QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE THE MATTER OF P||Claimant|
|THE CRIMINAL JUSTICE ACT||Defendant|
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MR J KINNEAR (instructed by RCPO) appeared on behalf of the Crown
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Applicable Legal Principles
Section 77(1) of the Criminal Justice Act provides:
"The High Court may by order [...] prohibit any person from dealing with any realisable property..."
Section 74(1) of the Act defines "realisable property" as:
"(a) any property held by the defendant; and
"(b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Part of this Act."
Restraint orders, whether made under the Drug Trafficking Act 1994 or the Criminal Justice Act 1988, fulfil a similar purpose to freezing orders under Part 25 of the CPR. The question for the court is whether there is a "good arguable case" that the property in question is either "held" by the defendant or constitutes a "gift" by him.
"(a) the circumstances in which the defendant is to be treated as making a gift include those where he transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the defendant, and
"(b) in those circumstances, the preceding provisions of this section shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in paragraph (a) above bears to the value of the consideration provided by the defendant."
In other words, if the defendant transfers property for half its true value, he is to be treated as making a gift of the other half.
"Subject to the following provisions of this section, for the purposes of this Part of this Act, the value of property (other than cash) in relation to any person holding the property --
"(a) where any other person holds an interest in the property is --
"(i) the market value of the first-mentioned person's beneficial interest in the property, less
"(ii) the amount required to discharge any incumbrance (other than a charging order) on that interest; and
"(b) in any other case, is its market value."
The ascertainment of the value of a gift is specified in sections 74(7) and (8) of the Criminal Justice Act 1988:
"(7) Subject to subsection (12) below, references in this Part of this Act to the value at any time (referred to in subsection (8) as 'the material time') of a gift caught by this Part of this Act are references to --
"(a) the value of the gift to the recipient when he received it adjusted to take account of subsequent changes in the value of money; or
"(b) where subsection (8) below applies, the value there mentioned, whichever is the greater.
"(8) Subject to subsection (12) below, if at the material time he holds --
"(a) the property which he received (not being cash); or
"(b) property which, in whole or in part, directly or indirectly represents in his hands the property which he received;
"the value referred to in subsection (7) above is the value to him at the material time of the property mentioned in paragraph (a) above or, as the case may be, of the property mentioned in paragraph (b) above so far as it so represents the property which he received, but disregarding any charging order."
Assessment of the witnesses
The value of the plots on which 1 and 2 Woolston Manor Cottages now stand when they were acquired by James and Darren
The defendant's evidence and what Theresa Calvey said to the VAT inspector --