Neutral Citation Number: [2013] EWHC 4015 (Admin)

Case No: CO/9176/2008

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 20 December 2013
Before:
THE HONOURABLE MR. JUSTICE COULSON
--------------------The Queen on the Application of:
Abdolmalek Bavi
- and Snaresbrook Crown Court
- and Thames Valley Police

Claimant
Defendant
Interested Party

----------------------------------------Ms Klentiana Mahmutaj (instructed by Corker Binning) for the Claimant

No representation or appearance for the Defendant
Mr James Fletcher (instructed by Thames Valley Police Solicitors) for the Interested Party
Hearing date: 12 December 2013
---------------------

Judgment
The Hon. Mr Justice Coulson:
1. INTRODUCTION

1.

The claimant, Mr Abdolmalek Bavi, seeks judicial review of the decision of

Snaresbrook Crown Court dated 18 January 2007 (Ms Recorder C Booth QC, sitting
with Justices) by which the sum of 18,500 in cash, seized from Mr Bavi at the
Reading Festival on 27 August 2005, was forfeited under the Proceeds of Crime Act
2002 (PoCA). Unusually perhaps, in a case like this, Mr Bavi seeks not only the
quashing of the original decision but its substitution with a fresh decision that the
money should be returned.

2.

As will become apparent, this case has had a long and tortuous history, culminating in
the decision of the Court of Appeal on 28 November 2012 ([2012] EWCA Civ 1830)
by which Mr Bavi was granted relief of various kinds, including permission to apply
for judicial review of the decision of Snaresbrook Crown Court. It is therefore
necessary to set out the procedural background, before going on to look at the legal
framework, the decision of the Crown Court, and the grounds for challenging that
decision.

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Bavi v Snaresbrook CC and Another

2. PROCEDURAL HISTORY
3.

On 27 August 2005, Mr Bavi was apprehended on his way into the Reading Festival.
His rucksack was searched and the sum of 18,500 in cash was seized by the Thames
Valley Police. On 7 March 2006, the Reading Magistrates ordered the forfeiture of
the cash under Section 298(2)(a) and/or Section 298(2)(b) of PoCA. Mr Bavis
appeal against that order was heard at Snaresbrook Crown Court by way of a rehearing. The appeal was dismissed on 18 January 2007. Mr Bavis application for
permission to bring a judicial review claim in respect of that decision was refused on
1 December 2008. His application for permission to appeal was dismissed as being
wholly without merit on 30 April 2009.

4.

In March 2010, Mr Bavi was first diagnosed as suffering from Aspergers Syndrome
and Social Phobia and OCD. As a consequence of this diagnosis, the Court of Appeal
granted Mr Bavi permission to rely on fresh evidence, in the form of an experts
report from a psychiatrist, Dr Lachlan Campbell. This culminated in the decision of
28 November 2012, in which the Court of Appeal allowed Mr Bavis appeal;
permitted him to amend his applicants notice, his judicial review claim form, his
statement of facts and grounds of review; gave him permission to appeal against the
decision refusing permission to apply for judicial review on 1 December 2008; and
gave him permission to apply for judicial review of the decision of Snaresbrook
Crown Court.

3. THE LEGAL FRAMEWORK

5.

The relevant sections of PoCA are as follows:

242. Property obtained through unlawful conduct
(1)

A person obtains property through unlawful conduct

(whether his own conduct or anothers) if he obtains
property by or in return for the conduct.

(2)

In deciding whether any property was obtained through

unlawful conduct
(a)

it is immaterial whether or not any money, goods or

services were provided in order to put the person in
question in a position to carry out the conduct,

(b)

it is not necessary to show that the conduct was of a

particular kind if it is shown that the property was
obtained through conduct of one of a number of
kinds, each of which would have been unlawful
conduct.

298. Forfeiture

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(1)

Bavi v Snaresbrook CC and Another

While cash is detained under section 295, an application

for the forfeiture of the whole or any part of it may be
made (a)

to a magistrates court by the Commissioners of

Customs and Excise or a constable

(2)

The court may order the forfeiture of the cash or any

part of it if satisfied that the cash or part (a)

is recoverable property, or

(b)

is intended by any person for use in unlawful

conduct.

