CASE OF PIPER v. THE UNITED KINGDOM
(Application no. 44547/10)
21 April 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Piper v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Päivi Hirvelä, President,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 31 March 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 44547/10) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Graham Jason Piper (“the applicant”), on 20 July 2010.
2. The applicant was represented by Mr C. Convey, a barrister practising in London, instructed by Lound Mulrenan Jefferies Solicitors. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Y. Ahmed, Foreign and Commonwealth Office.
3. On 26 August 2011 the application was communicated to the Government.
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1948 and lives in Essex. The facts of the case, as submitted by the parties, can be summarised as follows.
A. The applicant’s arrest and trial
5. The applicant was arrested in the Netherlands on 31 January 1999. On 3 February 1999, following transfer to the United Kingdom, he was charged with the attempted importation of 163 kilograms (compressed weight) of cocaine with a potential street value of GBP 11 million.
6. Prior to trial, in order to seize and preserve the applicant’s assets for future confiscation in the event of a conviction, the prosecution applied for and obtained a restraint order and the appointment of a receiver under section 26 of the Drug Trafficking Act 1994 (“the 1994 Act”). The receiver sought to sell the applicant’s horses immediately and this was successfully challenged by the applicant. In its judgment dated 23 July 1999 the Court of Appeal confirmed that the purpose of the 1994 Act was to preserve the value of assets for the purpose of future confiscation proceedings.
7. Also prior to trial, the applicant sought to challenge the admissibility of telephone interception evidence obtained in the Netherlands. He ultimately pursued an appeal to the House of Lords, which delivered its judgment against the applicant on 24 March 2000.
8. The trial subsequently commenced in the Crown Court in June 2000. However, after the jury had already retired to consider their verdict a prejudicial document was discovered within the jury bundle. The fault for this lay with the prosecution, a matter admitted at the time. Consequently, on 31 August 2000 the jury were discharged.
9. A retrial commenced on 6 April 2001. At the start of the retrial the applicant’s counsel pursued an unsuccessful application to stay the proceedings on grounds of hardship suffered as a result of the prosecution’s negligence in causing the first trial to be abandoned.
10. On 5 June 2001 the applicant was found guilty of the offences charged. On 6 June 2001 he was sentenced to fourteen years’ imprisonment. He lodged an appeal against sentence, which was unsuccessful. In 2004 he lodged an out-of-time appeal against conviction. He was released from prison in February 2006 and, on 17 November 2006, he abandoned his appeal (see further paragraph 29 below).
B. The confiscation proceedings
11. The 1994 Act provides for the making of a confiscation order in the event of a conviction for drug trafficking offences. Accordingly, prior to the sentencing hearing, the prosecution served notice under section 2 of the Act of its intention to seek a confiscation order and a statement under section 11 of the Act containing the prosecution’s assessment of whether the applicant had benefited from drug trafficking and the value of his proceeds of drug trafficking.
12. At the sentencing hearing on 6 June 2001, the judge ordered the defence to serve a written response to the prosecution’s statement within six weeks. The defence failed to serve its response within the six-week period. At the prosecution’s request, a further procedural hearing took place on 9 October 2001. At this hearing, the judge was informed that the delay in serving the defence response had been caused by the applicant moving prisons and wishing to instruct new solicitors. The prosecution drew the judge’s attention to section 3 of the 1994 Act, which provided a six-month deadline in respect of the confiscation proceedings. Prosecution counsel indicated that an extension of the deadline might be required. Defence counsel confirmed that the applicant wished to apply for a transfer to new solicitors and agreed that an extension would probably be required as it was unlikely that a fresh legal team would be ready by 6 December 2001 when the current deadline was due to expire. The judge granted a short adjournment of 28 days to resolve the matter of transferring representation.
13. On 6 November 2001 the court granted a defence application for the transfer of legal aid. The new defence representative sought an adjournment of three weeks to allow new counsel to receive the papers and take instructions from the applicant. The prosecution did not oppose the application but reminded the judge that under section 3 of the 1994 Act, the judge needed to find “exceptional circumstances” before the timetable could be extended beyond the six-month deadline. Defence counsel was unable to address the judge on the point of “exceptional circumstances” owing to his lack of familiarity with the case. Accordingly, the matter was adjourned to 4 December 2001 to review progress.
14. On 4 December 2001 defence counsel indicated to the judge that, owing to the complexities of the case, he would not have a defence response prepared before Easter 2002. He also indicated that a contested hearing, which the parties now appeared to consider necessary, would require a two-week time estimate. The judge was again referred to section 3 of the 1994 Act and it was decided with the agreement of all parties to postpone the confiscation timetable to the end of May 2002 pursuant to the court’s powers under that section. The judge suggested a provisional date of 20 May 2002 for the substantive confiscation hearing.
