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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Assets Recovery Agency, R (on the application of) v He & Anor [2004] EWHC 3021 (Admin) (07 December 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/3021.html Cite as: [2004] EWHC 3021 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF THE DIRECTOR OF THE ASSETS RECOVERY AGENCY | (CLAIMANT) | |
-v- | ||
JIA JIN HE | (FIRST RESPONDENT) | |
- and - | ||
DAN DAN CHEN | (SECOND RESPONDENT) |
____________________
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR R DE MELLO (instructed by David Tang & Co) appeared on behalf of the CLAIMANT
MR A BIRD (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
____________________
Crown Copyright ©
"(1) This Part has effect for the purposes of --
"(a) enabling the enforcement authority to recover, in civil proceedings before the High Court or Court of Session, property which is, or represents, property obtained through unlawful conduct,"(b) enabling cash which is, or represents, property obtained through unlawful conduct, or which is intended to be used in unlawful conduct, to be forfeited in civil proceedings before a magistrates' court or (in Scotland) the sheriff.
"(2) The powers conferred by this Part are exercisable in relation to any property (including cash) whether or not any proceedings have been brought for an offence in connection with the property."
"(1) An interim receiving order may authorise or require the interim receiver --
"(a) to exercise any of the powers mentioned in Schedule 6."(b) to take any other steps the court thinks appropriate,
"for the purpose of securing the detention, custody or preservation of the property to which the order applies or of taking any steps under subsection (2).
"(2) An interim receiving order must require the interim receiver to take any steps which the court thinks necessary to establish --
"(a) whether or not the property to which the order applies is recoverable property or associated property."(b) whether or not any other property is recoverable property (in relation to the same unlawful conduct) and, if it is, who holds it.
"(3) If --
"(a) the interim receiver deals with any property which is not property to which the order applies, and"(b) at the time he deals with the property he believes on reasonable grounds that he is entitled to do so in pursuance of the order
"the interim receiver is not liable to any person in respect of any loss or damage resulting from his dealing with the property except so far as the loss or damage is caused by his negligence."
"(5) The first condition is that there is a good arguable case --
"(a) that the property to which the application for the order relates is or includes recoverable property, and"(b) that, if any of it is not recoverable property, it is associated property."
"(6) The second condition is that, if --
"(a) the property to which the application for the order relates includes property alleged to be associated property, and"(b) the enforcement authority has not established the identity of the person who holds it
"the authority has taken all reasonable steps to do so."
"(1) A judge may, on an application made to him by an appropriate officer, make a production order if he is satisfied that each of the requirements for the making of the order is fulfilled.
"(2) The application for a production order must state that --
(a) ..."(b) property specified in the application is subject to a civil recovery investigation.
"(3) The application must also state that --
"(a) the order is sought for the purposes of the investigation;"(b) the order is sought in relation to material, or material of a description, specified in the application;"(c) a person specified in the application appears to be in possession or control of the material.
"(4) A production order is an order either --
"(a) requiring the person the application for the order specifies as appearing to be in possession or control of material to produce it to an appropriate officer for him to take away, or"(b) requiring that person to give an appropriate officer access to the material
"within the period stated in the order."
"(5) In considering under subsection (1) the way which is best calculated to contribute to the reduction of crime the Director must have regard to any guidance given to him by the Secretary of State."
"(6) The guidance must indicate that the reduction of crime is in general best secured by means of criminal investigations and criminal proceedings."
"(3) The court or sheriff must decide on a balance of probabilities whether it is proved --
"(a) that any matters alleged to constitute unlawful conduct have occurred, or"(b) that any person intended to use any cash in unlawful conduct."
"(1) A person obtains property through unlawful conduct (whether his own conduct or another's) if he obtains property by or in return for the conduct."
"... property of any of the following descriptions (including property held by the respondent) which is not itself the recoverable property --
"(a) any interest in the recoverable property,"(b) any other interest in the property in which the recoverable property subsists,"(c) if the recoverable property is a tenancy in common, the tenancy of the other tenant,"(d) ..."(e) if the recoverable property is part of a larger property, but not a separate part, the remainder of that property."
"(1) The interim receiver, any party to the proceedings and any person affected by the action taken by the interim receiver, or who may be affected by any action proposed to be taken by him, may at any time apply to the court for directions as to the exercise of the interim receiver's functions."
"The court may at any time vary or set aside an interim receiving order."
