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
		25th May 2010

1. MR JUSTICE KEITH: On 2nd March 2010 at the City of Westminster Magistrates' Court, District Judge Roscoe ordered the two claimants, Altaf Syed and Trevor Hamilton-Farrell (who is known as Trevor Farrell), to serve terms of imprisonment for failing to pay the sums due under confiscation orders made against them by Judge Blacksell at Middlesex Crown Court on 17th April 2002. On these claims for judicial review which have been heard together, Mr Syed and Mr Farrell challenge the imposition of the terms of imprisonment on them, on the ground that delay by the prosecution in enforcing the confiscation orders by seeking to have the sentences of imprisonment activated meant that the proceedings against them should have been stayed on the basis that their continuation amounted to an infringement of their right under Article 6(1) of the European Convention on Human Rights for the enforcement proceedings to be heard within a reasonable time, and was therefore an abuse of the court's process.
2. It was on 18th October 2001 that Mr Syed was convicted of an offence of conspiracy to defraud, and Mr Farrell was convicted on 19 counts of conspiracy to defraud, deception and money laundering. Their offences were described by Judge Blacksell as "a complex and intricate fraud in relation to the obtaining of mortgages, for substantial sums over a considerable period of time". Confiscation orders were sought under section 71 of the Criminal Justice Act 1998. The applications were heard in April 2002, and it is not suggested that the lapse of time up to then was anything other than reasonable.
3. It was conceded that the amount which Mr Syed had benefited from his crime was £5,272,500, and the amount which Mr Farrell had benefited from his crimes was £5,521,149. It looks as if it was also conceded on Mr Farrell's behalf that he had benefited from a separate fraud in relation to a share deal of which he was also convicted in the sum of £248,649. Since Judge Blacksell did not refer to that benefit in his judgment, nothing more needs to be said about it. Judge Blacksell then proceeded to assess the amount of the claimants' realisable assets. He found that in Mr Syed's case they amounted to £536,290, and in Mr Farrell's case to £535,250. He made confiscation orders against each claimant in those sums. They were ordered to pay those sums within 12 months, ie by 17th April 2003, with 2 years' imprisonment in default of payment, to be served consecutively to the sentences they were serving for the offences.
4. The two most sizable assets which the judge included in the claimants' realisable assets were the same for both claimants. One related to the sum of £460,000 held by Dobb White & Co ("Dobb White"), a firm of chartered accountants, in the name of Carl Bordeman. The judge treated that sum as part of the claimants' realisable assets, and he apportioned the amount equally between them, ie £230,000 each. In addition, he found that the claimants had not disclosed all their assets, and he assessed their "hidden" assets at £200,000 each.
5. On 2nd July 2002, the Crown Prosecution Service wrote to the claimants' solicitors suggesting that a receiver of the claimants' realisable assets be appointed. Within a few days the claimants through their solicitors agreed with that suggestion, and on 24th October 2002 Mr Robert Smailes, of Rothman Pantall & Co, chartered accountants, was appointed by the High Court as receiver.
6. On 22nd January 2003, the Crown Prosecution Service informed the receiver that it proposed to take no further action in respect of some of the claimants' assets which were the subject of third party claims. Those assets were two Jaguar motorcars and £50,000 held in an account at the Halifax. By 30th April 2003, the Receiver had managed to recover some of the claimants' other realisable assets, and apart from a cruiser and a Ford Mustang motorcar, which were also the subject of third party claims, the only assets still to be realised were the £460,000 held by Dobb White and the £200,000 which each of the claimants was found to have hidden.
7. It was the period between April 2003 on the one hand and August and November 2008 on the other when proceedings to enforce the confiscation orders were commenced against Mr Farrell and Mr Syed respectively that culpable delay on the part of the Crown Prosecution Service and the receiver is said to have occurred. Having said that, though, it should be noted that on 7th June 2004, both Mr Syed and Mr Farrell were sentenced to further terms of imprisonment for conspiring to steal pension funds. They were released from prison in July 2005 or thereabouts.
