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Cite as: [2012] STC 731, [2012] 4 Costs LO 466, 55 EHRR 36, (2012) 55 EHRR 36, [2011] ECHR 2243

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FOURTH SECTION

CASE OF MINSHALL v. THE UNITED KINGDOM

(Application no. 7350/06)

JUDGMENT

STRASBOURG

20 December 2011

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 Minshall v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,

Having deliberated in private on 29 November 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 7350/06) 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 Robert John Minshall (“the applicant”), on 16 February 2006.

The applicant was represented by Rustem Guardian Solicitors, a firm based in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign & Commonwealth Office.

On 12 January 2010 the Acting President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1943 and lives in Newmarket.

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 28 February 2000 Newman J made a restraint order prohibiting disposal by the claimant of his assets and on 5 May 2000 he was sentenced to 30 months’ imprisonment.

Pursuant to section 72A of the Criminal Justice Act 1988 (“the CJA 1988”), save in exceptional circumstances confiscation proceedings should be concluded no later than six months after conviction. At a directions hearing on 5 June 2000 the judge was told that the six-month statutory time limit for making a confiscation order would expire 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. This further hearing took place on 3 August 2000. The judge noted the court’s power to extend the six-month time limit and no objection was raised by counsel for the applicant. The confiscation proceedings took place on 13 October 2000. The judge made an order against the applicant in the sum of GBP 80,000 to be paid by 30 April 2001, with 18 months’ imprisonment in default.

The applicant sought leave to appeal against the confiscation order. He submitted that the court had no jurisdiction to make the order because it was imposed more than six months after his conviction in breach of the statutory time limit under section 72A of the CJA 1988. At the time there was judicial uncertainty about whether failure to comply with the six-month time limit would deprive the court of jurisdiction to make a confiscation order. Permission to appeal was granted on 19 July 2001 and enforcement of the confiscation order was suspended pending the outcome of the appeal.

On 16 December 2002 the Court of Appeal considered a group of appeals lodged on the same ground as that of the applicant, namely that the Crown Court did not have jurisdiction to make a confiscation order outside the six-month time limit. The Court of Appeal held that a procedural irregularity did not necessarily deprive the court of jurisdiction to make a confiscation order. One of the appellants (Soneji) obtained leave to appeal to the House of Lords. His appeal was joined to that of another appellant (Knights).

On 15 April 2003 the applicant issued an out-of-time notice of appeal against conviction on the ground that his conviction had been tainted by non-disclosure.

On 2 March 2004 the Court of Appeal stayed the applicant’s appeal against the confiscation order pending the House of Lords’ decisions in R v. Knights and R v. Soneji.

On 24 June 2004 the Court of Appeal refused the applicant leave to appeal out of time against his conviction.

The decisions in R v. Knights [2005] UKHL 50 and R v. Soneji [2005] UKHL 49 were handed down by the House of Lords on 21 July 2005. In those decisions the House of Lords affirmed the Court of Appeal’s conclusion that a procedural irregularity would not necessarily deprive the court of jurisdiction to make a confiscation order. Following publication of the 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 of the Convention.

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 law of general public importance were involved in the decision. Mrs Justice Rafferty found that the Crown Court judge’s reasons for 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 R v. Knights and R v. Soneji, she held that artificial adherence to statutory time limits was outwith the intentions 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.

On 20 February 2006 the Revenue & Customs Prosecutions Office (“RCPO”) wrote to the applicant seeking his proposals for payment of the outstanding confiscation order. On 27 April 2006 the applicant’s solicitor asked the RCPO to delay enforcement proceedings pending consideration of his application to the Court. The RCPO declined and confiscation enforcement proceedings against the applicant took place on 23 August 2006. The Magistrates’ Court rejected the applicant’s submission that to continue the enforcement proceedings would be an abuse of process and a breach of Article 6 of the Convention. The applicant applied for permission to judicially review this decision. In the meantime the enforcement proceedings were adjourned to 31 October 2006 for a means’ enquiry to take place.

