England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		9 March 2011

1. MR JUSTICE OUSELEY: On 12 December 2003, the defendant Mr Grant was convicted at Croydon Crown Court after trial on 8 counts of conspiracy in relation to the importation of cannabis contrary to section 170(2) of the Customs and Excise Management Act 1979. On 6 February 2004 he was sentenced to 8 years' imprisonment.

1. He did not deny his participation in the importation and supply of cannabis. Essentially, he put forward a defence of justification.
2. On 9 February 2004 a confiscation order was made under the Drug Trafficking Act. The benefit from the trafficking was assessed at £85,000. HHJ Pratt was not satisfied that the defendant did not have realisable assets less than that amount; in other words, he was not satisfied that there were no hidden assets, although no assets were identified. £85,000 was required to be paid under the confiscation order by 9 June 2005, with 18 months in default. Nothing was paid.
3. On 6 September 2005 the defendant was required to serve 18 months after the expiry of his 8 year sentence. He was released on 14 September 2009, having served both the 8 year sentence and the 18 month default term. Still nothing was paid towards the confiscation order and, as at 2 June 2010, £118,906.85 including interest remained outstanding. Interest has continued to accrue at £18.63 per day. Nothing has been paid.
4. After the defendant's release further investigations revealed that, contrary to his denial before HHJ Pratt that he had any assets, he might have an interest in 133 Cobden Road, South Norwood, London.
5. On 4 June 2010 a restraint order was made by HHJ Waksman QC sitting as a High Court Judge. There was a penal notice attached. This was personally served on 11 June 2010 on Mr Grant. The restraint order included disclosure obligations. The disclosure was required by a witness statement and by 2 July 2010. It is the contention of the applicant, Her Majesty's Revenue and Customs, that there has been no compliance with the order to provide a witness statement disclosing his assets by 2 July, and no compliance with the continuing obligation to disclose his assets.
6. There are two applications which were brought together as a result of the directions hearing on 4 October 2010 and orders made by Silber J. The first is an application for the appointment of an enforcement receiver in respect of the defendant's interest in 133 Cobden Road. For the purposes of resolving that matter, I have had to decide what beneficial interest, if any, the defendant has in that property and to declare the extent of it. The second application before me is an application for the committal to prison of the defendant for non-compliance with the disclosure obligations in the restraint order.
7. I heard argument yesterday and ruled today on the applicant's claim that the defendant had an interest in 133 Cobden Road to the extent of one third of the beneficial interest. I heard irrelevant evidence from the defendant, to which I shall return. I also heard evidence from Mr Wilson for the applicant, and from Mr Watson and Mr Campbell who were interested parties to the application.
8. Although at this stage Mr Watson had not been cross-examined, but following my expression of a provisional view and their overnight discussion, Her Majesty's Revenue and Customs and Mr Watson, the interested party present today, sensibly reached an agreement that the defendant's interest was, as Mr Watson had asserted, limited to £15,000 and was not the larger interest understandably asserted by the applicant. The defendant was not here, at his choice, and since the declaration of his interest at £15,000 could adversely effect him, since it would leave a larger amount of the confiscation order unsatisfied, I made an order after giving judgment to the effect that his interest was confined to £15,000. I have also ordered the appointment of a receiver to enable his interest to be disposed of and £15,000 to be paid towards the confiscation order. That was an order which Mr Watson agreed with and which Mr Campbell was almost certain to be in agreement with in the light of his evidence.
9. As I said, Mr Grant was present in person yesterday in connection with both matters which had been directed by Silber J to be heard yesterday and today. There is no doubt but that Mr Grant knew that both matters were for hearing, since they were both opened by Mr Jones and, more particularly, because the interested parties had sought an adjournment of the receiver application because they wished for more time to produce documents. Mr Grant, who was present before Silber J and knew of the order, objected to that adjournment. He said:

"I strongly object to any further adjournments because I have had the threat of imprisonment hanging over my head since last October, and furthermore all parties were given the opportunity to make known any dates to avoid. I have been aware of the hearing date since last December and I believe all other parties were also notified. The hearing should go ahead as listed for 8 and 9 March 2011 without any further delays."