15. At a hearing on 25 January 2002, the defence gave notice that it wished to challenge the validity of the postponement of the confiscation hearing on the basis that the Crown Court had no jurisdiction because procedural requirements had not been properly followed by the judge at the hearing on 4 December 2001. The judge set a timetable for the service of skeleton arguments on the jurisdiction point and fixed 14 March 2002 for legal argument on the matter.
16. In early March, as a result of informal discussions between junior counsel for both sides regarding a case pending before the Court of Appeal on the jurisdiction point, the 14 March 2002 date was vacated. In the event, the pending appeal case was subsequently conceded by the prosecution so no oral argument took place in that case. A review hearing in the applicant’s case was scheduled for 22 March 2002.
17. Prior to the hearing on 22 March 2002 it became apparent that the parties had misunderstood each other in agreeing to vacate the 14 March 2002 date. Counsel for the defence had understood that if the appeal in the other case was decided in the appellant’s favour, the prosecution in the applicant’s case would terminate the confiscation proceedings against him. Counsel for the prosecution denied that such an undertaking was ever made. Counsel for the defence indicated his intention to argue abuse of process on the basis that an undertaking had been given and was then reneged upon.
18. On 22 March 2002, the prosecution indicated its intention to proceed with the confiscation hearing on 20 May 2002, as planned. The defence requested that legal argument on jurisdiction and abuse of process be postponed to suit the diary of leading counsel. The judge noted that it was “a supreme irony frankly ... that this case was adjourned solely for Mr Piper’s benefit and he now has the temerity to say that there is no jurisdiction to try him.” He also commented that since the prosecution had produced its statement under section 11 of the 1994 Act before the sentencing hearing on 6 June 2001, Mr Piper had done absolutely nothing. The judge indicated his preference for retention of the May date for the substantive hearing with any legal argument to take place beforehand, suggesting that alternative leading counsel could be found. Defence counsel proposed instead that the May date be set down for legal argument and after that, unless the confiscation proceedings had fallen away, the defence would serve their response by the end of May. The judge reluctantly put back the substantive confiscation proceedings until 13 June 2002, noting that he was “very loath to have further slippage than is absolutely necessary”.
19. On 22, 23 and 27 May 2002 two defence applications submitted by newly instructed leading counsel were heard. The first was to stay the confiscation proceedings on grounds of abuse of process; the second was for an order declaring that there was no jurisdiction to continue the confiscation proceedings on account of the judge having failed to observe the proper procedural requirements when he postponed the confiscation hearing on 4 December 2001.
20. In his ruling of 27 May 2002 the judge found, in relation to the jurisdiction point that the original adjournment was to afford the defence more time, that no defence response had been forthcoming to the prosecution statement and that further delay had been caused by the applicant wishing to instruct new solicitors. He indicated that he had listed the case on 4 December 2001, two days before the six-month time-limit expired, and that on that date he had postponed the listing to 31 May 2002 in compliance with section 3 of the 1994 Act. He further found that no prejudice had been caused to the applicant as a result of the postponement. Accordingly, he concluded that the court had jurisdiction to deal with the confiscation proceedings. On the issue of abuse of process, the judge ruled that there had been a misunderstanding between counsel as to whether any undertaking had been given and that no abuse therefore arose. Following the ruling, the confiscation proceedings were adjourned and fixed for September 2002 to allow the defence to prepare their case.
21. Further argument then took place in relation to the jurisdiction point following a Court of Appeal judgment on 27 June 2002 in which a confiscation order was quashed following a finding that a Crown Court judge had not complied with the requirements of section 3 of the 1994 Act. The applicant asked the judge to reconsider his ruling of 27 May 2002. The judge considered the applicant’s case to be distinguishable on the facts. However, on the request of the defence and following advice from both parties that an interlocutory appeal could be completed quickly and that the September 2002 confiscation hearing would not need to be vacated, he certified the point as fit for appeal to the Court of Appeal.
22. The applicant duly lodged an appeal on the jurisdiction point. For unknown reasons, matters proceeded more slowly than the parties had expected and the September confiscation hearing did not go ahead. A further judgment in a similar appeal was handed down by the Court of Appeal on 16 December 2002 (R v Knights (Richard Michael) and others  EWCA Crim 2954). An appeal against that judgment was lodged with the House of Lords.
23. The applicant’s case was adjourned further in December 2002 and February 2003 on application by him under section 3 of the 1994 Act, the “exceptional circumstances” being the pending House of Lords appeals. The parties were requested to keep the court updated. The applicant was subsequently informed by letter from the Court of Appeal dated 24 March 2003 that a question had been certified for the House of Lords in the case of Knights and others and that all similar appeals, including his own, would be held in abeyance until that appeal had been decided by the House of Lords.
