England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		23rd May 2008

1. LORD JUSTICE MAURICE KAY: This is an application for judicial review of a decision of District Judge Gray, sitting in the Channel Dover Magistrates' Court on 30 October 2007. On that occasion the District Judge heard an application to stay as an abuse of process proceedings aimed at enforcing a confiscation order made several years ago. He refused to stay the proceedings.
2. The history of the matter is as follows. On 7 July 1993 the claimant was convicted of drug trafficking offences. On 11 October 1993 he was sentenced at Inner London Crown Court to 14 years' imprisonment. On the same occasion a confiscation order in the sum of £500,000 was made, with a direction that that sum be paid within 12 months, with a term of 5 years' imprisonment consecutive in default of payment. It seems that the order was made upon a finding that the claimant had hidden and undisclosed assets.
3. On 22 May 1995 the confiscation order was varied by the Court of Appeal (Criminal Division). It was reduced to £400,000. The default period was reduced to 4 years and the claimant was given six months in which to pay the sum ordered. It follows that the time to pay expired on 22 November 1995 and on that occasion default began. In the intervening years, the claimant has not made any payment at all.
4. On 13 March 1996 Her Majesty's Customs and Excise (HMCE, as it then was) requested the Magistrates' Court to issue a warrant of commitment. Correspondence ensued between the Magistrates' Court and HMCE until 1 July 1997, when the court advised HMCE that legal aid had been granted to Saunders & Co, solicitors to the claimant, to enable an application to be made to the High Court for a certificate of inadequacy, and that enforcement proceedings would therefore be adjourned for one year to await the outcome of that application. There was further correspondence between HMCE and the court during 1998.
5. On 30 October 1998 Saunders & Co wrote to the court advising that they were acting, but that the application for a certificate of inadequacy had not been lodged because an extension of legal aid was awaited. The court then advised HMCE that it would not be able to take enforcement action until the High Court action had been resolved.
6. On 3 August 1999 the claimant was released from prison. Nothing then appears to have happened until 1 July 2002, when Saunders & Co advised HMCE that they no longer acted for the claimant and were not in a position to say what, if anything, had happened to the application for a certificate of inadequacy. HMCE then ascertained from the last prison in which the claimant had been serving his sentence that the prison had no contact address for the claimant.
7. On 30 September 2002 HMCE wrote to the Magistrates' Court reminding it of the 1997 request for a warrant of commitment and requesting the issue thereof. However, no actual response was received from the court.
8. Time passed by, until 17 February 2004, when the claimant appeared at Medway Magistrates' Court in connection with a charge of attempted theft. He was granted conditional bail to return to court on 15 April 2004. His bail conditions included a condition of residence at 4 St Marks Gate, Hackney, London E9, and a curfew at that address.
9. In response to contact from HMCE following that appearance on 17 February, the court listed enforcement proceedings in relation to the confiscation order to be heard on 19 March and wrote to the claimant at his bail address by letter dated 9 March, advising him that the court would hear an application on 19 March that he be committed to prison as being in default of payment of the confiscation order. That letter of 9 March was sent by recorded delivery, but no successful delivery was achieved. The claimant's wife declined to accept delivery. She contacted the Magistrates' Court on 15 March to say that the claimant was no longer at the address, having left on 23 February, and she had so informed his solicitors.
10. On 19 March 2004 the claimant did not appear at the enforcement proceedings and a warrant for his arrest without bail was issued. On 15 April 2004 the claimant failed to answer his bail in relation to the attempted theft charge at Medway Magistrates' Court, and another warrant for his arrest without bail was issued by that court.
11. In March 2006 HMCE contacted the Dover Court for an update, but were informed that the warrants were still outstanding.
12. On 23 November 2006 a different firm of solicitors, Hallinan Blackburn Gittings & Nott, wrote to the Confiscation Unit at Dover Magistrates' Court, advising that the claimant had contacted them and was enquiring whether the confiscation proceedings were "still open".
13. On 1 December 2006 RCPO, as successor to HMCE, wrote to the new solicitors enquiring as to the claimant's address and advising of the outstanding warrant. The solicitors immediately replied that they were not in fact instructed, but might be applying for legal aid and considering an application for a certificate of inadequacy.
14. On 9 April 2007 the claimant was arrested for an unconnected reason when re-entering the country at Felixstowe. The outstanding warrants were then executed and he subsequently appeared before the Dover magistrates on 10 April 2007 in relation to the confiscation proceedings, and at the Medway Magistrates' Court in relation to the allegation of attempted theft. So far as the enforcement proceedings were concerned, a date was fixed and the claimant was granted bail in both proceedings.
15. By 25 October 2007, the date of the hearing before the District Judge with which the present application is concerned, the sum outstanding in relation to the confiscation order remained the full sum of £400,000, together with accrued interest of £404,909.59, making a total of £804,909.59. Interest was accruing at a daily rate of £87.67.
16. That then is the history which gave rise to the application before the District Judge on 25 October 2007, inviting him to stay the enforcement proceedings as an abuse of process.
17. The case for the claimant is that, by reason of the passage of time and delay for which the respondent is responsible, it would be an abuse of process for the respondent now to enforce the confiscation order.
18. There is a debate in the skeleton arguments about the position under Article 6 of the ECHR, and the right to a fair hearing within a reasonable time. The submission on behalf of the respondent is that Article 6 does not apply to this stage of the enforcement of a confiscation order by means other than a warrant of commitment, because it does not involve a determination of civil rights and obligations, nor is it now the determination of a criminal charge. However, this is something of a sterile debate, because it is common ground that the common law of abuse of process is applicable to these proceedings and that is no less protective than Article 6 would be. In the circumstances, I propose to deal with the case on a common law basis.
19. On behalf of the claimant, Mr Storey's starting point is the decision of the Divisional Court in R (Lloyd) v Bow Street Magistrates' Court [2003] EWHC 2294 (Admin). The issue there related to an application for a warrant of commitment, following default under a confiscation order and a substantial period of delay. The argument was advanced solely by reference to Article 6. The reason was that at that time the domestic decision in Crowther, which was decided before the coming into force of the Human Rights Act 1998, denied the application of the common law of abuse of process to such a stage in the proceedings. However, Crowther was later the subject of a successful application to the European Court of Human Rights (see Crowther v United Kingdom, Application no. 53741/00, 1 February 2005).
20. In Lloyd the Divisional Court (comprising Dyson LJ and Jackson J) stayed the proceedings in the Magistrates' Court, which took the form of a summons for the enforcement of a confiscation order by means of a warrant of commitment. In the Divisional Court it was conceded that Article 6 applied because enforcement by way of a warrant of commitment was "part and parcel of the confiscation proceedings, which in turn are part and parcel of the original criminal proceedings."
21. The following extracts from the judgment of the court have been referred to before us:

