England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE HON MRS JUSTICE DOBBS DBE
DTA/100/1992

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/03/2010

Lord Justice Mummery :

1. This is a renewed application for permission to appeal from an order made by Mrs Justice Dobbs on 10 March 2008 and for an extension of time in which to appeal. The application was refused on the papers by the Rt Hon Sir Richard Buxton on 2 October 2009 on the basis that none of the grounds have any merit.
2. The applicant lodged written submissions dated 28 February 2010 and he made oral submissions by Telephone Conference to the court on 12 March 2010. He was informed at the end of the hearing that he would be notified of the decision in writing, which he agreed should be sent to his wife, Donna Saccoccia. She has acted on his behalf in making contact with the Civil Appeals Office. The applicant is currently serving a long term of imprisonment in the US Penitentiary at Big Sandy, Kentucky following convictions for racketeering and money laundering. He has a Correctional Counselor (Mr William Schull) at the Penitentiary. The applicant is in a facility which is currently in a state of ongoing institutional lock down. The fact that he is locked in his cell 24 hours a day did not, however, prevent the applicant from making uninterrupted submissions to me for 20 minutes via the Telephone Conference facility.
3. In proceedings by the United States Government and the Crown Prosecution Service (CPS) Mrs Justice Dobbs made orders for the registration of a $136m forfeiture order dated 15 May 1995 (District Court of Rhode Island Forfeiture Order) as an external confiscation order against his property (£357,500 funds in the UK, including sums withdrawn from Coutts & Co) under the Drug Trafficking Offences Act 1986 and the 1990 Order made under it. The judge granted an application, which was not opposed, for the appointment of the CPS as receiver over frozen funds in the UK in order to enforce the 1995 forfeiture order. She dismissed the applicant's application for an adjournment of the application for registration and his application for the variation in a restraint order dated 14 May 1992 (Brooke J) so as to permit the release of funds in order to pay reasonable legal fees and costs on going since 1991. At that hearing the applicant was legally represented.
4. The CPS would not agree to the release of funds on the ground that the burden is on the applicant to prove that he has no other funds. It was contended that he had not demonstrated that he had no free assets elsewhere nor had he explained what had happened to his multi-million dollar base. The applicant has appealed unsuccessfully up to the Supreme Court of the USA, which dismissed his petition for a writ of certiorari in January 2006. He has exhausted all possible avenues of appeal against his conviction. A separate forfeiture order, which was unrelated to the original 1995 Rhode Island Forfeiture Order, was made by the US District Court on 25 May 2006 in respect of property found in the FBI vault. It is the subject of a pending appeal, which could not affect the continuing effect and validity of the 1995 Order.
5. The applicant submits that the order made by Mrs Justice Dobbs violated his right to due process and procedural justice under UK law and Article 6 of the Convention. The judge had proceeded to confiscate his property without sufficient notice and without allowing him to represent himself, in the absence of a lawyer, and in not providing him with funds for legal representation when he does not have available funds and is prohibited from using US funds.
6. It is also submitted that the judge erred in proceeding while appeals challenging the forfeiture remained pending in the USA; that she applied the wrong standard in determining his application to release a portion of the restrained money to pay counsel; that the forfeiture order in the USA does not include funds in the UK; that the judge applied legislation retroactively to him; that the judge had given effect to an order which had expired in the USA; and that in 2005 the Supreme Court of the USA had declared unconstitutional the statute under which the applicant was sentenced.
7. In my judgment, the applicant's proposed appeal has no real prospect of success. The legal position established on the evidence and legal materials before the judge at a hearing, at which the applicant was in fact legally represented by Mr Robert Lawrie, who also submitted a skeleton argument, is that his conviction, sentence and the 1995 Rhode Island Forfeiture Order in the USA have not been overturned. They remain valid and are not subject to any further appeal. It is also the case that the 1995 Order covers the applicant's funds in the UK; that the applicant had adequate notice of the applications before the judge and had time in which to prepare his case; that his legal representative did not object to the appointment of the CPS as receiver of the UK funds; and that the judge was entitled to find that he had not shown that he did not have other assets elsewhere, which he could use to pay his legal fees and costs.
8. For the above reasons the applications are dismissed.