6.

For some time, there was uncertainty as to the extent, if at all, to which the police or
the relevant authority had to show that the money which was the subject of the
forfeiture proceedings arose from any particular unlawful conduct. In Muneka v
Commissioner of Customs and Excise [2005] EWHC 495 (Admin), Moses J (as he
then was) held that the Crown did not have to show any particular criminal conduct.
However, in Director of Assets Recovery Agency v Geoffrey David Green [2005]
EWHC 3168 (Admin), Sullivan J (as he then was) did not accept that approach,
although he distinguished Muneka on the basis that he was considering asset recovery
in civil proceedings, rather than in cash forfeiture litigation, which was the subject
matter of Muneka.

7.

Subsequently, other decisions have indicated that, for money laundering allegations
for example, it was not enough for the prosecution merely to rely on single possession
of a large quantity of cash, and the Crown had to identify at least the class of crime in
question: see R v NW [2009] 1 WLR 965. More recently, all of these authorities were
considered by the Divisional Court in Carol Angus v UKBA [2011] EWHC 461
(Admin). In giving the judgment of the court, Nicola Davies J held that, by
reference to Section 242(2)(b) of PoCA, in a case of cash forfeiture, a customs officer
does have to show that the property seized was obtained through conduct of one of a
number of kinds each of which would have been unlawful conduct. That has
authoritatively set out the approach to be adopted under s.298(2)(a), namely that
unlawful conduct which is said to have generated the money in question needs to be
identified. There is no direct authority on the operation of s.298(2)(b) (the intended
unlawful conduct).

8.

An issue which arose in a number of the cases identified above concerns the
credibility of the person who is the subject of the forfeiture claim. The general
approach has been that, if the person in question is found to have lied about the
origins of the money or its intended use, then the court was entitled to draw an
inference from that lie that the money had been obtained through, or was intended for
use in, unlawful conduct. Subject to the requirement now that any unlawful conduct
said to have generated the money in the first place has to be identified, it seems to me
that that approach is reasonable, and in accordance with the purposes of PoCA.

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4. THE DECISION OF THE CROWN COURT

9.

Given that Miss Mahmutaj seeks an order, not only quashing the decision of the
Crown Court, but its substitution with a decision in Mr Bavis favour, it is necessary
to set out in some detail the decision of 10 January 2007.

10.

The learned recorder set out the relevant findings of fact as follows:
Mr Bavi told PC Clements that that money is from a building
job I did because I am a builder. The tickets do not say its
illegal to bring money into the festival. The officers notebook
clearly shows that the respondent signed that statement as
correct. He now accepts that he has never worked as a builder
and that was untrue. That is not the only lie he has told. Mr
Bavi was then kept for three hours in a police van without
refreshment or access to a toilet in the midst of a hot summer
afternoon. He is diabetic and this caused him distress. He
complained to the police about this treatment and the
recommendation was more should be done for people detained
in these circumstances. Nevertheless, this treatment, which
took place after he lied to PC Clements, could not explain away
that lie or indeed his subsequent statements in interview which
seemed to us to be more to do with the fact that he was
struggling to find an explanation for his possession of the
18,500 than any actions by the police.
Just before 7:00pm he was eventually taken to Reading Police
Station and again lied in giving his occupation as a selfemployed builder. At around midnight he was interviewed
under caution by police officer Eliska Jackson-Smith and he
made a number of statements which are recorded in the
interview. In contrast what he told PC Clements that this was
from a building job, in interview he said the money was from
40-50 building jobs and that his savings came from hard
building work. This is more fantasy than reality. In fact, he
goes into great detail in the interview about being a selfemployed builder. He said this: its not a company. We just
deal with the Inland RevenueIve been in the job for 10
years. If its winter work we do inside work, when its summer
we do everything outside, painting decorating, from roof,
plumbing electric tiling flooring, everything. Ive got a big
book of workers. I get paid in cash. A kitchen job can start
from material from 1,000 it can go up to 20,000. To get hold
of me I sometimes advertise on the internet. I dont need a lot
of advertising, you know. If a builder is advertising its not
really a good sign. Ive done maybe 40, 50 jobs. I prefer to
advertise by word of mouth. All of this is complete fantasy
and shows Mr Bavi doing what he had done on other occasions,
embellishing his stories with fictitious details

