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
		24th March 2009

1. LORD JUSTICE RICHARDS: The claimant is a convicted drug trafficker against whom, on 1st July 2002, the Crown Court made a confiscation order under section 2 of the Drug Trafficking Act 1994 ("the 1994 Act") in a sum of about £840,000 with a period of four years' imprisonment specified in default of payment.
2. The claimant himself made no payments towards that sum and only small payments were made by a receiver who was appointed but has since been discharged. The amount outstanding under the order, together with interest, is now in excess of £985,000. On 23rd June 2006, the claimant was committed to prison to serve the four year default term. He was released on licence on 4th February 2008, having served the required period of custody. In April 2008 he flew to the Turkish Republic of Northern Cyprus, where he is believed to remain. It appears that his request to travel was approved without consideration of the outstanding confiscation order and he had already left this country by the time the order was taken into account and the approval was revoked.
3. On 13th May 2008, the Court Service wrote to the claimant to inform him that a means inquiry hearing would be held in relation to his outstanding confiscation order and that failure to attend might result in the issue of a warrant for his arrest. The Revenue and Customs Prosecution Office wrote to him on 5th June to inform him that a hearing was listed for 19th June at the City of London Magistrates' Court. The Court Service sent a further letter to him on 11th June confirming that failure to attend might result in the issue of an arrest warrant.
4. His solicitors sought unsuccessfully in advance to have the 19th June hearing adjourned. At the hearing on 19th June he failed to attend and the Justices thereupon issued a warrant pursuant to section 83 of the Magistrates' Court Act 1980 ("the 1980 Act") for his arrest. By these judicial review proceedings, for which permission was granted by Silber J, the claimant challenges the issue of the arrest warrant. His contention is that in the circumstances of this case a warrant could not lawfully be issued under section 83.

The legal framework

5. I will confine myself to the 1994 Act and the enforcement procedures relating to a confiscation order under that Act, even though we are told that equivalent provisions are now to be found under the Proceeds of Crime Act 2002 and what is said in relation to the 1994 Act may therefore have implications for enforcement under the 2002 Act.
6. Section 9(1) of the 1994 Act provides that where the Crown Court orders a defendant to pay any amount under section 2, then section 139(1)-(4) and section 140(1)-(3) of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act") shall have effect as if that amount were a fine imposed on him by the Crown Court.
7. Section 140(1) of the 2000 Act provides that a fine imposed by the Crown Court "shall be treated for the purposes of collection, enforcement and remission of the fine or other sum as having been imposed or forfeited ... by a magistrates' court ... and, in the case of a fine, as having been so imposed on conviction by the magistrates' court in question."
8. The combined effect of those provisions is that the amount of the confiscation order is to be treated as if it were a fine imposed by the Magistrates' Court on conviction. It is therefore necessary to go next to the power of the Magistrates' Court to enforce such a fine. As regards that, we have been referred to the case of R v Hastings and Rother Justices, ex parte Anscombe [1998] 162 JP 340, which contains an exposition of the statutory provisions, but citation from that judgment is unnecessary.
9. One means of enforcement is a warrant of commitment under section 76(2) of the 1980 Act for default in paying the sum due. The exercise of the power to issue a warrant of commitment is, however, restricted by section 82. That is a lengthy section but it is necessary to set out a substantial part of it in full:

"82(1) A magistrates' court shall not on the occasion of convicting an offender of an offence issue a warrant of commitment for a default in paying any sum adjudged to be paid by the conviction unless—

(a) in the case of an offence punishable with imprisonment, he appears to the court to have sufficient means to pay the sum forthwith;

(b) it appears to the court that he is unlikely to remain long enough at a place of abode in the United Kingdom to enable payment of the sum to be enforced by other methods; or

(c) on the occasion of that conviction the court sentences him to immediate imprisonment, youth custody or detention in a detention centre for that or another offence or he is already serving a sentence of custody for life, or a term of imprisonment, youth custody, detention under section 9 of the Criminal Justice Act 1982 or detention in a detention centre.

(2) A magistrates' court shall not in advance of the issue of a warrant of commitment fix a term of imprisonment which is to be served by an offender in the event of a default in paying a sum adjudged to be paid by a conviction, except where it has power to issue a warrant of commitment forthwith, but postpones issuing the warrant under section 77(2) above.

