Zahid Mirza v Crown Prosecution Service

MR JUSTICE SOOLE:

1. By application notice dated 10 December 2024 the applicant, Mr Zahid Mirza, seeks a certificate of inadequacy pursuant to s.83 Criminal Justice Act 1988 . The application is opposed by the Crown.

2. On 29 and 31 August 2007, following a trial before the Crown Court at Kingston upon Thames, the applicant was convicted on five counts on the indictment, namely: conspiracy to evade the prohibition on the unauthorised use of a trademark in relation to Viagra (Count 1) and Cialis (Count 3); conspiracy to place a medicinal product on the market, Viagra (Count 2) and Cialis (Count 4); and conspiracy to evade the prohibition on wholesale dealing in Tadalafil, an active ingredient in Cialis (Count 8). On 30 August 2007, i.e. between conviction on Counts 1-4 and conviction on Count 8, the applicant absconded to Pakistan. On 4 September 2007 he was sentenced in his absence to a term of 2 years 6 months imprisonment. A warrant was issued for his arrest.

3. Confiscation proceedings were instituted against the applicant. On 17 April 2009 a Confiscation Order was made against him by the Crown Court. This Order found his benefit from criminal conduct to be £1,801,935 and the recoverable amount to be in the same sum. The Order required payment within 28 days and in default of payment a term of 10 years imprisonment was to be served.

4. This total of realisable assets comprised two freehold properties, 13 Milverton Gardens (valued at £343,000) and 15 Milverton Gardens (valued at £159,416.88); credit in a National Westminster Bank account ending 7092 (£1,107.55); and the balance reflecting ‘hidden assets’(£1,298,410.55): witness statement of Marie-Lise Coiffe, a Senior Crown Prosecutor with the National Enforcement Unit of the CPS Proceeds of Crime Division dated 18 February 2025.

5. On 15 April 2011 an enforcement receiver was appointed by this Court to realise the applicant’s identified assets held in this jurisdiction. The proceeds realised by the receiver totals £408,680.51. The receiver was discharged on 10 July 2014. The balance of £1,393,254.49 remains outstanding, together with substantial accrued and accruing interest.

6. On 3 March 2023 the applicant, having returned to the UK, surrendered to the outstanding warrant. On 6 March 2023 in the Crown Court at Isleworth he was sentenced to an additional 3 months to be served consecutively to the original sentence. The legal framework

7. Although s.83 Criminal Justice Act 1988 has been repealed, transitional provisions preserve its effect for cases such as this where the underlying offences were committed before 24 March 2003.

8. Section 83 provides as material: ‘ (1) If, on an application made in respect of a confiscation order – (a) 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 court’s reasons…(3) Where a certificate has been issued under subsection (1) above, the person who applied for it may apply – (a) where the confiscation order was made by the Crown Court, to that court;… for the amount to be recovered under the order to be reduced. (4) The Crown Court shall, on an application made under subsection (3) above – (a) substitute for the amount to be recovered under the order such lesser amount as the court thinks just in all the circumstances of the case; and (b) substitute for the term of imprisonment or detention fixed under ’ section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of the amount to be recovered under the order a shorter term determined in accordance with that section in respect of the lesser amount…

9. By s.74(1) of the 1988 Act ‘ realisable property ’ means, subject to subsection (2), ‘ (a) any property held by the defendant; and (b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Part of ’. this Act

10. Section 83 thus provides a two-stage process. This Court must first determine whether an inadequacy exists. If it does, a certificate is issued and the Crown Court can then determine the extent to which the underlying Confiscation Order should be varied.

11. In Glaves v. CPS [2011] EWCA Civ 69 at [18] and In re Adams [2017] EWCA Civ 185 ; [2017] 1 WLR 3732 at [20] the Court of Appeal has affirmed the general principles to be applied in relation to section 83 applications as follows (and omitting the cited authorities in support of each proposition): (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; (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 ’; (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; (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 time he condescends to demonstrate what has happened since the making of the order to realise the property found by the judge to have existed when the order was made ’; (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; (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’.

12. In Glaves at [19] the Court continued that ‘ It is important to emphasise that this is a helpful summary of general principles developed by the courts in order to fulfil the purpose of the statutory scheme in a way that does justice, but that the underlying objective is critical. It will be necessary to examine more closely the fourth proposition, and the case of O’Donoghue, when looking at the issues in the present case, bearing in mind that such propositions, however eminent their source, are not to be equated with statutory rules ’.