That was his letter to the court of 4 March 2011.

10. The defendant produced a witness statement which dealt with what he wanted to say in relation to both the enforcement receiver and the committal for contempt applications. His evidence complains that all his rights have been violated by the entire legal establishment and that he is the victim of the gravest form of perversion of justice imaginable. The media have been involved in this injustice as well.
11. The death in hospital of his son in September 1994, and the particular circumstances of that death and its consequences upon him, have led him to take the worst possible view of the English legal system and the judiciary. His witness statement criticises in the strongest terms Lord Chancellors, ministers, MPs, the police, CPS and judiciary for their attitude towards his cases. He said:

"I submit that no court or tribunal in England and Wales has the jurisdiction to sit in judgment of me or any member of Campaign for Truth and Justice. That no man can be a judge in his own cause precludes the judiciary from presiding over any of the issues mentioned above."

He also claimed, as of right, to seek to:

"Use this forum to lay a counter-claim for the violations of my rights and thus make an unlimited claim for damages and compensation against the Crown Prosecution Service and the state of the United Kingdom for bringing this unlawful claim against me".

12. He has indeed made such points on a number of occasions. He contested his criminal trial on the basis that there was justification in his actions. He repeated his points in his application for leave to appeal against conviction. He was not allowed, as I understood what he told me, to attend the non-counsel renewed application for leave to appeal against conviction. He made a number of points which were rejected by the CACD in [2004] EWCA Crim 2378. His evidence at trial, and I take this from the judgment of the CACD from Elias J, was that he had said that he was chairman of the Campaign for Truth and Justice and he had committed the drug trafficking offences knowing that if he were to be caught he would be able to air his grievance about state and judicial corruption and if he were not caught, on the other hand, then he was generating money to support his campaign.
13. In addition to various criticisms of the summing up, Elias J said:

"It is said that the judge ought to have allowed a defence of justification. This arises from the sad background to this case which is that the applicant lost a child very tragically when the child was 17-months old. He has held the hospital liable for that. He has taken legal proceedings but he has not succeeded and he feels he has been let down by the legal system and by various judges in various ways. He put that forward as a defence for the conduct in which he had engaged. The judge rightly directed the jury that that could not be conceivably be a defence, and that was plainly right".

