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
		14 October 2015

1. MR JUSTICE HICKINBOTTOM:
2. Introduction
3. The Claimant Mrs Gladys Popoola challenges the decision of District Judge Roscoe sitting in Westminster Magistrates' Court, made with her consent on 2 December 2014, to commit her to prison for 1278 days in default of satisfying a confiscation order made against her under the provisions of Part 2 of the Proceeds of Crime Act 2002 ("POCA") in Southwark Crown Court on 3 May 2013, in the sum of £304,079.66 plus interest. Under the order, the sum was to be paid by 3 November 2013, later extended by a further consent order to 3 May 2014.
4. Statutory references in this judgment are to POCA, unless otherwise indicated.
5. The Confiscation Scheme
6. I can deal with the relevant provisions of the POCA confiscation scheme fairly shortly.
7. The purpose of the scheme is to deprive an offender of the fruits of crime. Under the scheme, the Crown Court is required to assess the offender's benefit from the relevant criminal conduct (section 8), and then the amount the offender has available to meet a confiscation order, (sections 9-10), an order being made in the lesser of the two figures. In assessing the available amount, the value of an asset in which the offender holds an interest is the market value of the asset excluding any third party interest (section 79(3)). An offender may be given time to pay, which must not exceed six months, capable of extension in "exceptional circumstances" (section 11).
8. Once a confiscation order has been made, it is open to the subject of the order to apply to the Crown Court to reconsider the available amount from which the order is to be satisfied (section 22); or to apply to vary or discharge the order on the basis of inadequacy of the available amount (sections 23-24).
9. Where an order is not met by the time the assessed sum is required to be paid, it is treated as a fine for the purposes of enforcement, being enforced as such through the magistrates' court (section 35, which also incorporates by reference the provisions of sections 139-140 of the Powers of Criminal Courts (Sentencing) Act 2000)). Committal to prison is thus available in default of payment, as it is for a fine defaulter. Under the statutory provisions, a period of imprisonment has to be fixed in default of payment, with the maximum period for an amount between £100,000 to £250,000 being three years, and between £250,000 and £1000,000 being five years.
10. However, by virtue of Section 82 of the Magistrates' Courts Act 1980, committal shall not be ordered unless the court (i) is satisfied that the default is due to the offender's wilful refusal or culpable neglect, and (ii) "has considered or tried all other methods of enforcing payment of the sum and it appears to the court that they are inappropriate or unsuccessful".
11. When the magistrates' court is enforcing a confiscation order, it is not concerned with the realisable amount or the amount of the sum payable under the order. If that is an issue, then it is for the offender to apply to the Crown Court for a variation or discharge of the order.
12. Where an offender is committed to prison under these provisions, and then makes a payment of or towards the sum due under the confiscation order, section 79 of the Magistrates' Courts Act 1980 applies (see section 140(3)(b) of POCA). Section 79(2) makes provision for where a part-payment is made, but the whole sum due has not been paid, as follows:

"(2) Where, after a period of imprisonment or other detention has been imposed on any person in default of payment of any sum adjudged to be paid by the conviction or order of a magistrates' court or for want of sufficient distress to satisfy such a sum, payment is made in accordance with rules of court of part of the sum, the period of detention shall be reduced by such number of days as bears to the total number of days in that period less one day the same proportion as the amount so paid bears to so much of the said sum, and the costs and charges of any distress levied to satisfy that sum, as was due at the time the period of detention was imposed."

There are other means of enforcement of an unmet confiscation order, for example (i) by section 87(1) the Magistrates' Courts Act 1980, a fine (and thus a sum due under a confiscation order) is deemed the equivalent of a civil judgment debt and so can be enforced by any means available in respect of such debts; and (ii) under section 50 of POCA, the prosecutor may apply to the Crown Court for the appointment of an enforcement receiver in respect of realisable property, and the court may confer on any receiver appointed various powers including the power to realise the property in such manner as the court may specify.

