England and Wales High Court (Administrative Court) Decisions

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

		CO/3157/2009 Royal Courts of Justice Strand London WC2A 2LL
		14th May 2009

1. MR JUSTICE BEAN: This is an appeal by way of case stated.
2. The matter has a curious procedural history. Mr Zykin pleaded guilty at Southwark Crown Court on 23rd April 2007 to a number of offences of dishonesty, including conspiracy to steal, for which he was sentenced, on 10th May 2007, by His Honour Judge Stone QC, to a total of 5½ years' imprisonment.
3. On 15th April 2008 the learned judge made a confiscation order in the sum of £33,088.28, to be paid by 23rd May 2008, and imposed a default term of 15 months' imprisonment consecutive to the sentence imposed in 2007.
4. The total sum of the confiscation order comprised three elements. The first was cash and the credit balances of bank accounts in the defendant's name. These amounted to £7,325.77. The Crown was able to enforce the confiscation order in respect of these sums and nothing more need be said about them.
5. The second element was what the judge found to have been hidden assets to the value of £5,800. This sum, and the assets it was said to represent, were never handed over. Mr Gupta, appearing before us today, realistically accepted that there can be no quarrel with the judge's decision to impose a confiscation order in respect of those assets, nor with the subsequent enforcement of that element of the confiscation order in the Magistrates' Court by way of a default term.
6. The third part of the total sum is the one which gives rise to the present appeal. Mr Zykin was found to have a beneficial interest to the value of £19,962.51 in a sum of money in a bank account in the name of a Mr Edward Dujon, which represented the proceeds, or part of the proceeds, of a property called 19 Moffats Lane, which had been in Mr Dujon's name, but which the Crown allege had been bought by him with money from Mr and Mrs Zykin. The property had been sold with the agreement of the Crown and the proceeds were subject to a restraint order.
7. The first hearing of proceedings to enforce the unpaid balance of the confiscation order — that is the hidden assets element and the proceeds of sale element — took place at the City of Westminster Magistrates' Court on 5th August 2008. Mr Zykin was present on that occasion and was represented. We understand that the Magistrates' Court was told that an application would be made for a certificate of inadequacy to this court. On that basis, the magistrates granted an adjournment. We should add that we understand that the solicitors now acting for Mr Zykin, and instructing Mr Gupta, were not the solicitors who represented Mr Zykin on that occasion.
8. Be that as it may, when the next hearing took place in the Magistrates' Court on 9th September 2008, Mr Zykin, though he had the services of a Russian interpreter, since he is a Russian speaker, was not legally represented. He was asked whether he wished to be legally represented and said that he did not. We are told that he indicated that he was not in a position to pay and wished to be sent to jail. The Crown Prosecution Service were not represented at the hearing by a lawyer either, but by one of their financial investigators, a Mr Down. The Magistrates' Court issued a warrant of commitment against Mr Zykin, ordering him to serve a further 364 days' imprisonment to take effect at the end of the custodial period of his original 5½-year term.
9. We need not, as it seems to me, be concerned with the proceedings against Mrs Zykin. It appears that the confiscation order against her was made under the Proceeds of Crime Act 2002, rather than, as in Mr Zykin's case, the Criminal Justice Act 1988. Accordingly, it was open to her to make an application under section 67 of the 2002 Act, but that was not open to him.
10. In December Mr Zykin instructed new solicitors. They asked for a hearing seeking to re-open the decision of 9th September under section 142(1) of the Magistrates' Court Act 1980. That application was heard by Deputy District Judge Kevin Gladwell on 17th February 2009. He refused the application. His reasons are contained in the case stated. He had the advantage of a skeleton argument drafted by Mr Gupta. This raised the points to which we shall come in a moment.
11. The Deputy District Judge said this:

"I noted that the role of the Magistrates' Court in the enforcement of confiscation orders was to enforce the order in the terms made by the Crown Court. It had no power to vary or alter the terms of the order. I considered that if complaint were made about any of the terms of the Crown Court order then the appropriate course of action for Mr Zykin was to institute proceedings in a higher court, which he had not done. I also considered that the application for me to re-open a colleague's decision was an invitation for one magistrates' bench to sit as a 'Court of Appeal' on the decision of another. For these reasons, I declined to re-open the adjudication of 9th September."

12. In Holme v Liverpool City Justices & Crown Prosecution Service [2004] EWHC 3131 (Admin), this court considered the proper interpretation of section 142(1) of the 1980 Act. The section itself is expressed in very broad terms:

"A Magistrates' Court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make."

