Mr Justice Pitchford:
- This is a claim for judicial review of the decision of District Judge Elizabeth Roscoe, sitting at Marylebone Magistrates' Court on 23 August 2006, refusing to order the stay of enforcement of a confiscation order against the claimant and ordering the enforcement proceedings to continue.
- The application for permission was considered on the papers by Walker J on 18 December 2006 and refused. It was renewed before Langstaff J on 23 January 2007 when permission was granted.
- The full hearing took place on 4 November 2008. The claimant was represented by Mr Tony Wyatt, instructed by Roche & Co. The defendant did not appear. The interested party was represented by Mr Andrew Munday QC and Mr Rupert Jones.
- On 1 October 1997 the claimant, Robert Minshall, was arrested on suspicion of conspiracy fraudulently to evade the duty on alcohol in contravention of section 170 Customs & Excise Management Act 1979, contrary to section 1 Criminal Law Act 1977. On 3 February 2000 at Wood Green Crown Court he changed his plea to guilty. The offence involved participation in a diversion fraud in which liquor left the Fort Patrick warehouse ostensibly for European destinations but factually to outlets in the United Kingdom, thereby evading duty. On 5 May 2000 he was sentenced to 2½ years' imprisonment. On 13 October 2000 the claimant was adjudged to have benefited in the sum of £351,871 and made the subject of a confiscation order in the sum £80,000 to be paid by 13 April 2001 with 18 months imprisonment in default.
- With accrued interest the sum due and unpaid under the confiscation order on 2 May 2006 was £112,052.60. On that day the London Central Confiscation Unit gave notice to the claimant that a hearing would take place at Marylebone Magistrates Court on 2 June 2006 with a view to enforcement of the outstanding confiscation order. The Magistrates Court listed for hearing on 23 August 2006 the claimant's application for a stay of the proceedings on the ground of abuse and for breach of the requirement that the proceedings should be concluded within a reasonable time under article 6.1 European Convention on Human Rights (ECHR). The parties submitted full skeleton arguments.
- It is common ground that in the absence of culpable delay by the prosecutor the application was argued primarily on article 6 considerations. Unfortunately no recording of the District Judge's ruling was made and the following represents the only available note:
"1. Mrs Minshall, on Mr Minshall's behalf, asked the court to hold off enforcement because of appeal. The court agreed.
2. It is the court whose duty it is to enforce. The RCPO are to assist the court.
3. Most of the delay has been taken up by the appeals and the postponement of the appeals decisions pending House of Lords cases (Knights, Soneji and London City Board).
4. After decision in Knights and advice by counsel in August 05 that no prospect of success, Mr Minshall still persisted and appeal was dismissed in February 06.
5. Even now Mr Minshall is seeking to delay enforcement till after a hearing at Strasbourg although delay is the very point he complains of.
6. This court has power to consider abuse through delay and all the circumstances of it. If it finds abuse it can stay proceedings, enforce the order but exclude enforcement through imprisonment and indeed even enforce by any of the normal means including imprisonment. Those are amongst its powers.
7. Clearly, mere passage of time is not enough. In this case the only long time lapses have been as a result of the wait for a higher court's decision on the point raised by Mr Minshall's appeal. I have heard nothing to suggest that that was unreasonable or unjustifiable and after that all steps have, in my view, been taken properly.
8. Mr Minshall has never been given the impression or given to understand in any way that this order would not be enforced and I find no abuse of process."
- In the absence of any noted reference to article 6 in the ruling, I asked the parties to address me upon the appropriate relief were I to conclude that no decision had in fact been made under article 6. Mr Wyatt submitted that I should in those circumstances remit the matter for a further hearing before the District Judge. Having reconsidered the District Judge's noted remarks in the light of the skeleton arguments submitted to her, I am in no doubt that she rejected the application both under common law and under article 6. I have reached that conclusion as a result of her references to "delay and all the circumstances of it" and "mere passage of time is not enough", and the District Judge's reference to delay caused by the appeal process, its reasonableness or otherwise. The grounds of the claim were advanced under article 6 and it was on this ground that Langstaff J granted permission. Originally it was contended that the order of the Crown Court and its confiscation certificate were ineffective. Further points were taken on the restraint order. Those grounds have not been pursued before me.