24. As a result of this, and disclosure issues in relation to the receiver, the matter was further postponed in September 2003 until 9 January 2004 by which time the House of Lords had not issued a judgment in Knights and others. The judge allowed a one-week adjournment to obtain an update from the judicial office of the House of Lords. He was reminded by the applicant that he would again need to formally postpone the confiscation hearing. The judge proposed a further six-month postponement, on the proviso that he be provided with more up to date information in a week’s time and that if the proceedings could be listed and dealt with before the six-month period had expired, the parties should arrange this. Both counsel agreed.
25. Further hearings took place in June and July 2004. However, the House of Lords had still not issued a judgment. Further postponements were ordered.
26. On 27 September 2004 the judge was informed that the applicant had lodged an out-of-time appeal with the Court of Appeal against his conviction. Accordingly, there was little point in fixing a date for a substantive hearing in the confiscation proceedings. The applicant suggested a postponement to June of 2005. The judge agreed to the postponement on condition that the parties kept him informed of any progress in the meantime.
27. On 21 July 2005 the House of Lords handed down their judgments in two jurisdiction appeals (R v Knights and others  UKHL 50; and R v Soneji and another  UKHL 49). It upheld the confiscation orders, stating that any prejudice caused to the defendants by delay was outweighed by the public interest in not allowing convicted offenders to escape confiscation for bona fide errors in the judicial process.
28. On 28 July 2005 a procedural hearing was held in the Crown Court in the applicant’s case. The applicant’s counsel acknowledged that the House of Lords judgment effectively ruled out the prospect of a successful appeal on jurisdiction. The applicant requested a further adjournment to allow the parties to discuss matters further and agree amongst themselves a convenient date in September for the next hearing. The judge agreed to an adjournment. It is unclear whether a hearing took place in September or whether further adjournments were agreed in light of the applicant’s pending appeal against conviction.
29. In the meantime, from October to December 2005, separate hearings were held in the Court of Appeal relating to the applicant’s appeal against conviction. On 1 February 2006, the applicant was released from prison, having served half of his sentence. On 17 November 2006, apparently following adverse outcomes on various issues relating to his appeal, the applicant abandoned his appeal against conviction.
30. On 8 December 2006 at a review hearing in the confiscation proceedings, the applicant informed the court that he had a large number of witnesses and a great deal of work was yet to be done. The applicant’s counsel gave notice of a potential abuse argument arising from the deaths of two of his witnesses. The judge fixed a timetable for further proceedings, including the lodging of an amended “section 11 statement” by the prosecution and reply by the applicant. The matter was listed for a hearing in late January 2007. The prosecution served the amended statement in January 2007. At the hearing on 25 January 2007 it was agreed to seek suitable dates in April 2007.
31. At a directions hearing on 16 April 2007 the applicant’s counsel again raised issues relating to the volume of work and requested until the end of May to respond to the prosecution’s “section 11 statement”. The judge extended the deadline to 1 June 2007 and ordered that the prosecution serve any further response within four weeks. A procedural hearing was agreed for 6 July 2007. The judge further extended the deadline for the confiscation hearing on the grounds of “exceptional circumstances”, stating that this was “a wholly exceptional case”.
32. At the procedural hearing on 6 July 2007 the applicant proposed November 2007 for the substantive confiscation hearing and assured the judge that the hearing would not last longer than a week. The judge was scheduled to start a complex trial on 12 November 2007 to last until Christmas. He therefore listed the applicant’s case for 6 November 2007. On 1 November 2007 the parties appeared before the judge. The applicant’s counsel informed the judge that, contrary to previous advice to the court, one week would be insufficient for the substantive hearing as he now wished to call more witnesses than had originally been indicated. The judge’s other commitments precluded a rescheduled hearing taking place before Christmas and counsel could not agree on dates after Christmas. The judge decided to keep the hearing fixed for 6 November 2007 to clarify the situation as to dates. The matter was further adjourned at hearings that took place in November 2007 and December 2007. The substantive hearing was listed for 20 July 2008, with a time estimate of two weeks, but in fact lasted four days from 22 to 24 July 2008.
33. The judge delivered his ruling on the confiscation on 19 December 2008. He identified the total amount of the applicant’s benefit from criminal conduct as GBP 1,840,563. He found the principal realisable asset to be a farm, which was valued at GBP 690,000. A confiscation order was made, with a three-year term of imprisonment to be served consecutive to the main sentence in default of payment. In his judgment, the judge also addressed the question of delay, noting that the delay incurred resulted partly from the applicant’s desire to challenge the jurisdiction of the court, partly from his appeal to the Court of Appeal and partly from his decision to change his legal representatives.
34. On 11 February 2009 the applicant requested the judge to vary the confiscation order and reopen his findings on the delay issue on the basis of the judgment of this Court in Bullen and Soneji v. the United Kingdom, no. 3383/06, 8 January 2009. The judge declined, noting that it was now for the applicant to seek other remedies.