13. Finally, so far as the statutory scheme is concerned, at an early stage of criminal proceedings the Crown Court has power to make a restraint order prohibiting any specified person from dealing with identified realisable property held by him (section 41), which can be varied on application to the Crown Court (section 42).
14. Internal CPS guidance to which we have been referred, which is intended to supplement the statutory scheme, indicates that the prosecutor should take primary responsibility for enforcement where there is a restraint order, or where there are real property assets or assets outside the jurisdiction. In these circumstances, it is said, the prosecutor should consider making an application for the appointment of a receiver.
15. The Factual Background
16. The Claimant was arrested and charged with various offences of fraud on 29 September 2011.
17. On 2 December 2011, His Honour Judge Anderson QC made a restraint order, prohibiting the sale of various properties apparently owned by the Claimant, including 100A Earlham Grove, Forest Gate, London E7 ("Earlham Grove") and 76 Galsworthy Road, London NW2 ("Galsworthy Road"). On 29 December 2011, to reflect that order, a restriction was placed on the Land Register in respect of each of those two properties.
18. On 13 February 2012, the Claimant pleaded guilty to nine counts of dishonestly making a false representation for benefits' purpose, contrary to section 111A(1)(a) of the Social Security Benefits and Administration Act 1992; two counts of obtaining money transfers by deception, contrary to Section 15(A) of the Theft Act 1968; and one count of failing to disclose information where there was a legal duty to do so, contrary to section 3 of the Fraud Act 2006. On 16 March 2012, she was sentenced to an aggregate of two years' imprisonment, and a timetable was set for confiscation proceedings under POCA.
19. On 29 June 2012, a prosecutor's confiscation statement was served under section 16; and a response statement was served by the Claimant, by then legally represented, on 8 February 2013. That document indicated that the Claimant owned both Earlham Grove and Galsworthy Road, but there was an outstanding mortgage on each so that, although the value of the properties was £185,075 and £262,718 respectively, the value of them as realisable assets in her hands was only £78,339 and £162,709. The document made no reference to third party interests in either of those properties; but it did indicate that the Claimant's son, Nicholas Nga Nga, had a half-interest in "a variety of [her] assets" by virtue of the Claimant's father's will, although it did not specify which assets were involved and gave no further particulars.
20. At the confiscation hearing on 3 May 2013, the Claimant consented to a confiscation order requiring her to pay £304,079.68 within six months. In accordance with section 79 of POCA, this sum was calculated on the basis of the value of the Claimant's interest in Earlham Grove and Galsworthy Road – as it happened, as set out in her own statement – but, in addition, (i) the value of a half-interest in a further property at 94 Narford Road, London E8 ("Narford Road"), in which she had in her written response denied any interest saying the property entirely belonged to her former partner, John Ndirangu (£29,497); (ii) four properties in Kenya (£31,676); (iii) stocks and shares (£520); and (iv) monies held in various bank accounts (the small balance).
21. On 12 November 2013, the confiscation order was varied, by consent, to give the Claimant to 3 May 2014 to pay.
22. An offer of £160,000 for Earlham Grove was received in October 2013; but this was below the CPS valuation of it of approximately £200,000. However, by December 2013 an offer of £210,000 had been received – acceptable to the CPS – and, on 13 December 2013, the CPS sent a draft consent order to the Claimant's solicitors to vary the restraint order to remove Earlham Grove from it to allow the sale to proceed. Some amendments were sought, and agreed by the CPS. A further draft consent order was drafted and apparently signed by both parties but not, it appears, ever sent by the Claimant's solicitors to the court for sealing.
23. The mortgagees of Earlham Grove, NatWest Bank, began possession of proceedings for non-payment, and they obtained an order for possession by 19 September 2014. An eviction appointment was arranged for 3 November 2014.
24. In the meantime, to add to the Claimant's burdens, a hearing at Westminster Magistrates' Court was listed for 5 August 2014 for enforcement of the confiscation order. By this time:

(i) 25. the extended time for payment had passed;

(ii) 26. the only sums that had been paid towards the sum due were small monthly sums – we now understand in the region of £15 per month – paid out of the Claimant's benefits;

(iii) 27. a higher offer of £236,000 for Earlham Grove had been received; and

(iv) 28. the Claimant's son was asserting a 50 per cent interest in Earlham Grove on the basis I have described.