13. In Glaves the Court identified the confiscation order as the starting point for consideration of a section 83 application [52] and confirmed that clear and cogent evidence rather than generalised assertions will generally be required if the defendant is to discharge the burden of proof on him [53]. Further ‘ …there is a balance of judgment to be struck. The courts are right to treat with some scepticism generalised assertions by someone whose credibility may be deeply suspect by reason of the facts of the offence. Absence of independent credible evidence to corroborate a defendant’s account is not fatal as a proposition of law, but it may well be fatal as a matter of fact… ’[53].

14. Further the applicant ‘ …is unlikely to succeed unless the court is satisfied that he is being candid, and an application for a certificate of inadequacy is not intended to be a means of the defendant having a second bite at the same cherry. Those principles are clearly established. However, a rule of law which said that the court could not be persuaded that the defendant was unable to pay the outstanding amount by reason of a worsening of his financial circumstances unless he gave full disclosure of what had happened in the meantime to all his assets, including previously unidentified assets, would trammel the width of ’ [54]. s83 by imposing a restriction which is not in the statute. It would also be capable of causing not merely hardship but hardship amounting to injustice

15. Further, ‘ In the case of previously unidentified assets, it is possible that a defendant may genuinely have no idea or only a dim recollection [of] what had originally happened to them. He should be allowed to try to persuade the court, if this be the case, that his identified assets have shrunk in value and that as a result he is not able to pay the amount outstanding. What the court makes of that evidence will be a matter for its judgment. Much will depend on the nature of the case. Cases involving unidentified assets can vary greatly. The case of an international drug dealer with evidence of a lavish lifestyle, ready access to large sums of cash and connections with a web of offshore companies and bank accounts, may merit different treatment from the case of a defendant whose apparent circumstances and amount of unaccounted for assets are much more modest. It is for the court to consider the totality of the evidence before concluding whether it accepts that the defendant has suffered a change of fortune such that he is probably not able to pay the balance of the outstanding money. If the defendant is not permitted the opportunity of trying to establish this, there is a real risk that even though he can demonstrate a change in his circumstances, possibly very great, he may serve an additional period of imprisonment through failure to do that which is impossible by reason of his change of circumstances .’[55].

16. As to ‘hidden assets’, Glaves noted the use of that expression in earlier authorities but emphasised that it ‘ …is not an expression found in the legislation and it is capable of misleading. There may be cases in which a court makes a positive finding that a defendant has hidden away all or part of the proceeds of his crime, but it is not incumbent on the prosecution to establish that fact ’ [14]. In support the Court cited the statement in R v. Barnham [2006] 1 Cr App R (S) 16 at [41]: ‘ To hold that the prosecution must, in some way, show a prima facie case that the defendant has hidden assets in our judgment would defeat the object of the legislation. It is designed to enable the court to confiscate a criminal’s ill-gotten gains. The expression “hidden assets” is indicative of the fact that the prosecution can have no means of knowing how and where a defendant may have dealt with or disposed of the proceeds of his criminal activities. ’ Prosecution statements

17. In support of the application for a Confiscation Order, the Prosecutor’s Statement of Mr Michael Torpey, HMRC Officer, dated 11 March 2008 described the applicant’s role in the offences as follows: ‘ The Defendant was convicted of his involvement in the supply of counterfeit medicinal products, namely Viagra and Cialis to co-conspirators in the UK and abroad. His principal co-conspirators were Ashish Halai and Ashwin Patel. The Defendant supplied Ashish Halai counterfeit Viagra for onward sale principally to a company named Global Medz based in the Bahamas. The Defendant together with Ashish Halai and Ashwin Patel formed a bogus UK company called Imperazo Ltd which was used to supply counterfeit Cialis to Impex Corporation Ltd (UK). The Defendant also used companies based in the United Arab Emirates and Pakistan to shield his activities. It is clear from the evidence that the Defendant benefited substantially from his and his co-conspirators’ criminal conduct. ’

18. Under the heading ‘Personal history’, the statement said that the applicant’s date of birth was 14 August 1960 and that he was a British Citizen. His last known address was 17 Milverton Gardens, Ilford in Essex. It was believed that his parents lived in the house. HMRC enquiries revealed that the applicant had no recorded income since receiving Jobseekers Allowance and Sickness Benefit during 1999/2000. This was contrary to a written application submitted by the applicant in August 2003 to Barclays Bank when setting up, with Ashish Halai, an account for Imperazo Ltd. He stated that he earned in the region of £25,000 per annum and was a director/company secretary of two travel companies – Simply Flights.Com Ltd and Globe Travel (UK) Ltd. However when interviewed on 16 November 2004 he said that he recycled garments and metals in Pakistan.

