England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/03/2010

Mr Justice Blair :

1. This is an appeal by the Revenue and Customs Prosecution Office by way of case stated from a decision of the Westminster Magistrates' Court of 21 July 2009. The issue, in short, is whether under the applicable legislation, the Magistrates' Court has power to postpone the issue of a warrant of commitment in respect of a confiscation order made by the Crown Court until after the expiry of a term of imprisonment imposed for an offence other than in relation to which the confiscation order was imposed. Under the statutory scheme, a term of imprisonment in default of payment imposed by the Crown Court is enforced in the Magistrates' Court as if it were a fine. The issue of a warrant of commitment by the Magistrates' Court is necessary to bring the default term into effect. It is the Magistrates' Court, not the Crown Court, that issues the warrant.
2. The facts are helpfully set out by the District Judge in the case stated dated 27 August 2009. Further details appear in the judgment of Cranston J in a related issue about representation orders decided by the Divisional Court last year (Taylor v. City of Westminster Magistrates' Court [2009] EWHC 1498 (Admin)). In 1995, the respondent, Mr George Taylor, was convicted in Snaresbrook Crown Court of a drug trafficking offence that had taken place in 1991. He was sentenced to 9 years imprisonment, reduced on appeal to 7 years. A confiscation order was made in the sum of £633,530.45, with a period of 5 years imprisonment in default of payment. This was reduced on appeal to 4 years. The Crown Court gave Mr Taylor one year in which to make payment (this was later varied). It is right to say that following his release, he made substantial payments.
3. However in 2005, he was convicted of a further drug trafficking offence, and sentenced to 20 years imprisonment. Further confiscation proceedings followed, but on this occasion, I am told that it was found that he had no assets with which to make payment. Mr Taylor's earliest release date from this further term of imprisonment is 2013. It appears that his lawyers were concerned to have the default period of imprisonment in respect of the first offence brought into effect and completed prior to his release from the second sentence. The Revenue and Customs Prosecution Office was not content with that course, but were conscious of the fact that delay in committing him to prison in respect of default of payment might constitute a breach of Mr Taylor's Article 6 ECHR rights (see R (Lloyd) The Bow Street Magistrate's Court [2004] 1 Cr App R 11). Accordingly, on 31 July 2009 it applied for the issue of a warrant of commitment, but with the default period postponed until 2013 pursuant to the powers contained in s. 77(2) Magistrates' Courts Act 1980.
4. I should make it clear that the merits of this application are strongly disputed and have yet to be resolved. Nothing in this judgment deals with the substance of the application in any way. However, the learned District Judge refused the application on jurisdictional grounds. She held that in view of s.6 Drug Trafficking Offences Act 1986, there was no power to postpone the issue of a warrant to take effect at the end of a period of imprisonment imposed for a separate and different offence.
5. On 27 August 2009, at the request of the Revenue and Customs Prosecution Office, she stated a case for the opinion of the High Court as follows:

"Whether I had power under s.77(2) of the Magistrate's Courts Act 1980 to postpone the issue of a warrant of commitment in respect of the default term of imprisonment imposed by the Crown Court when making a confiscation order under the provisions of Drug Trafficking Act 1986 until after the expiry of the custodial part of the defendant's current sentence (not being the sentence in respect of which the confiscation order was made)."

This is the question which I have had to decide at this hearing.

The applicable legislation

6. The statutory provisions have changed since the material time, though in most respects the approach under the current legislation remains the same. The court must first determine whether the defendant has benefited from drug trafficking, and if he has, must order him to pay the amount in question (s.1 Drug Trafficking Offences Act 1986 ("DTOA")). The amount to be recovered under the confiscation order is the realisable amount, which is assessed by reference to the defendant's realisable property (s.4 DTOA 1986).
7. Section 6 DTOA 1986 deals with enforcement procedure. It provides that where the Crown Court has ordered the defendant to pay any amount by way of confiscation order, the Powers of Criminal Courts Act 1973 (which deals with the enforcement of Crown Court fines) shall have effect as if the amount were a fine imposed by the Crown Court. The 1973 provisions have since been repealed and replaced by similar provisions in ss.139-142 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act"), which was a consolidating statute.
8. As noted, by s.6 DTOA 1986 a confiscation order is treated as having effect as if it were a fine. The powers and duties of the Crown Court in relation to fines (and hence confiscations orders) are set out in s.139(1) and (2) of the 2000 Act as follows:

(1) … if the Crown Court imposes a fine on any person …, the court may make an order—

(a) allowing time for the payment of the amount of the fine …;

(b) directing payment of that amount by instalments of such amounts and on such dates as may be specified in the order;

(c) ….

(2) … if the Crown Court imposes a fine on any person … the court shall make an order fixing a term of imprisonment or of detention under section 108 above (detention of persons aged 18 to 20 for default) which he is to undergo if any sum which he is liable to pay is not duly paid or recovered.