On 31 October 2006 the District Judge refused to stay the enforcement proceedings pending determination of the application for permission to apply for judicial review. However, he adjourned the means’ enquiry to 19 December 2006.

On 14 December 2006 the applicant made a further application to the High Court for a stay of the enforcement proceedings. On 18 December 2006 the High Court refused the application for permission to apply for judicial review and the application for urgent interim relief. However, the application for interim relief was subsequently granted at an oral hearing on 19 December 2006 and at a further oral hearing on 23 January 2007 the applicant was granted permission to apply for judicial review.

On 25 January 2007 the applicant was found to be in contempt of court in relation to numerous breaches of the restraint order and was ordered to pay GBP 75,000 within 28 days. The applicant satisfied this judgment on 21 February 2007.

On 4 November 2008 the application for judicial review was heard by the Administrative Court. The applicant sought to argue that the delay between his arrest and conviction and the confiscation proceedings was unreasonable in its length of time and that the proceedings should be stayed as an abuse of process or a breach of Article 6 of the Convention. On 21 November 2008 a High Court Judge dismissed the applicant’s judicial review application. In particular, he noted that the slow progress of the appeal against the confiscation order was interrupted by the supervening decision of the applicant to seek leave to appeal out of time against conviction. As the application for leave took place within a reasonable time, the only period of delay which was both material and unexplained was the period between 24 June 2004 (the hearing of the application for leave to appeal against conviction out of time) and 21 July 2005 (publication of opinions of the House of Lords in R v. Knights and R v. Soneji). However, the judge accepted that the decision to await the outcome of the proceedings before the House of Lords was eminently sensible even if it did prolong the period before the applicant’s appeal could be heard by the Court of Appeal.

On 21 January 2009 the judge refused to certify a point of law of public importance and refused permission to appeal to the Court of Appeal.

On 22 September 2009 the applicant was imprisoned until the outstanding confiscation figure was paid. Following large contributions from family and friends, the outstanding balance was paid in its entirety on 23 September 2009 and the applicant was released from prison.

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

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.

(4) Where the defendant appeals against his conviction, the court may, on that account -

(a) postpone making any 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.

(5) A postponement or extension under subsection (1) or (4) above may be made -

(a) on application by the defendant or the prosecutor; or

(b) by the court of its own motion.

(6) Unless the court is satisfied that there are exceptional circumstances, any postponement or extension under subsection (4) above shall not exceed the period ending three months after the date on which the appeal is determined or otherwise disposed of.”

In R v. Knights [2005] UKHL 50 and R v. Soneji [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.

By virtue of section 75 of the Criminal Justice Act 1998 and sections 139 and 140 of the Powers of the Criminal Courts (Sentencing) Act 2000 Crown Court confiscation orders are enforceable in the Magistrates’ Court as fines. Section 76 of the Magistrates’ Court Act 1980 confers on the Magistrates’ Court several powers for enforcing fines, including the issue of a warrant for commitment for service of the default term of imprisonment for non-payment or the issue of a warrant of distress. By virtue of section 79 of the Magistrates’ Court Act, payment of the total sum due will result in a person’s release from the default term of imprisonment and any partial payment will result in a pro rata reduction of the term of imprisonment.

In the case of Lloyd v. Bow Street Magistrates’ Court (2004) 1 Cr App R 11 the Divisional Court found that Article 6 § 1 of the Convention applied to all stages of the confiscation order and enforcement process and that a defendant had a right to have enforcement proceedings brought against him within a reasonable time.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

A. As regards the length of the proceedings

The applicant complained that the length of the confiscation 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...”

The Government contested that argument.