14. The defendant has pursued that line of argument, unsuccessfully, before both the Criminal Cases Review Commission and the European Court of Human Rights.
15. During the course of the proceedings relating to the appointment of an enforcement receiver, Mr Grant was permitted to give evidence. Despite my endeavours to keep him to answering questions and making statements about whether he did or did not have an interest, and if so of what nature, in 133 Cobden Road, a matter of some considerable concern to the interested parties, he gave no evidence at all on that topic. He continued to contend as he had done in his witness statement. He asked whether the rule of law governed these proceedings, and since it did he regarded himself as entitled to dilate insistently and at length upon the fairness of these proceedings, reiterating volubly his past grievances and his view that the breach of the rule of law, as he saw it, against him in the past meant that he now could not be proceeded against lawfully. He repeatedly refused to deal with his interest in 133 Cobden Road, repeated that the rule of law entitled him to give evidence about the unlawfulness, as he saw it, of his conviction and his appeal and the corruption of the judiciary and his other complaints about the legal establishment, and hence to argue that the confiscation order and all consequent proceedings were all unlawful. These were all irrelevant. He was difficult to stop.
16. After security guards were called, Mr Grant did eventually leave the witness box, despite ignoring several further earlier directions to do so. There were sounds and signs of growing dissent from his supporters in court and some were asked to leave. I rose but, on my return, Mr Grant remained unwilling to listen to what was relevant and continued insistently and without much pause to speak of the injustices being done to him and the hypocrisy of a court to deal with him, although he was quite sure that it would seek to use its powers against him in an unlawful and unjust manner. I told him that he would have to leave court if he could not keep quiet, but I also told him that he should return for 10.30 today. It was envisaged, as happened, that the enforcement receiver proceedings would take up the rest of yesterday.
17. That application then proceeded normally after Mr Grant had left court. It was disposed of by the ruling I gave this morning, in circumstances I have already described.
18. I then turned to the application under the Contempt of Court Act 1981 by the applicant for the committal to prison of Mr Grant. This began at ten past twelve today. Mr Grant was not present. I considered whether or not to adjourn the matter in order that he might be brought to court. I decided not to do so. It is perfectly clear to me from the events of yesterday that the defendant clearly knew of the committal proceedings, the nature of the committal proceedings, the dates at which they would proceed, and that the hearing would be continuing into both applications before me today. I have already referred to the letter of 4 March 2011 which he wrote to the court. In reality he has been aware of these proceedings, as that letter makes clear, since the directions hearing of 4 October 2010.
19. Secondly, these proceedings have been outstanding long enough. The defendant himself was looking forward to the opportunity to make public his allegations again and had previously resisted an adjournment in that letter of 4 March 2011.
20. Third, the defendant has already produced the witness statement and such documents as he wishes to dealing with his response to the application for committal, in which he has made clear his attitude towards the orders and the ability of the court to deal with him. He has been able to put forward what he might wish to say about either compliance with the order, reasons mitigating non-compliance, intentions as to future compliance, and any procedural defects in service of the order or application. His witness statement raised no such points which might require his attendance or factual elaboration. Even had he been legally represented, there is nothing to suggest that he had any factual issues that he wished to raise in contention that were relevant to the committal, as opposed to his irrelevant views about injustices done to him.
21. I suspect that Mr Grant will allege that he was required to leave court and that that meant that he could not return; he will assert hypocrisy on the part of the court and that it could not and should not proceed in his absence. It is very likely if proceeding as I did that he will present it as a further example of judicial corruption, hypocrisy and unlawfulness, just as he did when the Court of Appeal Criminal Division declined his attendance on his renewed application for permission to appeal. But I have equally no doubt that Mr Grant knew full well that the proceedings would continue. In reality, Mr Grant is seeking to take advantage of the disturbing behaviour which he exhibited at court yesterday and of the response to it, which was inevitable if the court was to manage its procedures in such a way as to enable cases to proceed. Mr Grant will be seeking to take advantage of what happened, that is his own disturbance to the court procedures, in order to manufacture an opportunity for the expression of a further grievance. In refusing to adjourn, it is my judgment that the court should set its face against allowing advantage to be taken by this defendant in that way of his own disturbing behaviour.
22. I am satisfied that I have a power to proceed in the absence of the defendant. Although these are contempt proceedings, they are, nonetheless, civil proceedings, the process of which cannot be prevented by the willful absence of a party. In my judgment, that much is clear from the decision in Philimore v Surrey county Council [2010] EWCA Civ 61. Much more uncertain is the question of whether I would have had power to require his attendance through the issue of a bench warrant. There is some authority which suggests that such a power exists (see Zakharov and others v White and others [2003]EWHC 2463 Chancery, per Roderick Evans J) but the tenor of the notes to the White Book support many of the references in the Zakharov decision which suggest that the power of arrest in that way only arises upon committal.
23. It is for the applicant to prove that the defendant has breached the restraint order made by the court on the criminal standard of proof. I am satisfied that the restraint order, with penal notice attached, was made. It contains the following provision at paragraph 9:

"The defendant must serve a witness statement verified by a statement of truth on the prosecutor within 21 days after this order has been served on him, setting out all his assets and all assets under his control, whether inside or outside of England and Wales, and whether in his name and whether solely or jointly owned, giving the value, location and details of all such assets. The witness statement must include.

1) the name and address of all people, including financial institutions, holding any such assets.

2) details of the defendant's current salary or other form of income, identifying the amounts paid, by whom they are paid, and the account or accounts into which the sums are paid.

3) the names and numbers of all accounts held by or under the control of the defendant, together with the name and address of where the account is held and the sums in the account.

4) details (including addresses) of any real property in which the defendant has any interest, including an interest in any of the net sale money if the property were to be sold. These details must include any details of any mortgage or charge on the property.

5) details of all national saving certificates, unit trusts, shares or ventures in any company or corporation, wherever incorporated in the world, owned or controlled by the defendant or which he or she has an interest in.

