Following a search conducted by the revenue commissioners’ financial investigator of the first claimant’s business premises on 16 January 2023, pursuant to section 289 of the Proceeds of Crime Act 2002, the investigator seized cash, pursuant to section 294 of the 2002 Act, as “recoverable property” which could be held initially for 48 hours under section 295(1) of the Act, and scheduled a hearing for 18 January, noting the expiry time as 17.38 on 18 January. The two lay justices, who were sitting with a legal adviser, granted an order for continued detention of the cash before an objection was raised by counsel for the claimants that the statutory time had run out 12 minutes earlier and the order was thus out of time. The revenue advised the claimants of their intention to “re-seize” the monies from their own premises (to avoid transporting large sums) and to apply for a fresh detention order to hold the cash for a further six months, the application to be heard on 24 January 2023. The claimants required the return of the cash by 23 January and warned that any attempt to seek a further cash detention order would be resisted. The claimants brought judicial review proceedings challenging the district judge’s decision to grant the revenue’s application for a fresh order on the grounds that (i) there was no power, under section 294 of the 2002 Act, to re-seize cash which had previously been seized under the same statutory provision, since to do so circumvented the strict 48-hour limit; (ii) alternatively, the commissioners had been obliged to return the cash to the possession of the claimants before exercising any power to re-seize it, doing so either physically or by paying the money into a bank account, as provided for by section 296, and forthwith transferring it into the first claimant’s bank account; (iii) on the expiry of the time limit at 17.38 on 18 January 2023 the commissioners’ authority to detain the cash had expired so that the order was made too late, which defect could never be cured either by re-seizure of the cash or by any order of the magistrates’ court and, although still suspected for very good reason to be “recoverable property”, the cash had thus acquired immunity from seizure or detention.
On the claim for judicial review—
Held, claim dismissed. There was nothing in section 294 of the Proceeds of Crime Act 2002 to indicate that it was unlawful to re-seize cash which had previously been lawfully seized. Further, the decision of Parliament to specify a 48-hour time limit in section 295(1), and the fact that it had remained unaltered save to make provisions for weekends and bank holidays, was not sufficient to persuade the court that Parliament must have intended that a second application to a court, following a re-seizure, had to be unlawful, not least given (i) the striking contrast with section 298 of the 2002 Act, where the mere fact of an application for forfeiture being lodged with the court was enough to justify detention of the cash until the magistrates’ court proceedings and any appeal had been concluded and (ii) the fact that such a strict interpretation would also give rise to serious practical difficulties for the courts where the initial seizure was in the late afternoon (paras 33, 35, 38, 40–42).
Jonathan Lennon KC (instructed by Rahman Ravelli) for the claimants.
Tom Rainsbury (instructed by Solicitor, Revenue and Customs) for the revenue.
The second defendant, Thames Magistrates’ Court, did not appear and was not represented.