8. On 27th June 2007, the receiver informed the Crown Prosecution Service that there were no further steps which could be taken which were likely to result in any further realisation of the claimants' assets. It was suggested that an application be made to the court to discharge the receivership. It was not until 1st October 2007, ie over 3 months later, that the Crown Prosecution Service notified the receiver that it agreed with that course, and on 17th December 2007, almost two-and-a-half months later, the High Court discharged the receivership. No explanation has been given for the delay on the part of the Crown Prosecution Service in responding to the receiver's suggestion that the receivership be discharged, or the delay thereafter on the part of the receiver in applying for the discharge of the receivership.
9. On 18th August 2008, the Crown Prosecution Service issued proceedings against Mr Farrell to enforce the confiscation order by activating the sentence to be served in default of payment. Mr Farrell's solicitors were informed of that on 5th September 2008. A hearing had been fixed for 14th October 2008 at City of Westminster Magistrates' Court. Proceedings had not been issued again Mr Syed because his previous solicitors were no longer acting for him, and it was not known who was. However, a few days before the hearing of the application against Mr Farrell was due to take place on 14th October 2008, the magistrates' court said that the hearing could not go ahead that day, and on 17th November 2008 Mr Farrell's solicitors were informed that the hearing of the enforcement proceedings against him would take place on 27th January 2009. That was when Mr Syed's new solicitors were notified of the enforcement proceedings which had been issued against him, and the hearing of the enforcement proceedings in his case were also to take place on 27th January 2009.
10. The claimants asked the Crown Prosecution Service to agree to that date being vacated because Mr Syed had new solicitors, though in reality the solicitor handling his case had simply moved to another firm and continued to be instructed by Mr Syed. The Crown Prosecution Service, not surprisingly, would not agree to the hearing being adjourned, but at the hearing on 27th January 2009, it was agreed that the enforcement proceedings should be adjourned because Mr Farrell had in the meantime restored a previous application to the High Court for a certificate of inadequacy pursuant to section 83 of the Criminal Justice Act 1988, and Mr Syed proposed to make a similar application. It was therefore agreed that the enforcement proceedings should be heard once the applications for certificates of inadequacy had themselves been decided.
11. The applications for certificates of inadequacy were heard by King J on 7th July 2009. Both applications were dismissed. The enforcement proceedings were therefore restored, and it was on 2nd March 2010 that the district judge rejected the abuse of process argument. By then, interest had accrued on the amounts outstanding. In Mr Syed's case, the amount outstanding inclusive of interest was calculated to be £751,923.08, and in Mr Farrell's case £742,189.78. Since those amounts exceeded the amounts in the confiscation orders, there was no scope for any reduction in the terms of imprisonment to be imposed in default of payment to take account of what had been recovered, and although the district judge did not spell out the length of the sentences that she was activating, she had no alternative but to order that the claimants serve the sentences which Judge Blacksell had ordered to be served in the event of default.
12. The law in this area is now tolerably clear. At one time it was thought that even if there was culpable delay in enforcing a confiscation order, the delay did not act as a bar to the activation of the default sentence for non-payment. That was the effect of the decision of the Divisional Court in R v Chichester Justices ex parte Crowther [1998] EWHC 960 (Admin). But that case had been decided before the Human Rights Act 1998 came into force, and the Divisional Court in Lloyd v Bow Street Magistrates' Court [2003] EWHC 2294 (Admin) took a very different line. It held that culpable delay in enforcing a confiscation order could, and in that case did, constitute a breach of a defendant's right under Article 6(1) of the Convention to a fair trial within a reasonable time. The point which had troubled the Divisional Court in Crowther, namely that the primary obligation to satisfy the confiscation order was on the defendant, not on the prosecuting authority, or the enforcing magistrates' court was given short shrift in Lloyd. At [22], Dyson LJ (as he then was) said:

"... even if the prosecuting authorities and the magistrates court have no obligation to enforce confiscation orders, it does not follow that, if they decide to seek enforcement by commitment to prison, they are not required to ensure that the enforcement proceedings are determined within a reasonable time. The point can be illustrated by a consideration of the analogous case of an application to stay ordinary substantive criminal proceedings as an abuse on the grounds of delay. It is no answer to such an application for the prosecuting authorities to say that they are under no obligation to prosecute a particular person for an alleged crime and that there is no statutory limitation period within which such a prosecution may be brought. The point is that, even though there is no statutory time limit for prosecutions and no obligation to prosecute individual alleged criminals, the law will protect defendants from facing prosecutions after undue delay has occurred."

13. Dyson LJ continued at [23] in a passage which is highly relevant to one of the issues in the current proceedings:

"... 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. That right is predicated on the basis that the defendant is alleged to have broken the law by committing a crime. The fact that a defendant is alleged to have committed a crime is plainly not a reason for denying him the right to have the criminal charge determined within a reasonable time. Indeed, the existence of the criminal charge is the very reason why he has the right. Similarly, in our view the fact that a defendant is alleged to be in breach of a confiscation order is no reason to deny him the right to have proceedings brought to enforce the order by commitment to prison determined within a reasonable time."

In concluding that there was no justification for holding that the reasonable time guarantee in Article 6 is excluded in enforcement proceedings, Dyson LJ said at [25]:

"Convicted criminals who are the subject of confiscation orders do not attract sympathy, and not entitled to favoured treatment. But there is nothing surprising about a requirement that, if the prosecuting authorities/magistrates court seek to enforce a confiscation order, they should do so within a reasonable time. It is potentially very unfair on a defendant that he should be liable to be committed to prison for non-payment of sums due under a confiscation order many years after the time for payment has expired, and long after he has been released from custody and resumed work and family life."

Those views were endorsed by the European Court of Human Rights when the Crowther case reached that court. In Crowther v United Kingdom [2005] ECHR 45, the court observed at [29]:

"The fact that throughout this period the applicant was under a duty to pay the sum owing under the confiscation order did not absolve the authorities from ensuring that the proceedings were completed within a reasonable time. Even in respect of civil proceedings, where domestic law or practice requires the parties to take the initiative with regard to the progress of the proceedings, the State is obliged to ensure compliance with the reasonable time guarantee under Article 6.1... This principle must apply a fortiori where the State is itself a party to the proceedings and responsible for their prosecution."

14. Two other principles emerge from Lloyd which are relevant for present purposes. First, if the defendant is responsible for the delay, or if his financial affairs take an unusually long time to sort out, for example because of their complexity, Article 6.1 will not help him. As Dyson LJ said at [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."

15. Secondly, if the delay is found to have infringed Article 6.1, the appropriate remedy is for the enforcing court to stay the proceedings to the extent that the prosecuting authority is seeking an order requiring the defendant to serve the sentence of imprisonment imposed in default of payment. Three reasons were given by Dyson LJ at [34] for that conclusion, in the light of the circumstances of that case:

"(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."