Application of Article 6 to the enforcement proceedings
- No warrant for commitment of the claimant has been issued by the Magistrates Court. On 23 August 2006 District Judge Roscoe held a means inquiry and ordered the applicant to disclose information relating to his bank accounts and other financial data. Counsel pointed to the terms of article 6.1:
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…."
- Mr Munday, in his supplementary skeleton argument, argued that proceedings to enforce a confiscation order by civil means does not attract the protection of article 6.1 since they neither determine the claimant's civil rights, nor amount to the resolution of a criminal charge. Mr Munday acknowledges that this point was not taken in the Magistrates' Court. He would be content if I confined my decision to the enforcement of the confiscation order by issue of a warrant for commitment. Since I am not dealing with a decision to commit but with a decision to continue enforcement proceedings I consider that I should decide the point.
- In Schouten & Meldrum v Netherlands [1994] EHRR 432, ECtHR the court said at paragraph 50:
"Nor is it in itself sufficient to show that a dispute is "pecuniary" in nature. There may exist "pecuniary" obligations vis a vis the state or its subordinate authorities which, for the purpose of Article 6 para. 1 (art.6-1), are to be considered as belonging exclusively to the realm of public law and are accordingly not covered by the notion of "civil rights and obligations". Apart from fines imposed by way of "criminal sanction", this will be the case, in particular, where an obligation which is pecuniary in nature derives from tax legislation or is otherwise part of normal civic duties in a democratic society."
- Mr Munday submits that the enforcement of a confiscation order other than by the criminal sanction of imprisonment (by means, for example, of an enquiry into means, the setting of periodical payments and an attachment of earnings order) involves the enforcement by civil means of a public rather than civil obligation. I agree that the obligation to meet the requirements of a confiscation order is public rather than private in nature but, in my view, the critical question is whether, notwithstanding the 'civil' nature of the enforcement the proceedings are nevertheless to be regarded as part of and the culmination of "determination of…any criminal charge" for the purposes of art 6.
- Mr Munday recognises that section 75 Criminal Justice Act 1988 treats the enforcement of a confiscation order as the enforcement of a fine imposed on him by the Crown Court. One means of enforcement of a fine is the imposition of a term of imprisonment and by section 75(3):
"Where (a) a warrant of commitment is issued for a default in payment of an amount ordered to be paid under this part of this Act in respect of an offence; and (b) at the time the warrant is issued the defendant is liable to serve a term of custody in respect of the offence; the term of imprisonment… to be served in default of payment of the amount shall not begin to run until after the term mentioned in paragraph (b) above."
- The power to order a term of imprisonment in default of payment derives from section 139 powers of Criminal Courts (Sentencing) Act 2000; thus, the ultimate sanction upon any enforcement of a confiscation order is the period set in default by the Crown Court.
- Mr Munday's argument is that enforcement proceedings short of the issue of a warrant for commitment constitute neither the resolution of a criminal charge nor of a dispute as to civil rights and obligations. The status of fine enforcement proceedings was considered by the Divisional Court in R v Corby Justices, ex parte Mort [1998] 162 JP 310 in which Lord Bingham CJ stated:
"Counsel appearing as amici curiae submitted that, viewed in the context of domestic law, these proceedings were neither criminal nor civil but sui generis. They were not initiated by information or complaint; there was no prosecutor or complainant; statute provided for an inquiry by the courts. In the domestic context this submission is in our view sound. But enforcement proceedings can lead to an order for imprisonment, and that being so it is plain that they must be conducted with the high degree of fairness appropriate to proceedings which may have that serious outcome. We do not regard the categorisation of the proceedings as crucial, although it could be so in a case turning (as this does not) on the precise terms of paras 2 and 3 or Article 6 of the Convention."
