Neutral Citation Number: [2009] EWHC 2512 (Admin)

Case No. CJA/128/2000 & 48/2009 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Tuesday, 7th July 2009
 
B e f o r e:

MR JUSTICE KING 
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RE F 
and 

RE S 
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Mr J Sturman QC (instructed by Bark & Co) appeared on behalf of the First Claimant 
Mr I Pearce (instructed by McClartys) appeared on behalf of the Second Claimant 
Mr J Dennison (instructed by CPS Central Confiscation Unit) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	MR JUSTICE KING:  I have before me two applications for a certificate of inadequacy pursuant to section 83 of the Criminal Justice Act 1988.  There are two applications because each of two co‑defendants against whom confiscation orders were made in the same proceedings are making an application.  
2.	These applicants were convicted in October 2001 at the Crown Court at Middlesex of a conspiracy to defraud.  Subsequently, in April 2002, a confiscation order was made against each of them.  The offence of which they had each been convicted was a mortgage fraud, in essence, involving prestigious high value property and the use of non‑existent solicitors' firms, or the use of genuine solicitors' firms' names but without their knowledge.  When the judge came to make the confiscation order, in the course of his remarks, he noted that huge sums of money had been converted and transferred at the hands of these applicants.  In the case of each of the applicants, the benefit which the judge found for the purpose of the confiscation order was £5,524,149.  However, the confiscation order in each case was considerably less.  This is because the judge applied the material provisions of the Criminal Justice Act 1988, whereby he was satisfied on the evidence that the amount appearing to the court that might be realised ("the realisable property") was less than the benefit.
3.	In the case of Mr F, he made a confiscation order in the sum of £535,250, to be paid within 12 months with 2 years' imprisonment in default.  In the case of Mr S, he made an order for £536,290, with 2 years' imprisonment in default.
4.	Before going further with the facts of these particular cases, it is convenient if I set out the applicable principles for an application such as this.  Section 83(1) of the Criminal Justice Act 1988 provides as follows: 
"If, on an application made in respect of a confiscation order by the defendant . . . the High Court is satisfied that the realisable property is inadequate for the payment of any amount remaining to be recovered under the order, the court shall issue a certificate to that effect giving the reasons."
5.	It is common ground that if in fact a certificate is issued, the court does not specify any particular sum.  However, as has been said, the applicant, armed with the certificate, is then entitled to return to the Crown Court judge who made the order (in this case His Honour Judge Blacksell) to invite him to reduce the confiscation order to such sum as he thinks just in all the circumstances.
6.	A helpful summary of the applicable principles are set out in the judgment of Mr David Holgate QC, sitting as a Deputy High Court Judge, in the matter of B [2008] EWHC 3217, at paragraph 74: 
"A number of principles have been established with regard to the consideration of section 83 applications:  
 (1) The burden lies on the applicant to prove, on the balance of probabilities, that his realisable property is inadequate for the payment of the confiscation order (see Re O'Donoghue (2004) EWCA Civ 1800, per Laws LJ at para. 3).  
 (2) The reference to realisable property must be to 'whatever are his realisable assets as a whole at the time he applies for the certificate of inadequacy. If they include assets he did not have when the confiscation order was made, that is by no means a reason for leaving such fresh assets out of consideration' (ibid and see also Re Phillips [2006] EWHC 623 (Admin)).  
 (3) A section 83 application cannot be used to go behind a finding made at the confiscation hearing or embodied in the confiscation order as to the amount of the defendant's realisable assets. Such a finding can only be challenged by way of an appeal against the confiscation order. (See Gokal v Serious Fraud Office (2001) EWCA Civ 368, per Keene LJ at paras 17 and 24).  
 (4) It is insufficient for a defendant to say under section 83 'that his assets are inadequate to meet the confiscation order, unless at the same time he condescends to demonstrate what has happened since the making of the order to the realisable property found by the trial Judge to have existed when the order was made'(see Gokal at para. 24 and Re O'Donoghue at para. 3).  
 (5) The confiscation hearing provided an opportunity for the Defendant to show that his realisable property was worth less than the Prosecution alleged. It also enabled the Defendant to identify any specific assets which he contended should be treated as the only realisable property. The section 83 procedure, however, is intended to be used only where there has been a genuine change in the Defendant's financial circumstances. It is a safety net intended to provide for post‑confiscation order events. (See McKinsley v Crown Prosecution Service (2006) EWCA Civ 1092 per Scott Baker LJ at paras. 9, 21‑24, 31 and 35).  