16. Detailed chronologies of the attempts to realise the claimants' assets between April 2003 and August and November 2008 were provided for each claimant for the enforcement proceedings in the magistrates' court. In my opinion, they reveal no sense at all of the need to proceed expeditiously. Letters went unanswered for long periods, requests for information were ignored, and nothing much appears to have been done to advance the search for the claimants' assets. There was some talk initially of bringing contempt proceedings against Paul and Albert Wyatt, who the claimants said were the owners of the cruiser and the Ford Mustang, for failing to respond to the receiver's requests for information, but nothing came of it. There was, of course, nothing which the receiver could do about realising the hidden assets, since he did not know where or what they were, and the claimants were not volunteering that information, though as Dyson LJ said in Lloyd at [23], that had no bearing on the question whether they had the right to have their enforcement proceedings issued against them within a reasonable time.
17. So all that was left was the £460,000 held by Dobb White. Here it is important to note that at one stage Mr Farrell's solicitors had asked the Crown Prosecution Service to defer the issue of enforcement proceedings because of what was described as the "Dobb White affair". Indeed, that, I think, is the high watermark of the case advanced by the Crown Prosecution Service for saying that the lapse of time in issuing the enforcement proceedings was reasonable. It is necessary to put that request into its proper context, and it is therefore to the investigation into the whereabouts of that £460,000 that I now turn.
18. The problem with the £460,000 held by Dobb White was that Dobb White was the subject of an investigation by the Financial Services Authority, which had on 29th October 2002 obtained a freezing order over Dobb White's assets. The receiver notified the Crown Prosecution Service of that on 13th January 2003. The receiver sought information from Dobb White about the whereabouts of the £460,000, but the firm had not responded. Indeed, the Financial Services Authority had filed a bankruptcy petition against the firm's partners, Shinder Gangar and Alan White. On 16th April 2003, the receiver informed the Crown Prosecution Service of these developments, and requested that he be authorised to bring contempt proceedings against Mr Gangar and Mr White.
19. It was not until 30th June 2003, two-and-a-half months later, that the Crown Prosecution Service gave the receiver that authority. It was only on 28th August 2003, another two months later, that the receiver confirmed to the Crown Prosecution Service that counsel had been instructed to draft that application. However, on 5th December 2003, Dobb White was wound up, Mr Gangar and Mr White were declared bankrupt, and it looks as if the proposal to bring contempt proceeding against them was never proceeded with.
20. The next matter of relevance is that on 15th January 2004 Mr Farrell filed his application in the High Court for a certificate of inadequacy. That application was based - in part, at any rate - on the fact that the freezing order over Dobb White's assets had meant that he did not have access to the £460,000. The view of the Crown Prosecution Service was that the application for a certificate of inadequacy, which the Crown Prosecution Service intended to oppose, should not be heard until what it described as "the outcome of the Dobb White affair". I take that to mean that the Crown Prosecution Service thought that the application for a certificate of inadequacy should not be heard until the receiver's enquires into the whereabouts of the £460,000 had been concluded, because only then would everyone be better informed as to whether the £460,000 was among the assets which had been frozen, and if so, whether Mr Farrell would have access to it. The Crown Prosecution Service made that suggestion to Mr Farrell's solicitors two-and-a-half months after it had had notice of the application for a certificate of inadequacy, namely on 1st April 2004, and on 20th April 2004 Mr Farrell's solicitors agreed.
21. At the same time, Mr Farrell's solicitors asked the Crown Prosecution Service for an undertaking in writing that enforcement proceedings would not be initiated against him prior to the conclusion of the "Dobb White affair", by which again I take it that they meant the conclusion of the receiver's enquiries into the whereabouts of the £460,000. Of course, enforcement proceedings had already been instituted by the Crown Prosecution Service by the appointment of a receiver. So what Mr Farrell's solicitors must have been referring to was enforcement proceedings to activate the sentence of imprisonment imposed in default of satisfaction of the confiscation order. Whether that is what the Crown Prosecution Service understood is unclear, but whatever it thought, it gave that undertaking.
22. That was where matters stood for 15 months or so until 27th July 2005. Mr Farrell had by then been released from prison. He was concerned that he would not be sent back to prison for defaulting on the confiscation order, and so his solicitors wrote to the Crown Prosecution Service on 27th July 2005, asking it to confirm that it would not seek to enforce the confiscation order, not this time until the conclusion of the receiver's enquiries into the whereabouts of the £460,000, but pending the conclusion of the criminal trial of Mr Gangar and Mr White, who by then had been charged with various offences of fraud. Mr Farrell's solicitors added that if that confirmation was not forthcoming, they would be restoring the application for a certificate of inadequacy.