19. Under the heading ‘Financial investigation’, Mr Torpey said that enquiries at the Land Registry confirmed that the applicant owned two properties, namely 13 and 15 Milverton Gardens in Ilford. In each case the property value was estimated at £500,000. 15 Milverton Gardens was subject to an outstanding mortgage of £65,342 as of 24 October 2007. It was rented to Redbridge Borough Council through a letting agent, B.T.P. Lettings, also situated in Ilford. 13 Milverton Gardens was free of any charge and was rented out as two flats, again through B.T.P. Lettings. The Land Registry enquiries also showed that on 20 August 2007, i.e. shortly before his conviction, the ownership of 13 Milverton Gardens was transferred to Ghizala Mahmood Mirza. It is not disputed that she is the applicant’s wife.

20. Production Orders obtained in August 2007 showed that the applicant had a bank account with the National Westminster Bank, with account number ending 3377 and a positive balance of 24p. A review of bank statements showed the applicant receiving monthly income totalling £2,383 and paid into a National Westminster Bank account with number ending 7092. The account was substantially overdrawn. The credits were attributed to B.T.P. Lettings, reflecting rental income from the two properties in Milverton Gardens.

21. Under the heading ‘Calculation of benefit’, in respect of the two Counts relating to counterfeit Viagra, the statement concluded that the applicant was a wholesaler rather than a retailer. In May 2003 he had shipped a variety of unlicensed medicines to Ashish Halai. By reference to the invoice the benefit to the applicant was identified as £3,756. On 19 June 2003 Halai had transferred £63,000 “30k V tabs” to a bank account in the applicant’s name and held with Union Bank Limited, Karachi, Pakistan. His benefit was assessed in that amount.

22. Further, in August 2003 Monghi International Ltd, a company based in Dubai, sold to Health Care General Trading, a company based in Karachi, 4000 bottles of tablets. Three invoices raised by Monghi International Ltd gave the applicant’s contact email address and payment to an account name Reems Exchange held with Emirates Bank International in Dubai. Invoices raised by Health Care General Trading showed the same purported Viagra being sold for US$588,000 to a company based in Sweden and then sold on for US$622,000 to a company based in the Bahamas. An email showed the involvement of the applicant and Halai. The applicant’s benefit was assessed as £196,463.

23. As to the Counts relating to the supply of counterfeit Cialis, Mr Torpey said that examination of the Barclays Bank account of Imperazo Ltd as evidenced in the criminal trial showed credit payments between September 2003 and May 2004 in the sum of £264,964. The same records showed withdrawals to Reems Exchange and Venture Textiles (address: Muslim Bank, Textile Plaza in Karachi) between January 2023 and March 2024 in the sum of £126,145. Documentary evidence showed Venture Textiles to be a company controlled by the applicant.

24. In 2003/2004 Ashish Halai registered the formation of Health First Marketing Pte Ltd (‘Health First’) in Singapore. Computer records showed the company to have been involved in the supply of counterfeit medicines. Its bank account with the United Overseas Bank Ltd in Singapore showed substantial payments to Venture Textile, and to or for the applicant personally, paid in US $ and totalling £319,721 in sterling equivalent. Further bank records showed Halai in September 2003 wiring £21,000 from a company to Reems Exchange and assessed the applicant’s benefit in that sum.

25. Having made the statutory assumptions ( s.72 AA of the 1988 Act ), Mr Torpey’s statement concluded that the applicant’s total benefit was £2,115,272. This included the estimated £1 million in respect of the two properties at Milverton Gardens.

