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Cite as: [2011] ECHR 1317
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FOURTH SECTION
Application no.
44547/10
by Graham Jason PIPER
against the
United Kingdom
lodged on 20 July 2010
STATEMENT OF FACTS
THE FACTS
1. The applicant, Mr Graham Jason Piper, is a British national who was born in 1948 and lives in Runwell, Essex. He is represented before the Court by Mr C. Convey, a barrister practising in London.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s arrest and trial
3. The applicant was arrested in the Netherlands on 31 January 1999. On an unknown date he was transferred to the United Kingdom. On 3 February 1999 he was charged with drugs offences namely, the attempted importation of 163 kilograms (compressed weight) of cocaine from the Netherlands into the United Kingdom with a potential street value of approximately GBP eleven million.
4. Prior to trial, the prosecution applied for a restraint order and the appointment of a receiver under section 26 of the Drug Trafficking Act 1994 (“the 1994 Act”), in order to seize and preserve the applicant’s assets for future confiscation in the event of a conviction. The judge made the order requested and gave the receiver the power to realise the value of any assets as appropriate. The receiver intended immediately to start selling the applicant’s horses, on the grounds that their present realisable value would be higher than at some future date. The applicant applied for an injunction to prevent the sale. The Court of Appeal gave judgment in favour of the applicant on 23 July 1999 recognising that the purpose of the 1994 Act was to preserve the value of the applicant’s assets for the purpose of future confiscation proceedings. It therefore held that while the applicant remained unconvicted, his assets should not be sold against his wishes except for compelling reasons.
5. Also prior to trial, the applicant attempted to challenge the admissibility of evidence of a telephone interception made in the Netherlands. He ultimately pursued an appeal to the House of Lords, which delivered its judgment against the applicant on 24 March 2000.
6. The trial subsequently commenced in the Crown Court in June 2000. However, on 31 August 2000 the jury was discharged, after it had already retired to consider its verdict, when it emerged that a prejudicial document had mistakenly been placed in one of the jury bundles. The fault for this lay with the prosecution, a matter admitted at the time.
7. A retrial commenced on 6 April 2001.
8. At the start of the retrial the applicant’s counsel applied for the proceedings to be stayed on the grounds that the applicant had suffered hardship as a result of the prosecution’s negligence in causing the first trial to be abandoned. The judge refused the application to stay proceedings but suggested that he might consider wasted costs for the applicant to be paid by the prosecution, whose negligence had caused the abandonment of the first trial. Defence counsel accordingly applied for a wasted costs order and the judge ruled that part of the costs incurred by the applicant in the first trial should be paid to him, or effectively to the receiver, who remained in control of the applicant’s funds and assets, with the sum to be fixed within seven days. He stated that the amount should be quantified to only cover those costs “not common to both the first trial and the retrial, between January 2000, when the [proceedings] began, and 11 April 2000, when legal aid was granted”.
9. 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.
2. The confiscation proceedings
10. The 1994 Act provided 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 assessment of whether the applicant had benefited from drug trafficking and the value of his proceeds of drug trafficking.
11. At the sentencing hearing on 6 June 2001, upon the request of the prosecution, the judge ordered the defence to serve a written response to the prosecution statement within six weeks.
12. The defence failed to serve its response within the six-week period. Accordingly, at the prosecution’s request, a further procedural hearing took place on 9 October 2001. The applicant was represented by different counsel, instructed by the original trial solicitors. At the 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 heard and granted a defence application for the transfer of legal aid. The prosecution indicated that it was ready to proceed to the confiscation hearing. However, 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 to adjourn 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. As regards the wasted costs order made following the abandonment of the first trial, the prosecution informed the judge that a bill of costs was awaited from the defence.
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. He further advised that the applicant had been granted permission to appeal against sentence and that a date for oral hearing was awaited. 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 noted:
“It seems to me that I ought to say there is good reason in the change of circumstances for postponing the hearing ... I do not know that I need do more than say it is right to postpone it.”
15. He suggested a provisional date of 20 May 2002 for the substantive confiscation hearing.
16. 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.
17. In March 2002 the applicant’s appeal against sentence was dismissed.
18. 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 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.
19. 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 undertaken had been given and was then reneged upon.
20. At the hearing on 22 March 2002, the prosecution indicated that it wished to proceed to 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:
“... it is 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.”