23. The Crown Prosecution Service's response on 29th July 2005 is not as clear as it might have been, but one thing is for sure, and that is it was not prepared to give the undertaking sought. It is accepted on all sides that the trial of Mr Gangar and Mr White would not necessarily have thrown any light on the whereabouts of the £460,000. That may be why the Crown Prosecution Service refused to give that undertaking. In any event, the Crown Prosecution Service's position was that enforcement proceeding were continuing because of the attempts which the receiver was still making to realise Mr Farrell's realisable assets, and it follows that the undertaking which it had given in April 2004, if it still applied, applied only to the receiver's enquiries about the whereabouts of the £460,000 to the extent that they were still continuing. I add two things to that. First, the undertaking is relevant, in my opinion, only to the extent that it explains the delay, and it may make the delay, which would otherwise have been unreasonable, become reasonable. But secondly, there is, to my mind, no principle that an undertaking by the prosecuting authority not to issue enforcement proceedings absolves the prosecution from its duty to pursue the realisation of a defendant's assets expeditiously.
24. I should add that I do not think that the undertaking given, to Mr Farrell's solicitors can be used by the prosecution to justify its delay in issuing enforcement proceeding against Mr Syed. Mr Syed never sought, nor was he ever given, such an undertaking. It is of no avail to the Crown Prosecution Service to say that Mr Syed and Mr Farrell were at all times acting together, and that it would not have been appropriate to issue enforcement proceedings against one and not the other, especially as the correspondence with Mr Farrell's solicitors about the undertaking was not copied to Mr Syed's solicitors.
25. I turn therefore to whether efforts were still being made at the same time by the receiver to discover the whereabouts of the £460,000. Both the Crown Prosecution Service and Mr Syed's solicitors had been asking the receiver whether he was any closer to finding out where the £460,000 was. As early June 2004, the receiver had informed the Crown Prosecution Service that the liquidators of Dobb White had been unable to trace its whereabouts. We cannot tell from the correspondence how extensive the receiver's enquiries were, though going on the correspondence which the receiver had with the Crown Prosecution Service, it does not look as if those enquires were extensive at all. All he did was to make enquiries of counsel for the prosecution in Mr Gangar's and Mr White's case.
26. Eventually, on 7th October 2005, the receiver informed the Crown Prosecution Service that counsel had told him that the £460,000 had been paid into the accounts of three companies controlled by Dobb White, that most of that money had been transferred to the United States, and that it was not possible to say who the recipient of the money was. On 16th December 2005, the receiver asked Ross Connock of Baker Tilly, who was one of the joint liquidators of Dobb White and one of the joint trustees in bankruptcy of the estates of Mr Gangar and Mr White, about the whereabouts of the money, but on 19th January 2006 Mr Connock told him that he was not in a position to help. Mr Connock maintained that stance in subsequent correspondence later in 2006. Apart from occasional enquires as to whether any information of substance had emerged, which it had not because there was not much more that could have emerged with the trail to the money having gone cold in the United States, it was apparent that little more could be done. The fact is that nothing of substance thereafter happened until June 2007, when the receiver suggested that the receivership be discharged. I have already referred to what happened thereafter, save that on 22nd February 2008 Mr Gangar and Mr White were convicted of offences of fraud, though it was not until six months or so later that the enforcement proceedings were commenced against Mr Farrell, and another 3 months elapsed before they were commenced against Mr Syed. No explanation for that has been given by the Crown Prosecution Service either.
27. This analysis of the course which the investigation into the claimants' assets took reveals a number of hard facts. First, the Crown Prosecution Service had decided at an early stage to take no further action in respect of some of the claimants' assets which were the subject of third party claims. Secondly, nothing was done to advance the recovery of the claimants' other assets which were subject to Paul and Albert Wyatt's third party claims. Thirdly, once it was recognised that without the claimants' co-operation nothing could be done to recover their hidden assets, their only known asset left to recover was the £460,000 held by Dobb White. Fourthly, following the freezing order over Dobb White's assets on 29th October 2002, there was nothing which the receiver could have done to realise the £460,000, save for investigating where it was. Fifthly, nothing appears to have be done about that prior to April 2004, apart from contemplating bringing contempt proceedings against Mr Gangar and Mr White which were never proceeded with. Sixthly, although enforcement proceedings could not be brought against Mr Farrell between April 2004 and July 2005 because of the undertaking which the Crown Prosecution Service had given his solicitors, that had not prevented the receiver continuing his efforts to find out where £460,000 had gone. There is nothing to suggest that any extensive enquires were made. Seventhly, from July 2005, when the Crown Prosecution Service regarded itself as no longer bound by any undertaking not to issue enforcement proceedings, the only information which the receiver appeared to have sought and obtained about the whereabouts of the £460,000 was from counsel for the prosecution in Mr Gangar's and Mr White's trial. Once that had been obtained by October 2005, nothing further of substance appears to have been done. No explanation or justification for that has been advanced.
28. Ironically, the district judge did not regard the undertaking which the Crown Prosecution Service had given in April 2004 as a matter of much significance. In her ruling she said:

"In January 2004 it was proposed on behalf of Hamilton-Farrell that a certificate of inadequacy should be applied for. Hamilton-Farrell and the Crown Prosecution Service agreed to delay this pending the outcome of the Dobb White affair. This does not itself exempt CPS or the courts from a duty to enforce expeditiously. Hamilton-Farrell cannot abrogate his section 6 rights."

All of that I agree with. But she went on to say:

"It is something I bear in mind but it a very limited value - particularly in view of the subsequent time lapse."

I can see why she regarded the undertaking of limited value. She thought that it related only to the application for a certificate of inadequacy, not to the issue of enforcement proceedings. For my part, I regard it of little value because the Crown Prosecution Service regarded itself as bound by it only for a period of 15 months or so and the undertaking related only to the period during which attempts were being made by the receiver to locate the whereabouts of the £460,000. The point is that by the end of 2005, it should have been apparent to the receiver and the Crown Prosecution Service that nothing further could have been done to realise Mr Syed's and Mr Farrell's assets, ant that that was where enforcement proceedings should have been issued. I agree with the district judge that there were complexities in the case, but I do not think that it was reasonably open to her to conclude that the complexities of the case were such as to have prevented the Crown Prosecution Service and the receiver from realising, by the end of 2005, that there were no further steps which could be taken.

29. For these reasons, I have concluded that the delay on the part of the Crown Prosecution Service in enforcing the confiscation orders against the claimants was unreasonable, and infringed the claimants' right to have the enforcement proceedings brought against them within a reasonable time if the magistrates' court was to be asked to activate the sentences of imprisonment passed in default of payment many years after the claimants had served the sentences which had been imposed for their offences.
30. What should the effect of that be? I have already referred to the reasons which Dyson LJ gave in [34] of Lloyd for staying the proceedings to commit the defaulter in that case to prison, but Dyson LJ went on to say this at [35]-[36]:

"We agree entirely with Ms Saunt's submission that 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."

I would therefore quash the sentences of imprisonment activated by the district judge, on the basis that the proceedings to enforce the confiscation orders by activating those sentences should have been stayed.