(3) Where on the occasion of the offender's conviction a magistrates' court does not issue a warrant of commitment for a default in paying any such sum as aforesaid or fix a term of imprisonment under the said section 77(2) which is to be served by him in the event of any such default, it shall not thereafter issue a warrant of commitment for any such default or for want of sufficient distress to satisfy such a sum unless—

(a) he is already serving a sentence of custody for life, or a term of imprisonment, youth custody, detention under section 9 of the Criminal Justice Act 1982 or detention in a detention centre; or

(b) the court has since the conviction inquired into his means in his presence on at least one occasion.

(4) Where a magistrates' court is required by subsection (3) above to inquire into a person's means, the court may not on the occasion of the inquiry or at any time thereafter issue a warrant of commitment for a default in paying any such sum unless—

(a) in the case of an offence punishable with imprisonment, the offender appears to the court to have sufficient means to pay the sum forthwith; or

(b) the court—

(i) is satisfied that the default is due to the offender's wilful refusal or culpable neglect; and

(ii) has considered or tried all other methods of enforcing payment of the sum and it appears to the court that they are inappropriate or unsuccessful.

(4A) The methods of enforcing payment mentioned in subsection (4)(b)(ii) above are—

(a) a warrant of distress under section 76 above;

(b) an application to the High Court or county court for enforcement under section 87 below;

(c) an order under section 88 below;

(d) an attachment of earnings order; and

(e) if the offender is under the age of 25, an order under section 17 of the Criminal Justice Act 1982 (attendance centre orders).

(5) After the occasion of an offender's conviction by a magistrates' court, the court shall not, unless—

(a) the court has previously fixed a term of imprisonment under section 77(2) above which is to be served by the offender in the event of a default in paying a sum adjudged to be paid by the conviction; or

(b) the offender is serving a sentence of custody for life, or a term of imprisonment, youth custody, detention under section 9 of the Criminal Justice Act 1982 or detention in a detention centre,

issue a warrant of commitment for a default in paying the sum or fix such a term except at a hearing at which the offender is present.

(5A) A magistrates' court may not issue a warrant of commitment under subsection (5) above at a hearing at which the offender is not present unless the justices' chief executive for the court has first served on the offender a notice in writing stating that the court intends to hold a hearing to consider whether to issue such a warrant and giving the reason why the court so intends.

(5B) Where after the occasion of an offender's conviction by a magistrates' court the court holds a hearing for the purpose of considering whether to issue a warrant of commitment for default in paying a sum adjudged to be paid by the conviction, it shall consider such information about the offender's means as is available to it unless it has previously—

(a) inquired into the offender's means; and

(b) postponed the issue of the warrant of commitment under section 77(2) above."

10. Where a confiscation order has been made by the Crown Court, there is authority indicating that the Magistrates are not required, though they retain a discretion, to inquire into the defendant's means before issuing a warrant of commitment, the rationale being that the determination by the Crown Court includes a finding that the defendant has sufficient realisable assets to meet the confiscation order. The authorities in question are the Hastings and Rother Justices case, already cited, and R v Liverpool Magistrates' Court, ex parte Ansen [1998] 1 All ER 692.
11. Section 83 lays down the process for securing a defendant's attendance at court for the purposes of section 82. It provides:

"(1) A magistrates' court may, for the purpose of enabling inquiry to be made under section 82 above or for securing the attendance of an offender at a hearing required to be held by subsection (5) of that section—

(a) issue a summons requiring the offender to appear before the court at the time and place appointed in the summons; or

(b) issue a warrant to arrest him and bring him before the court.

(2) On the failure of the offender to appear before the court in answer to a summons under this section the court may issue a warrant to arrest him and bring him before the court..."

That is the provision under which the arrest warrant in this case was purportedly issued.

The claimant's submissions

12. The case for the claimant, advanced on his behalf by Mr Jameson, is straightforward. It is submitted that a warrant may be issued under section 83 only for the purposes of enabling inquiry to be made under section 82 or for securing attendance at the hearing required under section 82(5). All the inquiries that may be made by a Magistrates' Court under section 82 relate to the pre-conditions to the issue of a warrant of commitment. No question could arise in this case of the issue of a warrant of commitment since the claimant had already served the required term in custody in default of payment. Therefore, section 83 could not lawfully be used as a means of securing his attendance at court in connection with the Magistrates' Court consideration of any further methods of enforcement of the confiscation order.
13. Mr Jameson submits, as I understand it, that there is no power in the court to issue a warrant of arrest in the circumstances of this case but he makes the point that it will generally be in a defendant's own interests to attend at court when the Magistrates are considering other methods of enforcement; so that any concern that may arise about the lack of a power of arrest need not be of very great weight.