 (6) A section 83 application is not to be used as a 'second bite of the cherry'.  It is not an opportunity to adduce evidence or to present arguments which could have been put before the Crown Court Judge at the confiscation hearing (para 38 of Gokal and paras 23, 24 and 37 of McKinsley).  
 (7) The clarification of a third party's interest in property may be a post‑confiscation order event. The extent of any such interest may have to be decided by a civil court. (Re Norris (2001) UKHL 34 and McKinsley at para. 39) . . . " 
7.	In addition, I have in mind the following observations of Moses LJ in the case of Telli v Revenue and Customs Prosecution Office [2007] EWCA Civ 1385 at paragraph 37: 
"Secondly, it is incumbent upon a court to assess the current value of the realisable property in order to determine whether it is inadequate to meet the outstanding sum.  Once it is appreciated that the property held by the defendant included unidentified assets forming part of the total value of the realisable property at the time of the order, it is impossible for Telli to establish that the realisable property is inadequate now to meet payment of the outstanding amount.  The order was made in 1996.  If a defendant fails to identify all the assets he holds, no‑one will know their true value and by the time of the application, the value of the assets he failed to identify may have increased, particularly after 10 years.  Absent consideration of current value, no court could be satisfied that the realisable property was inadequate.  If the assets remain unidentified no conclusion can be reached as to their current value." 
8.	Finally, I have in mind the observations of Pill LJ in Re O'Donoghue [2004] EWCA Civ 1800 at paragraph 18.  This is a passage which has been particularly urged upon me by those representing the present applicants: 
"I also agree that the appeal be dismissed for the reasons given by Laws LJ.  The judge has a fact‑finding exercise to conduct under section 83(1) of the Criminal Justice Act 1988.  He has to assess the current value of realisable assets as a whole.  All I would add, whilst expressing full agreement with what my Lord has said, is that the judge needs to keep a sense of proportion in conducting that exercise, however dishonest or unco‑operative a defendant may have been with respect to what has been found to be one or more of his realisable assets.  There could be cases where, on an overall view, it would be open to the judge to hold that the value was on balance of probability inadequate within the meaning of the section, even if the defendant has declined to condescend to give an explanation with respect to every single asset." 
9.	I return to the facts of these particular applications.  In the case of Mr F, of the confiscation sum ordered to be paid, a total only of some £49,706.27 has been paid.  Without having regard to interest, this would leave an outstanding balance of £483,483.73.  With interest the amount currently outstanding is £727,373.37.  Interest is accruing at £106 per day.  In the case of Mr S, some £51,307.28 has been paid and the amount outstanding, without consideration of interest, is £484,982.73, but with interest it is £726,624.  Again, interest is accruing at £106 a day.
10.	The approach of each of the applicants has been to concentrate on the particular identified assets which the judge found in each case to be realisable property and which formed part of the calculation for the confiscation order.  In respect of a number of assets the judge attributed to each applicant a 50 per cent interest in property which in fact was being held by a third party.  There are passages in the judge's observations in the course of the confiscation hearing in which he indicated some concern that such interest might ultimately prove not to be realisable, given the asset was held in the name of the third party.  He, it appears, was given a certain amount of comfort by counsel for the Crown in that he was informed that if it turned out to be the case that a particular interest was not realisable, either in the full amount or in part of the amount, then an application could be made under section 83 in order to rectify the position without any injustice to the defendant.
11.	The make up of the confiscation orders in respect of each of these applicants was almost identical.  In the case of Mr S, it was made up of:  
(1) Cash seized on arrest, some £1,540.  This in fact has now been paid. 
(2) A 50 per cent interest in a Spirit 3000 motor cruiser, that interest valued at £17,250.  This was an asset held by one Albert W for one Paul W. 
(3) A 50 per cent interest in a Ford Mustang car, that interest valued at £5,000.  This asset was held by one Paul W. 
(4) A 50 per cent interest in a Jaguar C2JL, the interest valued at £4,000.  This asset was held in the name of one J L. 
(5) A 50 per cent interest in a Jaguar BPL 119, value £4,900, held in the name of one B L. 