25. At the 5 August 2014 hearing, Mr Nga Nga appeared by way of counsel, Miss Starr. The Claimant was also represented by counsel, Miss Begum. Miss Starr's attendance note is fortunately available. That records that Miss Begum indicated to the court that an application was going to be made to the Crown Court to vary the confiscation order downwards in amount to reflect a reduction in the assets available to the Claimant as a result of the interests of third parties in those assets – namely Mr Nga Nga's 50 per cent interest in Earlham Grove and Galsworthy Road, and Mr Ndirangu's 100 per cent interest in Narford Road. The note records that the District Judge was apparently sceptical of the late third party claims; but he agreed to adjourn the matter to 7 October 2014, to "enable third party claims to be sorted out (by the Crown Courts) and to allow for the sale of Earlham Grove". The judge warned the Claimant of the prospect, and possible consequences, of default.
26. At the time of the August hearing, the restraint variation required to release the property for sale, although apparently agreed, had not been put into the form of a formal order. However, on 6 August 2014, the CPS had sent to the Claimant's solicitors an undertaking to remove the Land Registry restriction on the property once the net proceeds of sale had been received.
27. Between the August and October 2014 confiscation hearings – as I understand it, towards the end of September - the Claimant instructed new solicitors; and we are told that the earlier solicitors were uncooperative about handing over the file. The precise reasons for that reluctance remain a mystery.
28. Miss Lambert of counsel appeared for Mr Nga Nga at the October 2014 hearing; and, again fortunately, we have her note of that hearing. The District Judge was told by Miss Lambert that the Claimant was selling her houses. The judge allowed a further two-month adjournment "for progress" to be made, and he set out the progress that he envisaged would be made, namely:

(i) 33. for the sale of Earlham Grove to be concluded, and any application to the CPS and/or DWP to be made for the money to be held by solicitors pending resolution of third party claims, rather than to be paid over to the CPS in part-satisfaction of the sum due under the confiscation order. I pause there to note that the CPS had already provided a consent to release Earlham Grove from the restraint order; and had already provided an undertaken to remove the restriction on the Land Registry, but only upon payment to them (the CPS) of the net proceeds of sale as a payment towards the sum due under the confiscation order;

(ii) 34. for the Claimant to be advised upon any appeal of or variation to the confiscation order and "that appeal/application to be made" presumably, if advised to make an application or bring an appeal, by the time of the December 2014 hearing; and

(iii) 35. for the Claimant to provide an update of the value and status of all her assets.

29. We know from a document prepared by those instructed by Mr Nga Nga for the December 2014 hearing that he believed that his mother (the Claimant) was by then "seeking a variation of the confiscation order" to reflect his interest in the properties.
30. By the 2 December 2014 hearing before District Judge Roscoe, Mr Lanlehin was advising and appearing for the Claimant; and we have his note of that hearing. He made submissions on the difficulties that the Claimant had had in selling her properties, including the difficulties arising from the third party interests. At that time, still no application had been made to appeal or vary the confiscation order - although it seems an application for legal aid may have been made to assist her to do so. The CPS pointed out that the confiscation order had initially been made by consent, and submitted that there was no evidence that the Claimant had made any significant steps to pay the sum due under the order. There was no evidence that the Galsworthy Road or Narford Road properties had even been marketed.
31. The case was initially put back by the District Judge in the list for further enquiries, and then submissions, to be made. Those submissions were made later that same day. Mr Lanlehin for the Claimant made clear that he considered the CPS had contributed to the delay by refusing to lift the restriction on Earlham Grove; but he said that that property was now on the point of sale. In consenting to the confiscation order, the Claimant (he said) had not taken into account third party interests, as she should have done: she had been advised that they would be taken into account at the time of enforcement (which, it appears to me, would suggest that she did not envisage paying the sum due without enforcement proceedings being taken). She had faced considerable difficulties in advancing an application to vary and/or appeal that order. In all the circumstances, he submitted that the matter should be further adjourned to enable her "to deal with these important issues". In support of that application to adjourn, he produced various documents including documents from Foxtons (an estate agent which was marketing Earlham Grove) and documents in relation to the difficulties that had been encountered in selling the Kenya properties for an amount that would leave the Claimant with some value. Furthermore, Mr Lanlehin reminded the court that the Claimant had for a year been paying small amounts towards the order out of her benefits, and that she had a disabled child for whom she was the sole carer.
32. We have more than one note of the District Judge's ruling; but each version indicates that she appears largely unimpressed by these submissions. At paragraph 20 of his statement dated 28 August 2015 made for these proceedings, Mr Lanlehin sets out a note of the ruling which (as I understand it) he drafted, as follows:

"The order was made in May 2013. We are still waiting in December 2014. I do not accept the argument about any wrong advice given to Ms Popoola in the Crown Court. The enforcement stage was not the place for competing interests on the confiscated property to be canvassed. That would be done - or should have been done - in the Crown Court. The interests of third parties could have been raised in the Crown Court, but were not. In any event the judge at the Crown Court would have seen what properties were held in joint names. Nothing had been done since the order was made. It was ordered to be paid by May 2014. Nothing has been paid. Ms Popoola has not co-operated. She is delaying. The only way to enforce the order is to activate the default sentence."