31. LORD JUSTICE ELIAS: I agree. Because we are differing from the judge I will add a few words.
32. I recognise that it is a high hurdle to establish delay sufficient to constitute a breach of Article 6. We have to ask whether the decision of the District Judge was sustainable, in the sense of a decision which she could reasonably make in all the circumstances. I am satisfied that it was not. She herself recognised that there were a number of unexplained delays. It seems to me that when one considers the nature and extent of those delays, principally by the Receiver but also by the Crown Prosecution Service, when taken together they compel the conclusion that it was here an abuse to take these enforcement proceedings. It is accepted that there has been no undue delay from the time that the enforcement proceedings were commenced in August 2008 until the decision of the District Judge in March 2010. The period which was the focus of consideration was that between October 2002, when the Receiver was appointed, up until August 2008 when the enforcement proceedings were commenced.
33. The Receivers produced three brief reports, the last of which was dated June 21st 2004, although strictly they were required to provide bi-monthly reports. They had recovered some relatively small sums and by then the only matter of moment was whether they would be able to recover the monies, apparently held on the account for the defendants, in Dobb White. The liquidators for that company had told the Receiver by June 2004 that they were not able to track down that money. I would accept that the Receivers were entitled to pursue other routes, which they did, by seeking to obtain information from counsel, Mr Kennedy-Talbot, but he told them by October 2005 that the money had been dispersed to three companies and had gone to the USA and the scent had apparently gone cold. Thereafter there was what can only be described as desultory correspondence with the liquidator of Dobb White to see if they were making any further progress about identifying where these monies had gone. The answer was that the matter was complex and slow. By June 2007 the Receivers themselves had accepted that they would not be able to recover anything from Dobb White. Yet it took more than 14 months thereafter before any enforcement proceedings were taken. The explanation given for this is that the Crown Prosecution Service were awaiting the outcome of the trial of Gangar and White. It seems to me that there is no basis for assuming that that trial would assist in any way whatsoever in identifying the funds belonging to the defendants in Dobb White.
34. The prosecution say that they had agreed not to take enforcement proceedings until the Gangar and White trial had been completed. They plainly did not agree that with Mr Syed. Mr Dennison says that it ought to be inferred that they had made an agreement with him, although any agreement was only made ostensibly with Mr Farrell, because in effect the two men were acting together. I do not accept that. They were separately represented and I do not think it right to assume that the solicitors for one were acting as agents for the other. Moreover it is plain that Mr Syed was keen to have matters resolved quickly because he was concerned about the potential for going back into prison as a consequence of failure to comply with the order.
35. Even with respect to Mr Farrell, I agree with my Lord, Keith J, that I do not think that there was an agreement to the effect that they would wait until the trial of Gangar and White had ended. It seems to me that initially the Crown Prosecution Service were in substance agreeing that they would not take enforcement proceedings until the Receivers had done what they could to recover money from Dobb White. That was perhaps the most favourable way in which one might read the correspondence between the parties as far as the prosecution were concerned. But as I have said, there was a delay of 14 months thereafter before proceedings were instituted.
36. In all the circumstances, for the reasons given by Keith J, I too am satisfied that there were simply unacceptable and unexplained delays here. It means that these enforcement proceedings were not taken until more than 6 years after the confiscation order was made. I agree that the sentence of imprisonment in the circumstances should be quashed and that there should be a stay on any further proceedings which would involve enforcement using the criminal process.
37. MR RADCLIFFE: My Lord, I have borrowed the phrase from what your Lordship has said (inaudible) for the actual form of that second part of your Lordships' orders. Is it correct it is appropriate to phrase it as a stay on any future enforcement compensation/confiscation orders by way of issuing a warrant for commitment?
38. LORD JUSTICE ELIAS: Yes.
39. MR RADCLIFFE: What your Lordship added with regard to South Derby (inaudible) was to exclude other means of enforcement. Your Lordship specifically referred to that there.
40. LORD JUSTICE ELIAS: That was a slightly different case because the original order made by the judge had stayed all proceedings, both civil and criminal, so I do not think it is necessary to do that here.
41. MR RADCLIFFE: Thank you. My Lord, Mr Syed is privately funded in these matters. We would seek an order for costs please.
42. LORD JUSTICE ELIAS: What do you have to say about that Mr Dennison?
43. MR DENNISON: Mr Syed should be paying any assets that he has towards the confiscation order. He is still restrained, so far as I am aware. The Crown is initially an interested party in this matter rather than a defendant, but any monies the Crown pays will be going to the confiscation order.
44. LORD JUSTICE ELIAS: I am not sure that is right. It would go to the legal aid fund -- sorry.
