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
		20 January 2010

1. MR JUSTICE LLOYD JONES: This is a renewed application for permission to apply for judicial review of a decision of District Judge Snow, sitting at Westminster Magistrates' Court, on 19 May 2009 when he ordered that a warrant of commitment be issued following non-payment of a confiscation order.
2. The claimant was convicted, at Snaresbrook Crown Court on 1 March 2006, of nine counts of false accounting and five counts of obtaining a money transfer by deception. The counts related to fraudulent applications for housing benefit and council tax benefit. The claimant did not in her application enter details of any of the properties which she owned. When arrested she admitted owning one property in North London and two in Brighton. At trial her case was that she held the properties on trust and had not been dishonest. She was convicted and sentenced to two years' imprisonment.
3. Confiscation proceedings followed. On 22 February 2008 a confiscation order in the sum of £143,313.09 was made, with a period of three years' imprisonment in default.
4. It appears from the judgment of the Criminal Division of the Court of Appeal, delivered in this matter on 20 February 2009, that in those confiscation proceedings of 2008 the judge observed that proceedings had been postponed on a number of occasions in order to give the applicant further time to bring forward evidence to support her contention that all the properties were being held by her as a trustee. The judge eventually ruled that the applicant had failed to produce any credible evidence to displace the prosecution case and had failed to discharge the burden which remained on her to show that her realisable assets were less than the benefit.
5. On 20 February 2009 the Criminal Division of the Court of Appeal dismissed an appeal against conviction and sentence. Mr Justice Treacy, delivering the judgment of the Court, observed in relation to her grounds of appeal against conviction that she had sought to adduce fresh evidence to show that there were trusts in existence.
6. In rejecting the application for permission, the Court observed that the applicant's evidence at trial was littered with untruths and ,moreover, that the applicant's own account of events at trial was wholly inconsistent with the existence of the trusts. Mr Justice Treacy observed -

"Even now we have seen no material which would suggest that there were in existence any trusts."