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In interview he was suggesting that he distrusted banks and was

carrying the money around on his person. This does not fit
with what we now know of him. He did mention to the police
in interview the 12,500 Barclay loan and mentioned also that
he did not owe any other bank any money and he didnt use the
overdraft facility that he had obtained. This does appear to be
true, but it does not explain what happens to the loan. The
reason he had the money with him, he said, was because he
wanted to buy a van and thought it was cheaper outside
London. Whilst we do accept that this is probably true that it is
cheaper to buy a van outside London, it doesnt explain why he
needed to buy a van that particular day, particularly when he
had used his car to get to the festival. Neither would you need
to spend 10,000 on such a van.
The balance of the money he claimed was for redecorating and
buying some furniture for his house and for his teeth. We are
not convinced of this and it doesnt explain why he needed to
take the furniture money or the teeth money to Reading that
weekend.
Having again referred to the loan of 12,500 in March 2005, the learned recorder
went on:
We agree with Thames Valley Police that the probability is
that the cash that was withdrawn in March had been spent by
August. Mr Bavi maintains that he just put this cash into a cash
deposit box which he acquired on 11 November 2004 and kept
it there until he withdrew it with his additional savings in July
2005. We find this surprising. The first time Mr Bavi revealed
the safe deposit box was yesterday in court. He did not
mention it to the police and, even more significantly, he did not
mention it at all even when giving evidence in a Magistrates
court. Indeed, at that time on questioning from the District
Judge he said he had the money in a box in his flat and that he
had bought the box from Rymans. We consider this is highly
significant and casts real doubt on his case now. It is true that
he did hold a safe deposit box between 1 November 2004 and
October 2005. He closed it prematurely on 17 October 2005
even though he had paid for it up to the end of the year. It is
typical of the way he embellishes his evidence that when he
gave evidence of his acquiring the safe deposit box he said he
got it at a specially reduced offer price of 95. When the
manager of the company came to give his evidence he made it
clear that there was no such offer and that he paid the usual
price of 165 in cash with a rental going on to the end of the
year of 2005. When he closed the account in October 2005 he
got his 50 deposit back so the total cost was in fact 115.
The list of visits to the box show that he came on a number of
occasions, including twice in April when he claims to have put

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the loan monies in and then on 8th June and 5th and 18th July.
He does not identify on which of these occasions he says are
the one when he took the loan monies and, indeed, there is
nothing in the fact that he went to the box which shows he took
any money there at all. We reject his explanation that the loan
was added to the money in the box and we accept that on the
balance of probabilities the loan monies were more than likely
disposed of shortly after they were withdrawn from the bank.
11.

As to the law, the learned recorder said:

Unlawful conduct is defined in Section 241it is not
necessary for the police to specify what unlawful conduct the
cash is alleged to have come from or what the intended
unlawful conduct is alleged to be (see Muneka)
In Muneka as well the court gave guidance as to the
significance of lies. Lies may well establish the source of the
cash as criminal activity. At paragraph 12 Moses J as he then
was stated: lies in the context of the issue may well establish
that the source of the money is criminal activity.
She also referred to the unreported case of Nevin (unreported, 3/11/95) where Sedley
J, as he then was, said that a suspect who gives an account of his reasons for
carrying the money which the justices reject as untruthful cannot complain if the
justices go on to infer from other relevant evidence that by itself might not have been
enough to satisfy them, that the true reason was the use of drug trafficking.

12.

Setting out the courts conclusions, the recorder said:

We have considered carefully the evidence and the
submissions of counsel and asking ourselves questions (1) is
the 18,500 recoverable property, that is property obtained
through unlawful conduct or, (2) is the 18,500 intended by Mr
Bavi for use in unlawful conduct?
We have concluded on the balance of probabilities that it is, for
the following reasons: firstly, the circumstances in which the
cash was found does not suggest that it was legitimate money.
Such a large sum of legitimate cash is not carried to a large
music festival which is attended by large crowds where the risk
of theft and loss is far greater than merely carrying cash in the
street. The cash was insecure in a backpack in a camera bag
and wrapped in plain paper. On the balance of probability this
does not suggest this money was for use for a legitimate
purpose. The fact that Mr Bavi looked out of place and tried to
minimise the amount of money he had on him when first
detained by saying he had just a few thousand pounds suggests
that he had something to hide. We do not need to speculate
why he was there at the festival with that money, but we do not