- An application was made by Mrs Mort to the European Court of Human Rights which held that the application was inadmissible, in Agnes Mort v UK [2001] application no: 00044564/98. The court did however deal with the status of the enforcement proceedings and found that they were criminal in nature within the meaning of article 6.1:
"The court recalls that its case law establishes that there are three criteria to be taken into account when deciding whether a person was "charged with a criminal offence" for the purposes of Article 6. These are the classification of the offence in domestic law, the nature of the proceedings and the nature and severity of the penalty (see the Benham judgment cited above, paragraph 56). Regarding the first criterion, which is only a starting point, the court notes that the domestic court had doubts whether the proceedings were criminal but did not decide the point. Turning to the second criterion, the nature of the proceedings, which carries more weight, the applicant was dealt with under general laws applying to the community as a whole. As in the Benham case, the Magistrates' Court could only exercise their power of committal to prison on a finding of culpable neglect. The proceedings therefore had a punitive aspect. Finally, the applicant faced a maximum period of two weeks imprisonment…. It must in the circumstances be regarded as having a deterrent and punitive nature beyond consideration of debt enforcement."
- Mr Munday seeks to distinguish the facts of Agnes Mort from the current case. The District Judge was not on 23 August 2006 deciding whether to commit the claimant to prison, nor was she deciding whether the claimant had been guilty of culpable neglect, the test the magistrates apply before issuing a warrant. It follows, he submits, that the nature of the hearing on 23 August was not criminal within the meaning of Article 6.
- The classification of confiscation proceedings in general was considered by the European Court of Human Rights in Crowther v United Kingdom [2005] ECHR 45. The court said:
"24. The court recalls that Article 6.1 applies throughout the entirety of proceedings for "the determination of …. any criminal charge", including proceedings whereby a sentence is fixed (see, for example, Findley v United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-1, page 279 paragraph 69 and Phillips v United Kingdom, judgment of 5 July 2001, Reports 2000-vii paragraph 39).
25. It has been held that confiscation proceedings of the type brought against the applicant are analogous to the determination by a court of the amount of a fine or the length of a period of imprisonment to be imposed on a properly convicted offender (see Phillips paragraph 34, and Welch v United Kingdom, judgment of 9 February 1995, series A no. 307-A, page 13, paragraphs 27-28). In common with such sentencing procedures, the setting and enforcement of a confiscation order does not involve the bringing of any new criminal charge against the convicted person (Phillips, paragraph 35-34)."
- In Crowther a warrant of commitment had been issued. The court nevertheless regarded the warrant as the culmination of sentence for the original charge. Accordingly, the period to be reviewed in the context of delay was from arrest in respect of the original charge to the issue of the warrant of commitment, although neither party was criticising the conduct of the other during the period before the confiscation order was made.
- In R (Lloyd) v. Bow Street Magistrates Court [2003] EWHC 2294 the Divisional Court was also dealing with the issue of a warrant for commitment in the Magistrates Court. Dyson LJ stated that (para 9) the principal issue before the court was "whether the right to have a criminal charge determined within a reasonable time extends to proceedings to commit a defendant to custody under the default provisions of a confiscation order". The court specifically restricted its application of art 6 to "any subsequent proceedings to enforce the [confiscation] order by warrant of commitment to prison (para 18) since "we heard no argument as to the application of Art 6 to the civil methods of enforcement" (para 24).
- The powers of the Magistrates Court to enforce the payments of a fine include the imposition of a money payment supervision order (section 88 Magistrates Courts Act 1980), the issue of a warrant of distress (section 76-78 MCA 1980), an attachment of earnings order (section 97 and schedule 5 Courts Act 2003) and, after a means enquiry, a warrant of commitment (section 82 MCA 1980). However the means of enforcement are described the fact is that they are employed in the imposition of a financial penalty. In my view, it would be a strange distinction if a means enquiry which might lead to the imposition of an attachment of earnings order was not the subject of a requirement for fairness and reasonable expedition under article 6.1 whereas a means enquiry leading to the issue of a warrant would be the subject of such a requirement. I conclude that the requirements of article 6 apply "throughout the entirety of proceedings" for enforcement of the confiscation order. I do recognise, however, that the fact that unreasonable delay is established does not automatically mean that no enforcement proceedings can be taken. The court must decide in the event of breach what would be the appropriate remedy. That remedy might be refusal to enforce by the ultimate sanction of imprisonment but permission to enforce by other means.
The Delay
- It is common ground that no criticism is to be made of the prosecutor or the claimant or other authority in the period between arrest and the making of the confiscation order. I am therefore concerned with the period between 13 October 2000 and 2 May 2006. During this period the claimant appealed both the confiscation order and his conviction which each side recognises contributed to the 5 ½ year period which intervened.