9. Section 139(4) of the 2000 Act goes on to set out the maximum periods of imprisonment for default under subsection (2). These are calculated according to the realisable amount in question. For present purposes, the maximum terms are the same as those set out in s.6 DTOA 1986. In the event that a default term is to be brought into effect, it is for the Magistrates' Court to issue a warrant of commitment. Section 76(1) of the Magistrates' Court Act 1980 provides that "…where default is made in paying a sum adjudged to be paid by a conviction or order of a magistrates' court, the court may issue a warrant of distress for the purposes of levying the sum or issue a warrant committing the defaulter to prison".
10. For the purposes of this appeal, the crucial question is as to powers of postponement in this regard. Section 77(2) Magistrates' Court Act 1980 is the relevant provision. It provides that:

(2) Where a magistrates' court has power to issue a warrant of commitment under this Part of this Act, it may, if it thinks it expedient to do so, fix a term of imprisonment [or detention under section 108 of the Powers of Criminal Courts (Sentencing) Act 2000 (detention of persons aged 18 to 20 for default)] and postpone the issue of the warrant until such time and on such conditions, if any, as the court thinks just.

11. I must now set out the other crucial statutory provisions, namely those in s.6(2) DTOA 1986, which the District Judge considered were conclusive of the question in this case.

(2) Where—

(a) a warrant of commitment is issued for a default in payment of an amount ordered to be paid under section 1 of this Act in respect of an offence or offences, and

(b) at the time the warrant is issued, the defendant is liable to serve a term of custody in respect of the offence or offences,

The term of imprisonment … to be served in default of payment of the amount shall not begin to run until after the term mentioned in paragraph (b) above.

(3) The reference in subsection (2) above to the term of custody which the defendant is liable to serve in respect of the offence or offences is a reference to the term of imprisonment … which he is liable to serve in respect of the offence or offences;

There is no doubt that this has the effect that the default term of imprisonment runs consecutively to the term imposed for the offence in respect of which the confiscation order was made. The question on the appeal is whether the effect of the provision is to preclude exercise of a power of postponement so that the term comes into effect consecutively to a term being served in relation to a different offence.

The appellant's submissions

12. It is submitted by Mr Jonathan Hall on behalf of the RCPO that the District Judge had power to postpone the issue of the warrant of commitment until the conclusion of Mr Taylor's second sentence of imprisonment because the plain and ordinary meaning of the words in s. 77(2) Magistrates' Court Act 1980 ("postpone the issue of the warrant until such time and on such conditions, if any, as the court thinks just") is to confer a power on the Magistrates' Court, enabling the court to postpone the issue of the warrant until either a specified date, or until a condition (such as the expiry of the custodial term of another sentence) has been met. There is nothing, it is submitted, in s.77 itself, or in the rest of the 1980 Act, which limits this power expressly or by necessary implication where the offender is serving a second sentence, and the discretion is broad and prima facia unfettered. The District Judge, it is submitted, confused the plain effect of s.77—which governs the power of the Magistrates' Court to issue warrants of commitment—with an unrelated provision in s. 6(2) DTOA 1986 which governs the effect of a warrant of commitment once it is issued. In other words, s.6 ensures that if a Magistrates' Court does in fact issue a warrant, it can not have effect until after the sentence in respect of which the confiscation order was made has been served. It says nothing about the power of the Magistrates' Court to issue a warrant in the first place. There is nothing in s.6 which by express or necessary implication limits the power of the court under s.77 of the 1980 Act.

The respondent's submissions

13. It is submitted by Mr Charles Burton on behalf of Mr Taylor that the power of the Magistrates to postpone the issue of a warrant of commitment under s.77(2) Magistrates' Court Act 1980 is dependent on, and arises from, the Magistrates' power to fix a term of imprisonment in default of payment. That, he submits, follows from the language of the subsection ("it may, if it thinks it expedient to do so, fix a term of imprisonment … and postpone the issue of the warrant until such time and on such conditions, if any, as the court thinks just"). Consequently, where the term of imprisonment has already been fixed by the Crown Court, s.77(2) has no scope in which to operate. In this regard he refers to R v Hastings & Rother Justices ex parte Anscombe (1988) JP 340. The question in that case was different, namely whether in enforcement proceedings Justices were under a duty to hold a means enquiry, but at page 350D, Schiemann LJ, having cited the relevant provisions, states that: "It follows that the magistrates' court should approach the enforcement as if they had fixed a term of imprisonment in default just as the Crown Court had done and as if they had postponed the issue of the warrant for the period of time that the Crown Court has set for the payment of the confiscation order". Although Mr Burton accepts that the term "postponed" is not necessarily used here in the same sense as in s. 77(2), he submits that this passage nevertheless suggests that he is right to contend that there is no power of postponement where (as will often be the case and was the case here) the Crown Court has already fixed the term of imprisonment and given time to pay.
14. Where the default term has been fixed by the Crown Court, it is submitted, the power to postpone the issue of a warrant of commitment to run consecutively to a term of imprisonment for these purposes is to be found only in s.6 DTOA 1986. It is there limited to the original offence which gave rise to the confiscation order. There is no provision allowing for the issue of a warrant of commitment to be postponed until after the term of imprisonment expires in relation to a different offence. Had Parliament intended that the default sentence could be ordered to be served at the conclusion of a sentence for a different offence, Mr Burton submits, express provision could accordingly have been made, and it was not. To postpone the issue of a warrant would amount to an extension of the period of payment ordered by the Crown Court, whereas the Magistrates' Court has no power to alter or vary the terms of the order (Zykin v Crown Prosecution Service [2009] EWHC 1469 (Admin)).