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believe he was there to buy a van, furniture or get his teeth

fixed.
Mr Bavi has changed his story repeatedly. He initially told PC
Clements that the money had come from a building job. He
signed the officers notebook to that effect. This suggests a
singular job. He then changed his story to suggest the cash was
from a number of building jobs. He then suggested that it was
from the loan and savings. We do not know exactly what
happened to the loan, but we are not persuaded that it was
represented in the money that he had with him on that day. Nor
do we think that the money he had with him on that day
represented his savings, even if he had any.
As for the intended use for the money, he said it was for a
vehicle and the surplus for redecorating his home, getting
furniture and for the dentistry work. We do not accept this
explanation. It is highly unlikely that a Reading Festival goer
would carry that amount of money with him or indeed have the
time or inclination to purchase a motor vehicle, still less items
of furniture, materials for redecoration and certainly not
dentistry. We conclude on the balance of probability that the
intended use of this money was for an unlawful purpose.
5. THE ISSUES ON THIS APPLICATION
13.

14.

The claimant raises three separate reasons why the Crown Court decision should be
quashed. They are:
(a)

Ground 1: that the decision was made in ignorance of established and relevant
fact, namely the claimants medical condition, giving rise to an error of law;

(b)

Ground 2: that the court erred in law in deciding that, pursuant to s.298(2)(a),
the police did not have to show that the cash had been obtained through
unlawful conduct of a particular kind or kinds; and

(c)

Ground 3: that the court erred in law in deciding that, pursuant to s.298(2)(b),
the police did not have to show that the cash was intended for use in unlawful
conduct of a particular kind or kinds.

In addition, the claimant submits that, pursuant to Section 31 of the Senior Courts Act
1981, the court should exercise its discretion and substitute its own decision for the
decision in question. Accordingly, I propose to deal firstly with the three grounds and
then go on to deal with the real point between the parties, which was the issue of
substitution.

6. GROUND 1: THE MEDICAL EVIDENCE

15.

On behalf of the Interested Party, Mr Fletcher does not challenge the application to
quash the decision of the Crown Court on Ground 1. It is accepted that the fact that,
at the time of the hearing, neither side were aware of Mr Bavis medical condition

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gave rise to an error of law and that, in consequence, the decision should be quashed.
Support for the proposition that an error of fact which gave rise to unfairness
amounted to a point law can be found in paragraph 66 of the judgment of Carnwath
LJ (as he then was) in E v Secretary of State for the Home Department [2004] QB
1044. However, even though this ground of challenge is accepted, because there
remains a dispute as to whether this ground, or either of the others, justifies the
substitution of the original decision with one of the courts own, it is necessary to deal
with Ground 1 in some detail.
16.

In his judgment in the Court of Appeal last year (see paragraph 4 above), Tomlinson
LJ had this to say about the medical evidence concerning Mr Bavi:
8In due course he was able to obtain further medical
assistance and in November of last year there was prepared on
his behalf a report by a Dr Lachlan B. Campbell, who is a
consultant forensic neuropsychiatrist at the Blackfriars Medical
Legal Consultancy. In that report, Dr Campbell gives reasons,
having conducted an interview of Mr Bavi on his own, at the
doctors London consulting rooms, for saying that Mr Bavi
exhibits Aspergers Syndrome, which Dr Campbell describes as
a developmental disorder of reciprocal social interaction. Dr
Campbell also indicated that, with maturity (and I mentioned
earlier that Mr Bavi is now in his early sixties), he now
presents mainly with obsessive-compulsive-type symptoms.
Furthermore Dr Campbell reported that, arising from this
condition, Mr Bavi has seemingly submerged himself in a
fantasy existence and that his capacity to form reasoned
judgements about his abilities and prospects is correspondingly
compromised.
9. Dr Campbell explains that Aspergers Syndrome is a
developmental disorder which emerges in the first few years of
life and that, in consequence, there is little doubt that Mr Bavi
would have been impaired by this condition on and around the
27th August 2005, which was the date on which he attended the
music festival.
10. Dr Campbell also explains that many of the features of Mr
Bavis account which were found to be implausible are readily
explicable in terms of the manifestations of Aspergers
Syndrome in Mr Bavi, in particular a tendency to compulsive
saving and a tendency to fantasise about his ability to set up a
business of his own in the construction world and matters of
that sort.
11. In short, if Dr Campbells evidence is in due course
accepted as reliable, and for the present there is no indication
that it might not be, it might well offer a complete explanation
for what was otherwise regarded by both the Magistrates Court
and the Crown Court as an implausible explanation for his
being found in possession of this large amount of cash at a

