Practice and Procedure


PUBLISHED December 5, 2003

An application for forfeiture of cash under s.298 Proceeds of Crime Act 2002 was not an abuse of process merely because it had been made following a refusal of an application to extend the time limit for the detention of the cash and in circumstances where there was no better evidence as to its provenance since that refusal.Application for judicial review of the decision of Burnley Magistrates' Court ('B') on 16 April 2003 that the application of the claimant ('L') under s.298 Proceeds of Crime Act 2002 for the forfeiture of cash in the sum of ?36,421 from the interested party was an abuse of process. On 8 January 2003, the cash was seized under s.294(1) of the Act on the basis that L considered that there were reasonable grounds for suspecting that it was recoverable property or that it was intended by any person for use in unlawful conduct. Since, under s.295(1) of the Act, cash so seized could only be detained initially for a period of 48 hours, on 9 January 2003, L applied for an extension of the order under s.295(2) of the Act. B refused the application. On 10 January 2003, within the 48 hour period, L made the application for forfeiture. B refused the application on the basis that it was an abuse of process as L had no better evidence as to the provenance of the cash than it had had on the s.295 application. The forfeiture application had an end in itself of detaining the cash and was a technical device to circumvent the earlier refusal of an extension of time. On this application L argued that: (i) it had been open to him, as supported by r.7(2) Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002 SI 2002/2998, to make an application for forfeiture at any time "While cash is detained under section 295"; (ii) whilst it was an effect of the application that the cash remained detained, such an application was L's only route to a forfeiture hearing; (iii) if B had made a finding of fact as to L's intention in making the s.298 application he had erred as he had not heard evidence and therefore his decision was perverse; and in any event (iv) the state of the evidence was an irrelevant factor because there was no requirement to have evidence available when an application was lodged. The evidence on an application under s.295(2) of the Act was usually hearsay evidence as to the grounds for the police's suspicions. It was at the final forfeiture hearing that direct evidence would be more likely to be available. There was therefore no inconsistency between a court not being satisfied of reasonable grounds on a s.295(2) application and L's honest and proper belief on an application under s.298 that evidence to prove forfeiture will exist by the time a final hearing took place.HELD: (1) It had been open to L to make a forfeiture application at any time during the initial 48 hour period and no such application could be an abuse of process. B's approach should have been that the detention of cash by virtue of the forfeiture application was not an end in itself but that forfeiture was a final act to which earlier steps had naturally led. (2) B had erred in drawing an inference about L's intention in making the application that had not been open to him on the facts. In any event, when dismissing the application under s.295(2) of the Act on 9 January 2003, B arguably could have, but had not, brought the 48 hour period to a close by ordering the release of the cash under s.297 on the basis that its detention was no longer justified. In those circumstances the decision would be quashed.Application allowed.