Discussion and conclusions

15. The statutory framework is to the following effect (I am indebted to Mr Hall for this summary). When a Crown Court imposes a confiscation order upon a convicted defendant, it sets a default term, and gives time to pay. If the defendant does not satisfy the confiscation order in full (plus any accrued interest), the confiscation order is enforced by the Magistrates' Court as if the confiscation order were a fine imposed by the Crown Court. Accordingly, the Magistrates' Court has available to it the powers found in the Magistrates' Courts Act 1980 in respect of unpaid fines, i.e. a warrant of commitment under s. 76, and a variety of lesser measures (namely, a warrant of distress under s. 76, an application to the High Court or County Court for enforcement under s. 87, an order under s. 88 (supervision pending payment), an attachment of earnings order (under the Attachment of Earnings Act 1971), and an attendance centre order (if the offender is under 25, under s. 17 of the Criminal Justice Act 1982)). The service of the default term in the present case would (and here the unamended DTOA 1986 differs from later confiscation regimes) relieve the respondent of the obligation of satisfying the confiscation order. Subject to any rule to the contrary, a sentence of default may, like any term of imprisonment, be served concurrently with another term of imprisonment, or consecutively to it.
16. With those matters in mind, I come to consider the respective arguments of the parties. The points of importance seem to me to be as follows:

(1) Section 77(2) Magistrates' Court Act 1980 does not in terms limit the Magistrates' power to postpone the issue of a warrant of commitment by reference to the expiry of the sentence for the offence in respect of which the confiscation order was made. If there is such a restriction, it must be found in some other enactment.

(2) Section 6 DTOA 1986 relied upon by the respondent in this respect is not apt to impose such a limitation. The effect of the section (in the present context) is that where a warrant of commitment is issued for default in payment of a confiscation order, the default term does not begin to run until after the expiry of the term of custody imposed in respect of the offence giving rise to the confiscation order. This avoids the default term in respect of the confiscation order being rendered futile by being served out concurrently with the sentence for the index offence.

(3) Section 6 DTOA 1986 governs the situation after the issue of a warrant of commitment. It is not concerned with the power to issue the warrant in the first place.

(4) In that regard, the dicta in R v. Hastings & Rother Justices ex parte Anscombe (1988) JP 340 at page 350D do not assist the respondent. At page 551D, Schiemann LJ says that in that case, which followed upon a confiscation order made by the Crown Court, the Magistrates "could have investigated other possible sources of funds in [the defendant's] control from which the order sum could have been satisfied and have postponed the issue of the process in order to enable this to be done". The case indicates 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" (R (on the application of Rustim Necip) v. City of London Magistrates' Court [2009] EWHC 755 (Admin), at [10], per Richards LJ).

(5) Section 77(2) should not therefore be read so that the power to postpone the issue of the warrant of commitment only arises where the Magistrates' Court has fixed the term of imprisonment.

(6) Contrary to the respondent's contention that postponement would amount to a variation of the Crown Court's order, "the provisions of section 76 and section 77 [Magistrates' Court Act 1980] may readily be deployed in the magistrates' court for the purpose of enforcing a Crown Court confiscation order without in the least trammelling over the terms of that order itself, and it seems to me plain that that was the legislative intention" (Crown Prosecution Service v. Lee Greenacre [2007] EWHC 1193 (Admin) at [16] per Laws LJ).

(7) The situation that may arise where, subsequent to the imposition of a confiscation order, a defendant is sentenced to a term of imprisonment for a different offence, is not resolved by the adjournment of the application for issue of the warrant until some future time, since delay in enforcement may infringe the defendant's Article 6 rights (R (Lloyd) The Bow Street Magistrate's Court [2004] 1 Cr App R 11). There may accordingly be circumstances in which the Magistrates might properly consider a postponement under their s. 77(2) powers.

17. With the benefit of authority not cited to the District Judge, I have concluded that the question posed in the case stated should be answered affirmatively. The District Judge had power under s. 77(2) Magistrates' Courts Act 1980 to postpone the issue of a warrant of commitment in respect of a default term of imprisonment imposed by the Crown Court when making a confiscation order under the provisions of the Drug Trafficking Offences Act 1986 until after the expiry of the custodial part of the defendant's current sentence (not being the sentence in respect of which the confiscation order was made). The appeal is therefore allowed. I repeat that nothing in this decision affects in any way the question whether in Mr Taylor's case the warrant of commitment should be postponed in accordance with the application made by the Revenue and Customs Prosecution Office. That is entirely a matter for the court hearing the application. This decision is solely concerned with the jurisdictional question.