"(1) If the court decides that any property to which an interim receiving order applies is neither recoverable property nor associated property, it must vary the order so as to exclude it.
"(2) The court may vary an interim receiving order so as to exclude from the property to which the order applies any property which is alleged to be associated property if the court thinks that the satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct will not be prejudiced.
"(3) The court may exclude any property within subsection (2) on any terms or conditions, applying while the interim receiving order has effect, which the court thinks necessary or expedient."
"(1) Property obtained through unlawful conduct is recoverable property."
"(2) But if property obtained through unlawful conduct has been disposed of (since it was so obtained), it is recoverable property only if it is held by a person into whose hands it may be followed.
"(3) Recoverable property obtained through unlawful conduct may be followed into the hands of a person obtaining it on a disposal by --
"(a) the person who through the conduct obtained the property, or"(b) a person into whose hands it may (by virtue of this subsection) be followed."
"38. The witness statements set out evidence concerning the Defendants [that is Mr He and his wife] -- at its most basic level the evidence shows:
"Assets well beyond the apparent legitimate means of the parties.
"Throughput well beyond the declared legitimate income of the Defendants.
"The use of companies to hold assets.
"Links between [Mr] HE and human trafficking, including a foreign (Greek) conviction.
"The involvement of [his wife] as a director of companies.
"A turnover on a large scale both historically and continuing to date.
"That turnover commences as cash made in numerous deposits in different places on a daily basis.
"A mixing and consolidating of that cash in various accounts, ultimately leading to transfer abroad."
"5.7 The police alleged that [Mr] HE, through Futsing Finance Limited, operated a series of money collectors nationwide to gather money from illegal Chinese immigrants in their locality. These funds are believed to be for the repayment of the facilitation of their human trafficking into the United Kingdom.
"5.8 I understand that the cost for a Chinese person to be smuggled into the United Kingdom is several thousand pounds. The system in place is that part of this fee is paid in China by friends and family, the balance is paid in the United Kingdom to be returned to China. The Chinese immigrants are found employment in various Chinese businesses around the UK, mainly in the catering trade. Their wages fund the repayment.
"5.9 The network of collectors pay cash deposits into the bank accounts controlled by [Mr] HE or of Futsing Finance Limited at various banks around the United Kingdom. Several deposits are made daily. The funds are consolidated on a daily basis and payments are made to overseas accounts."
"I believe that the above identified assets are recoverable property for the following reasons:
"i. The underlying alleged offences are acquisitive crime and as such the Respondents could be expected to receive personal gain from being involved in these offences;"ii. The activities of Futsing Finance Limited give me cause to believe that it is being used for transmitting or laundering the proceeds of crime. High volumes of cash are received on a daily basis with the ultimate destination of these funds being, in the main, China."iii. The evidence currently available to me suggests that the funds consist, or largely consist of payments made by illegal immigrants back to organisers in China."iv. On any view it seems highly improbable that these funds represent legitimate taxed earnings."v. The business of Futura Management Limited [that is another company effectively run by Mr He and his wife] is not making the appropriate returns to the Inland Revenue, although PAYE does appear to be being paid. That said their declarations to the HM Customs and Excise are up to date but in this instance the company is receiving repayments of VAT. As described above it appears this company is in receipt of funds beyond that which they are declaring certainly to HM Customs and Excise. Some of these funds follow the same route to China as those funds that go via Futsing Finance Limited."vi. It is undoubtedly the case that Futura Management Limited carries on an otherwise legitimate meat supply business, however it also appears to have a function for transmitting or laundering receipts into its bank accounts."
"35. The Applicant and the Receiver have had more than three months to investigate into my affairs under the Proceeds of Crime Act 2002. Any prolonging of what has been proven as a fruitless investigation would cause irreparable damage to Futsing Finance and all my other legitimate businesses. I have had to borrow heavily at high interest rates and costs to help continue my businesses since my assets have been placed under Receivership. My wife, children and staff who rely on me for their livelihood and welfare have also suffered immense distress which can only get worse the longer this investigation continues due to the uncertainties and disproportionate interference it has brought about for my family and businesses. In about August 2004, my family and I had been denied access to our family home ... for about six weeks as the Receiver was investigating into this property. We had to seek alternative makeshift accommodation with friends/families or at our office premises. This has caused immense hardship for my children who have had to endure overcrowded accommodation during some of the hottest weather spells.
