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
		28 April 2015

1. LORD JUSTICE LAWS: The Crown Prosecution Service seek judicial review with permission granted by Sir Stephen Silber on 23 March 2015 to challenge the refusal by His Honour Judge Waller at the Croydon Crown Court on 27 May 2014 to make a confiscation order against the Interested Party, Angela Ludlow. They also seek to challenge the judge's refusal on 2 September 2014 to state a case for the opinion of the High Court. The confiscation proceedings in the case were governed by the Criminal Justice Act 1988.
2. The Interested Party was convicted of two counts of benefit fraud on 31 October 2013. She was sentenced on 28 November 2013. A confiscation hearing was listed for mention on 17 April 2014 which was, however, Maundy Thursday and thus not a sitting day.

On 28 November 2013, Judge Waller also gave other directions. One was that the prosecutor's statement be served by 13 February 2014. The statutory 6 month time limit, 1988 Act section 72A(3), for completion of the confiscation proceedings was due to expire on 30 April 2014, 6 months from the date of conviction.

Owing to an administrative error, the prosecutor's statement was served late, being received by the Interested Party's solicitors on 24 March 2014. The next day, the solicitors wrote to the court. They sought a revised timetable which culminated a mention in court on 27 May 2014. That proposed timetable would of course take the confiscation proceedings past the 6 month time limit, though no one seems to have that fact in mind or reverted to it at that stage. It appears that His Honour Judge Waller the next day, 26 March 2014, dealt with the solicitor's letter of 25 March administratively and approved the proposed revised timetable.

At length, the matter came before Judge Waller on 27 May 2014. The 6 month time limit of had of course expired. The case had been mentioned to him informally by prosecuting counsel who happened to be appearing in another case on 16 April 2015.

On 27 May 2014, the judge considered that the issue he had to decide was whether to extend the time for determining the confiscation proceedings retrospectively. It affected the instance of the prosecutor. He cited section 72A(3). He referred to the late service of the prosecutor's statement. He considered there were no exceptional circumstances, as the statute would require, to justify an extension of time.

He said, transcript of the ruling, bundle page 53 at letter D:

"There has been, it seems to me, a double failure by the prosecution. First, they were late in serving their response by 5 weeks and 5 days and then they should have realised that the extension which had been made to the timetable was not the same as a formal application for postponement under the Act, which in any event had been made as a result of their delay. As I see it now, I am not able to extend that time. The time has passed. In those circumstances, I refuse to postpone determination."

3. That is of course determination of the confiscation application.
4. The judge's order thus effectively brought the confiscation proceedings to an end. On 2 September 2014, as I have indicated Judge Waller refused to state a case for the opinion of the High Court in relation to his decision.
5. In these proceedings, the CPS seek to establish that although there was then no hearing nor any attention whatever paid to the 6 month time limit, the judge had in fact extended the time for the conduct of the confiscation proceedings by agreeing on 26 March 2014 to the Interested Person's proposed revised timetable. The Interested Person contends that the judge's order on 27 May was lawful and sensible.
6. This court has no jurisdiction in this matter. Section 29(3) of the Senior Courts Act 1981 provides that the High Court only has jurisdiction to issue judicial review in relation to Crown Court orders "in matters relating to trial on indictment." The Crown Court administration of confiscation proceedings clearly relates to trial on indictment.
7. Section 71(1) of the Criminal Justice Act 1988 provided:

"The Crown Court... shall have power, in addition to dealing with an offender in any other way, to make an order under this section requiring him to pay such sum as the court thinks fit."

8. In Faithfull v Ipswich Crown Court [2008] 1 WLR 1636 at paragraph 39 in this court, Richards LJ said:

"Inventive though counsel's arguments are, they cannot get round the jurisdictional bar created by section 29(3) of the Senior Courts Act 1981 in respect of the Crown Court's jurisdiction in relation to matters relating to trial on indictment. Decisions as to confiscation and compensation are decisions about sentence and as such, an integral part of the trial process."

9. Counsel before us today are unhappily entirely unprepared to deal with this jurisdiction point. We are told by Mr Gofur for the Claimant that the section 29(3) issue was raised by Sir Stephen Silber at the permission hearing. No point in relation to jurisdiction was then taken, he tells us, by the Interested Person. Ms Riggs, acting today for the Interested Person and who also acted for her then, says she has no recollection of what transpired.
10. Mr Gofur tells us he wrote to the court office simply asserting that on the facts of this case, there was jurisdiction because the confiscation proceedings did not relate to trial on indictment. However, no argument was advanced to support that proposition.
11. Mr Gofur has applied this morning for an adjournment so that the matter might be considered further. We have indicated that such an application is refused.
12. If there was anything to say about the jurisdiction point, it should have been said clearly by way of a skeleton argument placed before us in the ordinary way. That has not been done.
13. More important, perhaps, it seems to me that Richards LJ's dictum in the Faithfull case was obviously and entirely correct.
14. For all these reasons, I would dismiss this application.
15. MR JUSTICE WILLIAM DAVIS: I agree.
16. LORD JUSTICE LAWS: Thank you very much.