6) details of all trusts of which the defendant is a beneficiary, including the name and address of the debtor.

7) the details (including recipient and current location) of the £40,000 paid for the transfer of the property (133 Cobden Road) between October and September 2004 from Caul Silford Grant, Desmond Fuller and Hank Michael Phipps to Ben Watson, Mary Watson, Anthony Campbell and Caul Silford Grant.

8) the details (including recipient and current location) of the rental income on the property (133 Cobden Road) between October 2004 up to the present day.

9) a copy of the declaration of trust on transfer of the property (133 Cobden Road) between October and December 2004, and all associated paper work surrounding the declaration which may go to issue of how the beneficial interests in the property are held".

24. The time for compliance was 2 July 2010.
25. I am satisfied from the evidence in the witness statement of Mr Ogunfeni that the restraint order, which was made without notice, was personally served on him on 11 June 2010 at 7.20am. I have seen, as exhibits to that witness statement, the certificate of service in relation to the restraint order, along with the notice of application for appointment of the enforcement receiver. What was served included a covering letter referring to the hearing listed for 4 October 2010. This was the hearing before Silber J at which the defendant, and indeed the two interested parties, were present. There is also an email from Mr Wilson of the HMRC referring to service of Mr Grant at his home on 7.20 on 11 June. It recorded this:

"He was polite but insistent that he did not have any assets. I pointed out to him that the restraint order referred specifically to a property in Cobden Road in South Norwood in which it is believed he may have an interest. Grant relied 'what if I do?'. He said he did not want the papers but they were left inside his front door. I told him that he should read the papers and that contact details were contained within. He said that if I were to come to his door again there could be 'serious consequences'".

26. I am also satisfied that there was no compliance with the requirement that, by 2 July 2010, the witness statement referred to in paragraph 9 be served by Mr Grant. I am satisfied of that, not just because of the evidence of Mr Ogunfeni, but also because of what happened after that time had passed. Mr Ogunfeni deposes to reminder letters that were sent to Mr Grant on 7 and 27 July 2010. The 7 July letter warns that if no statement were received within 7 days the CPS would consider the commencement of contempt of court proceedings without further notice.
27. On 27 July 2010 a further letter was sent requesting compliance with the order, since non-compliance was considered a very serious matter and contempt proceedings would be instigated without further notice after the next 7 days. He was asked to note the penal notice on the front page of the restraint order stating that, if convicted of contempt, he could be imprisoned, fined or have his assets seized. There were two responses. On 28 July 2010 Mr Ogunfeni received a phone call from Mr Grant. Mr Grant identified himself as such. He said he had received the letter of 7 July and was aware of the hearing in October. He said that he was "eagerly awaiting the hearing date and believed that it is too far away". The note continues:

"Mr Grant then said that he wishes to tell us now that neither the court nor this office has any jurisdiction over his assets. Mr Grant further said that he is not moved by threats of contempt of court proceedings and will in fact welcome it if that is the route we chose to go down."

He said no more.

28. Mr Grant then sent a letter of 29 July 2010 to the Proceeds of Crime Unit. He made a number of comments in it of a threatening nature, including saying that some, when pushed beyond their mental control, might commit suicide:

"but before doing so may, in a state of madness, decide to go out in a blaze of glory and take other lives along with their own. In such circumstances, who is the guilty party? The mind pushed out of control or those responsible for the pushing?"

He said all his human rights had been violated and that he could not and would not respect a law which did not respect him. That echoed much of what he was to say to me yesterday.

29. The letter continued, again in the same vein as to that which he told me, that it was:

"Absolute hypocrisy for law breakers to claim the position of law enforcers, and it is a very grave insult to those who have and continue to sacrifice their lives for human rights, liberty and justice".

He felt that he had been unlawfully convicted and imprisoned for 9 and a half years without right of appeal or Habeas Corpus, and was not obliged to, nor legally bound by, any laws within the United Kingdom. He strongly suggested:

"You take your so-called restraint order and your unlawful threat of imprisonment and shove it as far as you care to, or risk an explosion beyond your imagination".