"36. The National Crime Squad (NCS) have previously investigated the same matters that the Applicant and the Receiver are now investigating. After a thorough investigation lasting about half a year, NCS have cleared me of any involvement in criminal conducts under the MLR and money laundering legislations. All monies that had been seized in this investigation had been returned with interest by NCS and on 23rd July 2001, NCS wrote to my solicitor acknowledging a 'pleasant and professional' approach from my part in dealing with their investigation.
"37. No adverse comments had been made by the NCS about my businesses during or following the conclusion of their enquiries in 2001. This led me to believe that I could continue with my businesses unchanged and I did so believing my businesses were proper, up to date and lawful. At the conclusion of the NCS investigation, I was approached by the UK government/police to assist with their investigations into crimes concerning Chinese people in the UK."
"Approximately 47.33% of sampled clients were successfully contacted, of whom 28.57% provided partial explanations, 2.26% were able to offer satisfactory explanations or offered to provide further details on request and 69.17% either declined to comment further or were not able to offer satisfactory explanations as to the source or destination of the funds. Of the 92 classified as providing an unsatisfactory explanation, 38 either refused to disclose any details or denied ever having used Futsing. 83 of those who responded confirmed they were asylum seekers.
"5.4.2 In the absence of evidence to the contrary, I must therefore conclude that a large proportion of the funds currently frozen may represent recoverable property on the basis that few of the individuals involved are willing to come forward and provide confirmation as to the legitimacy of the funds.
"5.4.3 I should clarify that my methodology in formulating the above table has been to contact individuals from each of the money collectors' remittance sheets randomly and to ask a series of questions designed to obtain sufficient information to satisfy me as to the legitimacy of the funds."
"In calculating the percentages outlined in the table, I have firstly indicated the number of individuals who responded as a percentage of the total number who I attempted to contact. Further, satisfactory responses indicated instances where the individuals were able to confirm the amount, the source and the destination of funds, unsatisfactory responses refer to instances where individuals either declined to assist in my enquiries or were not able to provide confirmation as to either the source or the destination of the funds. Partial satisfaction results were recorded in instances where individuals were able to provide some information in relation to the transaction but not sufficient to allow me to conclude that the transaction is entirely legitimate.
"5.4.4 I am, of course, mindful of the fact that the individuals concerned were under no compulsion to assist in my enquiries and that there may be a number of reasons why certain individuals felt unable to assist in this regard. Nevertheless, I am extremely concerned that of those who did respond to my enquiries, a high proportion were unable to confirm details of either the source or the destination of the funds. Given that these are, according to the First Respondent, individuals remitting considerable sums gained from employment in the UK for the benefit of their families in China, I am concerned that so few individuals were able to recall these details. Furthermore, 17.29% of those questioned denied ever having used or heard of Futsing. In such cases it would appear that either the individuals concerned are seeking to distance themselves from Futsing or their names and numbers are being used to disguise the introduction of funds from unknown sources.
"5.4.5 It will also be noted that a large proportion (62.41%) of those who responded to the enquiries indicated that they were asylum seekers working casually rather than with fixed employers. I am mindful of the fact that in certain circumstances asylum seekers in the UK are not permitted to obtain employment (whether paid or unpaid) and that in such cases any funds earned would be unlawful. Given the high proportion of asylum seekers who appear to have remitted funds through Futsing, I am obviously concerned that a significant proportion of these funds may represent the untaxed earnings of persons working in the United Kingdom without the requisite authority from the Immigration Service. I am, of course, mindful that such funds may constitute recoverable property under the terms of the Proceeds of Crime Act 2002 on the basis that the evasion of income tax constitutes unlawful activity.
"5.4.6 Finally, it is interesting to note that in one of the 3 cases where more detailed explanations were provided the individual concerned advised that the monies were being remitted to a friend who had helped him to come to the United Kingdom."
"8.1 I have been able through my investigations to confirm that the Futsing Finance business model and banking structure operate broadly in the manner described by Mr He. It is also the case that Mr He observes a number of practices in relation to the identification of Futsing Clients. Nevertheless, I remain deeply concerned that the funds frozen in the Futsing Accounts may represent the proceeds of unlawful conduct. There are a number of concerns in relation to the immigration status of some Futsing clients and their ability to work legally within the UK. Moreover, the inability of many Futsing clients to provide basic details in respect of their transactions such as employer details or national insurance numbers leads me to conclude that, absent any evidence to the contrary, the funds frozen in the accounts may constitute the proceeds of unlawful conduct.