C. Proceedings before the Court of Appeal
35. The applicant applied, out of time, to the Court of Appeal for leave to appeal the confiscation order. He argued, first, that the judge had erred in including the current value of the farm within the benefit figure of the proceeds of drug trafficking; and, secondly, that the delay in the disposal of the confiscation proceedings had breached his right to a fair trial and to a trial within a reasonable time under Article 6 § 1 of the Convention.
36. An oral hearing took place before the full court to decide upon both leave to appeal and the merits on 17 March 2010. The Court of Appeal granted leave to appeal but dismissed the appeal itself, upholding the confiscation order and finding no violation of Article 6 § 1. As regards the delay complaint, the court considered the whole period from the applicant’s arrest in January 1999 to the making of the confiscation order in December 2008. It indicated that the delay:
“3. ... raises a prima facie case of a significant breach of Article 6. Unless there is a satisfactory explanation for it, it is a chronology which is way, way below the standards which are expected and achieved in the courts of this country. ...
8. ... We start with the proposition that the passage of such a length of time as we have described calls for the most careful investigation and detailed justification. It is simply on the face of it well beyond acceptable.”
37. The court found that the period from the applicant’s arrest in January 1999 to the conclusion of his first trial on 31 August 2000 was wholly unexceptional and reasonable. As to the period between the discharge of the jury in the first trial to the conclusion of the second trial in June 2001, a period of ten months, the court accepted that the abandonment of the first trial was the fault of the prosecution, noting:
“11. ... The trial had to start all over again. It was not concluded by conviction at the end of the second trial until 5th June 2001. There is thus a period of 10 months from 31st August 2000 until 5th June 2001 which was an unnecessary delay attributable to the error, although in good faith, made on behalf of the prosecution by some junior clerk. That period is therefore potentially available to be considered as the responsibility of the State.”
38. The court then examined the delay from the end of the second trial in June 2001 until July 2005, when the House of Lords’ judgment in the jurisdiction appeals was handed down. It observed that at the outset of this period, the confiscation proceedings were moving in good time. The court considered that there would have been a hearing of the confiscation question in about the spring or early summer of 2002, if that probable timetable had not been overtaken by the applicant’s challenge to the court’s jurisdiction, of which the court noted;.
“14. ... He was entitled to do so. The issue was raised before the trial judge in the early part of 2002 ... The controversy as to the correct construction of the confiscation legislation was not resolved until the decision of the House of Lords in R v Bullen and Soneji ... In fact the question raised and decided went further than simply the confiscation legislation. It bore on a broader question of when technical failure to abide exactly by prescribed procedure has the effect of nullifying the subsequent actions of courts which is, of course, a very large general question.”
The Court of Appeal considered that it was in the applicant’s interests to await the eventual authoritative ruling of the House of Lords. It therefore concluded that the delay that arose in this respect could not be criticised.
39. In the period from July 2005 until the applicant abandoned his appeal against conviction in November 2006, the court considered that the delay was the result of the appeal lodged “long out of time”, noting:
“17. ... Whilst an appeal against conviction was outstanding there could not of course sensibly be a confiscation hearing because if the defendant’s conviction disappeared so would any prospect of confiscation.”
The court observed that the applicant had engaged a third counsel for the appeal, and pursued it on grounds that had never been supported by those who had conducted his trial. It further noted that the various grounds advanced by the applicant fell away one by one over that period, but one of them remained and was not finally laid to rest until November 2006. The court concluded:
“19. ... The simple fact is that the appeal on this ground, as on the others, had always been without any proper basis or merit. It is this additional period to which we referred prospectively earlier on as an example of the defendant taking the course that he is quite entitled to do - leaving no legal stone unturned - but adding to the passage of time as a result. We are satisfied that nothing in that period can be called unreasonable delay attributable to the act or omission of the State.”
40. As regards the period between November 2006 and December 2008, when the confiscation order was eventually made, the Court of Appeal noted that the parties had returned promptly to the Crown Court for the resumption of the confiscation issue within a fortnight of the abandonment of the appeal against conviction. It was apparent at the hearing of 8 December 2006 that the prosecution was pressing for a short timetable. The applicant’s representatives, on the other hand, wanted a longer timetable and were seeking additional time on the grounds that they had an enormous volume of work and would be calling a large number of witnesses, and might even be mounting an abuse argument on the grounds that some potential witnesses had died. Hearings were adjourned owing to the applicant’s applications. Although the Court of Appeal did not blame the applicant for his conduct, the court made it clear that any additional passage of time as a result of that conduct was not attributable to any act of the State. It observed in particular that:
“20. ... At one such hearing, in January 2007, the defendant through his lawyers indicated that there would be no less than 49 witnesses necessary to be examined at the confiscation hearing ... [that] was eventually set down for November, taking into account the potentially large number of witnesses and time that would be needed. At that stage the estimate, which according to English practice will have been an estimate contributed to by both parties, was five days. That is a very long time for a confiscation hearing but if the time has to be found it has to be found. However, that date had to be broken on the application of the defendant because they assured the judge that they had so many witnesses to call that in fact 14 days would be needed, that is three court weeks, to hear the confiscation question. In the end, the defendant called five (not 49) witnesses and one of those was himself.”
