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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> McCracken v Crown Prosecution Service [2025] EWHC 604 (Admin) (07 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/604.html Cite as: [2025] EWHC 604 (Admin)

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IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

		No: AC-2023-LON-003623 The Royal Courts of Justice Strand London WC2A 2LL (Heard remotely via CVP)
		7 March 2025

MRS JUSTICE FARBEY:

Introduction

1. By an application notice dated 3 December 2024, the applicant applies to the court to discharge or vary a restraint order made on 6 December 2023, prohibiting the applicant and her grandson, Daniel McCracken, from disposing of assets.
2. The respondent applied for and obtained the order under section 77 of the Criminal Justice Act 1988, on the basis of a real risk that assets that formed the subject of a confiscation order would be dissipated unless restrained. The order was made without a hearing and without notice to the applicant. The key asset restrained by the order is the applicant's home in Wigton which she shares with Daniel. Sadly, Daniel is disabled after suffering brain injury from a road traffic accident. The applicant is now 75 years old.
3. The applicant seeks the discharge or variation of the restraint order on the grounds that (i) the order was made on the basis of partial information in breach of the respondent's duty of full and frank disclosure; (ii) the applicant's solicitor was presented in the application as less than straight dealing; and (iii) on a proper consideration of all the relevant evidence, including the detailed correspondence from the applicant's solicitor to the respondent, there is no risk of dissipation.
4. According to the application notice, the applicant wants to sell the asset in order partially to satisfy the confiscation order.

Background

5. In order to understand the restraint order, it is necessary to go back in time. It is not in dispute that in June 2007, Mark McCracken, who is the applicant's son and Daniel's father, was convicted of one offence of conspiracy to defraud. On 10 September 2008, in the Crown Court at Carlisle, a confiscation order was made against Mark. The benefit from his offending was assessed at £180,661.72. His available amount was assessed at £94,000. His assets were found to be 100 per cent ownership of the Wigton house, valued at £90,000, as well as cash held in bank accounts.
6. On 17 December 2008, a restraint order was granted by this court restraining Mark from dealing with his accounts. The order also restrained the applicant and her late husband, Keith, from disposing of the Wigton house. The applicant and her late husband subsequently challenged the confiscation order. In a judgment which I have not seen but which I understand was delivered by Coulson J (as he then was), it was held that the applicant and Keith had a financial interest in the property of 44.1 per cent, with Mark holding the remaining 55.9 per cent interest.
7. An enforcement receiver was appointed to deal with the enforcement of the confiscation order made against Mark. In 2014, Mark indicated that Daniel was willing to purchase his share of the Wigton house for £37,000. On 13 March 2015, a payment of £41,950 was made to HMCTS representing Daniel's payment for the 55.9 per cent share in the Wigton House.
8. The applicant was Mark's co-accused, but proceedings against her had a different pace. On 24 March 2017, she pleaded guilty in the Crown Court at Carlisle to two counts of concealing criminal property, contrary to section 327 of the Proceeds of Crime Act 2002.
9. It appears from the documents before me that the offences concerned the acquiring of the Wigton house under "right to buy" legislation with moneys that were the proceeds of criminal activity, and the concealing of £56,190 of cash that was held on behalf of Mark and was the proceeds of his criminal activity,
10. On 1 March 2019, HHJ Davis sentenced the applicant to a suspended term of imprisonment, the details of which are not apparent from the papers before me. On 8 June 2022, HHJ Baker made a confiscation order with a default sentence of 15 months' imprisonment. HHJ Baker held that the benefit value was £81,705. He held that the available amount was £38,881.94 comprising cash in two TSB accounts, amounting in total to £1,396.94, and a 44.1 per cent share of the Wigton house. That share was valued by the judge at £37,485. By that time, as may be appreciated, Daniel held the remaining 55.9 per cent share of the Wigton house. There was no appeal from the judge's order.