1. Period to be taken into consideration

In Crowther v. the United Kingdom, no. 53741/00, § 26, 1 February 2005 the Court indicated that in the context of a length complaint under Article 6 of the Convention, criminal proceedings incorporated the applicant’s arrest, charge and trial together with the making and enforcement of a confiscation order. Consequently, in Crowther v. the United Kingdom the Court held that the criminal proceedings commenced on the date the applicant was first arrested and questioned in connection with the charge and were determined when he was denied leave to appeal to the House of Lords against the refusal to grant his application for judicial review of the magistrate’s decision to commit him to prison for non-payment of the confiscation order. However, in Bullen and Soneji v. the United Kingdom, no. 3383/06, § 48, 8 January 2009 the Court found that the relevant period began on the date the applicants were convicted and became liable to have confiscation orders made against them. As the case did not concern enforcement proceedings, the Court accepted that the proceedings concluded when the Court of Appeal re-imposed the confiscation orders and sentences of imprisonment in default following the order of the House of Lords.

In the present case the applicant has complained solely about the length of the confiscation proceedings. He therefore accepts that the relevant proceedings began on 3 February 2000 when he was convicted of conspiracy fraudulently to evade excise duty and were determined on 16 February 2006 when he was refused leave to appeal to the House of Lords. As the Government have made no submissions to the contrary, for the purposes of this judgment the Court accepts that the period to be taken into consideration began on 3 February 2000 and ended on 16 February 2006. Thus, the relevant period lasted a total of six years and twelve days.

2. Admissibility

The Government submitted that insofar as the applicant’s complaints related to events prior to February 2006 (the confiscation proceedings) rather than events subsequent to February 2006 (the enforcement proceedings), he had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. In particular, the Government submitted that the applicant had not complained about the length of proceedings until he unsuccessfully sought to amend his grounds of appeal to the Court of Appeal in February 2006.

The applicant submitted that he had at all material times objected to the enforcement of the confiscation order on the ground of delay. He had initially objected to the confiscation order being made outside the statutory time limit. As soon as the overall delay in enforcing the order became unreasonable – the applicant submitted that this happened at some time in late 2005 or early 2006 – he had sought to specifically rely on the provisions of Article 6 § 1 of the Convention.

The Court reiterates that Article 35 § 1 of the Convention requires that the complaints brought before the Court should first have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but that no recourse need be had to remedies which are inadequate or ineffective (see, for example, Kucheruk v. Ukraine, no. 2570/04, § 108, 6 September 2007). The existence of the remedy must be sufficiently certain, failing which it will lack the requisite accessibility and effectiveness. Article 35 of the Convention also provides for a distribution of the burden of proof. It is incumbent on the Government claiming non exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V; and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII).

The Court recalls that in Bullen and Soneji v. the United Kingdom, no. 3383/06, § 45, 8 January 2009 it found that in contesting the Crown Court’s jurisdiction to act outside the statutory time-limit contained in the CJA 1988, the applicants had in substance invoked the reasonable time requirement under Article 6 § 1 of the Convention in respect of their complaints concerning the delay in making a confiscation order. The Court further found that the Government had failed to identify any other sufficiently certain remedy which had been available to the applicants to challenge the delay. As the Government have not suggested any grounds on which the present case can be distinguished from that of Bullen and Soneji v. the United Kingdom, the Government’s objection on non-exhaustion must be dismissed.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

3. Merits

The applicant submitted that the length of the confiscation proceedings breached the reasonable time requirement under Article 6 of the Convention. While he accepted that the case was reasonably complex, as evidenced by the number of hearings, and that some delay between each stage of the proceedings was unavoidable, he argued that there were nevertheless several long periods of delay which were not a result of the complexity of the proceedings and which could be attributed to the respondent State. In particular, he submitted that significant periods of culpable delay could be identified between conviction and the making of a confiscation order, between the making of the confiscation order and the grant of leave to appeal the confiscation order, between the grant of leave to appeal the confiscation order and the stay of proceedings, and between the judgment of the Court of Appeal in R v. Soneji and Others and the judgment of the House of Lords in R v. Knights and R v. Soneji.

Although the applicant accepted that his various appeals and applications had added to the overall delay, he submitted that there had been delay which was over and above that which was reasonable.

Finally, the applicant submitted that until the confiscation figure was paid in its entirety on 23 September 2009, he had remained at risk of a default term of imprisonment because the sums of money in question had not been available to be paid voluntarily. Money which had been paid into court in the course of the proceedings had been provided by the applicant’s wife by mortgaging the matrimonial property.