41. The court commented on the time taken by the Crown Court judge to deliver his ruling (some four and a half months after the conclusion of the confiscation hearing) as follows:
“22. ... We do not doubt that that will be attributable to the demands made on the judges at the Central Criminal Court, but it is too long and that period, or at least part of it, is no doubt the responsibility of the State. Judgments of this kind ought to be delivered within, at the very least, two or three months.”
42. Looking at the passage of time as a whole, the court concluded that there had not been in the applicant’s case unreasonable delay attributable to the acts of the State. The court also considered the impact of the passage of time upon the applicant, and acknowledged that he and his wife lived throughout this time with the uncertainty of whether they would lose his family home. However, given that his assets remained the same throughout the whole period and that he continued to enjoy his home which might have otherwise been taken from him earlier, the court had very little doubt about where the balance of advantage lay. It concluded:
“25. The reality of this case is that this was a defendant of resourceful approach who deployed every possible legal stratagem to delay the confiscation process. He cannot now be heard to say that as a result of his having succeeded in delaying it, it has become unfair for the confiscation order to proceed. If there had been unreasonable delay attributable to the State, in the absence of any possible damage to the defendant beyond the very limited uncertainty that we have mentioned we are quite satisfied that this could not possibly have been a case in which the appropriate remedy would have been a stay of the confiscation process for abuse of process. There would simply have been nothing remotely unfair about the defendant eventually having to disgorge the confiscation which was the consequence of his offending. The appropriate remedy would, hypothetically, as it seems to us, have been a declaration. But that does not in the end arise. It follows that the substantive ground ... in relation to Article 6 fails.”
43. Since the lodging of his application to this Court, a further judgment has been handed down by the High Court on 7 December 2011, substantially reducing the amount of assets payable under the confiscation order (CPS v Piper  EWHC 3570 (Admin)).
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
44. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”
45. The Court is satisfied that the application can neither be considered manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor rejected as inadmissible on any other ground. The application must therefore be declared admissible.
1. The parties’ arguments
46. The period of proceedings to be taken into consideration when assessing the issue of delay is in dispute between the parties.
47. In his original application, the applicant invited the Court to find that the period from 6 June 2001 to 19 December 2008 (seven years, six months and two weeks) amounted to a violation of Article 6 § 1. In subsequent observations submitted in 2012, the applicant sought to rely upon the period from 31 January 1999 to 17 March 2010 (eleven years and six weeks). Having pleaded not guilty (unlike the applicants in Bullen and Soneji, cited above) the applicant invited the Court to have regard to the delay arising out of the period predating his conviction, in particular the resulting delay following the abandonment of the first trial at the fault of the State. The applicant asserted that overall the majority of the delay was attributable to the actions of the State.
48. The Government contended that in accordance with Bullen and Soneji, cited above, the relevant time ran from the date of conviction until the date on which the confiscation order was made, namely from 5 June 2001 until 19 December 2008 (seven years, six months and two weeks). The Government contended that the application was manifestly ill-founded and that any delay was attributable to the applicant’s actions in pursuing every possible avenue of appeal and in changing his legal representatives.
ii. The Court’s assessment
a. General principles
49. The right to “a hearing within a reasonable time”, specifically mentioned in Article 6 § 1, is a key element of the right to a fair trial. Excessive delays in dispensing justice bring the rule of law into disrepute. Justice should therefore be administered without delays which might jeopardise its effectiveness and credibility (Katte Klitsche de la Grange v. Italy, 27 October 1994, § 61, Series A no. 293-B). Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet the requirement of a timely “hearing” (Salesi v. Italy, 26 February 1993, § 24, Series A no. 257-E).
50. The reasonableness of the length of proceedings, in criminal as in civil cases, must be assessed in the light of the 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, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see, amongst many authorities, Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, § 20, 29 July 2003). In giving due weight to the various aspects of a fair trial guaranteed by Article 6, difficult decisions have to be made by the domestic courts in cases where these aspects appear to be in conflict. In particular, the right to a trial within a reasonable time must be balanced against the need to afford to the defence sufficient time to prepare its case and must not unduly restrict the right of the defence to equality of arms. Thus in assessing whether the length of proceedings was reasonable, particularly in a case where an applicant relies upon the court’s responsibility to take steps to advance the proceedings, this Court must have regard to the reasons for the delay and the extent to which delay resulted from an effort to secure other key rights guaranteed by Article 6 (see Beggs v. the United Kingdom, no. 25133/06, § 240, 6 November 2012).
