B v N and others [2009] EWHC 2884 (Admin)
The Criminal Justice Act 1988 makes provision for the confiscation of the proceeds of an offence. In the case of realisable property (such as a residential home), s.80(2) permits the appointment of a receiver, who, in turn, is empowered to recover possession of the property. By s.80(4)
The court may order any person having possession of realisable property to give possession of it to any such receiver.
N had been convicted in December 2003 of conspiracy to launder the proceeds of crime. The realisable assets included a residential property at the heart of this dispute. The property was divided into 12 rooms with a common kitchen and bathroom and each room was let on an assured shorthold tenancy.
A receiver was appointed in respect of the property and the receiver sought possession of the property. None of the occupants of the property were given notice of the application for or appointment of a receiver and none were given notice of the application for a writ of possession.
Despite these procedural flaws, the question for the High Court was whether or not the powers of the receiver to recover possession against “any person” extended to recovery of possession against tenants under existing tenancies or statutory rights.
James Goudie QC, sitting as a Deputy High Court Judge, held that the receiver was not so entitled. The receiver, in effect, took the property subject to the existing interests. Those persons in occupation pursuant to a tenancy agreement were entitled to have the terms of their tenancy respected and those who occupied under a statutory entitlement (i.e. holding over as a periodic tenancy at the end of a fixed term AST) were likewise protected. In each case, the receiver could only obtain possession pursuant to an order of the court, in the usual way. Section 80(4) did not trump the rights of persons in actual occupation pursuanRect to contractual or statutory rights.
Now, my devious legal mind wonders if there might be good news in this decision for criminals. Suppose that I have a criminal asset which includes a house. If I grant a 999 year lease of that house to, say, my brother, that lease would appear to bind the receiver and mean that he can’t recover possession other than through forfeiture…