"8.2 Given my concerns in relation to the funds following into Futsing Finance, I have further concerns in respect of assets purchased using Futsing's accounts as these funds are drawn from sources I believe to be tainted, I would conclude that properties acquired by Mr He and Dan Dan Chen may also constitute the proceeds of unlawful conduct.
"8.3 In order to complete a final recoverable property report in this matter it will be necessary to finalise my investigations into both the assets and lifestyle of Mr He and Dan Dan Chen."
"The three principal criteria identified in Engel are:
"(i) The manner in which the domestic state classifies the proceedings. This normally carries comparatively little weight and is regarded as a starting point rather than determinative -- see Ozturk v Germany [1984] 6 EHRR 409 at 421 and 422."(ii) The nature of the conduct in question classified objectively bearing in mind the object and purpose of the Convention."(iii) The severity of any possible penalty -- severe penalties, including those with imprisonment in default and penalties intended to deter are pointers towards a criminal classification of proceedings -- see Schmautzer v Austria [1995] 21 EHRR 511.
"In Lauko v Slovakia [1998] ECHR 26138/95 the court observed that these criteria were alternatives and not cumulative although a cumulative approach might be adopted where a separate analysis of each criterion did not make it possible to reach a clear conclusion as to the existence of a 'criminal charge'."
"It is the applicant's contention that the forfeiture of his money in reality represented a severe criminal sanction, handed down in the absence of the procedural guarantees afforded to him under article 6 of the Convention, in particular his right to be presumed innocence [sic]. The court does not accept that view. In its opinion, the forfeiture order was a preventive measure and cannot be compared to a criminal sanction, since it was designed to take out of circulation money which was presumed to be bound up with the international trade in illicit drugs. It follows that proceedings which led to the making of the order did not involve 'the determination ... of a criminal charge (see Raimondo v Italy [1994] 18 EHRR 237, 264, at para 43; and more recently Arcuri v Italy (Application No 52024/99), inadmissibility decision of 5th July 2001..."
"I would just add these observations. Lord Steyn's remarks in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, although made in the domestic context, show that some care needs to be taken in the application of the Engel test. It is certainly beyond contest that the concept of 'criminal charge' possesses an autonomous meaning in the European Court of Human Rights jurisprudence. It is also true that the first of the three criteria, that is the domestic classification of the proceedings, is treated as no more than a starting point. But that proposition should not distract the court from the question whether, given the three criteria, the proceedings in issue are in substance in the nature of a criminal charge. Are they an instance of the use of state power to condemn or punish individuals for wrongdoing? The European Court of Human Rights and our own courts have held that condemnation proceedings are not in any such category. The emphasis on the in rem nature of such proceedings in Air Canada v United Kingdom 20 EHRR 150, Lord Woolf CJ's judgment in Goldsmith v Customs and Excise Comrs [2001] 1 WLR 1673, Lord Steyn's observations in the McCann case [2003] 1 AC 787, and the European Court of Human Rights' own discussion in Butler v United Kingdom 27 June 2002, combine, in my judgment, to underline the force of that conclusion."
"The Commission considers that this legal background confirms the preventive character of confiscation and shows that it is designed to prevent the unlawful use of the property which is the subject of the order. It follows that the confiscation of the applicant's property does not imply a finding that he was guilty of a specific offence, any more than the compulsory residence order against him does.
"The Commission further considers that the severity of the measure is not so great in this case as to warrant its classification as a criminal penalty for the purposes of the Convention. Confiscation is a measure not confined to the sphere of criminal law; it is encountered widely in the sphere of administrative law. Items liable to confiscation include illegally imported goods (see the issue examined by the Court and the Commission in the Agosi case, Eur. Court HR judgment of 24th October 1986, Series A no 108), the proceeds from unlawful activities not classified as criminal offences (such as buildings constructed without planning permission), certain items considered dangerous in themselves (such as weapons, explosives or infected cattle) and property connected, though only indirectly, with a criminal activity (cf the confiscation under Italian law of the funds of secret societies pursuant to Law No 17 of 15th January 1982).
"Thus it can be seen from the legislation of the Council of Europe member States that measures of great severity, but necessary and appropriate for protection of the public interest, are ordered even outside the criminal sphere.
"The Commission notes that the impugned confiscation measure concerns property considered to be of unlawful origin. Its aim is to strike a blow against mafia-type organisations and the very considerable resources they have at their disposal to finance unlawful activities. The Commission therefore takes the view that the measure in question can be likened to those mentioned above.