51. 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, Findlay v. the United Kingdom, 25 February 1997, § 69, Reports of Judgments and Decisions 1997-I and Phillips v. the United Kingdom, 5 July 2001, § 39, Reports 2000-VII). Confiscation proceedings have been held in previous cases to be 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, cited above, § 34, and Welch v. the United Kingdom, 9 February 1995, §§ 27-28, Series A no. 307-A).
52. The Court ruled in Crowther v. the United Kingdom, no. 53741/00, § 26, that the criminal proceedings commenced when the applicant was first arrested and questioned in connection with the drugs charge and were not determined until the point at which he was denied leave to appeal to the House of Lords against the refusal to grant his application for judicial review of the magistrates’ decision to commit him to prison for non-payment of the confiscation order. However, in the case of Bullen and Soneji, cited above, § 48, which also involved confiscation proceedings, the Court found that, for the purposes of assessing the length of proceedings, the period to be taken into consideration commenced on the dates of the applicants’ conviction, that is to say, the point at which he became liable to have confiscation orders made against him.
b. Application of these principles to the facts of this case
53. Whilst it is true that in the case of Bullen and Soneji, cited above, the Court found that the relevant time ran from the date of conviction, each case must be assessed on its individual facts. In Bullen, as in Minshall v. the United Kingdom, no. 7350/06, 20 December 2011, the applicants pleaded guilty and the relevant period under scrutiny did not appear to have been in dispute between the parties. In contrast, in the present case the applicant pleaded not guilty and was convicted following two trials, the first of which was abandoned as a result of an error committed by the State (see paragraphs 8-10 above).
54. It is noteworthy that the Court of Appeal, in its assessment of the relevant period of delay, expressly took into account the period pre-dating the applicant’s conviction and this does not appear to have been contested by the State during the course of the domestic appeal (see paragraphs 36-37 above). Against this background, the Court concludes that the pre-conviction period should be treated as forming part of the totality of the contested duration of proceedings before it for consideration and cannot be discounted when assessing the reasonableness of that duration. The period to be taken into account thus commenced with the applicant’s arrest on 31 January 1999 and ended with the judgment of the Court of Appeal on 17 March 2010 (approximately 11 years, two months). The proceedings included a number of pre-trial applications by the applicant, one of which was appealed to the House of Lords (see paragraphs 6 and 7 above); the trial, retrial, conviction and sentencing at first instance (see paragraphs 8-10 above); the making of the confiscation order (see paragraph 33 above); and the applicant’s appeal to the Court of Appeal against the confiscation order (see paragraph 36 above).
55. By virtue of the domestic appeals brought by the applicant and others pertaining to the statutory confiscation regime (see paragraphs 21-27 above), the Court is satisfied that this case raised complex points of domestic law that required clarification. On the other hand, the matter undoubtedly had serious consequences for the applicant, namely a confiscation order of considerable value and a return to custody in the event of non-compliance (see paragraph 33 above). Given what was at stake for the applicant, particularly once he had been released from prison in February 2006, having served the sentence for the index offence (see paragraphs 10 and 29 above), it was incumbent on the domestic authorities to ensure that the confiscation proceedings were completed without undue delay.
56. Turning to consider the specific stages of the domestic proceedings and the conduct of the respective parties, the Court observes at the outset that the applicant pursued a series of fruitless appeals, some of which were lodged considerably out of time. The applicant was entitled to exhaust all routes of appeal, but blame cannot be attributed to the State for the overall lengthening of proceedings incurred in consequence of the defence strategy chosen by the applicant.
57. From the date on which the applicant was charged by the police on 3 February 1999 until the commencement of his first trial in June 2000 the Court can identify no unreasonable delay. During this time the applicant pursued two challenges; one in the Court of Appeal and the other in the House of Lords, both of which were dealt with expeditiously (see paragraphs 5-8 above).
58. Following the abandonment of the first trial on 31 August 2000, as a result of an error committed by the State, there was a delay of seven months before the second trial commenced on 6 April 2001 (see paragraph 9 above). This delay totals ten months if it is calculated as running from the date of jury retirement in the first trial and the date of conviction in the second trial. The Government did not provide the Court with details of any steps taken to expedite the listing of the second trial or any explanation for this delay.
59. The final period to consider is that between the applicant’s conviction on 5 June 2001 and the final determination of the confiscation proceedings on 17 March 2010, when the Court of Appeal upheld the confiscation order.