He demanded the protection of the rule of law and asserted his right to use the protection of the rule of law as:

"My defence to any and all actions instigated by the state against me or any other persons involved with the Campaign for Truth and Justice. This right includes my inalienable right to self defence, using whatever force deemed necessary by myself. Please regard this document as my statement of truth and disclosure of my position".

30. The position of Mr Grant, as at the date of that letter, was clear: he regarded himself as having produced a statement of truth and disclosure which was, in reality, no more than a denial of the effect of the restraint order, his obligations under it, and of the rights of the court to pursue the enforcement of this order. It was accompanied by threats. Mr Ogunfeni's evidence also deposes to the fact that there has been no further information by way of disclosure since that letter of 29 July 2010.
31. I am entirely satisfied that Mr Grant has not complied with the plain obligations in the restraint order by 2 July 2010, and has continued to fail to do so up to the relevant date, which is the date of the application, 29 September 2010. As a matter of fact, he has done nothing subsequently to comply with that order.
32. I also bear in mind that Mr Grant's witness statement does not assert any compliance with the restraint order. Instead, it asserts his entitlement not to comply with the obligations. He takes no factual issue as to service, compliance, interpretation, or any aspect other than his contention that there is no obligation on him to comply with the order and a clear intention to continue not to comply with the order.
33. His non-compliance is deliberate and intentional. I find him in contempt of court in respect of both the breaches of the order put forward by the applicant; the breach in respect of the period up to 2 July 2010 and the subsequent continuing breach.
34. I have considered whether, having come to that view, there should be an adjournment so that Mr Grant can address me in relation to sentence. Such a process was adopted in Philimore. The Court of Appeal thought it was appropriate in that case but did not purport to lay down any general requirement that that should be done in cases where committal proceedings proceed in the absence of a defendant. I do not consider that I should adjourn in order to hear representations on sentence. Mr Grant has said what he wishes to say in his witness statement and other documents about what his attitude towards the order is. This is not a case where he puts forward mitigation by way of difficulties with compliance, explanations for delayed compliance, whether personal problems, documentary problems, or by way of legal advice. He has made his position perfectly clear. He knows that he has not complied with the orders and he knows very well that there is at least a real risk that he will go to prison.
35. I have considered what sentence should be imposed. The maximum sentence under section 14 of the Contempt of Court Act 1981 is 2 years, but I can deal with the matter by way of a fine, sequestration, or a sentence which is suspended. I do not consider that a fine would be appropriate here. It simply would not match the gravity of the defiance by Mr Grant of the orders of the court. This is not a case in which a penalty of that sort might serve to remind someone of their obligations, bring about compliance, and adequately reflect the need to punish for disobedience. There are no identified assets which can be sequestered and, in any event, those which could be identified would be applied to the discharge of the confiscation order.
36. It is quite clear to me that the contempt requires a prison sentence, both to punish for the non-compliance and, for what good it may do, to endeavour to secure compliance. It is clear that Mr Grant's defiance of the court has not merely caused the problems which have arisen over the enforcement receiver proceedings, but they have caused difficulties for those caught up with him in the property transaction concerning the 133 Cobden Road, which might have been avoided had he cooperated and recognised his legal obligations. I have considered the general guidance in RSC 52.1.39 as to the level of sentencing. Given that the maximum is 2 years and the higher levels of sentencing have to be reserved for much more serious cases than this, for example where significant criminal conduct has been involved in the breach, for example where money has been dissipated to a high value in breach of the restraint order, this is a case where a short term of imprisonment is appropriate. Nonetheless, a term of imprisonment is appropriate because, in its way, this does have serious elements about it. Not merely is the contempt intentional and deliberate, but it is a deliberate challenge to the powers of the court; a deliberate and continuous defiance of the court, supported by abuse and threats.
37. I recognise that Mr Grant holds what I am prepared to accept are sincere views about the legal system, but they are wholly misguided. In any event, his personal views cannot, in this respect, warrant the way in which he has set his face against complying with the obligations imposed by courts in the way in which he has chosen to do. Accordingly, in respect of the first breach, that is non-compliance with the requirement to produce a witness statement by 2 July 2010, Mr Grant will go to prison for 1 month. In respect of the continuing contempt of court up to the date of the application he will go to prison for 2 months, those periods are to be consecutive. That total of 3 months, in my judgment, would have been an appropriate way to deal with him had I concluded that 3 months on each to run concurrently was appropriate. Mr Grant will be released after serving half of that sentence. That release will be unconditional.
38. Mr Grant may also apply at any time to purge his contempt and seek release. That will be heard by me if at all possible. But if he were to seek to purge his contempt, he would have to comply with the order for disclosure.
39. I bear in mind that Mr Grant is not here. I am prepared, notwithstanding that he is not here at his own choice, to permit him to apply, on notice of 7 days, to have the findings and sentence set aside. I will reconsider the order in the light of any fact or mitigation which he may put forward, but I make it clear that I will not hear him repeating the points that he has made in his witness statement about the injustices which he says he has suffered. Those will not be addressing the issues which arise in this case.
40. Mr Jones, you will now draw up the warrant for committal.