"23. ... we do not see how the fact that the defendant is in breach of his continuing duty to satisfy the confiscation order can be relevant. In our view, the conduct of the defendant can have no bearing on the question whether he has a right to have proceedings against him in respect of that conduct instituted and determined within a reasonable time. It is common ground that a defendant is entitled to have a substantive criminal charge against him determined within a reasonable time. ...

24. In our judgment, a defendant enjoys the full benefit of all the rights conferred by Article 6.1 in all aspects of confiscation proceedings (including their enforcement by means of a summons for the issue of a warrant to commit in the magistrates court). We heard no argument as to the application of Article 6 to the civil methods of enforcement. What we say in this judgment is to be understood as applying only to the enforcement of a confiscation order by the issue of a warrant of commitment to prison. ...

27. ... in deciding what is a reasonable time, regard should be had to the efforts made to extract the money by other methods, for example (as in the present case) by the appointment of a receiver. If a receiver has been appointed within a reasonable time and has proceeded with reasonable expedition, then the fact that all of this may have taken some time will not prevent the court from concluding that there has been no violation of the defendant's Article 6.1 rights if the unsuccessful attempts to recover the money have led to delay in the institution of proceedings to commit. Likewise, if the defendant has been evasive and has avoided diligent attempts to extract the money from him, he will be unable to rely on the resultant delay in support of an argument that his right to a determination within a reasonable time has been violated.

28. We conclude, therefore, that the reasonable time guarantee afforded by Article 6.1 does apply to proceedings before the magistrates court for the enforcement of a confiscation order. ...

35. ... the public interest requires that criminals be stripped of the proceeds of their criminal activities. That public interest is best served if those authorities whose task it is to enforce confiscation orders (a) take prompt steps to secure payment by 'civil' procedures and (if those fail) (b) take prompt steps to activate any term of imprisonment in default. The longer the authorities delay, the less likely it is that the offender will still have assets to meet the confiscation order (as this case illustrates).