21. 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 ... has done absolutely nothing nor has he managed to even suggest the amount of costs that I awarded him ...”
22. He indicated his preference for retention of the May date for the substantive hearing with any legal argument to take place beforehand, suggesting that other leading counsel could be found. Defence counsel proposed instead that the May date could 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. Following lengthy defence submissions, 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.”
23. Finally, it was noted that the matter of the wasted costs remained unresolved, as the applicant’s original solicitors had still not provided a bill of costs.
24. 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 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.
25. In his ruling of 27 May 2002 the judge found on the jurisdiction point that the original adjournment was to give 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 time for the hearing 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.
26. Following the ruling, the confiscation proceedings were adjourned again to allow the defence to prepare their case. The applicant was advised by counsel not to pursue an interlocutory appeal against the rulings but to await the outcome of the substantive confiscation hearing.
27. A directions hearing took place on 14 June 2002. The substantive confiscation hearing was fixed for September 2002.
28. At a further directions hearing on 26 July 2002 the court addressed the issue of the wasted costs. A representative of the firm of solicitors originally instructed by the applicant informed the judge that it was proving difficult to quantify the costs that were not common to both trials. He suggested that he might be able to liaise with a representative of the prosecution and together formulate an agreed figure. The matter was accordingly adjourned.
29. Further argument then took place in relation to the jurisdiction point as the defence tried to re-open the issue following a further Court of Appeal judgment on the postponement point on 27 June 2002 in which a confiscation order was quashed following a finding by the Court of Appeal that a Crown Court judge had not complied with the requirements of section 3 of the 1994 Act. The defence accordingly asked the judge to reconsider his ruling of 27 May 2002. The judge was of the view that the applicant’s case was 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.
30. 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 [2002] EWCA Crim 2954). An appeal against that judgment was lodged with the House of Lords.
31. At a directions hearing in the applicant’s case on 20 December 2002, matters were further adjourned to a review hearing on 28 February 2003.
32. At the hearing on 28 February 2003 defence counsel requested that the confiscation proceedings be further postponed to 30 May 2003 on the basis of “exceptional circumstances” under section 3 of the 1994 Act, namely the need to await the determination of other relevant appeals. The request was not opposed by the prosecution and was accordingly granted by the judge. It was agreed that the parties would return to court on 30 May 2003 or, if there was no movement by the House of Lords, would keep the court informed without a hearing. The defence again raised the issue of access to information regarding the applicant’s accounts. The prosecution indicated its understanding that the material was in the hands of the receiver but agreed to attempt to locate it.
33. The applicant was informed by letter of 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.
34. At a directions hearing on 8 September 2003 the defence again raised disclosure issues relating to the accounts and asked that the receiver be requested to come to court. In light of these issues and the outstanding House of Lords appeal, both sides requested that the substantive hearing be postponed. The judge ordered a review hearing to be held on 9 January 2004, a date convenient to all parties, to reappraise the situation. The judge also fixed a directions hearing for 26 September 2003, to be attended by a representative of the receiver, to determine the disclosure problems.
35. At the hearing on 26 September 2003 the receiver’s representative undertook to investigate whether an inspection of the relevant material might be undertaken by the defence representatives. The question of wasted costs was also raised as the original solicitors had still not produced a precise bill of costs. The defence informed the judge that the firm had suffered an arson attack at their offices causing files to be destroyed. This matter remained unresolved.
36. By the time of the directions hearing of 9 January 2004 the House of Lords had still not issued a judgment in Knights and others. The judge allowed a one-week adjournment to allow the partiers to contact the judicial office of the House of Lords and establish the position. He was reminded by the defence that he would need formally to postpone the confiscation hearing again. The judge therefore proposed a further six-month postponement, on the proviso that he wanted 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.
37. Further hearings took place in June and July 2004. However, the House of Lords had still not issued a judgment. Further postponements were ordered.
38. At a hearing 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, but a different counsel had been instructed for this. Accordingly, there was little point in fixing a date for a substantive hearing in the confiscation proceedings. The defence 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.
39. As regards the issue of the wasted costs, a representative of the original solicitors’ firm informed the judge that no agreement had been reached. The defence requested a hearing in December 2004, to be attended by all parties. The judge fixed a hearing for 6 December 2004.