42. MR JONES: My Lord, there is a draft order following the application notice behind tab 4 and just prior to the affidavit of Mr Ogunfeni.

43. MR JUSTICE OUSELEY: Yes.

44. MR JONES: My Lord will see that there are certain dates on the second page of that draft order. It was in fact served with the application for committal on 1 October 2010.

45. MR JUSTICE OUSELEY: Yes. I ought to have added that in in my judgment that he was -- this is in the evidence of Mr Ogunfeni, is it?

46. MR JONES: My Lord, yes.

47. MR JUSTICE OUSELEY: I think it is, yes.

48. MR JONES: No, my Lord, it will not be. Sorry, I apologise. His affidavit is of 29 September 2010. The service forms I have -- my Lord, it may or may not be important given that my Lord has made a finding --

49. MR JUSTICE OUSELEY: Bearing in mind he knows of the proceedings, he clearly had been served personally. You put in the relevant dates, 1 September --

50. MR JONES: 1 October 2010. Here is the notice of service in respect of the application for committal.

51. MR JUSTICE OUSELEY: Yes. I am satisfied that he was served personally. You have an email from him?

52. MR JONES: From Mr Wilson, saying that papers were served on Mr Grant at 9.18 in the custody suite at Plaistow Police Station.

53. MR JUSTICE OUSELEY: That is in the evidence actually, or perhaps it is in your --

54. MR JONES: It may well have been in my submissions, my Lord. I would expect that, given that the service post-dates the application, that the court would not find it --

55. MR JUSTICE OUSELEY: Yes. So, the date is 1 October 2010 to be inserted in the order. I am satisfied he was served.

56. MR JONES: The "upon hearing counsel", my Lord, I can amend --

57. MR JUSTICE OUSELEY: That will need amending, as will the next one.

58. MR JONES: My Lord, yes. The findings of contempt of court being proved there set out in full.

59. MR JUSTICE OUSELEY: And the total period is 3 months. Is it for me to specify the prison?

60. MR JONES: My Lord, I would not have thought so. That will probably be subject to the form of order that the tip staff, or whoever will be executing the order, would -- I am told it is Pentonville.

61. MR JUSTICE OUSELEY: I think it is Pentonville, yes.

62. MR JONES: And, my Lord, the sentence can be broken down in relation to breach 1 of 1 month and breach 2 of 2 months consecutive.

63. My Lord, in terms of inserting the liberty to apply provision, I can do that. Again, I can do all of this in handwriting now if the court would prefer, or would prefer --

64. MR JUSTICE OUSELEY: No, I would prefer you do it in type written form for this one, there is no question of another party needing to be shown it.

65. MR JONES: My Lord.

66. MR JUSTICE OUSELEY: And you ask for your costs do you?

67. MR JONES: My Lord, for what it is worth.

68. MR JUSTICE OUSELEY: For what it is worth then I will make that order and you will insert the liberty. Then if you can pass that through to the associate, she can pass that up to me and I can approve it.

69. MR JONES: My Lord.

70. MR JUSTICE OUSELEY: Thank you, Mr Jones.

71. MR JONES: Thank you, my Lord.