The Government submitted that there had been no violation of the reasonable time requirement. While it accepted that the period between the imposition of the confiscation order and the enforcement proceedings was unusually long, it did not consider it to be unreasonable within the meaning of Article 6. The Government submitted that the facts of Bullen and Soneji v. the United Kingdom could readily be distinguished from those of the present case. First, the total time period attributable to the State in the present case was at most twelve months (see paragraph 20, above), whereas in Bullen and Soneji v. the United Kingdom the Court found fifty-three months of delay attributable to the State. Secondly, the applicant in the present case had contributed to the delay by bringing multiple appeals and applications before the domestic courts. Thirdly, in Bullen and Soneji v. the United Kingdom the court had taken nearly two years to make the confiscation order. In the present case, the confiscation order was made after eight months.

The Government argued that both the applicant’s appeal against the confiscation proceedings and the appeal against conviction were unusually complex. The issues raised in the confiscation proceedings involved points of law of general public importance which were eventually considered by the House of Lords. Likewise, the appeal against conviction involved inter related appeals and voluminous documentation.

With regard to the applicant’s conduct, the Government submitted that he had sought a stay of enforcement of the confiscation order pending his appeal; he had lodged a notice of appeal against conviction three years out of time; he had pursued the appeal against the confiscation order even though he had been advised by counsel that it was unarguable following the House of Lords’ decision in Bullen and Soneji v. the United Kingdom; it had at all times been open to him to voluntarily satisfy the confiscation order but he chose not to even though he appeared to have sufficient funds; and he had made numerous applications to various levels of the domestic courts each of which required time to be determined.

On the other hand, the Government submitted that neither the applicant nor the domestic courts had criticised the conduct of the prosecuting authority in the making and enforcement of the confiscation order. It had complied with court orders and deadlines throughout and had acted at all times with reasonable expedition. It had also made it clear to the applicant that it would seek to uphold the conviction and confiscation order and seek to enforce it by all means necessary.

Finally, the Government submitted that what was at stake for the applicant was not necessarily the imposition of a default term of imprisonment as he had at all times had the option of making voluntary payment to satisfy the confiscation order in full and conclude the proceedings.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II and Çaplik v. Turkey, no. 57019/00, § 37, 15 July 2005).

As to the complexity of the case, the Court observes that the issue in question, namely the exact legal consequences of non-compliance with the statutory time-limits under section 72(A) (3) of the CJA 1988, had been a point of contention for many years. Indeed, the matter eventually fell to be resolved by the House of Lords, who were called upon to conduct a difficult and complex exercise of statutory interpretation for which they examined the legislative history behind the provision for confiscation orders and the intention of Parliament in the event that the statutory time-limits were not complied with. The applicant’s appeal against the confiscation order was in fact stayed pending the outcome of the House of Lords’ decision.

As regards the eight-month delay between conviction and the making of the confiscation order (3 February 2000 to 13 October 2000), the Court has accepted that the making of a confiscation order outside the six month statutory time limit does not necessarily deprive it of its validity or render the proceedings unfair within the meaning of Article 6 § 1 of the Convention (Bullen and Soneji v. the United Kingdom, cited above, § 78). Moreover, the Court notes that at the hearing on 3 August 2000 the applicant did not object to the listing of the confiscation proceedings on 13 October 2000, more than two months after the expiry of the six-month time limit. Finally, the Court observes that this period of delay was considered by the Court of Appeal, which concluded on 14 February 2006 that the Crown Court judge’s reasons for 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 R v. Knights and R v. Soneji, she held that artificial adherence to statutory time limits was outwith the intentions of Parliament and that the appeal should therefore be dismissed. The Court finds no reason to disagree with the Court of Appeal’s conclusion that the State could not be criticised in respect of this delay.