Appeal against confiscation order
- The claimant instituted an appeal against the confiscation order and was granted leave to appeal by the single judge on the papers on 19 July 2001. In the meantime, on 16 March 2001 his wife wrote on his behalf to the Magistrates Court in the following terms:
"…the Criminal Appeal Office their ref.200006510 W4 suggested that we should write to you to ask you to confirm suspension of payment pending our appeal…"
The clerk to the justices replied on 30 March 2001:
"Enforcement of the confiscation order has now been suspended pending the outcome of the appeal."
- The claimant's grounds and counsel's advice on appeal have not been recovered but it is tolerably clear that the grounds arose from the circumstances of a direction for adjournment of the confiscation hearing given by HH Judge Dean QC on 22 September 2000. The 6 month period within which confiscation proceedings should, save in 'exceptional' circumstances, be concluded under section 72A(3) Criminal Justice Act 1988 expired on 3 August 2000. The confiscation proceedings were not in fact determined until 13 October 2000 after a 5 day hearing. The claimant's argument was that the judge had not purported to postpone the hearing of the application for a confiscation order for a reason permissible by section 72A Criminal Justice Act 1988 and, in any event, there were no exceptional circumstances which would have permitted it. Accordingly, it was contended that the 6 month period within which the section required the hearing to take place had expired and the court's jurisdiction to make a confiscation order had been lost.
- At the time the claimant obtained leave from the single judge there was judicial uncertainty and there were conflicting decisions in the Court of Appeal, Criminal Division, whether the mandatory terms of the legislation meant that a failure to comply deprived the court of jurisdiction (for the history see the judgment of Lord Woolf CJ in Sekhon and Others [2002] EWCA Crim 2954). On 16 December 2002 the Court of Appeal held in a group of appeals heard together that procedural irregularity did not necessarily deprive the court of jurisdiction to make a confiscation order. At the time the decision was published it is common knowledge that there were very many appeals on similar grounds awaiting a hearing. In view of the public importance of the decision the Court of Appeal certified a point of law for the House of Lords.
- One of the appellants in Sekhon, Mr Knights, obtained leave to appeal to the House of Lords. His appeal together with the appeal of Soneji and another was heard during June 2005 and the opinions of the House of Lords in all related appeals were published on 21 July 2005 (see Soneji and another [2005] UKHL 49 and Knights and another [2005] UKHL 50).
- On 21 August 2002 the Criminal Appeal office wrote to the interested party that a skeleton argument on behalf of the claimant had been lodged. There were however co-accused whose appeals were also being processed. But for the decision by the Registrar of Criminal Appeals to which I am about to refer and to an intervening application for leave to appeal conviction out of time, the hearing of the appeal against the claimant's confiscation order would have been heard in about April 2003.
- Following the decision in Sekhon in the Court of Appeal the claimant's appeal against the confiscation order, together with several appeals on similar grounds by others, was stayed by the Registrar of Criminal Appeals pending resolution in the House of Lords of the issue of law created by the terms of the 1988 Act. On 20 June 2003 the Court of Appeal handed down its decision in Soneji. The court allowed the defendant's appeal founded on the failure of the Crown Court to reach a judicial decision as to listing of the confiscation hearing. That constitution of the Court of Appeal also certified a point of law of general public importance and the two appeals to the House of Lords became conjoined. It took 2 years for the appeals in Soneji and Knights to be resolved by the House of Lords.
- Following the publication of the decisions of the House of Lords counsel acting on behalf of the claimant withdrew. However, the claimant changed solicitors and counsel who, on 7 February 2006, drafted amended grounds of appeal against the confiscation order and an application for leave to amend the grounds of appeal out of time. The matter was considered by the full court on 14 February 2006 (the Vice President, Rose LJ, Rafferty J and Sir Richard Curtis [2006] EWCA Crim 987) and the appeal was dismissed.
