on the papers before us and in the light of the overly prolonged history of this case, conclude now that the appellant had no notice of the proceedings and quash the order of 29 April 2008. The £5,000 remains with the police and, if the police wish to retain the money, then the right to detain the money can presumably be determined afresh in the Magistrates’ Court.

In conclusion I would invite the Lord Chief Justice (Footnote: ³) 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 I would invite Magistrates to be particularly prudent about continuing with an application for a forfeiture order in circumstances like the present in the absence of the person with a claim to the money. If, as in this case, criminal proceedings are 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 (as in this case) had not been instructed in the civil proceedings for forfeiture.

In the present case the magistrate took into account that the appellant “was believed to be involved in fraud by false representations”. Some six months later the appellant was told that no proceedings would be taken against her for this fraud. It might be thought prudent in a case where the court intends to rely on the fact that the defendant is believed to be involved in a criminal offence to adjourn the forfeiture proceedings until the outcome of any criminal proceedings is known.

For all these reasons I would quash the order of 29 April 2008.

I agree.

I have to say that I find this a very plain and obvious case. If the appellant is right when she says that she knew nothing of the crucial hearing, then the simple fact is that the State has confiscated what she says is her property in circumstances which can now be seen to have denied her the due process of the law in breach of the most elementary principle of natural justice, the right to be heard. The principle of audi alterem partem, that no man or woman is to be condemned unheard, is one of the oldest rules of our administrative law. It goes back at least four centuries, for it is to be found in Boswel’s Case (1606) 6 Co Rep 48b and Bagg’s Case (1615) 11 Co Rep 93b. If the appellant is right in her denial of knowledge of the hearing, then she has been the victim of a miscarriage of justice, a miscarriage of justice which we would merely be compounding if we did not intervene. As I commented in ex parte Marsh at [50]:

“Mr Marsh was denied a fair trial. Justice was not done. It is the historic and vital function of [the Administrative] court when exercising its supervisory jurisdiction over Justices to ensure, if not that justice is done, at the very least that demonstrated injustice is not allowed to continue uncorrected.”

The case-law which I analysed in ex parte Marsh, in particular the judgment of Watkins LJ in R v Bolton Justices ex p Scally [1991] QB 537 and the speech of Lord Slynn of Hadley in R v Criminal Injuries Compensation Board ex p A [1999] 2 AC 330, demonstrates that the jurisdiction which is here invoked is exercisable even if the tribunal has behaved with complete propriety and even if there has been no misconduct or misbehaviour on the part of the prosecutor or complainant. As Lord Slynn said in ex p A at 345:

“It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness.”

So the question is whether the appellant makes good the factual premise on which her case is based. As to that I agree with my Lord’s analysis. Her denial of knowledge of the hearing is not merely supported by significant corroborative material; it has not, hitherto, ever been put specifically in issue by the police. Mr Baran does not assert that he has any material on which to cross-examine the appellant. Why, in these circumstances, should we remit the case to the Administrative Court to enable Mr Baran to go on a fishing expedition in the hope, Micawber like, that something may turn up? I can think of no good reason. The order should be quashed.

I have read the judgment of Lord Justice Pill in draft. I agree with it.

I agree. I add only express support for paragraphs 53 and 54 of the judgment of Hooper LJ.

For the reasons Hooper LJ gives, liaison between the officers involved in the criminal proceedings and those involved in the forfeiture proceedings should be maintained. Defendants cannot be expected always to know that the proceedings are distinct and that different branches of the constabulary may be dealing with each of them. If the appellant did tell DC Laming of her change of address, or if he otherwise came to know of her change of address (and I make no finding on either issue), he should have told the Financial Investigation Team of the change. Defendants may not know that different officers, who may be in different teams in the constabulary, are involved.

Such liaison in this case, whether or not it was required in law, would probably have saved substantial public funds. I repeat what I said in similar circumstances in R v Payton [2006] EWCA Crim 1226, at paragraph 31. Liaison between police acting in forfeiture proceedings and the prosecuting authority is essential.