7. With regard to the proposed appeal against sentence, which was limited to the confiscation order, the Court noted that counsel settled grounds on the basis that the applicant would produce evidence of equitable charges on the two properties. However the applicant had then failed to co-operate with her legal advisers in obtaining and providing information that would confirm the existence and value of those charges. In those circumstances counsel had withdrawn and the applicant had pressed on alone.
8. The court concluded that no material produced subsequently, either to the single judge or to the full court, supported the existence of equitable charges in respect of the properties at Inkerman Road and Egremont Place. The court observed that the applicant has long known what evidence she needed to produce. Indeed, at the original confiscation hearing in February 2008 the judge indicated that if the applicant provided evidence of the equitable charges before he delivered his reserved judgment then he would adjust the figures in her favour. However she had failed to produce any such evidence then or subsequently. There must, said the court, now be finality in the matter.
9. Two enforcement hearings then took place. The first was on 10 March 2009. Miss Hamed was represented by counsel. An application was made for an adjournment to enable Miss Hamed to make an application to the High Court for a certificate of inadequacy. The matter was adjourned until 19 May 2009. In adjourning the matter, the chairman stated, according to Miss Hamed's account, that should no progress be made in relation to the application to the High Court by 19 May, the magistrates would consider issuing a warrant of commitment. The notice of new hearing date states that the matter was adjourned to 19 May to allow the applicant "to lodge COI application and update the court of progress". The matter came back before the court on 19 May. The claimant's account of what occurred on that application is that the claimant was legally represented. The prosecution was not represented although the officer responsible for the confiscation proceedings was present in court, as he is today.
10. An application was made on behalf of the claimant to adjourn. The first ground for the adjournment was in order to enable the certificate of inadequacy application to be heard in another court. That application was rejected by the district judge. He observed that Miss Hamed had produced no evidence that she had made an application beyond her own assertion.
11. The applicant gave evidence in relation to 4 Egremont Close, 4 Arundel Place and 2 Inkerman Road. She also gave evidence in relation to properties in Spain and Gibraltar.
12. The judge then stated that the claimant's ex-partner Mr Burroughs was in court and that he wished to give evidence. Mr Burroughs gave evidence in relation to 187 Preston Grove and in relation to a proposal by Miss Hamed that they share the proceeds of sale for Arundel Place. Following his evidence-in-chief, counsel for the claimant repeated her application for an adjournment and said that further instructions could be taken in the light of the evidence which had been given by Mr Burroughs. The district judge allowed a short adjournment after which questions were put, as I understand it, to Mr Burroughs on behalf of Mr Hamed.
13. At the end of the hearing counsel applied for the third time for the matter to be adjourned pending the outcome of the certificate of inadequacy. That application was refused. The judge decided not to allow an adjournment and ordered that Miss Hamed serve a default period of 1,095 days.
14. Before us, Miss Chidgey advanced a number of grounds on which she would propose to rely if permission to apply for judicial review were granted. First, she submits that the issuing of the warrant for committal was unlawful in the light of the legitimate expectation that had been created on 10 March 2009 in granting an adjournment for an application to be made to the High Court for a certificate of inadequacy and in stating that, should no progress be made in relation to the application to the High Court by 19 May 2009, they would consider issuing a warrant of commitment. The logical inference was that if progress was made - in the form of an application for a certificate of inadequacy being lodged by 19 May 2009 - a warrant of commitment would not be issued.
15. I do not consider that it is reasonably arguable that there arose here a legitimate expectation that the district judge would not proceed to issue a warrant of commitment in the circumstances which in fact prevailed on 19 May.
16. First, the district judge correctly held that Miss Hamed produced no evidence that she had made the application beyond her own assertion. There was before him a letter from the Administrative Court dated 6 May which referred to a telephone call the applicant had made to the Administrative Court inquiring about the application process. I note that that inquiry was made almost two months after the adjournment had been granted for the purpose. A postal receipt was produced which evidenced that something had been sent to the Administrative Court - or at least the Royal Courts of Justice - on 14 May, only five days before the hearing. It does not appear - and this is a strange feature of this case - that the application for the certificate of inadequacy was produced at the hearing on 19 May. The judge was therefore clearly entitled, on the material before him, to come to the conclusion that no such application had been made.
17. Secondly, even if the application had been made and if there was in the mind of Miss Hamed some such expectation of an adjournment, that could not possibly have been a legitimate expectation. I do not understand the chairman to have given an indication that provided an application for a certificate of inadequacy was made before the next hearing the case would be adjourned. What was said must be construed in a common-sense way. It could not possibly, reasonably be understood to mean that simply filing an application five days before the resumed hearing would necessarily lead to a further adjournment. The truth was that no progress had been made on the application for a certificate for inadequacy. In these circumstances I do not consider it is even arguable that the district judge was precluded from proceedings with the matter.
18. I also note in passing that since that date no steps have been taken to expedite the application for a certificate of inadequacy.
19. The second ground relied on by Miss Chidgey, on behalf of Miss Hamed, is that the judge failed to exercise his discretion in a judicial manner, refusing the applicant's application to adjourn the enforcement hearing and issuing a warrant of commitment. In this regard she relies, first, on the existence of the certificate of inadequacy application. I have already dealt with this matter. This seems to me to be simply a way of re-running the submissions in relation to legitimate expectation. Secondly, it is said that he should have granted an adjournment to allow the applicant more time to prepare her case and present further evidence in the light of the evidence given by Andrew Burroughs, given without prior notice to Miss Hamed.
20. It is clear to me that the claimant had had ample opportunity to produce evidence in relation to the ownership of all these properties. That evidence should have been produced on many earlier occasions. It had been the subject of a criminal trial. It had been the subject of confiscation proceedings. It had been the subject of an appeal to the Criminal Division of the Court of Appeal. The Court of Appeal had expressed its conclusions in the most trenchant terms, to which I have already referred. Miss Hamed had had the opportunity to produce the evidence at the enforcement hearings and for the application to the High Court. The district judge had a discretion and clearly exercised it fairly and correctly, in my view.
21. It is said that the absence of a prosecutor and the failure to consider the alternatives to issuing a warrant of commitment mean that the judge failed to exercise his discretion in a judicial manner. It is correct that the prosecution was not legally represented at the hearing on 19 May. However the officer in the case was present. There is no basis for the suggestion that the district judge failed to consider all methods short of issuing a warrant of commitment. On the contrary, he stated in his judgment:

"The purpose of this hearing is to determine whether there is any means to enforce this order other than ordering the default term."

He considered that it was in the interests of justice to hear any evidence which shed light on this issue provided that Miss Hamed had the opportunity to challenge and rebut it. He was satisfied that she had that opportunity. In my view he was clearly entitled to come to that view.

22. So far as the alternatives to issuing a warrant are concerned, Miss Chidgey accepted before us this morning that the only possible alternative to the warrant of commitment being issued on that occasion was to grant an adjournment. Having regard to the extraordinary history of this matter, the district judge was clearly entitled to conclude that there was no sensible alternative to issuing the warrant of commitment.
23. The claimant no longer seeks to argue that the district judge should not have heard the evidence of Mr Burroughs. In those circumstances I am satisfied that this application for permission to apply for judicial review has no real prospect of success. I refuse permission.
24. LORD JUSTICE SULLIVAN: I agree. It seems to me that the claimant's remedy - if she has one at all - is to seek expedition of consideration of her application for a certificate of inadequacy. No sensible explanation has been given as to why that has not been done. If the claimant wishes to pursue the matters alleged in her application for a certificate then, as a matter of urgency, she should ask the Administrative Court to arrange an expedited hearing of her application.
25. That said, there is no arguable basis on which the decision of the district judge can be criticised. It follows therefore that this renewed application for permission to apply for judicial review must be refused.