26. Turning to the ‘available amount’ that might be realised, the statement said that the minimum value of the two properties, after deduction of the charge on 15 Milverton Gardens, was £935,000. Under the heading ‘Hidden Assets’, Mr Torpey continued: ‘ It is known that the Defendant has business interests in Pakistan and UAE. At the time of his interview, the Defendant was residing in Karachi, Pakistan. It is, therefore, reasonable to suppose that the Defendant has assets in Pakistan and UAE. Furthermore, the Defendant controlled a number of companies, whether real or bogus is unknown. He apparently ran two travel companies in the UK. The Defendant was linked by the evidence to the companies Monghi International Ltd (Dubai) which kept a bank account in the name of Reems Exchange and which received substantial funds derived from the proceeds of crime. In addition, the evidence links the Defendant to an account held with Union Bank Limited, Karachi, Pakistan into which he received £63,000 for the sale of counterfeit Viagra tablets to Ashish Halai. Meanwhile, an account named Venture Textile held with the Muslim Bank, Karachi, Pakistan was also used by the Defendant to launder the proceeds of crime. The Defendant has managed to support himself without recourse to his UK assets for almost 6 months and would appear to have access to assets outside the jurisdiction. In the circumstances, it is a reasonable conclusion that the Defendant has hidden assets .’

27. By a further Prosecutor’s statement of Andrew Graham dated 2 April 2009, the value of the two properties was put at £343,000 in respect of 13 Milverton Gardens and £223,838 (£159,416.88 net of the charge) in respect of 15 Milverton Gardens. In addition the National Westminster bank account with account number ending 7092 was in credit in the sum of £1,107.55. Absence of response

28. The applicant did not respond in any way to the application for the Confiscation Order and thus submitted no evidence or arguments to the Court. The Confiscation Order

29. On 17 April 2009 the Judge granted the Confiscation Order in terms that the value of the benefit was £1,801,935 and that the available amount was in the same sum. To date £408,680.51 has been paid towards the Confiscation Order, leaving a balance of £1,393,254.49 together with accrued interest. As at 18 February 2025 the total outstanding was £3,243,551.38. The application

30. The application dated 10 December 2024 for a certificate of inadequacy states that the applicant is of poor health with conditions of diabetes, paraplegia, kidney disease and CIDP (Chronic Inflammatory Demyelinating Polyneuropathy). He is confined to a wheelchair and living in a care home in Ilford. He is claiming benefits and living on family handouts. He is not in a position to obtain employment due to his ill-health.

31. As to realisable assets, the application states that he has none, anywhere in the world, save a prospective inheritance in Pakistan. As to the latter, the applicant was during the 15 years between his conviction and final sentence residing in the family home in Pakistan which belonged to his late father Mirza Ghulam Yasin. He was living off rental income from another property on the same plot of land owned by his father. His father died on 24 April 2020. Both properties are subject to inheritance laws in Pakistan and are expected to be passed down to the applicant, his mother and four sisters ‘when matters finally conclude’. Letters of Administration from the High Court of Sindh dated November 2022 and other associated documents are exhibited.

32. The application states that his daughter Kainat Mirza was also financially supporting him when in Pakistan. In particular, when he became unwell, some of his medical bills were paid for by her. Bank statements of Ms Mirza for the periods 1 February 2022 - 28 February 2022 and 1 July 2022 - 31 July 2022 are exhibited and include items of medical expenses.

33. The applicant states that he has tried to obtain statements from his bank in Pakistan but this has not been possible. He exhibits a manuscript letter dated 5 July 2024 from Mr G.M. Azad, advocate, of Azad Law Associates in Karachi which states that he has attempted to obtain such a statement but the bank has ‘ refused to provide such bank account statement this without account holders as the Banks policies in Pakistan doesn’t allowed to any other person except the account holders, which my above named client is suffering from virus diseases and his bank accounts are dormant and inactive status ’.

34. The applicant has also served a witness statement dated 9 March 2025 in support of the application. As to his current circumstances, he states that he is continuing to reside in a care home in Ilford, with his living expenses covered by Redbridge Council. He receives Universal Credit which contributes £50 per week towards his care home costs. He suffers from multiple health issues as noted in his application and is waiting for dialysis. His health has significantly deteriorated since 2020 and he is unable to work or generate any income.

35. He has no assets or income in Pakistan and his financial situation is dire. He has accounts with JS Bank and Mezan Bank in Pakistan, but they hold no money. He refers to the letter from Mr Azad and states that he is unable to provide evidence of his current bank accounts as he needs to be present in Pakistan for verification which requires his fingerprints.

36. Under the heading ‘Financial inadequacy’ he states that he has not gifted sold or dissipated any assets to avoid the Confiscation Order. He lived off the rental income from his father’s property which was divided into portions; his portion (as I understood it, monthly) being around 35,000 and 40,000 rupees. The rents gradually increased until 2023 when it was 200,000 rupees, equivalent to approximately £1000.