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music festival, in circumstances where it is clear that all

concerned formed the view (rightly or wrongly) that the money
was probably derived from unlawful activity and was further
intended to be used in further unlawful activity, no doubt of the
nature of drug trading at a music festival.
17.

18.

From my reading of the papers I respectfully agree with that analysis. The critical
point is that Mr Bavis account of how he had the 18,500 and what he intended to do
with it has to be considered against the medical evidence and, in particular, the
symptoms of his condition, which include:
(a)

Submerging himself in a fantasy as to his capability, present occupation and

plans for the future;

(b)

A compromised capacity to form reason judgments about his abilities and

prospects;

(c)

A deep-seated tendency to preserve his self esteem when answering questions

by a third party and maintaining and account consistent with his fantasies;

(d)

Great difficulty in forming rational judgments to risk and lacking any real
appreciation of how to quantify and address risks;

(e)

An absence of inter-personal bonds between himself and other people.

In the light of that, I am no doubt that Ground 1 justifies the quashing of the decision
of the Crown Court and that Mr Fletcher was quite right to make that concession.
None of that can possibly be taken as a criticism of the recorder: she did not know
that Mr Bavi had a directly relevant medical condition and therefore could not
possibly have taken that into consideration in reaching her conclusions.

7. GROUND 2: s.298(2)(a)
19.

As noted, Ground 2 is that, pursuant to s.298(2)(a), the Crown Court erred in finding
that the police did not need to show that the cash had been obtained through unlawful
conduct of a particular kind. Although this matter was not considered by the Court of
Appeal, and although it might be regarded as slightly academic, since the decision of
the Crown Court must be quashed anyway, it does seem to me that, in deference to the
clear arguments of Ms Mahmutaj, I ought to deal with it.

20.

For the reasons set out in paragraphs 6 and 7 above, although the underlying statute
has not changed, there has been a clear shift in emphasis as to how the authorities
should approach unlawful conduct as the alleged source of the cash in forfeiture cases.
Muneka, on which the learned recorder properly relied in 2007, should not now be
followed in the light of the decision in Angus. On the face of it, therefore, that
change in judicial interpretation gives rise to a second ground for quashing the
decision.

21.

Although Mr Fletcher agreed that, if there was a re-hearing in the Crown Court, the
court would be bound to apply Angus, rather than Muneka, he argued that it would be
wrong for the original decision of the Crown Court to be opened up in this way,

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particularly as the Court of Appeal did not deal with the issue in November last year.
He said that the principle of finality meant that this issue was not open to the
claimant.
22.

I do not agree. Taking it in stages:

(a) Bestel and Others [2013] EWCA Crim 1305 is authority for the proposition that,
in PoCA cases, decisions made under the law as it was then understood should
not be disturbed unless substantial injustice would follow.
(b) But this is a case which has already been disturbed as a result of the decision of
the Court of Appeal. Therefore the doctrine of finality does not apply here. In
this case, there will either be a re-hearing or a substitution.
(c) At that re-hearing or as part of my deliberations when considering substitution, I
am bound to consider the law as set out in Angus. Anything else would be
absurd.
For all those reasons, therefore, I consider that, in the unusual circumstances of this
case, Ground 2 is a further reason to quash the decision of the Crown Court.

8. GROUND 3: s.298(2)(b)
23.

Ground 3 of the application is that, pursuant to s.298(2)(b), the Crown Court erred in
finding that the police did not need to show that the cash was intended for use in any
particular kind of unlawful conduct. At first sight this appears similar to Ground 2,
albeit dealing with intended (i.e. future) conduct rather than past conduct which
generated the money. But in truth the position is rather more nuanced than that.