(6) A 50 per cent credit balance in a Barclays account, some £27,500.  This has been paid. 
(7) A 50 per cent of a credit balance in the name of S Security in a Halifax account, £10,000.  This has been paid. 
(8) A 50 per cent interest in an account held in the names of Sidney and Clive M, £25,000. 
(9) A 50 per cent interest in cash held in the solicitors' account, De V, £12,000.  Of this £11,952.14 has been paid. 
(10) A 50 per cent interest in money held by Dobb White Accountants, now in liquidation, £230,000. 
(11) Hidden assets identified by the judge as amounting to some £200,000.
12.	I have looked at the observations of the trial judge in determining the question of hidden assets.  The prosecution were suggesting that the hidden assets, which were of the two defendants taken together, was some £1.7 million.  When the judge came to reach the figure he did of £200,000, he said this in relation to Mr S: 
"I turn to the hidden assets.  It is contended for the reasons set out they have an interest here.  Again, as was the case of Barr, once the benefit has been proved it is permissible and normally to be the approach of the court to conclude that the benefit remains available until the defendant proves otherwise.  I have rehearsed that throughout this judgment.  Fifty per cent would be approximately £850,000.  Here I felt it appropriate to discount heavily.  I accept it is an inexact science.  Others were involved and it is my judgment that some of this has been dissipated, obviously in various quarters.  However, I must remind myself that both men spoke . . . with breathtaking candour how they would deal with sums of £100,000, £150,000 on a regular basis.  I thought it appropriate, therefore, discounting for these matters, taking into account any possible injustice and the fact that there ought to be an attempt at fairness in relation to all matters, but especially the hidden assets, I discounted it to £200,000 in relation to him." 
13.	In the case of Mr F, the make‑up of the calculation leading to his confiscation order is almost identical to that in relation to Mr S, save item number (1).  The cash seized on the arrest of Mr S was not applicable to him, and there is some difference in the figures attributed to the 50 per cent interest in the two Jaguars.  But this is of no moment to the present applications.  In particular, in the case of Mr F, as with Mr S, the judge found a realisable asset to the value of £230,000 in respect of money held by Dobb White Accountants and also found, for the same reasons as he gave in the case of Mr S, hidden assets of some £200,000.   
14.	Each applicant has taken me through material in the evidence before me to show that, on the balance of probabilities, that which the judge thought to be realisable assets are in fact not available to the particular applicant.  In particular, a receiver was appointed in October 2002 to realise the applicants' assets and subsequent to that, with the agreement of the Crown, the receivership order was varied so as to remove from the receivership, amounts totalling, in the case of Mr S, to some £34,000 in relation to his interest in each of the two Jaguars and in relation to the interest in the M monies.  In the case of Mr F, like variations were made.  The amount varied in his case, given the different value put upon the Jaguars, is probably another £10,000, that is to say £44,000.
15.	In addition, the material before me strongly suggests that each applicant will now never have access to the Dobb White accountant monies.  Dobb White were accountants to whom £460,000 had been transferred by the applicants.  Dobb White were themselves subject to a criminal investigation, and at the time the confiscation orders were made the firm's partners were on bail.  Subsequently, each has been convicted of offences.  I am told that in October 2002 a freezing order was obtained against Dobb White by the Financial Services Authority.  The firm Baker Tilly were appointed in those proceedings with the assets of the firm vesting in them.  It is clear from the judge's remarks in these proceedings at the confiscation hearing that he was alive to the fact that it might well be that the £230,000 attributable to each of these two applicants in relation to the Dobb White monies may well turn out not to be a realisable asset.
16.	Although the Crown, through Mr Dennison, say to me today that as regards the Dobb White monies everything is still in the air, I am prepared to accept, for present purposes, that these Dobb White monies are never now going to be available to these applicants as realisable property.  The Dobb White monies, which have been frozen, are likely to be utilised in the criminal proceedings currently against the Dobb White partners for the purpose of compensation orders.  At one stage it was also thought that these monies might be part of the realisable assets of the partners for the purposes of confiscation proceedings against them.