Appeal against conviction
- Notwithstanding the claimant's plea of guilty, it came to the attention of the claimant's then solicitors that there might have been a connection between the diversion fraud alleged against the claimant and a similar fraud, the subject of appeals against conviction, involving London City Bond. On 7 March 2002 the claimant's then solicitors, Kenneth Elliot and Rowe, wrote to HM Customs & Excise solicitor's office in the following terms:
"We are aware of the numerous cases brought to court concerning similar allegations over the last few years in which London City Bond featured extensively. We have been referred to the case of R v Patel which came before the Court of Appeal in November last year when it was accepted that HM Customs & Excise had two participating informants at London City Bond, Mr Alfred and Mr Edward Allington. We do not propose at this stage to go into more detail about that particular case, we are unclear as to whether the effect of that case has any impact on the convictions of the Appellant's who we now represent. We accept that as far as this case was concerned codenamed Operation Zippie it would appear that the matter was centred around a bond called Fort Patrick rather than London City Bond."
- The solicitors proceeded to ask for information which may or may not establish a relevant connection between the two frauds. HM Customs & Excise replied on 18 March 2002 offering the solicitors acting for the claimant and two of his co-accused access to the London City Bond documents. Despite the assurance given by HM Customs & Excise, reviewing its PII responsibilities, that there was no connection between the two frauds material to the safety of the convictions, the claimant issued out of time a notice of appeal against conviction on 15 April 2003, supported by grounds dated 10 March 2003. Several appeals concerning London City Bond had been allowed by the Court of Appeal Criminal Division on the grounds that the prosecution had failed to make disclosure of the presence of participating informants who were at the least facilitating the fraud.
- The claimant's grounds asserted that the convictions of the claimant and others were tainted by non-disclosure. On 21 July 2003 disclosure of 42 binders of material scanned onto CD ROMs was given to counsel representing the claimant. Two days later a 43rd volume was provided in hard copy. On 11 September 2003 HM Customs & Excise confirmed that it would be opposing the appeals against conviction. When on 27 October 2003 HM Customs & Excise enquired of the claimant's solicitors as to the progress of the appeal against conviction they were informed that the file had been transferred since their own criminal department had closed.
- On 1 March 2004 Byrne and Partners wrote to HM Customs & Excise informing them that they had now had conduct of the appeal. The following day the Court of Appeal office summary, relating primarily to the appeal against conviction of the claimant and his three co-accused but recalling that the appeal against the confiscation order had been stayed for the time being, was delivered to counsel representing the claimant. The applications for extension of time, leave to appeal against conviction and a representation order were considered by the full court on 24 June 2004.
- In the course of giving the judgment of the court Gross J cited the following passage from the prosecutor's skeleton argument:
"14. Events at LCB were irrelevant to the case. The only connection with LCB was the fact that two consignments had been drawn from LCB for transfer to Fort Patrick by Winebank…
17. There was not and could not have been any proper basis for an 'abuse' argument arising from an allegation of entrapment, nor has any such argument been formulated in the notices of appeal. Accordingly, the Crown were under no duty to make further disclosure and the statement…(made in court) was correct."
He continued:
"We agree. In short, the assurance given by the Crown in this case, once its facts are properly considered, were correct. In any event, if additional disclosure had been given, it would not have founded a properly arguable abuse application."
The applications were refused.
Application to European Court of Human Rights
- On 16 February 2006, two days after dismissal of the appeal against the confiscation order, the claimant lodged an application to the European Court of Human Rights (No: 7350 of 2006). The ground of the application was delay contrary to article 6.
- On 20 February 2006 the successor to HM Customs & Excise, the interested party, Revenue & Customs Prosecutions Office, wrote to the claimant seeking his proposals for payment of the outstanding confiscation order. On 30 March 2006 the interested party was notified of the application to Strasbourg and of a petition for leave to appeal to the House of Lords, misconceived because the claimant did not have a certificate from the Court of Appeal. On 2 May 2006 the interested party declined to postpone consideration of enforcement action and on the same day the confiscation unit issued its notice to the claimant to attend Marylebone Magistrates' Court.