24.

I make clear at the outset that, if there is to be a further hearing de novo in the Crown
Court, Ms Mahmutaj can argue that specific unlawful conduct needs to be shown for
the purposes of s.298(2)(b) as well. But I decline to quash the decision on Ground 3
alone for a number of reasons. First, it is an academic point, since the decision is
already being quashed as a result of Grounds 1 and 2. Secondly, it is agreed that
there is no new authority, such as Angus, which suggests that the Crown Court may
have been in error in approaching the law in a particular way.

25.

Thirdly, and perhaps most important of all, it seems to me that there may be a
difference between what has to be shown in relation to unlawful conduct that has
already occurred, and has therefore given rise to the money which is now being
forfeited, and intended unlawful conduct which, by its nature, cannot yet have
happened. It seems to me that, in the latter case, it may be (I do not put it higher than
that) that the requirement on the part of the authorities to show particular intended
conduct is less stringent. It can often be difficult for the authorities to demonstrate
unlawful conduct which has not yet happened but which is only intended. It might
make a nonsense of sub-section (b) if the authorities had to show with precision what
the unlawful conduct was that the defendant intended to carry out in the future.

26.

I derive some support for that approach from the recent judgment of Lewis J in
Fletcher v Chief Constable of Leicester Constabulary [2013] EWHC 3357, where

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distinctions were made between the requirements of sub-sections (2)a) and (2)b) and
where Angus was distinguished as a case under sub-section (2)a), not (2)b).
27.

For those reasons, although I make clear that Ms Mahmutaj can argue whatever she
wishes on Ground 3 at any fresh hearing in the Crown Court, I decline to quash the
original decision on this Ground.

9. SUBSTITUTION
28.

Section 31 of the Senior Courts Act 1981 provides as follows:

(5) If, on an application for judicial review, the High Court
quashes the decision to which the application relates, it may in
addition
(a)

Remit the matter to the court, tribunal or authority

which made the decision, with a direction to
reconsider the matter and reach a decision in
accordance with the findings of the High Court, or

(b)

Substitute its own decision for the decision in

question.

(5A) But the power conferred by sub-section 5(b) is exercisable

only if
(a)

The decision in question was made by a court or

tribunal,

(b)

The decision is quashed on the ground that there has

been an error of law, and

(c)

Without the error, there would have been only one

decision which the court or tribunal would have
reached.

29.

Essentially, two issues arise on this application. The first is whether, without the
error(s), there would have only been one decision which the court or tribunal could
have reached. The second is whether, if that is the case, the court should exercise its
discretion in favour of substitution.

30.

In my view, on any rehearing, if the medical evidence is accepted by the court, and if
there is no evidence concerning the unlawful conduct beyond that which was adduced
last time (either concerning events prior to the Reading Festival or intended to be
carried out at the Reading Festival), then this forfeiture application is very likely to
fail and the money will be returned to Mr Bavi. But, much as I would like to, I cannot
dismiss those caveats as fanciful, and therefore cannot say that, without Grounds 1
and 2, there would have been only one decision which the Crown Court could have
reached in 2007. Indeed, that is always difficult when the error of law is, in reality, a
matter of fact which nobody knew about.

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31.

I accept (as Tomlinson LJ accepted) that, on its face, the medical evidence appears to
provide a complete answer to the lies and inconsistencies inherent in Mr Bavis
account. But unless and until it is formally agreed in full, that evidence needs to be
tested in the ordinary way. That is why Tomlinson LJ at paragraph 11 of his
judgment (paragraph 16 above) expressly said that Ground 1 may lead to a different
result if Dr Campbells evidence is in due course accepted as reliable and why, at
paragraph 18, he said that the condition suffered by Mr Bavi may and of course I
put it no higher provide a complete explanation for his otherwise irrational
behaviour. That issue can only be determined in the Crown Court, having heard and
evaluated that evidence.

32.