17.	For present purposes I am prepared to assume that as regards the realisable assets which the judge held were available to each applicant some £268,000 in the case of Mr S or £274,000 in the case of Mr F is no longer available.  The primary element of this current shortfall is the money attributable to each in relation to Dobb White, but it also includes the sums attributable to the interests in the third party assets in respect of which the receiver has been discharged.  It is an open question whether I should take the same view in relation to items (2) and (3) in the case of Mr S and the equivalent in Mr F's case ‑‑ that is the 50 per cent interest in the motor cruiser and the Ford Mustang car.  They would total, if they were brought into account as non‑realisable assets, some £22,250.  However, I am prepared to accept, for present purposes, that in the round some £270,000 or thereabouts of the realisable assets identified by the judge is no longer available.  
18.	In these circumstances, each applicant submits that given the outstanding balance in each case is a sum in excess of £700,000, common fairness demands that a certificate of inadequacy should follow.  If one goes back to the list of realisable assets found by the judge, the only remaining asset of any substance which could make up the shortfall would be the hidden asset of £200,000.  Mr Sturman QC on behalf of Mr F and Mr Pearce on behalf of Mr S each submit that in all fairness I should apply the principles expressed by Pill LJ and hold, on an overall view, that the value of the assets now available to each applicant is, on the balance of probability, inadequate within the meaning of the section, even if "the defendants decline to condescend to give an explanation with respect to every single asset."
19.	I cannot accept these submissions.  The fallacy in them is twofold.  First and foremost, the obligation upon each of these applicants was frankly and with candour to disclose to this court his respective current asset position.  This each has woefully failed to do.  I have looked at the witness statement of Mr F dated 25th February 2009, which is the principal statement put forward in support of his application.  It gives a history of proceedings.  It gives a history of the realisable assets as identified by the judge.  It is wholly lacking in any particularity as to his current asset position.  I read paragraphs 9 and 10 of that statement: 
"9.  In relation to hidden assets, the figure was £200,000, and since my release from custody I have been living at the same address as the one I lived at prior to being sentenced.  My wife has continued to work for London Underground and helped to support me.  I do not have any hidden assets. 
10.  I do not have access to any of the monies that have passed through my hands . . . My family's financial circumstances have remained the same.  My wife still has a mortgage on our property and works full‑time.  My stepdaughter is still in full‑time education.  She has not had the benefit of private school and during the period of my imprisonment and after my release, the family have enjoyed a modest lifestyle." 
20.	The burden of proof in this application is of course on Mr F himself.  He has to satisfy the court that his current realisable property is inadequate for the payment of any amount remaining to be recovered under the order.  There is in fact no burden of proof on the Crown in responding to this application, to show the reverse; namely that he does have current assets sufficient to meet the order.  However, the Crown have nonetheless laid before me evidence from Mr Keith Hamilton, who is the detective constable attached to the Dedicated Cheque and Plastic Crime Unit, with conduct of the criminal investigation and confiscation proceedings in relation to each of these applicants.  In the case of Mr F, Mr Hamilton has produced two witness statements with exhibits, one dated 20th May 2009, one dated 23rd June 2009.  It is sufficient for me to record that in the case of Mr F, Mr Hamilton has unearthed evidence which shows that there has been a total lack of candour on the part of Mr F as regards his current asset position.  
21.	At paragraph 12 of the first witness statement, Mr Hamilton gives an account of some of the fruits of his investigation.  These indicate that Mr F has an address at London E1, that he has a number of charge cards and loans, hire purchase agreements, and credit cards, all of which have to be funded from some source; that he has been seen to be driving a high value BMW sports car valued at approximately £60,000.  In the second witness statement, documents have been unearthed by Mr Hamilton to show that Mr F declared himself, in an application for two loans with Black Horse Limited, to be "a self‑employed property developer" since 1st November 1983 and that, with the loans, he purchased Mercedes motor cars in November 2008.  In fact, counsel on behalf of Mr F concedes that Mr F is currently working.  There is absolutely nothing, however, in Mr F's witness statement to this court which deigns to give any particularity of that employment or the assets attributable to it.  Mr Hamilton also exhibits evidence of a NatWest Bank account in the name of Mr F showing deposits of £10,000 and £30,000 in August 2007.