60. During the four months that followed the applicant’s sentencing on 6 June 2001 it appears that the applicant did nothing in response to the prosecution’s request for a confiscation order. Legal aid remained with the applicant’s solicitors, who would have been aware of the initial deadline of six weeks to file a response. It was at the instigation of the prosecution that the matter returned to court in October 2001 (see paragraph 12 above). The Court rejects the applicant’s assertion that delay was incurred at this stage, or during later stages, as a result of being detained in prisons located far from his legal representation. The applicant has failed to provide specific examples or evidence to support his assertion and therefore no blame or criticism can be made of the State authorities in this regard. The applicant’s failure to respond to the confiscation application within this timescale and failure to make any contact with the court caused a delay that was entirely of his making.
61. Following this, numerous further extensions were granted as and when discrete issues arose (see paragraphs 12-20 above). In particular, several months’ delay occurred following the applicant’s decision to instruct a new legal team, the trial judge recognising the importance of allowing him adequate time to prepare his defence. The Court notes that the trial judge was astute in ensuring that the matter properly returned to court at regular intervals in order to monitor progress and avoid unnecessary delay. It is unfortunate that no progress was made during this time and that interlocutory hearings were required in relation to abuse of process, wasted costs and disclosure of information from the receiver. It is insufficiently clear from the evidence before the Court which party bears the responsibility for these delays and therefore no finding can be reached.
62. The Court notes the Government’s proposition that delay was incurred at various stages as a result of the applicant having changed legal representation. It is true that in 2001 several adjournments were sought on behalf of the applicant as a result of the transfer of his instructions to new solicitors (see paragraphs 12-13, 20 and 33 above). Thereafter, however, the applicant’s solicitors remained the same and lead counsel also remained largely consistent, being replaced only due to lack of availability on one occasion (see paragraph 18 above).
63. The applicant lodged his jurisdictional appeal in the Court of Appeal in the summer of 2002 (leave to appeal having been granted on 26 July 2002: see paragraph 22 above). On 16 December 2002 the Court of Appeal delivered its judgment in a similar case, R v Knights and Others (see paragraph 22 above). As a result of Knights and Others proceeding to the House of Lords, the applicant was notified on 24 March 2003 that his appeal would be held in abeyance pending judgment from the House of Lords, which was not delivered until 21 July 2005 (see paragraph 23-27 above). As a result of the applicant’s jurisdictional appeal being stayed, and its direct impact upon his pending confiscation proceedings, a lapse of three years occurred between the lodging of the jurisdictional appeal and its conclusion. The judgment in Knights and Others held consequences, in terms of delay, for a number of other appeals that were stayed pending its determination. No fault as such can be laid at the door of the national judicial authorities. Indeed, when examining the adjournment of the confiscation proceedings pending that judgment - which had been requested by the applicant himself - the Court of Appeal commented that it was in his interests to await the House of Lords ruling. Nonetheless, the objective consequence for the applicant was that, by reason of the working of the British system of administration of justice, and through no fault of his own, the pace of the confiscation proceedings brought against him was slowed for a not insignificant period. This being so, responsibility for the resultant delay must be considered attributable to the respondent State. Since, even in the best of circumstances, it would be unreasonable to expect an appeal court to deliver judgment immediately after the lodging of an appeal, the Court assesses the delay which accrued at this point at approximately two years.
64. However, following the judgment in Knights and Others, and as a consequence of the applicant’s out of time appeal against conviction, it became futile to pursue the confiscation proceedings because, had the appeal against conviction been successful, any confiscation order made would no longer have been valid. Consequently, the delay between 21 July 2005 and 17 November 2006, when the applicant ultimately abandoned his appeal (see paragraphs 28-29 above), is not attributable to the conduct of the State authorities.
65. The Court notes that a further delay of eight months (from 6 November 2007 until 22 July 2008) was incurred at a stage when proceedings were finally on foot as a result of the applicant’s counsel assuring the confiscation judge of the need for a three-week substantive hearing to accommodate nearly 50 proposed witnesses, when in fact the trial took only four days and the applicant called only five witnesses, one of whom was himself (see paragraphs 32 and 40 above).
66. The confiscation hearing took place between 22 and 24 July 2008. Judgment was reserved and not delivered until 19 December 2008, a delay of four and a half months (see paragraph 33 above). The Court of Appeal was critical of this period of delay stating that it was “too long” (by about two to three months) and “no doubt the responsibility of the State” (see paragraph 41 above). This Court agrees. No explanation has been advanced by the State to account for this delay, which was all the more regrettable when proceedings had already been subject to substantial delay.
67. In summary therefore, the Court finds that the delays in this case attributable to the State authorities total approximately three years (comprised of a delay of ten months between August 2000 and April 2001, a delay of two years between the summer of 2002 and 21 July 2005 and a delay of five months between 24 July and 19 December 2008). Given, in particular, what was at stake for the applicant, and notwithstanding the fact that he was himself responsible for the majority of the overall delay, the Court finds that the proceedings were not completed within a reasonable time (compare, for example, Bullen and Soneji, cited above, and also Minshall v. the United Kingdom no. 7350/06, § 40, 20 December 2011).