13. In Holme this court referred to a previous decision in R v Croydon Youth Court, ex parte DPP [1997] 2 CrAppR 411, in which the court held that the purpose of section 142 was to rectify mistakes:

"It was generally and correctly to be regarded as a slip rule and the power under the section could not be extended to cover situations beyond those akin to a mistake."

14. In Holme, Collins J, after referring to the Croydon case, continued:

"30. That case indicates that the power under section 142 is to be used in a relatively limited situation, namely one which is akin to mistake or, as the court says, the slip rule. But there is no reason, on the face of it, to limit it further. It seems to me that if a court has been misled into imposing a particular sentence, and it is discovered that it has been so misled, then the sentence may properly be said to have been imposed because of a mistake; the mistake being the failure of the court to appreciate a relevant fact. That may well give power to the court to exercise the jurisdiction conferred by section 142, but it does not indicate that that power should necessarily be used."

15. The learned judge went on to emphasise the principle of finality in sentencing.
16. It is clear to us from the Croydon case and the Holme case that section 142 does not confer a wide and general power on a Magistrates' Court to re-open a previous decision on the grounds that it is in the interests of justice to do so. It is, as Collins J said in Holme, a power to be used in a relatively limited situation, namely one which is akin to mistake or the slip rule. Here, the Deputy District Judge was being asked to go well beyond that. He was being asked to consider arguments which were simply not put to the court on 9th September.
17. In any event, we see no basis for finding that the original decision of the court of 9th September was wrong. They were faced with a defendant, against whom the Crown Court had made a confiscation order, who had, at a previous Magistrates' Court hearing, been represented, and whose representatives had stated an intention to apply to this court for a certificate of inadequacy. That is the well-recognised procedure preliminary to further proceedings in the Crown Court, and is available where there is an arguable case that the amount of realisable assets available to the defendant to satisfy the order of the Crown Court may not be as much as the Crown Court Judge thought when fixing the amount of the confiscation order in the first place. On such an application, the High Court does not determine the amount of the shortfall, still less the probability of there being found to be a shortfall; it simply decides that there is an arguable case fit to go to the Crown Court.
18. That indication having been given to the Magistrates' Court on 5th August, when the matter came back on 9th September we imagine (though we do not have a transcript) that they were extremely disappointed at the fact that nothing had been done since 5th August and by the failure or refusal of the defendant to put forward any alternative suggestion.
19. Mr Gupta has reminded us that, as a general proposition, the use of a warrant of commitment to enforce a financial penalty in the Magistrates' Court is to be considered a last resort. That is no doubt true with regard to fines. It is unnecessary to consider whether it also applies to confiscation orders in the Crown Court, but, even assuming in Mr Zykin's favour that it does, the Magistrates' Court, on 9th September, simply had no alternative offered to it.
20. We therefore consider that the Deputy District Judge's decision on 17th February 2009 was plainly correct for both the grounds he gave. Firstly, the Magistrates' Court had no power to vary or alter the terms of the confiscation order and the appropriate course of action, if any challenge was to be mounted to that, was an application for a certificate of inadequacy. Secondly, the Deputy District Judge was in effect being invited to sit as a court of appeal against the decision of 9th November. In any event, as we have indicated, we cannot see that the magistrates, on 9th September, had erred in any way.
21. It follows that I would dismiss the appeal by way of case stated and answer the question posed by the Deputy District Judge in these terms, that he was correct in declining to re-open the adjudication of 9th September under section 142(1) or to revoke the warrant of commitment which had been issued on that occasion.
22. I would add one other thing. Ms Dashani, on behalf of the Crown Prosecution Service, indicated at the outset of this appeal, as she had done in her helpful skeleton argument, that if an application were to be made to this court for a certificate of inadequacy, she would not oppose it. Mr Gupta has so far declined to make any such application, but we would, even now, not shut him out. It seems to us that the proper forum for resolving any dispute as to the availability of the £19,962.51 apparently held in the name of Mr Dujon may well be the Crown Court at Southwark, but that is not, strictly speaking, a matter which arises on this appeal, which, as I say, I for my part would dismiss.
23. MR JUSTICE LLOYD JONES: I agree.
24. MR JUSTICE BEAN: Mr Gupta, do you want to make any further application?
25. MR GUPTA: No, my Lord.
26. MR JUSTICE BEAN: Right, very well. Thank you both for your assistance.
27. MR GUPTA: My Lord, I understand as the defendant is legally aided I need to make an application for taxation of his costs.
28. MR JUSTICE BEAN: Yes.
29. MR GUPTA: I am grateful.
30. MR JUSTICE BEAN: Thank you.