Analysis
- Mrs Minshall's letter of 16 March 2001 had the effect of securing the postponement of any enforcement of the confiscation order. It seems to me that it was virtually inevitable that no proceedings for enforcement would, in any event, have taken place pending the appeal against the order itself. In the ordinary way that appeal would have been heard in April 2003. The reason for the stay imposed by the Registrar of Criminal Appeals upon the appeal was not exceptional in itself but the particular circumstances were, namely the large number of appeals which might turn upon the outcome in the House of Lords. I have received no evidence what might have been the cause of the two year delay between the conclusions of the appeals Knights and Soneji in the Court of Appeal and the hearing in the House of Lords on 20-22 June 2005.
- The slow progress of the appeal against the confiscation order was interrupted by the supervening decision of the claimant to seek leave to appeal out of time against conviction. Given the complexity of the matter demonstrated by the volumes of written material it was necessary for counsel for the four appellants to study, it seems to me that the hearing of the applications for leave took place within a reasonable time after the appeal was launched.
- It follows in my view that the only period of delay both material and unexplained took place between 24 June 2004 (the hearing of the applications for leave to appeal conviction out of time) and 21 July 2005 (publication of the opinions of the House of Lords in Knights and Soneji).
- HM Customs and Excise first sought information from the claimant's solicitors (then Lewis Nedas and Co) about the progress of his appeals on 6 November 2003 "so as to enable enforcement of the confiscation order". A reminder was sent on 27 January 2004 but no response was forthcoming. On 12 February 2004 a telephone enquiry was made at the criminal appeals office. On 1 March 2004 HM Customs and Excise was notified of the change of solicitor. However, the enforcement office sent reminders to the claimant's former solicitors, Lewis Nedas, and not until 20 February 2006 were letters sent to the claimant personally.
Application of Article 6 to delay
- In R v. Chichester Justices, ex parte Crowther [1998] EWHC 960 (Admin) the Divisional Court, dealing with an application to stay enforcement proceedings on the grounds of abuse of process, held that the principal responsibility for the lapse of time was the defendant's because he had failed to meet his obligations under the confiscation order. This was what distinguished enforcement of a confiscation order from a prosecution. Brooke LJ at paragraph 30 said:
"30. In those circumstances it appears to me that this case is entirely distinguishable from the line of authority leading to the possible application of the abuse of process principles in relation to criminal prosecutions. It is not a case in which it is for the prosecution to take the next step. It is a case in which it was for the applicant to take the next step, although the prosecution cannot themselves enforce the default sentence if the applicant does not pay, without going first through the procedures designed to discover whether the order can be enforced in some other way than the imposition of a custodial sentence.
31. In those circumstances I am satisfied that the justices were correct in ordering that the default sentence should be imposed and that there were no grounds of an abuse of process nature sufficient to warrant them taking any other step. Though I have sympathy with the applicant in the position in which he finds himself, and I hope very much that Customs and Excise will never allow a delay of this nature ever to occur again, I can see no reason why the court should interfere with the enforcement of the sentence passed in default by Judge Hall on 21 March 1991."
- Mr Crowther made an application to the European Court of Human Rights. He had been informed that his application had been admitted by the time the Divisional Court heard a similar complaint of delay based upon breach of article 6 in R (Lloyd) v. Bow Street Magistrates Court [2004] Cr App R 11; [2003 EWHC 2294 (Admin). In Lloyd it was conceded on behalf of the CPS that if article 6 protection included the right to have enforcement proceedings determined within a reasonable time then there had been a violation of that right. The court declined to accept the reasoning advanced in ex parte Crowther as to why there was a distinction between prosecution and enforcement. At paragraph 23 Dyson LJ said:
"..In our view the conduct of the defendant [i.e. breach of a continuing duty to pay] can have no bearing on the question whether he has a right to have proceedings against him in respect of that conduct instituted and determined within a reasonable time. It is common ground that a defendant is entitled to have a substantive criminal charge against him determined within a reasonable time. The right is predicated on the basis that the defendant is alleged to have broken the law by committing a crime. The fact that a defendant is alleged to have committed a crime is plainly not a reason for denying the right to have the criminal charge determined within a reasonable time. Indeed, the existence of a criminal charge is the very reason why he has the right. Similarly in our view the fact that a defendant is alleged to be in breach of a confiscation order is no reason to deny him the right to have the proceedings brought to enforce the order by commitment to prison determined within a reasonable time." [my insertion]
- The court applied Strasbourg jurisprudence to the question whether the period of delay was unreasonable, namely "the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case law, in particular the complexity of the case and the conduct of the applicant and the authorities dealing with the case" (Howarth v UK, Application no 38081/97, para 25). It accepted that the court would need to have regard to efforts which had been made to enforce the order by other means, for example by the appointment of a receiver, and whether the defendant himself had been evasive. In Lloyd the CPS had invited the magistrates' court to consider enforcement action on 6 December 1999. A summons was not issued until January 2001. The defendant surrendered in November 2001 but the hearing did not take place until 9 October 2002. No explanation for the delay between December 1999 and January 2001, nor for the period between November 2001 and October 2002, a total of 2 years, was provided. The court concluded:
"29…We consider such a long period of inexcusable delay to be unacceptable…"
- Since a breach of article 6 had taken place the next question was what remedy was appropriate and the court concluded, after considering the Attorney General's Reference (No. 2 of 2001) (J) [2001] EWCA Crim 1568, (see also [2003] UKHL 68 in the House of Lords), that the only proper remedy was to order the proceedings to commit the claimant to prison to be stayed.