22.	In the case of Mr S, in his witness statement in support of his application, there is an equal lack of particularity and candour as to his current assets.  He too, in his witness statement dated 28th April 2009, goes into considerable detail as to what has become of the identified realisable assets in the list which the judge used to make up the confiscation order against him.  He does not depose at all as regards his current position.  As regards hidden assets, he says at paragraph 28: 
"Hidden assets 
It was accepted by the judge that many others were involved in the offence and benefited from it.  It has been established that assets held by Dobb White cannot be realised by me and what has been described as hidden assets have never been held by me.  Although there were other proceeds of the offence, they were given to third parties which was explained in the trial over whom I had no control and I cannot realise assets held by them.  I do not have access to any assets that are hidden and therefore do not have the money to pay this part of the order."
23.	Again, Mr Hamilton has laid before the court, through two witness statements, the fruits of his researches in respect of the current asset position of Mr S.  His first witness statement is dated 26th May 2009 and the second is 23rd June 2009.  I do not rehearse every line of these statements but I have read and taken into account their totality.  In the first witness statement, Mr Hamilton has unearthed that Mr S has a number of financial obligations and credit facilities linked to a property at 31 Wl Rise, Hertfordshire.  These include credit cards, Abbey National bank accounts and hire purchase contracts.  In particular, there are hire purchase agreements which demand payment of £518 per month and mortgage repayments of some £921 per month.  
24.	The precise amounts shown on particular hire purchase agreements or credit cards as outstanding recorded in the exhibits to the witness statement of Mr Hamilton are not to the point in my judgment.  For the most part I accept they show debts.  What is, however, important is the evidence that they are being financed by Mr S and the fact that he has done nothing to lay before the court anything to allow the court to assess what his current asset position is.  Furthermore, Mr Hamilton has unearthed material concerning the financial position of Mr S's partner, including credit card accounts, loan accounts and bank accounts, all of which show that substantial monies have been paid into those accounts, in part coming, it would appear, from Mr S himself. 
25.	Mr S is linked to three addresses.  In particular, in relation to 9 We Gardens, Brentwood, he has a leasehold flat.  The registered proprietor is a Mr Sb, an associate of the applicant.  The material indicates that they were co‑defendants in a case dealt with by the Serious Fraud Office.  There is other material in Mr Hamilton's witness statement in relation to 31 Wf Rise, Bushey, which suggests it was purchased in the name of an individual who is a friend of Mr S.  Mr S, it seems, conducted all the negotiations to purchase the property.  There is other material suggesting that Mr S was, for all intents and purposes, purchasing property for himself.
26.	I repeat, I do not for present purposes make any findings as to what the current asset position of Mr S is.  I do not ask myself whether the Crown have discharged a burden which is not upon them to satisfy me that Mr S has adequate assets.  Quite the opposite.  The total lack of candour in Mr S's witness statement, as with Mr F, would be sufficient reason in itself, in my judgment, for rejecting this application.  However, the evidence laid before me by Mr Hamilton only fortifies the view that there has been no serious attempt by either applicant to disclose to this court his true current asset position.
27.	On this first ground alone, these applications should be dismissed, in my judgment.  However, there is a second separate reason.  In each of these two cases the judge found hidden assets of some £200,000.  This court is bound by these findings, as indeed are the two applicants.  There has been no appeal to the Court of Appeal in respect of these findings.  From the passages I have already identified in the respective witness statements of each of the applicants, it is clear that that there has been no attempt by either to assist the court in discovering what has become of these hidden assets, the identity of them or what is their current value.  It is not for this court to grant a benevolence, which is not to be found on the face of section 83, where an applicant is totally silent as to the current position of a substantial hidden asset.  It is in fact no more than a cri de couer on the part of each of these applicants when each says that despite the finding which is binding upon him and the court, he does not have and never has had a hidden asset.  That is a stance which, in my judgment, in the circumstances of this case, each applicant is not entitled to take.
28.	I accept, in the words of Pill LJ, there could be cases where it would be open to the court to hold the value of current realisable assets, on the balance of probability, are inadequate within the meaning of the section, even if the applicant has declined to condescend to give an explanation with respect to every single asset.  However, this is certainly not this case.  Mr Dennison on behalf of the Crown gave an example of where it might well be appropriate to make such a holding.  He suggested a set of facts in which a person has been found to have say 20 Ferrari motor cars valued at £100,000 each.  A confiscation order is made for £2 million.  Nineteen are subsequently sold but realise only £10,000 each.  There is a shortfall therefore of at least £1.8 million.  An applicant for a certificate of inadequacy refuses to divulge the whereabouts of the twentieth car.  It may well be, suggests Mr Dennison, that the court could conclude in those circumstances that wherever this twentieth car is, it cannot sensibly be thought to be worth £1.8 million and in those circumstances might grant a certificate.  
