Time-limits in asset forfeiture proceedings – high time for clarity?

Since the jurisdiction to freeze bank accounts and seize specific listed assets was introduced to the Magistrates’ Court by the Criminal Finances Act 2017, there has been a considerable increase in the recovery of money alleged to be the proceeds of crime or intended for use in crime by the authorities. Money recovered in civil forfeiture proceedings has increased from £42.5m in 2017/18, to £193.4m in 2021/22 and £97.2m in 2022/23. Account forfeiture orders made up 70% and 67% of those more recent receipts from civil forfeiture proceedings.[1]

Anecdotal evidence suggests that, as would be expected, there is a relative lower level of scrutiny in the Magistrates’ Court compared to previous comparable jurisdictions in the High Court. The summary jurisdiction is of course also indisputably quicker and cheaper for the authorities.

This is counterbalanced to some extent by the unqualified right of appeal to the Crown Court. Those appeals however, must be made within 30 days of an account forfeiture decision in the Magistrates’ Court. There is no statutory provision which allows for an extension of that time limit.

In R (Lamai) v West London Magistrates’ Court [2001] EWCA Civ 1501, Arden J refused permission to appeal against a decision of Burton J that Crown Court Rule 7(5) could not be re-written so as to allow an extension of time for an appeal to the Crown Court against a cash forfeiture order (made under the Drug Trafficking Act 1994 before the enactment of the Proceeds of Crime Act 2002). In the circumstances of the case it was not arguable that Convention rights required an extension of time, and there was no real reason why the applicant could not have complied with the 30 day time limit. Section 3 of the Human Rights Act 1998 (the interpretation of legislation compatibly with Convention Rights) was not in force at the time of the original decision.

Lamai has been relied upon by the lower courts and current textbooks as continued authority that there is no power whatsoever to extend the time limit for appeal against cash, asset, or account forfeiture decisions in the magistrates’ courts. In the author’s view, it is unlikely that Lamai remains good law since the introduction of the Human Rights Act 1998.

In the extradition context the Supreme Court has now confirmed that there does exist a power to extend statutory time limits where no power to extend is provided in the statute itself, in exceptional circumstances, by reading the statute compatibly with the European Convention of Human Rights. In Pomiechowski v Poland [2012] UKSC 20 Lord Mance stated:

“In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time. In these circumstances, I consider that, in the case of a citizen of the United Kingdom like Mr Halligen, the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6(1) in Tolstoy Miloslavsky. The High Court must have power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously.” [Lord Mance at paragraph 39]

The relevant appeal period in Pomiechowski was just seven days, and the appellant would often if not always be in custody. That case might therefore be thought to be distinguishable from the 30 day appeal periods in the asset forfeiture regime in POCA 2002, where orders are made against property, albeit they will inevitably affect individuals or companies who have rights to that property and are parties to the proceedings.

However the jurisdiction in Pomiechowski was confirmed to apply to professional discipline appeals, where the right of an individual to pursue a certain profession is concerned and apparently strict 28 day statutory time limits apply, in R (Adesina) v NMC [2013] EWCA Civ 818, and Stuewe v HCPC [2022] EWCA Civ 1605. In the latter, the Court of Appeal confirmed that the only test is that of exceptional circumstances. The reference to the Appellant having done all it can to bring an appeal timeously is merely an identification of the type of situation in which exceptional circumstances will be held to arise, it is not a separate requirement.

Neither Lamai nor the line of caselaw following Pomiechowski were referred to in R (on the application of Chief Constable of Lancashire Constabulary) v The Crown Court sitting at Preston v Kenneth Malin [2021] EWHC 2869 (Admin), where the High Court refused the Chief Constable’s application for permission to bring a judicial review against a decision to extend the 30 day time limit under section 303Z16 of POCA, on the basis that the decision could be reconsidered under the Crown Court rules and so the applicant had an alternative remedy. The decision appears to proceed on the basis that there is a jurisdiction to extend, in accordance with (but not referring to), Pomiechowski, Adesina, and Stuewe.

No higher court appears to have yet directly considered whether the limited power to extend time limits in exceptional circumstances identified in Pomiechowski extends to appeals under the civil procedure in POCA 2002. The necessity to do so itself arises from a lack of clear procedural rules governing the Magistrates’ Court’s civil jurisdiction; the procedure is left to brief statutory provisions in the Magistrates’ Court Act 1980, and ad-hoc primary and secondary legislation governing specific types of proceedings such as asset forfeiture (but also involving very disparate powers governing taxi and alcohol licences, crime prevention orders, and liability to pay council business rates to name a few). Neither the more comprehensive Civil Procedure Rules nor the Criminal Procedure Rules apply. The Crown Court Rules, which provide a power to extend time in specific statutory appeals, have not been amended to include POCA 2002 appeals.

Four points arise from the above maze of precedents:

1. There is surely a need for comprehensive procedural rules that govern the magistrates’ court’s civil jurisdiction. That jurisdiction has been considerably widened in the past decade and now includes account forfeiture orders, sometimes for millions of pounds, and the disparate and incomplete legislation governing these important orders is not fit for purpose.
2. Binding authority on the jurisdiction to extend time limits in POCA appeals would provide clarity in this area at least, and is to be welcomed.
3. The lack of binding authority even some years on from the introduction of these powers may partly be attributable to the high bar set by the exceptional circumstances test. Prospective appellants might win on the legal point, but ultimately lose on the application of the exacting legal test to their individual facts.
4. As is often the case, an interesting legal point can be avoided by getting things right first time: obtain expert legal assistance and file on time.

Lewis MacDonald

[1] Asset Recovery Statistical Bulletin: Financial years ending March 2018 to March 2023 – Published 7 September 2023