- On 1 February 2005 the European Court of Human Rights published its judgment in Crowther v UK. The Court agreed with the reasoning of the Divisional Court in Lloyd. The Court re-iterated the test of reasonableness quoted from Howarth in paragraph 42 above with the addition that "the importance of what was at stake for the applicant [i.e. the person making the complaint of delay] in the litigation" should also be taken into account as one of the relevant circumstances. The words quoted demonstrate, it seems to me, that the reasonableness of the period of delay may in part be judged against the seriousness of the step to be taken. It might, as I have recognised at paragraph 20 above, be a reasonable period within which to enforce by 'civil' means but an unreasonable period after which to enforce by a warrant for commitment. The Court said at paragraph 28 of its judgment:
"…the Court finds no grounds for criticism of the pace of the proceedings until March 1992, when the period allowed to the applicant for the payment of the confiscation order expired. Thereafter, however, a period of four years, three months of almost total inactivity elapsed until Customs took any effective steps to enforce the order, by requesting a warrant for the applicant to be questioned about his financial circumstances…"
The warrant for commitment was not in fact issued until 13 May 1998, following several adjournments, and it was in respect of the final decision that the defendant sought judicial review.
- It should be noted that there were in Mr Lloyd's and Mr Crowther's cases no appeal proceedings which interrupted the enforcement of the confiscation order. It was in each case the inactivity of the enforcement authority which was examined. In Mr Crowther's case the period for payment expired on 21 March 1992 while the defendant was still in custody serving his sentence. The defendant was released from prison in May 1994. On 20 March 1992 Customs had been prompted by the magistrates court but no effective step was taken to enforce the order until issue of the warrant to bring the defendant to court for a means enquiry in June 1996.
- The circumstances in this case are quite different. The claimant obtained a stay on the enforcement proceedings pending appeal. I accept that the mere existence of appeal proceedings does not absolve "the authorities" of article 6 responsibility. The Court in Crowther said at paragraph 29:
"…Even in respect of civil proceedings, where domestic law or practice requires the parties to take the initiative with regard to the progress of proceedings, the State is obliged to ensure compliance with the reasonable time guarantee under Art 6.1 (see, mutatis mutandis, Price and Lowe, para 23). This principle must apply a fortiori when the State is itself a party to the proceedings and responsible for their prosecution."
While the prosecutor may not be permitted to take enforcement proceedings when the underlying conviction or sentence is the subject of appeal it remains the duty of the State to ensure that the proceedings as a whole are completed within a reasonable time. Nevertheless, the institution of appeal proceedings is, in my view, a significant and weighty factor to be considered in a judgment of reasonableness of the length of the enforcement proceedings as a whole. It is noticeable that in both Lloyd and Crowther v. UK the Court was concerned to identify delay for which there was no reasonable excuse rather than the mere passage of time.
