England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE.
QUEEN'S BENCH DIVISION
(MR JUSTICE DYSON)

		Royal Courts of Justice Strand London WC2 Wednesday, 24th January 2001

Wednesday, 24th January 2001

1. LORD JUSTICE BUXTON: This is a renewed application by Mr Kirkitar for permission to appeal from a judgment of Dyson J that was delivered as long ago as 4th February last year. A considerable question arose as to whether the application which originally came before me on paper was out of time. I should explain however that during the earlier part of the time when he was seeking to prosecute this application, Mr Kirkitar was in fact in prison, and there appears to have been some misunderstanding between him and the Civil Appeals Office as to the appropriate procedure. No doubt he was not assisted, as he pointed out to me this morning, by the conditions under which he was working. Under those circumstances, both in the paper application and today I did not think it was going to be a proper use of the Court's time to investigate further the rights and wrongs of the delay but to pass directly to the substance of the matter.
2. The application before Dyson J was to vary or discharge a restraint order made in drug trafficking proceedings by Ognall J on 8th October 1998. That order was made against a man called Howard who is awaiting trial on serious drug trafficking charges. The order included within it a prohibition of any dealing with a property 29 Court Royal, Putney, (which I, like Dyson J would refer to as "the property") which was, and I understand is, registered in the name of George William Kirkitar, which I think it is agreed is a name used by this applicant, and it is his case that the registration is in his name.
3. As a contingent part of Ognall J's order, Mr Kirkitar was prohibited from dealing in that property. Such an order is not uncommon in a case such as the present one where, whatever the applicant says, there has been difficulty in disentangling the respective interests of himself and Mr Howard in that property.
4. In June 1999 Mr Kirkitar applied for the discharge of that order on the basis that Mr Howard had no interest in the property and Mr Kirkitar's ownership of it was not related to drug trafficking. In April 1999 Mr Kirkitar himself had been sentenced to a period of five years imprisonment for conspiracy to provide cannabis and he was made the subject of a confiscation order only in the sum of £570, which I understand was the amount of cash found on his person when he was arrested.
5. In July 1999 consequent on the application already referred to, Kay J varied the restraint order so as to allow the applicant who asserts that he has always been the owner of the property to sell it, but he ordered that the proceeds of sale should be held pending further order. In his submissions to me today Mr Kirkitar makes particular complaint about the nature of that hearing before Kay J. I shall revert to that complaint later in the judgment.
6. What the applicant now seeks is an order that 50 percent of the proceeds of the sale should be released to him and the remaining 50 percent be held pending further order. The proper disposal of the proceeds of the sale, it seems to me, depends upon elucidation of the respective interests of Mr Howard and Mr Kirkitar. Dyson J took the view that on the material before him it was not possible for him to go into that question. He took the view that he had to have before him necessary evidence in order to analyse the facts and details of that property interest, and that was the conclusion that he reached in paragraph 29 of his judgment. The judge was not in a position nor was asked to deal with that at that time.
7. The main thrust of Mr Kirkitar's application before the judge was, as I understand it, two-fold. First he complained that in his various dealings with him and Mr Howard the Crown Prosecution Service had adopted inconsistent positions, that is that in the Howard proceedings it had attributed at least a substantial interest in the property to Mr Howard, whereas in the proceedings against him, Mr Kirkitar, it had asserted or accepted that Mr Kirkitar himself was the sole owner of the property. Mr Kirkitar said that indicated an abuse of process on the part of the Crown in that it was deliberately changing its story according to the convenient way in which it could best attack the particular target it had in its sights in the respective proceedings.
8. A good deal of evidence was before Dyson J in respect of that matter because in October 1999 Potts J had ordered evidence to be filed about that matter in response to the applicant's application of June 1999. Dyson J considered that evidence and concluded that although there had been inconsistency in the two applications, it was not the case on the evidence before him that, as Mr Kirkitar had asserted, there had been a deliberate plan to adopt different positions in different proceedings. The matter went no further than a matter of muddle and confusion of which (the judge pointed out) Mr Kirkitar was aware at an early stage; rather than the sort of misconduct that would found an application based on abuse of process. He did not accept that part of Mr Kirkitar's submissions. In my judgment he was entitled to come to that conclusion on the evidence before him and this Court will not go behind that finding.
9. Secondly, Mr Kirkitar argued that in his own proceedings he had asserted and accepted that he owned the whole of the property. He therefore relied on provisions of section 11 of the Drug Trafficking Act 1994 which provides that where a defendant accepts any allegation in a prosecutor's statement the Court may treat his acceptance as conclusive of the matters to which it relates. Mr Kirkitar says that he did indeed accept the contention that he owned the property. The Court accepted that and that was conclusive of that point. As Dyson J said, if that were so then an application today was bound to succeed, but it is not the case that in Mr Kirkitar's proceedings that the Court did accept that statement. That was because in those proceedings, as Dyson J pointed out, it was not necessary for the Court to go into the question of realisable assets. The confiscation order that was made was solely in the sum of £570. That was available to be fulfilled without investigating further the situation of the applicant's assets. It cannot be therefore said as a consequence of the dealings with the confiscation order on that occasion that anything said by Mr Kirkitar as to the state of the property was accepted by the Court, because the Court simply did not have to go into that matter. That contention therefore was rejected by Dyson J, who was right to do so. I am therefore of the view that there is no prospect of appealing that part of Dyson J's order for the reasons I have indicated.
10. The further matter of which Mr Kirkitar makes complaint, and which he appears to have raised with Dyson J not during the substantive exchanges but when there was a debate after judgment as to how the matter should be regulated is this. I have already referred to the application before Kay J where that judge allowed the property to be sold but issued a restraining order on the proceeds. Mr Kirkitar points out that before that hearing on 25th May 1999, the Crown Prosecution Service wrote to a Mr Bailey, who appears to have been acting in some respect for Mr Kirkitar on that occasion, saying that they were agreeable in principle to one-half of the proceeds of the sale but no more being paid over to the Metropolitan Police Organised Crime Group, that is to say they effectively agreed to the order which he sought from Dyson J.
11. When the matter came before the Kay J, Mr Kirkitar says he was not there because he was in prison. Mr Bailey sought to represent him but was not allowed by the judge to address him. According to Mr Kirkitar, the Crown Prosecution Service, for reasons that are not clear, successfully adopted a different posture before Kay J than that which they had indicated in their prior letter. Like Dyson J, I know nothing of the merits of the point and, also like Dyson J, it seems to me not possible in these particular proceedings to go into the rights and wrongs of what happened before Kay J. I fear I have to say that if complaint was to be made about that decision, it should have been made by way of an appeal in which the events occurred before Kay J. There was no material before Dyson J, it seems to me, upon which he could properly have issued the order that Mr Kirkitar seeks on the basis of complaints about the hearing before Kay J.
12. That is not a technical point but a point that makes it clear, I hope, that an appeal about the substance of this matter could only be pursued with a proper understanding of what happened before Kay J and in an appeal from that determination. That therefore is not a ground upon which this Court will allow permission to appeal from Dyson J. I am also bound to say that unless Dyson J very much misunderstood the submissions that were being made to him, it was not in fact part of Mr Kirkitar's principal case before him that he should have the relief that he sought from Dyson J because of a changed position on the part of the Crown Prosecution Service when they appeared before Kay J.
13. For those reasons therefore, which do little more than repeat what Dyson J said, I see no prospect of the Court of Appeal differing from the view of Dyson J and do not give permission to Mr Kirkitar to appeal.
(Application for permission to appeal dismissed)