It is not clear when the applicant sought leave to appeal against the confiscation order, but as the application was not considered to be out of time, it would appear to have been lodged at the latest on 10 November 2000. Leave to appeal was granted on 19 July 2001. On 16 December 2002 the Court of Appeal gave judgment in a group of related appeals and one of the applicants was subsequently granted leave to appeal to the House of Lords. The applicant’s appeal was stayed on 2 March 2004 pending consideration of the matter by the House of Lords. The House of Lords decisions were handed down on 21 July 2005 and the applicant’s appeal was determined on 14 February 2006.

In view of the complexity of the issues involved and the number of related appeals troubling the domestic courts, the Court does not consider the passage of time between the application for leave to appeal the confiscation order and the grant of leave to appeal to be material. However, the same could not be said of the delay of four years and seven months between the grant of leave to appeal and the determination of the appeal.

The Court observes that a number of factors contributed to this delay. First, the applicant issued an out-of-time notice of appeal against conviction on 15 April 2003 which was refused on 24 June 2004. During this time the domestic courts could not be expected to have considered the applicant’s appeal against the confiscation order because, had the appeal against conviction been successful, the confiscation order would no longer have been valid. Consequently, this delay is not attributable to the conduct of the State authorities. Moreover, although applicants should generally not be blamed for exercising their legal entitlement to appeal, in the present case the Court notes that the application for leave to appeal was lodged more than three years out of time and in spite of advice from counsel to the effect that there were no grounds for the applicant to appeal against his conviction. The Court therefore considers that the applicant was himself responsible for this period of delay.

With regard to the subsequent delay, the Court considers that in principle it was reasonable for the applicant’s appeal to be stayed pending judgment of the House of Lords in R v. Knights and R v. Soneji and, indeed, there is no evidence to suggest that the applicant objected to the appeal being stayed on this ground. Nevertheless, the Court is concerned by the length of the resulting delay.

The Court recalls that in Bullen and Soneji v. the United Kingdom it found a number of periods of delay to be attributable to the State, including the period of two years between the Court of Appeal’s certification of the case and the House of Lords’ judgment. It also recalls that in the present case the Administrative Court, in its decision of 4 November 2008, indicated that this period of delay was “both material and unexplained”. Although the Court recognises that this delay was entirely attributable to the delay in the related cases of R v. Knights and R v. Soneji, it notes that the Court of Appeal and House of Lords in those cases were at all times aware of the significant number of follow-up cases pending before the lower courts and would therefore have known that any delay in determining those appeals would have a knock-on effect on other cases. The Court does not, therefore, consider that the State can avoid responsibility for this period of delay in the applicant’s case by attributing it to the delay in R v. Knights and R v. Soneji. Consequently, insofar as the delay in the applicant’s case was attributable to the delay in R v. Knights and R v. Soneji, the Court considers that it was attributable to the State.

The Court does not consider the period of delay between the publication of the decisions of the House of Lords in R v. Knights and R v. Soneji and the conclusion of the applicant’s appeal to be material.

As to what was at stake for the applicant during the proceedings, the Court notes that he faced a confiscation order for a substantial sum of money, namely GBP 80,000. As a consequence, he remained liable to an eighteen-month term of imprisonment until this sum was eventually paid on 23 September 2009, some nine years after the date of his conviction and seven years after his release from prison. The Court recalls its judgment in the case of Howarth v. the United Kingdom (no. 38081/97, §§ 29 and 30, 21 September 2000). There it found a delay of two years between the applicant’s original sentence which was non-custodial and his subsequent custodial sentence to be in breach of the reasonable time requirement under Article 6 § 1 of the Convention. Moreover, the Court recalls that in Bullen and Soneji v. the United Kingdom it found that the fact the applicants continued to be liable to terms of imprisonment ranging from twelve months to twenty-one months, five years after their convictions, to be in breach of the reasonable time requirement under Article 6 § 1 of the Convention.

In light of the importance of what was at stake for the applicant in this case and without discounting the complexity of the legal issue in question, the Court finds the period of delay attributable to the State to be unreasonably long and in breach of the reasonable time requirement as provided by Article 6 of the Convention.

There has accordingly been a violation of Article 6 § 1 of the Convention.