36. If the authorities whose task it is to enforce confiscation orders are so slow in communicating with one another or in activating enforcement mechanisms that they become in breach of Article 6.1, then the appropriate remedy may well be (as in this case) that the weapon of imprisonment in default is lost. The sooner this is appreciated by all agencies of the criminal justice system, the better."

22. It is no doubt by reference to that judgment that the respondent in the present case has accepted from the outset that it is too late to seek to enforce the confiscation order by a warrant of commitment. Mr Storey submits that, notwithstanding the reservation expressed in that judgment in paragraph 24, the same considerations must apply to methods of enforcement by way of civil sanctions. Mr Hall submits that whilst an application to enforce by civil sanctions can be stayed as an abuse of process, in the present case the District Judge was entitled to conclude that no such abuse had been established.
23. For my part, I do not doubt that enforcement proceedings such as these do not fall outside the ambit of abuse of process. For example, if the enforcement authority were to manipulate the procedure, a finding of abuse could follow. But in the present case, no manipulation or bad faith is suggested. It is put as a case of culpable delay, pure and simple. Moreover, it is not suggested that the passage of time would prevent a fair assessment of the claimant's current means and ability to discharge the order. Such matters are within the knowledge of the claimant.
24. It seems to me that, before the District Judge, what the claimant had to establish in order to obtain a stay of these proceedings was that the delay for which the respondent was responsible was such that it would now be unfair for there to be an enquiry into his means and/or unfair for any established means to be resorted to for the purpose of enforcing the confiscation order.
25. The District Judge came to the conclusion that on the evidence, which did not include any evidence from the claimant, it would not be so unfair or abusive. He said that in reaching that conclusion he had taken the following into account:

"(1) Mr Joyce has made no payments whatsoever in the 14 years since this order was made; (2) that there has never been any offer of any sort of satisfaction in any form from Mr Joyce relating to this order; (3) not only has there never been any attempt by Mr Joyce to reach a resolution of the order, he himself delayed enforcement proceedings for some significant period by indicating periodically that he would be seeking a certificate of inadequacy, which in the event he never pursued; (4) Mr Joyce has throughout been aware of his continuing liability to satisfy this order; (5) for the 3-year period from March 2004 to April 2007 Mr Joyce was unlawfully at large, fully aware of his duty to surrender to the court, but failed to do so. I cannot see how, taking these factors into account, that it can be maintained that it would be an abuse of the process of this court to enforce any of the methods of enforcement available, other than committal to prison. Given Mr Joyce's own responsibility for some significant periods of delay, his complaint that the enforcement authorities should be prevented by this court from seeking satisfaction of this long outstanding debt is in my view wholly unsustainable."

26. In this application for judicial review, the question becomes whether that conclusion and the reasoning which led to it are vitiated on Wednesbury grounds. This is common ground. In my judgment, they are not so vitiated. I accept that there may be cases in which delay is so extensive and so culpable, or unexplained, that a stay will be appropriate. However, the District Judge's reasons for refusing a stay in the present case are, in my judgment, unassailable. They reflect the submission of Mr Hall that the only period of delay for which the respondent was entirely responsible was between 2002 and 19 March 2004. The period before that was properly explained, and the subsequent period between March 2004 and April 2007 was one throughout which the claimant was unlawfully at large. Although assertions have been made before the District Judge and today to the effect that, save for one 3-week period, the claimant was at his home address in Hackney, the claimant did not give evidence about that or anything else to the District Judge. The District Judge was prepared to deal with the case on the factual basis most favourable to the claimant. He did so. He reached the conclusion I have described for the reasons I have recounted. In my judgment, that was a permissible conclusion and I would refuse this application for judicial review.
27. MR JUSTICE PENRY-DAVEY: I agree.
28. LORD JUSTICE MAURICE KAY: Thank you both very much.
29. MR STOREY: If I may, I make an application for legal aid taxation.
30. LORD JUSTICE MAURICE KAY: Certainly. The matter will now revert to the magistrates for the inquiry as to means.
31. MR STOREY: Thank you.
32. LORD JUSTICE MAURICE KAY: About which, of course, we express no view.
33. MR STOREY: Thank you, my Lord.
34. LORD JUSTICE MAURICE KAY: You will have noticed that we are without an associate. Apparently today there is one associate between about eight courts. In the circumstances, in this, as in many other courts, we have to ask you to agree an order. Will you do it and leave it with the usher or let the court have it?
35. MR STOREY: Yes.
36. LORD JUSTICE MAURICE KAY: Thank you both very much.
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