Confiscation and civil recovery of the same assets – is there an abuse of process?

In the recent case of the DPP v Bijou [2024] EWHC 2997 the Administrative Court had to wrestle with the interplay between confiscation and civil asset recovery in the context of an application to vary a Property Freezing Order (‘PFO’). That application was made after a PFO had been granted over assets which had already been assessed as being part of the Applicant’s realisable assets following the reconsideration of a confiscation order.

Part 2 of the Proceeds of Crime Act 2002 is concerned with the confiscation of assets belonging to a defendant who has been convicted of criminality where there has been assessed financial benefit. The principle behind that part of that legislation is that criminals must repay the fruits of their criminality if they are able to do so.  This includes provision under section 22 of the Act for the Crown to revisit confiscation orders where there is disparity between the benefit and what was originally paid.

Part 5 of the Proceeds of Crime Act 2002 contains provision for the Crown to recover assets from any person (whether convicted or otherwise) where those assets have been obtained through ‘unlawful conduct’. This Part not only allows for the recovery of assets but also cash and bank balances on the same principle. This Part provides for civil process using the lower standard of proof.

Mr Bijou had been convicted of fraud in 1997, 2000, 2010 and 2019. Following his 2010 convictions he had been made the subject of a confiscation order in the sum of £456,605.57. The benefit from his offending was assessed as £1.95m (a disparity of nearly £1.5m).

After he had satisfied the Order, he bought a house for £1.1m and a car for £65,000. He had also acquired approximately £500,000 in bank accounts. The Crown made a successful application under section 22 of the Act for a reconsideration of the original confiscation order up to the benefit amount of £1.95m. In June 2022, Mr Bijou paid the revised order but crucially without selling the house or the car.

In October 2022 the Director of Public Prosecutions made an application for a PFO over the house, the car and other assets amounting to some £3.5m. The PFO has been made in anticipation of a claim for a civil recovery order over those assets. It was the Applicant’s contention that the PFO ought to be varied to release the house and the car because they had already been assessed as realisable assets in the revised confiscation order. Effectively, the Crown could not have its cake and eat it, it needed to choose under which Part of the Act it wished to proceed.

The Administrative Court disagreed. In so doing it noted the statutory bar against double recovery. Pepperall J said: “Plainly Parliament intended that there might be both confiscation and civil recovery proceedings against the same individual” in reference to those specific provisions in sections 7 and 308 which make reference to it.

The difficulty for Mr Bijou was that he had chosen to discharge the confiscation order without selling the subject assets thereby leaving himself open to a claim that those retained assets had been acquired through unlawful conduct (if indeed that is the case). As Pepperall J observed: “had the defendant elected to realise the disputed assets to discharge the confiscation order, there could be no question of it being an abuse to bring civil recovery proceedings in respect of yet further assets”.

The Court concluded by observing that the High Court has a statutory duty to ensure that any civil recovery order is not incompatible with human rights.

The judgment gives a salutary lesson to practitioners to ensure that clients are properly advised about the enforcement of unpaid confiscation orders and the powers available to the Crown, both under Part 2 and Part 5, to seek to enforce against retained or after-acquired assets.

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