Value of the applicant's house

11. That is the background and I turn now to the parties' competing positions as regards the value of the Wigton house.
12. On behalf of the applicant, Mr Vardon says – and I accept – that the evidence of the value of the house before HHJ Baker was in the form of a Zoopla valuation. He submits that Zoopla represents an unrefined tool for determining a sale price and that the value shown on Zoopla reflected the maximum theoretical sale value. He relies on the valuation provided by an estate agent in February 2023, which was that the market value of the whole house was £100,000 but that the applicant's share of the house was worth around £9,000. This low valuation of the applicant's share relied on certain propositions which are set out in the written valuation as follows:

"Tenancy

We understand that [the applicant] has a tenancy for life at nil rent and she is responsible for maintaining the property …

The owners of the shares cannot realise the value of their shares until the end of [the applicant's] life …

In such circumstances, we are of the opinion that an informed purchaser of [the applicant's] share, acting prudently, would deduct 20 per cent from the arithmetical share. This gives a current market value for [the applicant's] 44 per cent share of £9,328: say £9,500.

Valuation

We are of the opinion that the market value of [the applicant's] 44 per cent share in the property amounts to £9,500".

13. The same firm of estate agents valued the whole house at £110,000 in February 2024, with the applicant's share remaining at £9,000. This second valuation stated that the applicant was a tenant in common with Daniel as well as that she was a tenant for life. Both valuations proceeded, therefore, on the basis that the applicant had a tenancy of some sort that affected the value of her share of the property.
14. The correspondence between the parties shows that in January 2023, the applicant's solicitor proposed to the respondent that the applicant's share be sold to Daniel for £8,000. That offer was raised to £9,500 in February 2023 and then to £10,000 in around July 2023. It was raised to £15,000 on 7 November 2023. The respondent has, at all material times, rejected the applicant's valuation and has put the applicant on notice that, if she does not agree to sell at a much higher value, the respondent will apply for a receiver to be appointed.
15. By November 2023, enforcement proceedings in the magistrates' court were in train in relation to the confiscation order made against the applicant. The respondent's case is that, at a hearing on 15 November 2023, while the Bench was in retirement, the applicant's solicitor, Mr Wright, indicated to the legal advisor and to the respondent's advocate that the applicant would sell her share in the property for £15,000. At that stage, the respondent's view was that the Wigton house would have increased in value since the confiscation hearing and that the house as a whole was worth £90,000 to £100,000. The respondent was therefore concerned that, if sold for £15,000, the assets assessed by HHJ Baker at the confiscation hearing would be dissipated. As a result of that concern, the respondent sought and obtained the restraint order.

The parties' submissions

16. Mr Vardon submits that the respondent obtained the restraint order in breach of the duty of full and frank disclosure, because the respondent did not put a full and balanced picture before the court in the application for the order. The court ought to have been informed that the respondent had not insisted on the sale of the whole house in relation to Mark's confiscation order, which would be the only way in which the applicant could now achieve anything approximating the Zoopla value. The difference of approach taken by the respondent in relation to mother and son was unfair and unexplained.
17. Mr Vardon submits that the respondent had implied in the application for a restraint order that Mr Wright had in mind a sale of the property at a low price in order to thwart the confiscation order and dissipate assets. That was misleading. The respondent had failed to provide the court with the correspondence between the parties. He submits that, if the court had been presented with the complete background, as set out in the correspondence, it would have been clear to the court that Mr Wright had endeavoured to find a practical solution to a difficult problem and that the respondent had refused to negotiate.
18. Mr Vardon submits that there is no evidence of a risk of dissipation. The applicant is elderly and infirm. The restraint order is frustrating her attempts to sell her share of the property to Daniel at a proper price. This court should allow her to sell her share, which would enable her to apply for a certificate of inadequacy in order to reduce the amount owed under the confiscation order. Mr Vardon says that, if she does not sell her share to Daniel, she will face the prospect of spending time in prison under the default sentence when she is elderly and in poor health. The restraint order should be discharged or varied in order to allow Daniel to buy her share as happened in Mark's case.
19. Mr Fletcher submits on behalf of the respondent that there was no material non-disclosure in presenting the application for a restraint order to this court, because there was no need for the respondent to dwell on the minutiae of the correspondence showing the parties' differing positions. If the court had had the whole of the background correspondence, it would merely have learned more about the applicant's fixed position that she wants to sell her share in the house to Daniel at less than its value on the open market.
20. Mr Fletcher submits that the assertions by the estate agent about the applicant having some form of tenancy that would reduce the sale price of her share was based on no evidence. He submits that she is plainly a joint freeholder and is able to sell at market value. There was no evidence before HHJ Baker that she had a tenancy. HHJ Baker was presented with no evidence of any inability to sell her share on the open market.
21. Mr Fletcher submits that, in the absence of any appeal, the Crown Court's assessment of the value of the property should be respected. He emphasises that it is contrary to the public interest in the confiscation of proceeds of crime for the applicant to be permitted to sell at an undervalue and then to seek a certificate of inadequacy. That is plainly what she wants to do, as her lawyers have indicated. It follows that, unless restrained, confiscated assets may be dissipated.