37. As to the inheritance, with his mother and four sisters, of his father’s property in Pakistan, he cannot sell this land without the permission of his other siblings; and ‘ Thus far they are not willing to give their permission ’.

38. The statement concludes by asking the court to grant the certificate of inadequacy in the light of his inability to pay the amount due and his severe health issues.

39. The applicant gave evidence via CVP link from his care home in Ilford. Updating the position as to his health, he now was having dialysis three times a week in the Royal London Hospital. In addition to confirming his witness statement he gave further oral evidence, in particular as to the allegations about his financial position in Mr Torpey’s statement.

40. He said that during the period 2007- 2022, he did not have any bank account in Dubai or anywhere apart from Pakistan and the National Westminster account in the UK. He denied that he had any ‘hidden assets’. He was not sure if he ran any travel companies in the UK and did not work in any travel companies in the UK. The name Monghi International Ltd did not mean anything to him. He did not have an account with Union Bank Ltd Karachi. He did not receive any money from the sale of counterfeit Viagra tablets. He had no association with a Venture Textiles account. He had not gifted any assets to avoid confiscation.

41. Cross-examined by Mr Newbold, he denied that he had received any payments in respect of counterfeit Viagra or Cialis. He had not received any benefit from his conduct, whether £1.8 million or at all. He did not appeal the Confiscation Order because he was not in the jurisdiction. He left the UK on 30 August 2007 and went straight to Pakistan, not via Dubai. It was a spur of the moment decision and involved no planning. As to 13 Milverton Gardens, there was no attempt to transfer ownership to his wife, who had been in Pakistan since 2004. He did not recall signing any document on 20 August 2007. Taken to the Land Registry documents, he said that he knew nothing of any application to transfer the property. By November 2007 both he and his wife were in Pakistan. Somebody else must have been trying to transfer the property.

42. He denied that in the course of his interview on the criminal investigation he had said that he had business interests in Pakistan. As to the alleged absence of recorded income since 1999/2000, he had received a redundancy payment of nearly £30,000 in 1998 and had lived off that, together with the income from the two properties in Milverton Gardens. He did not make any application to set up Imperazo Ltd; and thought that Mr Halai must have done so. He was named as a director but it was controlled by Mr Halai. He did not state that he earned £25,000 per annum or that he was a director/company secretary of two travel companies. He did not remember being interviewed by the investigators. He did not recycle garments or metals in Pakistan. He had never had a Union Bank account in Karachi; indeed had never heard of Union Bank. He was not selling drugs. He did not have any role in the conspiracy. He had not heard of Reems Exchange in Dubai and knew nothing about money going there. He had not heard of Venture Textiles nor of Health First. He knew Mr Halai but did not know his business. He said that Mr Halai would have been responsible for whatever was happening.

43. As to the table of transactions including payments to Venture Textiles, he said that it maybe someone that was known to Mr Halai. He did not know anything about these transactions, including those purportedly made to him in 2005. He did not have a dollar account. He got no benefit from the conspiracy. He did not have the assets in the first place so could not help the court as to where any of the money from the conspiracy went. As to his father’s estate, he did not know its value. The matter was going through the court in Pakistan. He would be entitled to a share but did not know how much it was worth.

44. In re-examination, he reaffirmed that he did not remember being interviewed by MHRA in connection with fake Viagra; and did not receive any payments from the accounts associated with Mr Halai. The applicant’s case

45. On behalf of the applicant, Ms Mansoor submits that the written and oral evidence adduced by him demonstrates, on the balance of probabilities, that his realisable assets are inadequate to satisfy the sum outstanding under the Confiscation Order. He was not present at the hearing which led to the Order because of his decision to abscond; a decision which he must regret. The two properties in Ilford had been confiscated. He has no assets here or in Pakistan or elsewhere. There was no evidence that money in accounts associated with Mr Halai had gone to the applicant for his benefit. It was easy for the Prosecution to allege ‘hidden assets’; and difficult for an applicant to prove the negative. He should be given the benefit of the doubt on all these matters including e.g. that he could not remember being interviewed. As when brought back before the court in 2023, he was now wheelchair-bound and in no position to work. If he did not have the assets to pay the sum outstanding on the Confiscation Order, he should not face the alternative of the default sentence of 10 years imprisonment.

