Strand, London, WC2A 2LL
B e f o r e :
Mr JUSTICE JACKSON
| LEONARD LLOYD
|- and -
|BOW STREET MAGISTRATES COURT
The Defendant did not appear and was not represented
Ms Linda Saunt of Counsel (instructed by The Crown Prosecution Service) for the Interested Party
Hearing date: 16th July 2003
Crown Copyright ©
Lord Justice Dyson :
Ex parte Crowther
"This is a case which is quite dissimilar, in my judgment, from the default of prosecution cases where the prosecution is said to have delayed an unconscionably long time before bringing proceedings. In such cases the onus is on the prosecution to prosecute. There is nothing for the defendant to do, except perhaps to hope he will not be prosecuted.
The present situation in my judgment is quite different. The applicant has been convicted of serious crime by a court of law. He has been sentenced to a term of six years' imprisonment for his offence, and under powers given to it by Parliament the court found that he had realisable assets from that crime amounting to £22,000. The court made a confiscation order in that sum. The onus was on the applicant to pay that sum, as it is on everyone who has been ordered to pay a fine or a confiscation order (as the case may be) by a court of law. Mr Talbot has reminded us that there is no statutory limitation period relevant to a court's power to enforce the payment of a confiscation order. If a defendant disappears and resurfaces ten years after he is ordered to pay a fine, there is no statute of limitation which will prevent the recovery of the fine. Mr Talbot submits that in those circumstances the position is quite different from the position of the prosecution in the cases to which I have referred and which are so often cited, where the next step is not for the defendant to take, as it is in the case of the payment of a fine or confiscation order, but on the prosecution. There may come a time in those cases when the court will say: "Enough is enough. This is seriously prejudicial to the defendant because of the delay that has occurred in having him or her tried", and the court will interfere to protect its process from being abused.
Mr Talbot conceded that there might be an occasion when such an exceptionally long period had elapsed from the making of the confiscation order to the occasion when it was sought to be enforced by reason of default, that it would be an abuse of process to enforce the order. Whether this was so would depend upon the circumstances of the particular case. He submitted that the circumstances of this case came nowhere near fulfilling the necessary criteria which would have to be fulfilled before a court would intervene."
"If Mr Talbot is to make good his basic contention that the default and hence the delay is on principle the applicant's from first to last, he cannot in my judgment maintain his concession that even so a time must come when enforcement will amount to an abuse of process. If Mr Talbot is right, all delay is the applicant's once the applicant has failed to make the payment ordered by the set date. He has rendered himself due from that moment to serve a set term of imprisonment unless before enforcement occurs he has obtained a certificate of inadequacy sufficient to stave it off. Any continuing lapse of time is then in the eye of the law a product of the failure to pay, not of the failure to enforce.
Reluctantly, I accept this analysis. It is one which puts the present class of case outside the run of abuse and delay cases. In particular, it makes legally immaterial the fact (and I agree that it is a fact) that Customs and Excise's inertia between March 1992 and January 1996 was both inexcusable and, given that somebody's liberty was involved, unconscionable. Blame does not attach to the justices or their clerk. They were waiting for Customs and Excise, who might have been setting up a receivership, to tell them if it was time to enforce the order. Moreover, the applicant himself has behaved in this time more honourably than many defaulters do.
I am not happy at the impunity with which Customs and Excise are in consequence rewarded for their indolence. But I am persuaded that it is not the policy of Parliament that a drug trafficker should be rewarded for his prolonged failure to meet a confiscation order by being liberated from the consequences of his default. For these reasons, in addition to those given by my Lord, I agree that this application fails."
"Where the Crown Court orders the defendant to pay an amount under this Part of this Act, sections 31(1) to (3C) and 32(1) and (2) of the Powers of Criminal Courts Act 1973 (powers of Crown Court in relation to fines and enforcement of Crown Court fines) shall have effect as if that amount were a fine imposed on him by the Crown Court".
(a) Enforcement as a judgment creditor in the High Court or a County Court.
(b) Issue of a warrant of distress (section 76 of the 1980 Act).
(c) Payment supervision order (section 88 of the 1980 Act).
(d) Attachment of earnings order (section 1 of the Attachment of Earnings Act 1971).
"According to the Court's case-law, the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case and the conduct of the applicant and the authorities dealing with the case (see, among other authorities, the Pelissier et Sassi v France judgment of 25 March 1999, [to be] published in Reports of Judgments and Decisions 1999, p 67)."
Remedy for breach of Article 6.1
"In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate."
"If a person complains of a contravention of the reasonable time time requirement in Article 6, and if the court comes to the conclusion that there has been a contravention, then at the request of the complainant the court is required to provide the appropriate remedy. If the court is willing and able to provide the appropriate remedy, then the court is not compelled to take the course of staying the proceedings. That is a remedy which the court can grant, but it is certainly not a remedy which it is required to grant. It seems to us in general that the approach that previously existed as to the provision of the remedy of staying the proceedings should be confined, as it was prior to the Convention becoming part of our domestic law, to situations which in general terms can be described as amounting to an abuse of process of the courts. But there are many other actions which the court can take which avoid the need for such action. In particular, if the court comes to the conclusion that this would provide the appropriate remedy, the court can mark the fact that the way the prosecution has been conducted does contravene the reasonable time provision in Article 6(1) and acknowledges the rights of the defendant by so doing. In many cases the court will come to the conclusion that that is not a sufficient recognition of the defendant's rights. If that be so, then the court can take other action. It can, for example, take account of the failure to proceed with due expedition in the sentence which the court imposes."
(i) The term of imprisonment in default is not intended to be an additional punishment for the original offence. It is simply one weapon in the armoury of those seeking to enforce the confiscation order.
(ii) Over five years have elapsed since the claimant was released from prison on licence after serving one half of the original sentence. Since release from prison he has rebuilt his home life and obtained employment. At this remove in time, it would be inhuman to subject the claimant to a further term of imprisonment arising out of the original offence.
(iii) The only proportionate response to the breaches of Article 6.1 which have occurred is to say that this weapon in the armoury (viz imprisonment in default) is no longer available.