- Here, the period between imposition of the confiscation order (October 2000) and the conclusion of the claimant's appeal against conviction (June 2004) was 3 years 8 months. The responsibility for that lapse of time was neither the prosecutor's nor the State's. It was a consequence of the claimant's wish to pursue every avenue available to him on appeal notwithstanding his plea of guilty at trial. That is something he was perfectly entitled to do but in view of the complexity of the appeal it was bound to take a significant period of time to resolve. The period following the judgments in Knights and Soneji (July 2005) to the dismissal of the claimant's appeal against the confiscation order February 2006) was 7 months. That period was reasonable given the claimant's decision to make substantial amendments to his grounds of appeal having instructed his present solicitors.
- In addition, there was a period between the dismissal of the application to appeal conviction out of time (June 2004) and the publication of the judgments in Knights and Soneji (July 2005) of about 12 months no explanation for which has been offered by either party. This is not delay for which either the interested party or the claimant was responsible. The reason for the delay is in all likelihood pressure of work in the House of Lords. It seems to me that the decision to stay the claimant's appeal to await the decision of the House of Lords was eminently sensible. If the decision had not been taken, the probability, once the point of general public importance had been certified, was that several further appeals, including this one, would have been decided against the appellant leading to yet further appeals to the House of Lords. The effect of the Registrar's decision was to prolong the period before the claimant's appeal could be heard in the Court of Appeal, but it was probably not to prolong the appeal process altogether.
- Throughout these periods, both excusable and unexplained, the claimant can have received no impression that the interested party was changing its mind about enforcement. The interested party had not, at any stage, been guilty of inaction. On the contrary, it had addressed enquiries as to the progress of the appeals not only to the claimant's solicitors but also to the criminal appeal office, particularly during the period August 2004 to December 2005.
- What then of the claimant's response to the confiscation order? On 28 February 2000 Newman J made a restraint order prohibiting disposal by the claimant of his assets. The claimant had just pleaded guilty in the Crown Court; an application for a confiscation order was inevitable and the prosecutor wished to preserve the claimant's assets to meet such an order, if made. Following the grant of leave in this judicial review claim, Langstaff J proceeded to hear an application by the interested party for committal of the claimant to prison for "contumacious default of that order" in eight particulars. In giving judgment on 25 January 2008, Langstaff J concluded:
"77. I am therefore in this position: I have found the charges 4 to 8 inclusive as proved. They span the entirety of a period which begins in 2002 and ends in 2006. They are, in my view, serious breaches, in respect of which false evidence given to me, as I find it, simply compounds the contempt. I therefore have to bear those considerations in mind in determining what penalty is appropriate…"
The judge found that operating and opening an account (charges 1-3) did not of themselves constitute a breach of the restraint order and the charges gave insufficient particulars of the use to which they were put. The nature of the contempt which the judge did find proved was that the claimant had, throughout the period mentioned by the judge, been dissipating his money assets so as to put them beyond the reach of the enforcement authority when suspension of enforcement was removed. The judge found the total was about £25,000. The confiscation sum outstanding after the accumulation of interest was just over £110,000. Langstaff J imposed upon the claimant a period of 4 ½ months imprisonment on each count of contempt suspended on condition that within one month the claimant made a payment of £75,000 in part satisfaction of the order. That sum was paid and imprisonment was avoided.
Conclusion
- While the period between imposition of the compensation order and the enforcement proceedings was unusually long, I have concluded, as did the District Judge, that it was not unreasonable within the meaning of article 6. While the District Judge is not recorded as having made any specific reference to article 6 in her judgment she plainly had the appropriate test in mind. I do not agree with all her reasoning as revealed by the note of her judgment. I do not find that the claimant's application to the European Court can be regarded as relevant to the current issue. Furthermore, I accept that there may be some cases in which delay caused by the appeals process, for which the State is responsible, may without more be unreasonable in itself; if so, a breach of article 6 is at risk. Having regard to the particular exigencies of the appeals process which were presented here, I agree with the central plank of her judgment that there is "nothing to suggest that that [the time taken in the appeals process] was unreasonable or unjustifiable". That alone would, in my view, have been sufficient to dispose of the current claim. It now appears that while, as he was quite entitled, the claimant utilised the appeals process to its full extent, he was at the same time frustrating the purpose of the restraint order by dissipating his money assets. Once all the circumstances are examined I do not consider that the District Judge erred in reaching the conclusion she did. For these reasons the claim is dismissed.