B. As regards the fairness of the proceedings

The applicant further complained that he was denied a fair trial within a reasonable time in breach of Article 6 § 1 of the Convention because the Court of Appeal refused to grant him leave to amend his grounds of appeal out of time and because the confiscation order was imposed outside the six-month statutory time limit.

The Court recalls at the outset that it is not its task to act as an appeal court of “fourth instance” by calling into question the outcome of the domestic proceedings. The domestic courts are best placed to interpret and apply rules of substantive and procedural law (see, amongst many authorities, Gurepka v. Ukraine, no. 61406/00, § 45, 6 September 2005).

In R v. Knights and R v. Soneji the House of Lords gave full and reasoned arguments in support of their interpretation of section 72A of the CJA 1988, giving careful consideration in particular to Parliament’s intention as to the consequences of non compliance with the applicable statutory provisions and the ultimate purpose behind the provision for confiscation orders. Moreover, in Bullen and Soneji v. the United Kingdom this Court accepted the House of Lords’ conclusions and found the applicants’ complaint concerning the imposition of a confiscation order outside the six-month time limit to be manifestly ill-founded.

In the present case the Court finds no evidence to substantiate the applicant’s complaint that either the imposition of the confiscation order outside the statutory time limit or the refusal of leave to amend his grounds of appeal rendered the proceedings unfair within the meaning of Article 6 § 1 of the Convention. In particular, it notes that despite the delay there was no evidence to suggest that the imposition of the confiscation order against the applicant was inconsistent with the offence to which he pleaded guilty or was not reasonably foreseeable.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

The applicant also complained that the confiscation order was imposed in breach of Article 7 of the Convention as the order was based on the facts of the substantive offence even though he had only been found guilty of the prior and distinct offence of conspiracy.

Article 7 of the Convention provides as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The Court recalls that this complaint was only raised before the domestic courts when the applicant sought leave to amend his grounds of appeal after the House of Lords handed down its decision in R v. Knights and R v. Soneji. The applicant has not advanced any explanation as to why this complaint was raised at such a late stage in the proceedings, when the application for leave to appeal was already a number of years out of time. Consequently, it follows that the applicant has failed to exhaust domestic remedies in respect of this complaint and it must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

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.”

A. Damages

With regard to pecuniary damage, the applicant claimed compensation for the interest that had been paid over and above inflation as a result of his exercising his legitimate right to appeal. In the alternative, he claimed compensation for the interest that had been paid over and above inflation as a result of the culpable delay in enforcing the confiscation order. He submitted that from 13 October 2000 to February 2006 the amount paid in real terms over the capital amount (the statutory interest minus the increase due to inflation) was GBP 26,554.16. From February 2006 to June 2010 this figure was GBP 30,644.21. The applicant conceded that the capital sum was properly upheld and enforceable.

In respect of non-pecuniary damage, the applicant claimed GBP 1,000 for the exacerbation of the aggravation and anguish associated with criminal proceedings which resulted from the unreasonable delay.

The Government contested these claims. They submitted that if the capital amount was payable, then no claim should be granted to recompense the applicant for payment of interest thereon as interest was mandatory and to be treated for enforcement purposes as part of the confiscation order. Moreover, the Government submitted that insofar as the claim for pecuniary damage concerned interest which accrued after February 2006, the claim was untenable because the applicant had not complained about the delay after February 2006.

The Government further submitted that the claim for non-pecuniary damage was wholly unparticularised and, in any case, the finding of a violation of Article 6 § 1 of the Convention would constitute sufficient just satisfaction.

In all the circumstances of the case, and taking into account the applicant’s contribution to the delay in the proceedings, the Court makes a global award of EUR 2,000 covering both pecuniary and non-pecuniary damage.

B. Costs and expenses

The applicant has not made a claim for the costs and expenses incurred before the Court.

C. Default interest

The Court considers it appropriate that the default interest rate 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

Declares the complaint under Article 6 § 1 of the Convention concerning the excessive length of the proceedings to be admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 6 § 1 of the Convention;

Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the sum of EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage, to be converted into British Pounds at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 20 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence Early Lech Garlicki Registrar President