The submissions for the Revenue and Customs Prosecutions Office

14. For the interested party, the Revenue and Customs Prosecution Office, Mr Hall advances somewhat more elaborate submissions and does so in a very skilful and attractive argument. There are two aspects to the case he puts forward. The first is that, on the proper construction of the relevant statutory provisions, the Magistrates' Court has power to issue an arrest warrant under section 83 to secure attendance at a hearing whenever it is considering one of the means of enforcement listed in section 82, including specifically those in subsection (4A) and not limited to the issue of a warrant of commitment. He says that the term "inquiry" in section 83 is not to be read as limited to an inquiry into means under those provisions of section 82 that provide for an inquiry into means, but extends more generally to any form of inquiry under section 82 as to the appropriate method of enforcement. Having regard to the statutory scheme, he says that an inquiry is made under section 82 whenever the Magistrates' Court considers one of the enforcement options referred to in that section.
15. In support of that argument, Mr Hall has taken us to a number of the subsections of section 82, drawing particular attention to subsection (5B). He has very fairly and correctly drawn the court's attention to the case of R v Hereford and Worcester Magistrates' Court Service, ex parte McCrae, reported in the Times 31st December 1998, and has provided the court with a full transcript of that judgment. It was a case in which the Divisional Court was concerned with enforcement by way of distraint. The particular passage to which Mr Hall drew our attention is in the judgment of Simon Brown LJ, who says this:

"The procedure impugned on this motion is, it will already have become clear, a procedure for enforcement by way of distraint, not committal. It is unnecessary, therefore, to explain the somewhat more complicated provisions which control enforcement by committal. Suffice it for present purposes to note that it is only when considering whether to issue a warrant of commitment that the court is required, assuming the defaulter is not already in custody, to conduct a means inquiry in the defaulter's presence: see section 82(3)(b). Likewise, it is only then that the court has power to require the defaulter's attendance at such means inquiry: see section 83; and/or to require the defaulter to supply a statement of means: see section 84."

Mr Hall submits, as I think is correct, that that passage is obiter, and it is evident that the court did not have argument addressed to the point in the way we have had in this case. Nonetheless, the passage is acknowledged by Mr Hall as an obstacle in the path of this strand of his submissions.

16. The alternative argument put forward on behalf of the interested party is based on section 9(5) of the 1994 Act, which reads:

"Where the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect, so far as any other method of enforcement is concerned."

17. Mr Hall makes the point that ex parte McCrae was not concerned with the enforcement of confiscation orders and that therefore section 9(5) was not before the court. He submits that the issue of a warrant of arrest to secure attendance of the defendant at a hearing is itself a method of enforcement because by securing a defendant's attendance it may be possible to question him and to trace assets in respect of which some other enforcement order may be made. The effect of section 9(5) is therefore, as it is submitted, to enable that method of enforcement to be deployed notwithstanding that the term of imprisonment in default has already been served. It is said that the claimant's argument, to the effect that once a default term is served the Magistrates' Court is deprived of a power to issue an arrest warrant under section 83, is directly contrary to section 9(5) since it would prevent the confiscation order from continuing to have effect so far as that method of enforcement, that is to say under section 83, is concerned. It would also clearly follow that the court's power to strip the claimant of his benefit from drug trafficking would be diminished, contrary not only to section 9(5) Act but also to the legislative intent of the confiscation legislation in question.
18. For the reasons that I have there summarised, Mr Hall submits that this court should reject the claimant's argument.