45. MR DENNISON: I hope it would not. If there is an order for costs made against the Crown, the Crown cannot pay it to Mr Syed because he is restrained.
46. MR JUSTICE KEITH: He is restrained. There is a restraining order against him, is there, that he cannot dispose of his assets?
47. MR DENNISON: Yes.
48. MR JUSTICE KEITH: I see.
49. MR DENNISON: I will take very brief instructions on that (Pause).
50. LORD JUSTICE ELIAS: Mr Dennison, I do not see why that should be, with respect, a justification for not making the payment. At the moment they pay the money out by way of costs to their lawyers and if you pay them costs, then you may well be right to say that the money goes back into your hands but nonetheless that is then part of the payment towards the sum they owe.
51. MR DENNISON: Yes, it could reduce it. I have I am afraid I have absolutely no idea as to what the costs are.
52. MR JUSTICE KEITH: Are you saying this in effect? Any order for costs has to be, which you had to pay, any sum has to be reimbursed to the Crown Prosecution Service to reduce the confiscation order. Therefore all that needs to be done is to work out what order should made by way of payments from you to him, and so you pay that amount from you to him, you simply reduce the amount due under the confiscation order by that amount?
53. MR DENNISON: I wish it were that simple my Lord. It is not. The collecting authority is in effect the defendant Magistrates' Court, so were my Lord to make an order for -- let us just say £10,000, just plucking a figure -- we would have to pay £10,000 to the magistrates which would reduce his order by £10,000, or about 3 weeks' worth of interest. All of this subject to the restraining order being in place. I am just checking that that is so. If the restraining order is not in place and has been discharged, then the money would go to the defendants.
54. LORD JUSTICE ELIAS: It seems to--
55. MR DENNISON: The Magistrates' Court will list it for an enforcement hearing and money I anticipate would then be paid over.
(The Bench Conferred)
56. LORD JUSTICE ELIAS: Sorry we are just considering how to deal with this. Can I just say what strikes me at the moment but if either of you have any doubts about this, we will take my Lord, Keith J's suggestion I think. It seems to me that you should pay costs. You should have produced a summary of costs for today, a schedule, since it is a one day case. That would have saved a lot of time. It is very unsatisfactory that it should go off for taxation because that is an expensive exercise in its own right. It may be you can come to some sensible accommodation about that. But I would have thought we simply award costs. What then happens, how it is paid, in a sense, is not our business. There may or may not be restraint orders in place. It may be you have to pay them to X rather than Y. That is not anything that this court here at the moment is concerned with. If either of you think that is not the right approach, then I would give you seven days to make submissions in writing as to what you think the best approach is. We will resolve it that way. I have to say, at the moment, I do not see why costs are not paid in the usual way. I am not sure that we should be concerned about the effect of restraint orders.
57. MR RADCLIFFE: My Lord no. Inevitably in cases like this, it is less straightforward. The funding, as I am instructed, comes from family and friends rather than the claimants themselves, the restraining claimant.
58. LORD JUSTICE ELIAS: That may give rise to additional difficulties. Can I say that we will make an order for costs in your favour, to be taxed if not agreed. I will give either side liberty to apply within seven days if they consider that that is not an appropriate order for one reason or another. Then you send whatever application you make to the other side and they will have seven days in which to respond. Then, I will take responsibility for dealing with it... [After discussion between the judges]. In fact we can both look at it in that case.
59. MR GALVIN: Will you make the same order for Mr Hamilton-Farrell?
60. LORD JUSTICE ELIAS: Yes.
61. MR JUSTICE KEITH: Can I make one suggestion? Instead of costs being taxed, because there should have been a summary assessment today, had you had a schedule of costs, can I suggest instead of a taxation if not agreed, summary assessment by a costs judge if not agreed, because I do not think that the prosecution should have to pay the equivalent of a detailed assessment when there should have been a schedule of costs available today. Summarily assessed by a costs judge.
62. LORD JUSTICE ELIAS: Are you both happy with that?
63. MR DENNISON: I just seek clarification as to whether both defendants are privately funded in the applications.
64. LORD JUSTICE ELIAS: I understand that they are. Can we clarify, it would be a costs order in favour of each of the defendants. It will be taxed summarily by a costs judge if it cannot be agreed. But if either of you think on reflection, for one reason or another, I am not sure what it might be, that that is not the appropriate order, party A has liberty to apply within seven days, party B to respond within seven days thereafter and we will have to resolve on paper what that might be. We do not want parties coming back to court and spending more money on this matter. Can I thank you all very much.
65. MR RADCLIFFE: Could I just ask that when the judgment is finalised, it could perhaps be made clear that in fact I was not instructed in this matter until late 2008, should there be reference to counsel.
66. LORD JUSTICE ELIAS: Certainly there is no criticism. We are very grateful to you in particular, Mr Radcliffe, for coming in at such short notice on this. Thank you very much.