Held, applications granted, appeals allowed and confiscation order quashed. (1) Since under both Irish and English law a house built on land became part of the land and belonged in law to the person who owned the land it was not possible as a matter of land law to separate ownership of the house from the land on which it was built and sell the house alone. It followed that merely paying for a house to be built on land owned by another did not of itself give the person paying for the building works any equitable interest in the completed house, still less in the land on which it sat. Whether the defendant, nevertheless, had some proprietary interest in the land depended on evidence which provided an identifiable legal or equitable principle to support the judge’s conclusion that he had such an interest but none had been given. It was unfortunate that neither the parties nor the judge found it necessary for oral evidence to be heard and tested in cross-examination but there was force in the Crown’s submissions that the defendant would not have invested such a large sum in building the house if he did not stand to acquire any proprietary interest in the land on which it stood. It might have been possible for an inference to be drawn of a common intention, promise or assurance given by the defendant’s father that if the house was built he would hold it on trust for his son and if asked he would convey the land to him and grant a right of way over the remainder of the family farm to enable the house to be accessed but it was not clear that any such argument was made before the judge and there was force in the interested party’s submission that she did not have any opportunity to address it. If the Crown’s submissions had been made in the court below they would have required the interested party’s clear assertions to the contrary to be challenged in cross-examination. The judge’s reference to the reaction of a bystander observing the situation was no basis on which to invoke the principles of a common intention constructive trust or of proprietary estoppel. Although the existence of that shared intention was to be deduced objectively from the words and actions of the parties the trust was not simply a solution to be imposed upon them and the first and essential element of a proprietary estoppel was a finding that a promise or assurance was actually given by the legal owner. A finding that it would be unconscionable for a promisor to renege on a promise, representation or assurance given in relation to property might give rise to an equity but it did not decide the remedy that should be granted by the court to address the unconscionability and do justice between the parties. There had been no evidence sufficient to support the judge’s findings and no evidence on which he might have reached similar findings by a different route. The judge’s conclusion that the defendant should be taken to have a proprietary interest in the house built on the land registered in the name of the interested party could not stand and had to be set aside. It would not be necessary to direct the case be heard afresh by a judge with particular expertise in property disputes and constructive trusts (paras 38–39, 42–45, 50–51).

(2) A defendant who had been convicted in the Crown Court had a right to seek leave to appeal against sentence under section 9 of the Criminal Appeal Act 1968. Where a defendant appealed against a confiscation order the Court of Appeal (Criminal Division), upon quashing the confiscation order, had a discretion under section 11(3A) of the 1968 Act to direct the Crown Court to hear the matter afresh. Although the application of section 50(1)(ca) of the 1968 Act meant that an appeal under section 9 of the 1968 Act could not be brought solely in respect of a determination under section 10A of the Proceeds of Crime Act 2002, such a determination could be challenged as part of an appeal against a confiscation order. Since an appeal against a confiscation order might well include a challenge to a determination by the Crown Court of the defendant’s interest in a property, that determination might have been an important part of the court’s overall decision as to the defendant’s available assets and a factor in the computation of the confiscation order which was the subject of the appeal. Those provisions of the 1968 Act did not assist a third party with an interest in property who was aggrieved by the Crown Court’s determination of the defendant’s interest in that property. The relevant provisions in their case were in sections 31 and 32 of the 2002 Act. Notwithstanding that the defendant had a right of appeal under section 9 of the 1968 Act, the definition in section 31(5)(b) of the 2002 Act included a defendant. Section 31(5)(b) might provide a route of appeal for a third party who had or claimed to have an interest in the property concerned but there was nothing in it to exclude such a route of appeal for a defendant who faced a serious risk of injustice if effect was given to the Crown Court’s determination of his interest. The effect of section 50(1)(a) of the 2002 Act was that an appeal against a determination under section 10A was not an appeal against sentence and there was a procedural distinction between the two potential routes of appeal which were open to a defendant. An appeal against a confiscation order pursuant to section 9 of the 1968 Act had to be commenced by filing Form NG Confiscation Order whereas an appeal against a determination of interest in property pursuant to section 31(4) of the 2002 Act had to be commenced by filing Form POCA 1. Where, in the present case, the defendant made his application for leave on Form NG Confiscation Order and his grounds of appeal stated initially that the application for leave was being made under section 31(4) of the 2002 Act but in later submissions the application was stated to be under section 9 of the 1968 Act, the combination of the defendant’s appeal under section 9 and the interested party’s appeal under section 31(4) of the 2002 Act, together with the Court of Appeal (Criminal Division)’s powers under sections 11(3A) of the 1968 Act and section 32(2A)(b) of the 2002 Act enabled the Court of Appeal (Criminal Division) to make appropriate decisions and avoid unfair prejudice to any party. When hearing appeals brought under section 31(4) of the Proceeds of Crime Act 2002 the wide terms of section 32(2A) which permitted the Court of Appeal (Criminal Division) to make such order as it believed was appropriate extended to the making of an order remitting the matter to the Crown Court. That interpretation enabled the Court of Appeal (Criminal Division) in appropriate circumstances to ensure that all parties were able to have a fair hearing of complex factual issues which the Court of Appeal (Criminal Division) was not equipped to resolve. It needed to be borne in mind that a successful appeal by a third party intervener may have the consequence that the assets available to a defendant to meet a confiscation order were reduced, particularly if the defendant and third party advanced competing arguments. The Court of Appeal (Criminal Division)’s powers under section 32(2A) of the 2002 Act were to be distinguished from those under section 32(1) where if a prosecutor appealed under section 31(1) against the making of a confiscation order there was no power under section 32(1) to remit. In the defendant’s case, the confiscation order should be quashed and the Court of Appeal (Criminal Division) would exercise its power under section 11(3A) of the 1968 Act to direct the Crown Court to proceed afresh. Further, since giving effect to the judge’s determination would result in a serious risk of injustice to the interested party, in her case the court the court would exercise its broad power under section 32(2A)(b) of the 2002 Act by remitting the matter to the Crown Court for a fresh hearing (paras 54–64, 65, 68–71).