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URL: http://www.bailii.org/eu/cases/ECHR/2010/95.html
Cite as: [2010] ECHR 95
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14 January 2010
FOURTH SECTION
Application no.
7350/06
by Robert John MINSHALL
against the United
Kingdom
lodged on 16 February 2006
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Robert John Minshall, is a British national who was born in 1943 and lives in Newmarket. He is represented before the Court by Rustem Guardian Solicitors, a firm based in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 3 February 2000, at Wood Green Crown Court, the applicant pleaded guilty to conspiracy fraudulently to evade excise duty on alcoholic liquor in contravention of section 170 of the Customs and Excise Act 1979. On 5 May 2000 he was sentenced to 30 months’ imprisonment.
On 31 May 2000, the Crown served statements in respect of possession proceedings. The matter was listed for a mention on 5 June 2000. The judge was told that the six month period for confiscation proceedings expired on 3 August 2000. He noted that “we may have to extend the period”. A date was agreed for service of the applicant’s responses to the Crown’s statements and it was ordered that a further directions hearing should be listed within the six month period. A further hearing took place on 3 August 2000 at which counsel for the Crown stated that the confiscation proceedings should take place in September. The judge noted the court’s power to extend the six month time limit and no objection was raised by counsel for the applicant. In the event, the confiscation proceedings took place on 13 October 2000. The judge made an order against the applicant in the sum of £80,000 to be paid by 30 April 2001, with 18 months’ imprisonment in default.
The applicant appealed against the confiscation order on the grounds that it was imposed more than six months after his conviction, in breach of the statutory time limit under section 72A of the Criminal Justice Act 1988 (“the CJA 1988”). Permission to appeal was granted on 19 July 2001. The applicant did not appeal against his conviction. However, he states that, on 10 March 2003, the Court of Appeal nonetheless joined his case to the appeals against conviction of his co-accused. His co-accused’s appeals against conviction were not finally determined until 24 June 2004. Meanwhile, on 2 March 2004, the Court of Appeal stayed the applicant’s appeal against the confiscation order pending the decisions of the House of Lords in R v Knights and another [2005] UKHL and R v Soneji and another [2005] UKHL 49.
On 15 August 2005, the applicant was notified by the Court of Appeal that Knights and Soneji had been determined and was asked whether he wished to continue or abandon his appeal. In light of the House of Lords’ decisions, counsel advised the applicant against continuing his appeal and withdrew from the case.
However, with the assistance of his solicitors, the applicant did continue the appeal. His solicitors sought leave to amend the grounds of appeal to include two further grounds: first, that the confiscation order was unlawful because it had been made in respect of facts constituting a substantive offence when the applicant had only pleaded guilty to the prior and distinct offence of conspiracy; and secondly, that the duration of the proceedings up to the date of the appeal had been unreasonably long in breach of Article 6 § 1.
On 14 February 2006, the application to amend the grounds of appeal was considered together with the substantive merits of the appeal. Permission to amend the grounds was refused; the substantive appeal was dismissed; and the court declined to certify that points of general public importance were involved in the decision. Mrs Justice Rafferty found that the Crown Court judge’s reasons for the extending the six month time limit “were the proper administration of justice, based upon judicial availability. They explicitly were not for the purpose of allowing the Crown to secure more information”. Applying Knights and Soneji, she held that artificial adherence to statutory time limits was outwith the intensions of Parliament and that the appeal should therefore be dismissed.
On 15 February 2006, the applicant sought leave to appeal to the House of Lords. On 16 February 2006 leave was refused. On the same day, the applicant submitted his application to this Court.
Subsequently, the Crown brought enforcement proceedings against the applicant. Very few of the documents in relation to these enforcement proceedings have, to date, been submitted to the Court. However, it appears that the applicant sought to stay enforcement on the grounds of delay amounting to an abuse of process. The applicant’s delay arguments were rejected at a hearing before Marylebone Magistrates Court on 23 August 2006. The applicant brought judicial review proceedings in respect of the decision of Marylebone Magistrates Court, although it is not clear precisely on what grounds. Permission to apply for judicial review was granted on 23 January 2007, but the claim was dismissed following a substantive hearing on a date unknown.
B. Relevant domestic law
Section 71 of the Criminal Justice Act 1988, in force at the time the confiscation order was made, states:
(1) Where an offender is convicted, in any proceedings before the Crown Court or a magistrates’ court, of an offence of a relevant description, it shall be the duty of the court—
(a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or
(b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed,
to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.
(1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct.
(1B) Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then—
(a) determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and
(b) make an order under this section ordering the offender to pay that amount.”
Section 72A of the Criminal Justice Act 1998, in force at the time the confiscation order was made, states:
(1) Where a court is acting under section 71 above but considers that it requires further information before—
(a) determining whether the defendant has benefited as mentioned in section 71(2)(b)(i) above;
(b) determining whether his benefit is at least the minimum amount; or
(c) determining the amount to be recovered in his case by virtue of section 72 above,
it may, for the purpose of enabling that information to be obtained, postpone making that determination for such period as it may specify.
(2) More than one postponement may be made under subsection (1) above in relation to the same case.
(3) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above which—
(a) by itself; or
(b) where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods,
exceeds six months beginning with the date of conviction.
In R v Soneji and another [2005] UKHL 49, the House of Lords considered the consequences of failure to comply with section 72A, and in particular the time limits under section 72A(3). The court held that, although there existed no common law power to adjourn, Parliament had not intended to disable the courts from making confiscation orders after sentence merely because the time-limits were not strictly adhered to. It further held that the requirement for “exceptional circumstances” under section 72A(3) should not be strictly construed.
COMPLAINTS
The applicant complains that he was denied a fair trial within a reasonable time in breach of Article 6 § 1 of the Convention: first, because he was refused permission by the Court of Appeal to amend his grounds of appeal to challenge the overall delay; secondly, because the confiscation order was imposed outside the six month statutory time limit; and thirdly, because his case took over six years to be finally determined.
The applicant also complains that the confiscation order was imposed in breach of Article 7. He argues that the order was based on the facts of the substantive offence when he had been found guilty only of the prior and distinct offence of conspiracy.
QUESTION TO THE PARTIES