29.	I accept that these may not be the only sort of circumstances which might entitle a court to grant a certificat.  However, where, as in this case, the court is quite satisfied that there has been a total lack of candour on the part of each applicant as to his current assets, and where the hidden asset in each case has been found by the judge to be of a substantial value (here some £200,000), it does not lie in the mouth of the applicant to say that the shortfalls in respect of particular identified assets mean that a certificate must follow "as a matter of common justice".
30.	Mr Sturman particularly suggested to me that where an applicant can show, as in this case, that a substantial proportion of the realisable assets as found by the judge cannot now be realised, it should follow that this court should grant a certificate of inadequacy and leave it to the Crown Court judge to decide where the justice lies and whether or not to reduce the confiscation order.  In my judgment, Mr Sturman wholly ignores that the burden on the applicant is not only to show, if he wishes, that particular realisable assets identified by the judge when he made the confiscation order cannot now be realised to the extent the judge thought.  He has to go further and establish that his current realisable assets are inadequate for the payment of the amount remaining to be recovered under the order.
31.	For the reasons I have given, each applicant in this case has failed to satisfy the burden upon him.  These applications are dismissed.
32.	MR DENNISON:  My Lord, there are four matters arising, if I may.  The first is the question of costs.  A costs schedule has been prepared and was served.  Can I hand up copies.  (Handed).  My Lord will see that they are slightly different in respect of each applicant, but come out to just over £4,000 each; doubtless assisted by the fact that the Crown Prosecution Service charge their lawyers out at £59 per hour, somewhat surprisingly perhaps.  The first application is for costs, so far as Mr S is concerned, in the sum of £4,028.72, to be summarily assessed, and Mr F, £4,375.97.
33.	MR JUSTICE KING:  Any submissions?
34.	MR STURMAN:  Mr F has been granted Legal Aid.  You have seen his loans.  I pointed out that he has been overdrawn for the whole of 2009.  Direct debits in the documentation are regularly being returned.  Normally, of course, costs would follow the event, but he is legally aided and I ask you to say that no order is appropriate.  That is all I can say.
35.	MR JUSTICE KING:  Thank you.
36.	MR PEARCE:  I repeat that, my Lord.  The added submission I would make is that I believe both defendants are subject to restraint orders.  As your Lordship knows, there are exceptions that can be made to a restraint order.  One of the exceptions ‑‑ or the only exception is effectively to pay another fine which is pre‑existing the confiscation order.  But the restraint order ringfences every aspect there is for the payment of the confiscation orders.  Effectively the Crown will become an unsecure third party creditor.  I also have the benefit of a Legal Aid certificate.  In those circumstances, I would invite your Lordship ‑‑ 
37.	MR JUSTICE KING:  What is the legal position on costs when a party has the benefit of a Legal Aid certificate? 
38.	MR PEARCE:  Absent the complication of the restraint order, the court can make recovery of costs order against the defendant.  Forgive me in I am not articulating this in the most eloquent way, but it needs the involvement of the Legal Services Commission, because of course the Legal Services Commission have, absent a restraint order, first bite of the cherry to say: we want to recover the costs that you have incurred in respect of your representation.  Thereafter, if there are sufficient assets, it can be enforced against the assets.  That is my rough and ready understanding of the position.  But in this case the fact that there is the restraint order against the background of the confiscation order, I would submit strengthens our position.
39.	MR JUSTICE KING:  If the court made an order for costs but there were no assets against which it could be enforced, that does not actually derogate from the propriety of the costs order.
40.	MR PEARCE:  No, it does not.  If, for instance, Mr F and Miss E became divorced and there were ancillary relief proceedings, the Family Court could make a property adjustment order.  It is of no effect until the walls of the restraint order come down.
41.	MR JUSTICE KING:  So the restraint order should not really be a factor I need take into account.  It is merely a fact that until available assets are identified, the order may be no more than a paper order.
