QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MORGAN||(CLAIMANT)|
|JUSTICES OF DYFED POWYS MAGISTRATES' COURT||(DEFENDANT)|
Smith Bernal Wordwave Limited
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"... the evidence at the end of the day was in a very confused state as to precisely what the source of this money was, and on any view there was no clear evidence that it was the proceeds of the crime."
Accordingly, there was no power to deprive the nephew of that sum.
"Where any property has come into the possession of the police in connection with their investigation of a suspected offence, a court of summary jurisdiction may, on application either by an officer of police ... or by a claimant of the property, make an order ... for the delivery of the property to the person appearing to the magistrate or court to be the owner ... thereof, or, if the owner cannot be ascertained, make such order with respect to the property as to the magistrate or court may seem meet."
The claimant submits that the magistrates erred in law in reaching the conclusion that they did and that, on a proper analysis of the matter, they ought to have concluded that the property belonged to him.
"... the court should not, in my view, countenance expropriation by a public authority of money or property belonging to an individual for which there is no statutory authority."
Having then set out various statutory provisions which may lead to the confiscation of property, he said this:
"I recognise that there may be circumstances where for a variety reasons a prosecution may not take place. But that does not, in my view, justify expropriation by means of a defence to a civil claim for return of money which has been seized from persons who are not convicted. It is one thing to prosecute to conviction and to take positive steps authorised by statute to confiscate the proceeds of crime from the convicted defendant. It is quite another to resist the claim of an innocent person by asserting some or all of the ingredients of what might have been a prosecution; or to effect confiscation in this way from a convicted person against whom statutory confiscation machinery has not been used."
His Lordship held that in circumstances where the claimant was entitled to possession, he could assert that title as against the police, and in those circumstance the police had no right to withhold the property from him. At paragraph 448 C, he says this:
"As to entitlement to possession, there is an instructive analysis in the decision of the Supreme Court of Victoria in Field v Sullivan  VLR 70. The essence of an extended passage in the judgement of Macfarlan J, at pp 84-87, is that if goods are in the possession of a person, on the face of it he has the right to that possession. His right to possession may be suspended or temporarily divested if the goods are seized by the police under lawful authority. If the police right to retain the goods comes to an end, the right to possession of the person from whom they were seized revives. In the absence of any evidence that anybody else is the true owner, once the police right of retention comes to an end, the person from whom they were compulsory taken is entitled to possession.
"Roy Webb's entitlement to possession of the money which he claims was in issue in his proceedings. But the basis of the Chief Constable's case was that Roy Webb was not the true owner because the money was the proceeds of drug trafficking. The contention that the Chief Constable was entitled to retain the money until the true owner was found was, as I have said, fanciful. What was not in issue was that, apart from drug dealing, Roy Webb was entitled to possession of the money. The assistant recorder did not deal with this, because it was not in issue. No one else claimed to be entitled to the money. Specifically Colin Webb had disclaimed any entitlement. The fact that the assistant recorder rejected Roy Webb's evidence about the loan from Mr Harrison is not in point, since Roy Webb did not have to establish where the money came from. The evidence about the loan was in attempted opposition to the Chief Constable's case about drug dealing, which was not itself a defence to the claim. In my judgement, there is no proper basis for remitting the question of entitlement to possession in Roy Webb's case for further consideration. I would accordingly allow his appeal."