Discussion

22. I make plain that neither the applicant's solicitor nor the respondent have done anything wrong. Both have put forward their positions in a clear and robust manner. No one involved in the case has breached any duty to this court or to the courts below. As regards Mr Wright's conduct, there is no need for him to worry that his reputation has been affected; it has not. I hope that any impression to the contrary will not be given again. As regards the respondent's conduct, there was no need to provide the court with all the details in the correspondence about the applicant's offers, because her position could not possibly have been improved by the court knowing that she failed to accept HHJ Baker's assessment of the value of the house, which is what the correspondence shows.
23. The approach taken by the respondent in Mark's case is irrelevant. There is no need for the respondent to take a uniform approach between different offenders. The public interest means that the respondent is bound to treat the applicant's case on its own facts. Any failure to inform the court about the history of Mark's confiscation order was irrelevant and so immaterial.
24. Even if the respondent had breached its duty of full and frank disclosure, the fact that the respondent acts in the public interest militates against the sanction of discharging an order if, after consideration of all the evidence, the court thinks that a restraint order is appropriate: see Jennings v Crown Prosecution Service [2005] EWCA Civ 7466, para 64; see also para 62. In my judgment, the real question is whether the present restraint order is appropriate and so that is the issue to which I shall now turn.
25. The applicant's position is plain. She has refused to countenance a sale at a price that Daniel cannot afford or does not want to pay. There is no evidence that she holds any interest in the property, such as a tenancy, that would or should reduce the sale price on the open market. I appreciate that she is elderly and cares for Daniel. It is readily understandable that she does not wish to sell her share in a house in which she has lived, as I understand it, for well over 40 years; but she is subject to an order to repay the proceeds of crime. The public interest in her doing so is, on well-established principles, strong. The applicant's inclination to sell to Daniel at a far lower value than HHJ Baker determined and then to rely on her solicitors to obtain a certificate of inadequacy is, in my judgment, sufficient to give rise to a risk of dissipation of the assets.
26. I reject the proposition that the difficult personal circumstances of the applicant and Daniel mean that the public interest in the recovery of the proceeds of crime is met by sale for £15,000, with a subsequent certificate of inadequacy. Under section 83 of the 1988 Act, such a certificate may be granted if the High Court is satisfied that the realisable property is inadequate for the payment of any amount remaining to be recovered under the confiscation order. The estate agent valued the house in 2023 at £100,000 and, in 2024, at £110,000, so that the conditions for a certificate of inadequacy may well not be met. In any event, the respondent is, in my judgment, entitled in the public interest to apply for a receiver with a view to enforcing the sale of the house at market value, albeit that Daniel would need to be reimbursed for his share of the sale proceeds.
27. Before a receiver were to be empowered to enforce a sale, both the applicant and Daniel would have an opportunity to make representations to the court as to any disproportionate consequences for them. It is at that stage, and not now, that the public interest and the interests of the applicant and third parties would be balanced.
28. Under section 82(2) of the 1988 Act, this court is under a duty to exercise its powers in relation to restraint orders with a view to making available for satisfying the confiscation order the value of realisable property held by any person by the realisation of such property. The court would, in my judgment, be failing in its duty if it were to take the risk of a sale at less than market value.
29. For these reasons, the restraint order is appropriate. This application is dismissed. It remains for me to express my gratitude to counsel for their helpful submissions.