42.	MR PEARCE:  Yes, that is right.  But one of the factors that your Lordship could take into account is that there are outstanding orders of three quarters of a million pounds.  Bearing in mind the interest, your Lordship might conclude on the facts that there are not going to be assets available to meet an outstanding costs order in respect of this case.  I would simply ask your Lordship to exercise your discretion and say there should be no order for costs in this case.
43.	MR JUSTICE KING:  Mr Dennison, can you help me on the Legal Aid position? 
44.	MR DENNISON:  I hope I can try.  The position is that if my Lord makes a costs order it probably is just a paper exercise until and unless assets come to light.  The fact that there is a restraint order ‑‑ 
45.	MR JUSTICE KING:  The restraint order does not bother me.  I can see all that is is a barrier to enforcement.  Is a Legal Aid order means tested?
46.	MR DENNISON:  I did raise this issue before the court sat, because it struck me as being somewhat odd that the state was paying, in terms of Legal Aid, for people who have properties and so on and so forth, and drive around in £60,000 cars.  I cannot take it any further.  What I would say is that these applications have been dismissed as having effectively no merit.
47.	MR JUSTICE KING:  I understand the merits of making an order.  It is simply the propriety in the light of the matters that are urged upon me by counsel.  Does anyone want to say anything about the amounts?
48.	MR STURMAN:  No, my Lord.  All I can say is about the emotive phrase "driving round in BMWs".  It is a BMW on hire purchase.  There has been an up and down tide with Legal Aid.  It was means tested and then means tests were abolished then brought back in again.  This is a 2001 case.  Under the regulations that applied at the time, Mr F might well have been lucky that it was not means tested.  My understanding is that this fell under that regime.
49.	MR JUSTICE KING:  If it was not means tested then that helps.  Costs should follow the event.  I will make the order for costs against each applicant in favour of the Crown Prosecution Service as asked; in the case of S in the sum of £4,028.72 and in the case of Mr F, £4,375.97. 
50.	MR DENNISON:  My Lord, the only other point is this.  Of course, we have been sitting in private today.  Could I invite my Lord to say that although we have been sitting in private, the transcript of the judgment may be reported.
51.	MR JUSTICE KING:  Yes, unless anybody has any further observations. 
52.	MR PEARCE:  I wonder whether it is in the interests of all of us to have this judgment published.  Unless there is an overriding need. 
53.	MR DENNISON:  I can start in this way.  Firstly, I have never quite understood why these applications are heard in private.  Everything that has been rehearsed really has gone back to the original order.  There may be a plethora of cases, but these two applications were brought against that background, and frankly I cannot see any prejudice in a case being reported.
54.	MR JUSTICE KING:  In the reported cases are the applicants always referred to by letters of the alphabet? 
55.	MR DENNISON:  My Lord, they are not.  Sometimes they are and sometimes they are not, which does bring me on to the next matter I was going to raise, which is this.  We have a number of cases where one refers to "P" or to "S" or something of that sort.  Recently, certainly I have been seeking permission for the case to be reported under the proper name.
56.	MR JUSTICE KING:  What is the reason for the P and the S? 
57.	MR STURMAN:  Because the hearings are in private.
58.	MR JUSTICE KING:  Why are the hearings in private? 
59.	MR STURMAN:  I think sometimes because matters are dealt with of a sensitive nature.  Obviously cases in the Court of Appeal Criminal Division are given their full name, but cases here tend to be Re P.  I cannot see why this cannot be Re F and S.
60.	MR JUSTICE KING:  What I will do, Mr Dennison, is I will order that the judgment can be published but it will be under Re F and S because it seems to be the normal practice.  Obviously the judgment will have to take account of that in the body of the judgment. 
61.	MR DENNISON:  My Lord referred to counsel in the lower court giving comfort to His Honour Judge Blacksell.  Could the transcript make clear that no counsel involved were present in the lower courts.
62.	MR JUSTICE KING:  I will indicate that.  I took that, I think, from Mr Pearce's skeleton.
63.	MR PEARCE:  My Lord, just because I am sensitive not to lead your Lordship into error, I do not wish to reopen the costs position but may we have until Friday so if there are any further ‑‑ 
64.	MR JUSTICE KING:  I will give liberty to apply in writing in relation to the costs order by 4 pm on Friday.
65.	MR PEARCE:  I am very grateful.
66.	MR JUSTICE KING:  I am not encouraging any application.