The other element of this case which may need to be explored in a fresh hearing
concerns the alleged unlawful conduct. It is a remarkable feature of the polices case
against Mr Bavi that that they appeared to go out of their way not to identify any
particular unlawful conduct on his part. Instead they seemed content to rely on his
lies and his inconsistencies as proving the case against him (although I accept that
there were some documents before the court as well). In the light of Angus, such an
approach is no longer appropriate, certainly in respect of unlawful conduct said to
have generated the money.

33.

I cannot discount the possibility that, because of Muneka, this was a deliberate
omission on the part of the police. If there is to be a de novo hearing, to consider the
medical evidence, and the issue of unlawful conduct under the law as it now stands,
then it would be appropriate to give both sides the opportunity of putting in any
further evidence, should they so wish, on the question of unlawful conduct. Then the
Crown Court can weigh up, on the one hand, the medical condition, and on the other
the evidence of unlawful conduct, and reach a view, applying the new approach to
s.298, as to whether the polices case had been made out.

34.

Although Ms Mahmutaj argued that the claimant would be a vulnerable witness and
should not be put through the ordeal of another hearing, it seems to me that he can be
properly protected by the directions of the judge hearing the appeal in the Crown
Court. There is no suggestion that he is unfit to plead or cannot tell the difference
between right and wrong. Without hearing evidence, I cannot substitute my own
decision simply because of the strong written material concerning the claimants
medical condition.

35.

I must say that I reached a firm conclusion on discretion. If I had been of the view
that, allowing for the errors, the only possible outcome was one in favour of Mr Bavi,
I would have exercised my discretion in favour of substitution. There can be no doubt
that, on the evidence, Mr Bavi has suffered considerably (both financially and
mentally) as a result of this forfeiture and it is important now for the matter to be
resolved as soon as possible.

10. LIKELY DISPOSITION

36.

I consider that by far the most likely disposition of this case at the Crown Court
hearing is as follows. Dr Campbells evidence will be accepted. That will almost
certainly provide a complete explanation for the lies and other oddities within Mr
Bavis answers and previous evidence. As to any unlawful conduct said to have
generated the cash, since there was never any real evidence of any particular unlawful

Judgment Approved by the court for handing down.

Bavi v Snaresbrook CC and Another

conduct (as opposed to unanswered questions about what happened to the loan), and
the police now have to be much more specific about this, it must be likely that the first
aspect of the forfeiture proceedings will simply fall away. After all, if there had been
positive evidence of any unlawful conduct said to have generated this cash, that
evidence would have been put to Mr Bavi long ago. And if it was now said that there
was specific misconduct, years after the event, it would lead to all sorts of questions
as to why that evidence had not been raised before. The suggestion in Mr Fletchers
skeleton that the police would now want to investigate how the loan was obtained
smacks of desperation; not only was that not raised before, but it seems likely that the
forfeited cash was largely made up of that loan, the inability to repay which has
caused so much difficulty for Mr Bavi. As things presently stand, I consider that the
police case under s.298(2)(a) would be unlikely to succeed.
37.

That leaves the intended unlawful conduct. As I have already said, the police seemed
anxious not to identify what the intended unlawful conduct might have been.
Inevitably, I think, the police will have to say that the intended unlawful conduct
related to the buying and selling of drugs. On the face of it, Mr Bavi seems a very
unlikely candidate for a drug dealer. If the medical evidence is accepted, particularly
in relation to his predilection for saving and for hoarding, then there would appear to
be an innocent explanation for his odd conduct, rather than any intended involvement
in drugs. If so, that would be the end of the police case under s.298(2)(b) as well.

38.

In short, if the detail of the medical evidence is accepted or agreed, then in the
absence of something entirely new demonstrating unlawful conduct (which would
lead to plenty of questions as to why it had not arisen before), I consider that these
forfeiture proceedings are likely to fail. Whilst, for the reasons that I have given, I
cannot substitute my own decision for that of the Crown Court, and there therefore
needs to be a re-hearing, I would urge the Interested Party to reconsider its position
and, in the absence of anything new, give careful consideration to releasing this
money back to Mr Bavi without further delay. If that does not happen, and the
rehearing goes as I have indicated, there will be an obvious risk that the Interested
Party will be liable for indemnity costs.

39.

I order a rehearing which must be expedited. I would ask the parties to draw up the
order based on this Judgment and agree all ancillary matters.