46. As to the principles reaffirmed in Glaves and In re Adams , this was not a case where the applicant was seeking a second bite of the cherry. Not having been present at the hearing below, this was his ‘first bite’; and in circumstances where he was in a worse position than if he had attended at that hearing. Accordingly this was not a case where the finding of the Crown Court as to his realisable assets could only be challenged by way of an appeal to the Court of Appeal: cf. Glaves principle (3). His case was that the Crown Court had wrongly determined both his benefit and the available amount; which he then and now did not have the means to pay. Discussion and conclusion

47. For the reasons essentially advanced by Mr Newbold on behalf of the Crown Prosecution Service, I am clear that this application must fail.

48. First, the application does amount to an impermissible attempt to have a ‘second bite of the cherry.’ The applicant had the opportunity to challenge the original application for a Confiscation Order and for that purpose to dispute the Prosecution both as to his benefit and as to his available assets, but chose not to do so. I reject Ms Mansoor’s argument that this application amounts only to a first bite of the cherry. A defendant who absconds and then chooses not to engage with the original application cannot be placed in a better position than a defendant who engages with the process.

49. Secondly, and in consequence, the applicant is not entitled to go behind the findings in the Confiscation Order as to the amount of his available assets: see Glaves principle (6), as supported by In re McKinsley [2006] EWCA Civ 1092 ; [2006] 1 WLR 3420 at [23], [24], [37]. Such a finding can only be challenged by way of an appeal against the Confiscation Order: Glaves principle (3), supported by Gokal v. Serious Fraud Office [2001] EWCA Civ 368 at [17] and [24].

50. Thirdly, and in consequence, such an application for a certificate of inadequacy must take the findings in the Confiscation Order as the starting point in respect of his available assets. From that starting point it is then for the applicant to establish that there has been a subsequent adverse change in his financial circumstances such that his realisable property is now inadequate to satisfy the amount outstanding under the Confiscation Order. For that purpose the Court has to consider all the evidence adduced by the applicant as to what has happened to his assets as found by the Crown Court when making the Order.

51. Fourthly, the starting point is thus the Crown Court’s finding in 2009 that the applicant had assets of £1,801,935. Insofar as that total included unidentified or ‘hidden’ assets of £1,298,410.55, that reflected the applicant’s failure to provide any evidence of his realisable assets: see Glaves at [13]-[14]. That is a finding which has never been appealed.

52. Fifthly, the applicant has not taken the 2009 finding on assets as his starting point, nor therefore sought to demonstrate an adverse change of financial circumstances from the position as found by the Crown Court. Rather, he has advanced his application on the basis that he had no assets in 2009 other than those specifically identified by the Prosecution and the Court, namely the two properties in Ilford and a small sum in the National Westminster Bank account; and that he continues to have no assets, save the actual or potential inheritance of a share in his late father’s property in Pakistan. Thus in substance he has impermissibly sought to challenge the findings of the Crown Court through the medium of this application.

53. Sixthly, and in any event, the applicant has provided no clear or cogent evidence of his financial position for the period since the Confiscation Order was made. The application and his supporting witness statement provide little more than assertion that he has no assets in this country or elsewhere and do not engage with the evidence in Mr Torpey’s statement of 11 March 2008 as to his alleged hidden assets in Pakistan and the UAE. His supplementary oral evidence in chief added very little. In cross-examination, his evidence was essentially of bare denial of all matters put to him. With every allowance for his evident very bad state of health (which I accept) and the consequent need to give his evidence remotely from his care home, I found the applicant to be a most unsatisfactory and unreliable witness and was quite unpersuaded by his bald denials of the matters put to him.

54. In all the circumstances the only change of financial circumstance since the Confiscation Order of which the Court can be satisfied is the shortfall in the proceeds of sale of the two properties in Ilford. At the time of the Order their estimated value was £343,000 and £159,416.88, namely a total £502,416.88. The sales of those properties realised £408,680.51. The shortfall was thus £93,736.37. The Court is otherwise left with no answer to the question of what has happened to the rest of the assets which the Crown Court in 2009 found the applicant to have. Section 83 requires the applicant defendant to satisfy the court that his realisable assets as a whole will not satisfy the Confiscation Order: Glaves principle (2), citing Re O’Donoughue [2004] EWCA Civ 1800 at [3]. For the reasons set out above, the applicant has failed to do so.

55. Accordingly the application must be dismissed.