68. It is true that in this case the Court of Appeal found that there had been no violation (see paragraph 42 above). However, the Court finds otherwise for the following reasons. First, the cumulative effect of the identified periods of delay attributable to the State totalling approximately three years is not insignificant. Secondly, when considering the longest period of delay, namely the approximately two years caused by the awaited House of Lords judgment in Knights and Others, the Court of Appeal concluded that it was in the applicant’s interest to await the outcome. The Court of Appeal, in finding no unreasonable delay, can be understood as having placed some reliance on the fact that the possible damage suffered by the applicant as a result of the extraordinary length of the proceedings was only a “very limited uncertainty” - namely whether he and his wife would lose their family home (his main asset), whereas his assets remained the same throughout the whole period concerned and he had continued to enjoy his home which might otherwise have been taken from him. The Court of Appeal went on to conclude that since the applicant had himself “deployed every possible legal stratagem to delay the confiscation process”, “he [could] not now be heard to say that as a result of having succeeded in delaying it, it ha[d] become unfair for the confiscation order to proceed” (see paragraph 42 above). For this Court, these considerations, invoked by the Court of Appeal, while not immaterial for the case, in that they go to the assessment of any just satisfaction to be accorded, do not preclude a finding of unreasonable length of proceedings on account of the periods of delay nonetheless attributable to the respondent State.
69. The Court accordingly finds that there has been a breach of Article 6 § 1 of the Convention, albeit not to the extent argued by the applicant.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
70. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
71. The applicant has not pursued a claim for pecuniary loss. However, he claims damages for non-pecuniary loss to compensate him for the strain and pressures flowing from the confiscation proceedings. He also seeks an order from this Court pursuant to Article 13 dismissing the confiscation order as a form of just satisfaction.
72. The Government contested these claims. They invited the Court to have regard to the very serious nature of the applicant’s criminal conviction when considering an award for damages for non-pecuniary loss and submitted that the “strain” referred to by the applicant related more to the confiscation order than to the issue of delay, and as such there was no causal link between the alleged violation and the alleged loss. For the same reason, and on grounds of remoteness, the Government refuted the applicant’s ability to seek non-pecuniary damages on behalf of his wife. In the circumstances, the Government submitted that a finding of violation in itself was sufficient to afford the applicant just satisfaction. Further, the Government contended that it was wholly inappropriate and not open to the applicant to seek dismissal of the confiscation order.
73. After careful consideration the Court accepts that, although not fully identified, some of the “strain” experienced by the applicant during the course of the confiscation proceedings will have been inextricably linked to the issue of delay. However, like the Court of Appeal, the Court is bound to conclude that this “very limited uncertainty” cannot be taken to have caused the applicant substantial prejudice at all (see paragraphs 42 and 68 above). Furthermore, it is far from the totality of the extraordinary length of the proceedings that has been found to be attributable to the respondent State and, thus, the source of a violation of the reasonable-time requirement under Article 6 § 1. On the contrary, it is the applicant himself who, after being convicted of a serious offence of drug trafficking involving potentially enormous rewards for himself but much damage to society, was largely responsible for preventing the proceedings aimed at confiscating his assets being brought to a timely close. As the national judges and the Court of Appeal in particular pointed out, the applicant “deployed every legal stratagem to delay the confiscation process” and succeeded in his endeavour. Faced with various objections and requirements from the applicant’s legal team, the judge in the confiscation proceedings sought to strike a balance between the need for prevent delay in the proceedings and the importance of allowing the applicant adequate time to prepare and mount his defence.
74. Having regard to these particular circumstances, the Court does not consider that it is “necessary”, in the terms of Article 41 of the Convention, to afford the applicant any financial compensation by way of just satisfaction. The Court accordingly holds that the finding of a violation of Article 6 § 1 by reason of the delay in the proceedings attributable to the respondent State in itself constitutes adequate just satisfaction for the purposes of the Convention.
75. The Court rejects the applicant’s claim for a dismissal of the confiscation order. It is not within the power of this Court to grant such a remedy.
B. Costs and expenses
76. The applicant did not seek an award of costs, but has submitted a claim for expenses incurred in obtaining transcripts.
77. The Government contested the claim for expenses on the basis that it was not properly particularised or proven to relate to his application before this Court.
78. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court is not satisfied on the evidence provided by the applicant that the costs were actually or necessarily incurred for the purposes of these proceedings and therefore rejects the claim for expenses.
C. Default interest
79. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that the finding of a violation of Article 6 § 1 of the Convention constitutes adequate just satisfaction for the purposes of Article 41 of the Convention in respect of any possible non-pecuniary prejudice sustained by the applicant and dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 21 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Päivi
Deputy Registrar President
. The date of this application is not provided in the papers lodged with the Court.