"That being the case, and in the light of the Court's case-law, the Commission concludes that the confiscation complained of does not involve a finding of guilt subsequent to a criminal charge, and does not constitute a penalty. Consequently, the complaints of a violation of Article 6 para 2 and Article 7 of the Convention are incompatible ratione materiae with those provisions and must be rejected pursuant to Article 27-para 2."
"In setting himself this problem the judge showed an uncommon nicety of approach. I must say that, if I was sitting as a judge alone, and I was satisfied that the statement was made, that would be enough for me, whether the claim was put in warranty or on fraud. I think it would bring the law into contempt if a judge were to say that on the issue of warranty he finds the statement was made, and that on the issue of fraud he finds it was not made.
"Nevertheless, the judge having set the problem to himself, he answered it, I think, correctly. He reviewed all the cases and held rightly that the standard of proof depends on the nature of the issue. The more serious the allegation the higher the degree of probability that is required: but it need not, in a civil case, reach the very high standard required by the criminal law. Take this very case. If Mr Neuberger did represent that the machine was Soag reconditioned he did very wrong because he knew it was untrue. His moral guilt is just as great whatever the form of the action, no matter whether in warranty or in fraud. He should be judged by the same standard in either case."
"The comparative dearth of express authority on this topic is not surprising. No responsible counsel undertakes to prove a serious accusation without admitting that cogent evidence is required, and judges approach serious accusations in the same way without necessarily considering in every case whether or not there is a criminal issue involved. For example, in the ordinary case arising from a collision between two motor-cars involving charges of negligence, I have never heard of a judge applying the criminal standard of proof, on the ground that his judgment might involve the finding of one of the parties guilty of a criminal offence."
"It is, I think, clear from the authorities that a difference of approach in civil cases has been recognised. Many judicial utterances show this. The phrase 'balance of probabilities' is often employed as a convenient phrase to express the basis upon which civil issues are decided. It may well be that no clear-cut logical reconciliation can be formulated in regard to the authorities on these topics. But perhaps they illustrate that 'the life of the law is not logic but experience.' In some criminal cases liberty may be involved; in some it may not. In some civil cases the issues may involve questions of reputation which can transcend in importance even questions of personal liberty. Good name in man or woman is 'the immediate jewel of their souls.'
"But in truth no real mischief results from an acceptance of the fact that there is some difference of approach in civil actions. Particularly is this so if the words which are used to define that approach are the servants but not the masters of meaning. Though no court and no jury would give less careful attention to issues lacking gravity than to those marked by it, the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities. This view was denoted by Denning LJ when in his judgment in Bater v Bater [1955] 2 QB 600 he spoke of a 'degree of probability which is commensurate with the occasion' and of 'a degree of probability which is proportionate to the subject-matter.'"
"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his underage stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
"Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability its occurrence will be established. Ungoed-Thomas J expressed this neatly in In re Dellow's Will Trusts [1964] 1 WLR 451, 455: 'The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.'
"This substantially accords with the approach adopted in authorities such as the well known judgment of Morris LJ in Hornal v Neuberger Products Ltd. This approach also provides a means by which the balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.
"No doubt it is this feeling which prompts judicial comment from time to time that grave issues call for proof to a standard higher than the preponderance of probability. Similar suggestions have been made recently regarding proof of allegations of sexual abuse of children: see In re G (A Minor) (Child abuse: Standard of Proof) [1987] 1 WLR 1461, 1466 and In re W [1994] 1 FLR 419, 429. So I must pursue this a little further. The law looks for probability, not certainty. Certainty is seldom attainable. But probability is an unsatisfactorily vague criterion because there are degrees of probability. In establishing principles regarding the standard of proof, therefore, the law seeks to define the degree of probability appropriate for different types of proceedings. Proof beyond reasonable doubt, in whatever form of words expressed, is one standard. Proof on a preponderance of probability is another, lower standard having the in-built flexibility already mentioned. If the balance of probability standard were departed from, and a third standard were substituted in some civil cases, it would be necessary to identify what the standard is and when it applies. Herein lies a difficulty. If the standard were to be higher than the balance of probability but lower than the criminal standard of proof beyond reasonable doubt, what would it be? The only alternative which suggests itself is that the standard should be commensurate with the gravity of the allegation and the seriousness of the consequences. A formula to this effect has its attraction. But I doubt whether in practice it would add much to the present test in civil cases, and it would risk causing confusion and uncertainty. As at present advised I think it is better to stick to the existing, established law on this subject. I can see no compelling need for a change."