40. Hearings on the wasted costs duly took place on 6 December 2004 and 28 February 2005 but for unknown reasons the matter was not resolved.
41. On 21 July 2005 the House of Lords handed down their judgments in two jurisdiction appeals (R v Knights and others [2005] UKHL 50; and R v Soneji and another [2005] 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.
42. On 28 July 2005 a procedural hearing was held in the Crown Court in the applicant’s case. At the hearing, the defence acknowledged that the House of Lords judgment effectively ruled out the prospect of a successful appeal on jurisdiction. The defence 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.
43. 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.
44. On 1 February 2006, the applicant was released from prison, having served half of his sentence.
45. On 17 November 2006, apparently following adverse outcomes on various issues relating to his appeal, the applicant abandoned his appeal against conviction.
46. On 8 December 2006 a review hearing took place in the Crown Court in the confiscation proceedings. The defence informed the court that it had a large number of witnesses and a great deal of work was yet to be done. It gave notice of a potential abuse argument arising from the deaths of two of the 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 defence. The matter was listed for a hearing in late January 2007.
47. The prosecution served an amended section 11 statement in January 2007.
48. At the hearing on 25 January 2007 the prosecution suggested a date in mid-February to deal with the wasted costs issue. The judge suggested the week commencing 19 February 2007 as he was subsequently engaged until the end of March. However, no date in February was suitable to defence counsel who accordingly requested a date after Easter to suit his availability and to allow preparation to be completed. It was agreed to seek suitable dates in April 2007.
49. At a directions hearing on 16 April 2007 defence counsel again raised issues relating to the volume of work and stated that he would be in a position to respond to the prosecution’s section 11 statement by the end of May. 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”.
50. Following legal argument on 20 April 2007 on the issue of the wasted costs, the judge gave his ruling on 27 April 2007. He reviewed his original remarks in 2001 and noted that it had proved impossible to quantify any expenditure which was not common to both trials. He concluded that the position of the applicant was very different now from when the order had been made in 2001 as he had since been convicted and whatever costs were awarded would be confiscated back. He therefore decided not to award any costs at all.
51. At the procedural hearing on 6 July 2007 the defence 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.
52. On 1 November 2007 the parties appeared before the judge. The defence informed the judge that, contrary to its previous advice to the court, one week would be insufficient for the substantive hearing as it now wished to call more witnesses than it had originally 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.
53. For unknown reasons, it appears that no hearing took place on 6 November 2007. The next hearing was held on 14 December 2007, at which the proceedings seem to have been adjourned to 20 June 2008, again for unknown reasons.
54. On 20 June 2008 a pre-trial review hearing took place. The substantive hearing had been listed for 20 July 2008, with a time estimate of two weeks.
55. The confiscation hearing took place over four days, from 22-24 and 28 July.
56. The judge delivered his ruling on the confiscation, running to eleven pages, on 19 December 2008. He applied the relevant legal assumptions and 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.
57. In his judgment, the judge also addressed the question of delay, noting that the delay incurred has 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.
58. On 11 February 2009 the defence 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 to take the action requested, noting that it was now for the applicant to seek other remedies.
3. Proceedings before the Court of Appeal
59. The applicant applied to the Court of Appeal for leave to appeal the confiscation order out of time. He argued, first, that the judge had erred in including the value of the current farm within the benefit figure of the proceeds of drug trafficking; and, second, 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.
60. An oral hearing took place before the full court to decide upon both leave to appeal and the merits on 17 March 2010. The applicant was represented by different counsel again. 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.
61. 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.”
62. The court referred to the principles elucidated in Bullen and Soneji, cited above, before considering the specific periods of delay in the applicant’s case. As to the period from the applicant’s arrest in January 1999 to the conclusion of his first trial on 31 August 2000, the court noted:
“9. ... That has rightly been accepted as wholly unexceptional. This was a complex case. It was hard fought all the way. The time involved in its preparation on both sides and its bringing to trial has rightly been accepted to have been wholly reasonable.”
63. This court noted that this period included an interlocutory appeal pursued by the applicant up to the House of Lords on a point of admissibility of evidence, which the court found to have been “remarkably swift”.