Discussion and conclusion

19. In my judgment, the case advanced on behalf of the claimant is correct. An arrest warrant can be issued under section 83 only for the purpose of enabling inquiry to be made under section 82 or for securing attendance at a hearing required under section 82(5). But the provisions of section 82 are all concerned with the issue of a warrant of commitment. They impose a raft of restrictions on the exercise of the power to issue such a warrant, so as to ensure in effect that a warrant of commitment is a remedy of last resort. They are not dealing with the situation where a period of imprisonment in default of payment has already been served and where there can therefore be no possible question of the issue of a warrant of commitment.
20. It seems to me that the position is clear if one runs through the specific subsections of section 82. Subsection (1) relates to the occasion of conviction and the issue of a warrant of commitment on that occasion. It is plainly irrelevant here. Subsection (3) provides for an inquiry into means but plainly as a pre-condition to the making of a warrant of commitment in the circumstances defined in that subsection. It is picked up in subsection (4), which further limits the court's powers to issue a warrant of commitment on the occasion of an inquiry into means under section (3) or at any time thereafter. The requirement to consider alternative methods of enforcement under subsection (4A) arises only in that context, that is to say on the basis that under subsection (4)(b)(ii) all such alternative methods must be considered or tried first. So these are a relatively complex set of provisions, all relating to the circumstances in which a warrant of commitment may be issued. Subsection (5) provides that the warrant of commitment cannot be issued for default except at a hearing in which the defendant is present; and subsection (5A) and (5B) are likewise both concerned with the pre-conditions to an issue of a warrant of commitment.
21. In certain of those subsections the word "inquiry" is specifically used, in the context of an inquiry into means, and on the face of it the word is picked up in section 83 as referring to an inquiry into means. But it is unnecessary, I think, to determine whether one could sensibly treat the word inquiry in section 83 as referring more broadly to types of deliberation or consideration of methods of enforcement under section 82. The fact remains that even if one gives it that extended meaning it is all in the context of pre-conditions to the issue of a warrant of commitment.
22. Thus there is nothing in section 82, as it seems to me, to cover a case where there is no question of a warrant of commitment being issued and the court is concerned only with whether some other method of enforcement of the confiscation order should be adopted.
23. As I read section 83, it is purely ancillary to section 82. It can be used to secure attendance for section 82 purposes but it cannot be used so as to secure attendance for some other purpose.
24. It follows that I agree with the observation made by Simon Brown J in ex parte McCrae, obiter though it probably was.
25. I would leave open the question whether a Magistrates' Court would be able to issue a warrant of arrest under section 83 in order to compel attendance at a hearing at which a warrant of commitment remained an available option but a means inquiry was obviously unnecessary. That is not the situation with which we are concerned in this case. The concern expressed by Mr Hall that problems might arise in that connection unless a very broad construction of section 83 is adopted does not seem to me to justify a departure from the plain meaning and effect of section 83, and I suspect that in practice the Magistrates' Court will generally wish to have some form of means inquiry, however limited, which will trigger the relevant provisions of sections 82 and 83 even if, because means have been examined at the stage of making the confiscation order, no elaborate means inquiry is needed.
26. I am satisfied that there is nothing in the provisions of the 1994 Act to which we have been referred to displace the construction of sections 82 and 83 that I have indicated. In particular, as it seems to me, section 9(5) of the 1994 Act cannot have the effect for which Mr Hall contends. It is concerned quite obviously with methods of enforcement other than a warrant of commitment. It simply ensures that provisions relating to other methods of enforcement continue to have their normal effect notwithstanding that the default term has been served. If, as I have held, a warrant of arrest under section 83 can otherwise be issued only for the purposes of considering a warrant of commitment in the context of section 82, there is no way in which section 9(5) of the 1994 Act can operate to give section 83 a different meaning or effect. In my view, therefore, section 9(5) takes the matter no further. Nor can the more general policy arguments briefly prayed in aid by Mr Hall prevail in the face of the provisions of the 1980 Act, which in my view are clear as regards their meaning and effect.
27. Applying all of that to the present case, the position is that the hearing on 19th June 2008 was listed for the purpose of considering methods of enforcement other than a warrant of commitment, a remedy which was plainly not available in the circumstances. It was therefore not a hearing in which section 82 was in play. It follows that the power under section 83 to issue a warrant of arrest could not lawfully be exercised so as to secure the claimant's attendance at the hearing. Accordingly, I would quash the warrant of arrest.
28. MRS JUSTICE COX: And I agree.
29. MR JAMESON: I am grateful, my Lord. There are no further applications.
30. LORD JUSTICE RICHARDS: Thank you very much. We are grateful to you both, and the fact that we have been able to deal with the hearing expeditiously is attributable to the fact that we had very clear written submissions. Thank you.