"I turn next to the Commission's views on the standard of proof. By way of preliminary I feel bound to say that I think that a 'high civil balance of probabilities' is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not."
"29. In B v Chief Constable of Avon and Somerset Constabulary the court was plainly dealing with very different provisions from those under consideration here. Firstly, in the Crime and Disorder Act 1988 Parliament, whatever its intention, did not expressly enact that the civil standard of proof should apply to the making of restriction orders upon convicted sex offenders. In the Drug Trafficking Act 1994 it did. In B the making of the order in question would have had very severe consequences for the individual concerned. Before making a restriction order the court must first find that since conviction the offender has continued to behave in such a way as gives reasonable cause to believe he poses a risk of serious harm to the public. If such findings are made the court may then impose restrictions upon the offender's movements, the people he may contact and where he may live. Breach of the court order may lead to a fine or imprisonment. Proceedings under section 43, however, lead to the forfeiture of a sum of money and nothing more. The proceedings here did not render Mr Butt, or indeed anyone else, liable to imprisonment or a fine. No findings have been made against Mr Butt to his discredit. No restrictions have been placed upon his life.
"30. I reject Mr Owen's submission, therefore, that the court should have applied a standard of proof akin to the criminal standard. I am not persuaded that proceedings which relate solely to the forfeiture of even a sum of money as large as this require HM Customs & Excise to prove the drugs connection to the criminal standard or, as Mr Owen put it, something very close. Nor am I persuaded that forfeiture proceedings of this kind fall into the category of case envisaged by Lord Nicholls where the allegation made is so inherently improbable that more cogent evidence is required than may normally be the case. I am satisfied that the test properly applied to these proceedings was whether or not the court was satisfied that it was more probable than not that the money represented the direct or indirect proceeds of drugs trafficking or was intended for use in drugs trafficking.
"31. I am satisfied that the approach adopted by Judge Adele Williams in this case to the standard of proof was an eminently sensible and fair one. As she put it, the court would apply the civil standard but with great care. If any gloss was needed on the words of the statute -- and I, for my part, am not persuaded that on the facts of this case it was -- that gloss must have operated to the benefit of Mr Butt. The court was plainly conscious of the consequences of a forfeiture order when such a considerable sum of money was at stake."
"(1) No-one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
"These preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"... 'the District Court may issue a reasoned decision, even of its own motion, ordering the seizure of property at the direct or indirect disposal of the person against whom the proceedings have been instituted, when there is sufficient circumstantial evidence, such as a considerable discrepancy between his lifestyle and his apparent or declared income, to show that the property concerned forms the proceeds from unlawful activities or their reinvestment. Together with the implementation of the preventive measure the District Court shall order the confiscation of any of the goods seized in respect of which it has not been shown that they were lawfully acquired."
"In this connection the Court points out that the impugned measure forms part of a crime-prevention policy; it considers that in implementing such a policy the legislature must have a wide margin of appreciation both with regard to the existence of a problem affecting the public interest which requires measures of control and the appropriate way to apply such measures.
"The Court further observes that in Italy the problem of organised crime has reached a very disturbing level.
"The enormous profits made by these organisations from their unlawful activities give them a level of power which places in jeopardy the rule of law within the State. The means adopted to combat this economic power, particularly the confiscation measure complained of, may appear essential for the successful prosecution of the battle against the organisations in question ..."
"The Court cannot therefore underestimate the specific circumstances which prompted the action taken by the Italian legislature. However, it has a duty to satisfy itself that the rights guaranteed by the Convention are respected in every case.
"The Court notes that in this case section 2(3) of the 1965 Act establishes, where there is 'sufficient circumstantial evidence', a presumption that the property of a person suspected of belonging to a criminal organisation represents the proceeds from unlawful activities or has been acquired with those proceeds.
"Every legal system recognises presumptions of fact or of law. The Convention obviously does not prohibit such presumptions in principle. However, the applicants' right to peaceful enjoyment of their possessions implies the existence of an effective judicial guarantee. Consequently, the Court must consider whether, having regard to the severity of the applicable measure, the proceedings in the Italian courts afforded the applicants a reasonable opportunity of putting their case to the responsible authorities ..."