64. The court further referred to an unsuccessful challenge by the applicant to the powers of the receiver, which the court stated was also finally decided by the House of Lords, noting:
“10. ... it is some indication of the determination of this defendant to leave no stone unturned in deploying all the procedural and substantive legal steps available to him. He is perfectly entitled to do that. There can be no criticism of him. But it may take up time and, as history will reveal, later on it did.”
65. It is not clear to which proceedings the Court of Appeal was referring here, as the applicant’s challenge to the receiver’s power to sell an unconvicted defendant’s assets was successful in the Court of Appeal on 23 July 1999 (see above).
66. 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.”
67. 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 proceedings in good time. However, complications arose in itemising the wasted costs as a result of a fire at the solicitors’ offices and the destruction of files in July 2001, as well as the applicant’s change of legal team for the confiscation proceedings. Nevertheless, the court considered that notwithstanding these two complications, 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 a challenge to the court’s jurisdiction.
68. As to the applicant’s decision to challenge the jurisdiction of the Crown Court, the Court of Appeal 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.”
69. 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 found the applicant’s situation to be similar to that referred to by this Court in Bullen and Soneji, where all parties agreed to await the decision of a higher court. Like that case therefore, the delay that arose could not be attributed to the conduct of the applicant or the State.
70. The court accepted that the question of wasted costs might have been dealt with earlier but considered that this would not in any event have accelerated the hearing of the confiscation matter. In any case, the court noted that during this entire period:
“16. ...It was clear that everybody was waiting for an authoritative pronouncement and it certainly is not clear that anybody asked the judge to do otherwise. It also needs to be understood that during this quite long period the confiscation process did not go to sleep. It was regularly monitored by the court and there were a whole series of hearings for directions or consideration of where the case had got to ...”
71. 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.”
72. 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 defendant 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.”
73. 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 defence, 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 defence applications. Although the Court of Appeal did not blame the defence for its 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. The court 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. In the meantime, the wasted costs matter was dealt with, in the spring of 2007, and the confiscation hearing 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.”
74. The court also noted that having been re-scheduled at the request of the defence, the revised hearing took place in July 2008, and the defence statement in response to the prosecution was lodged with the court only a week before the hearing.
75. The court did, however, criticise the Crown Court judge for delivering his ruling some four and a half months after the conclusion of the confiscation hearing, noting:
“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.”
76. 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.
77. The court also considered what was at stake for the applicant and the impact of the passage of time upon him, 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.”
B. Relevant domestic law and practice
78. The relevant legislation in force at the time was the Drug Trafficking Act 1994. Pursuant to section 2 of the Act, when a person appeared before a court for sentencing, the court could proceed to make a confiscation order on its own initiative or upon that of the prosecution.
79. Section 11 imposed an obligation on the prosecution to lodge a statement regarding matters which it considered relevant to the determination of whether the defendant had benefited from drug trafficking or the assessment of the value of his proceeds of drug trafficking.
80. Section 3 of the 1994 Act provided for postponement of the making of confiscation order. Pursuant to section 3(1):
“(1) Where the Crown Court is acting under section 2 of this Act but considers that it requires further information before–
(a) determining whether the defendant has benefited from drug trafficking, or
(b) determining the amount to be recovered in his case by virtue of that section,
it may, for the purpose of enabling that information to be obtained, postpone making the determination for such period as it may specify.”
81. Section 3(2) allowed for more than one postponement to be made in the same case.
82. Section 3(3) provided:
“(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.”
83. Section 3(4) dealt specifically with postponements where an appeal against conviction had been lodged:
“(4) Where the defendant appeals against his conviction, the court may, on that account–
(a) postpone making either or both of the determinations mentioned in subsection (1) above for such period as it may specify; or
(b) where it has already exercised its powers under this section to postpone, extend the specified period.”
84. Pursuant to section 3(6), unless the court was satisfied that there were exceptional circumstances, any postponement or extension under subsection (4) was not to exceed the period ending three months after the date on which the appeal was determined or otherwise disposed of.
85. Section 26 of the 1994 Act gave the High Court the power to make an order to prohibit any person from dealing with any realisable property (“a restraint order”), subject to such conditions and exceptions as were specified in the order. It also allowed the High Court or a County Court to appoint a receiver to take possession of any realisable property and, in accordance with the court’s directions, to manage or otherwise deal with any property in respect of which he was appointed.
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention of a violation of his right to a fair trial within a reasonable time.
QUESTIONS TO THE PARTIES