33. In the result, the Claimant was therefore committed to prison; and has been in prison since that date.
34. The sale of Earlham Grove was in fact completed on 19 December 2014, the Claimant's son having waived any third party interest in the property that he may have had, very shortly after the 2 December 2014 hearing. The net sale proceeds were £111,133.30, substantially more than the expected realisable value at the time of the confiscation order. That sum has gone towards the confiscation order debt, together with (i) the small regular sums from the Claimant's benefits to which I have already referred; and (ii) a payment of £1,400 from sales of the Kenya properties which, as I understand it, were completed and the sum paid to the CPS at the end of 2014. A total of approximately £113,000 has therefore been paid, almost all of which was paid after the 2 December 2014 hearing.
35. As I understand it, by virtue of the effect of section 79 of the Magistrates' Courts Act 1980 as applied to the payments made to the CPS in respect of Earlham Grove and the small amounts paid from benefits - but not the payment made in respect of the Kenya properties - the Claimant's release date, which would ordinarily be at the halfway point of the full term, is now January 2016. Consequently, she has about three months of the committal sentence to serve. Service of that term does not, of course, affect her liability for the balance of the compensation order sum, which will remain recoverable as a fine and as a debt.
36. This claim was lodged on 27 February 2015. It sought to challenge the decision of the District Judge to commit the Claimant to prison on 2 December 2014, rather than adjourn the matter again to give her further time to apply for a variation of the confiscation order and/or appeal that order, and sell her properties notably Earlham Grove.
37. The matter was put before Haddon-Cave J that day. He refused permission to proceed on the papers. That application was renewed; and, on 31 March 2015, MacGowan J refused interim relief in the form of release of the Claimant pending determination of this claim.
38. At the renewal hearing on 3 July 2015, Mitting J granted permission on restricted grounds. These can conveniently be summarised under the following three headings:
39. (i) The District Judge erred in failing to consider alternative methods of enforcement of the confiscation order, notably the appointment of a receiver (Ground 1).
40. (ii) For the Crown to seek committal for default in payment when the Crown themselves were in effect preventing her from selling Earlham Grove by failing to give required undertakings was "unconscionable, manifestly unfair and Wednesbury unreasonable" (Ground 2).
41. (iii) The District Judge refused to consider relevant evidence, particularly emails concerning the sale of the Earlham Grove property, the sale of the properties in Kenya, and the difficulties the Claimant had had in obtaining the file from her former solicitors, such that the Claimant did not get a fair hearing. In all of the circumstances, it is submitted that the decision not to adjourn was Wednesbury unreasonable (Ground 3)
42. I shall deal with those grounds in turn.

Ground 1: Alternative Means of Enforcement

43. As his first ground, Mr Cleeve submits that the District Judge erred in not even considering (let alone attempting) other methods of enforcement of the confiscation order before committing the Claimant, as she was bound to do under the provisions of section 82 of the Magistrates' Courts Act 1980.
44. He does not make an overt challenge to the District Judge's conclusion that the first limb of the statutory test under section 82 (i.e. the default was due to the Claimant's lawful refusal or corporate neglect) was met; although a challenge in respect of the circumstances of this case meeting that limb is effectively made under the other grounds with which I will deal in due course. In respect of the second limb of section 82, Mr Cleeve accepts - in my view, rightly – that, leaving aside the appointment of a receiver under section 50 of POCA, no other forms of enforcement were arguably appropriate as at 2 December 2014. However, he submits that the judge erred in not considering enforcement by way of the appointment of such a receiver.
45. It is true that there is no reference in any of the notes of the December 2014 hearing - or, indeed, in the notes of any of the earlier enforcement hearings - to the possibility of the appointment of a receiver in respect of any of these properties. No doubt one reason for that is because it was never suggested by the Claimant, or those representing her from time-to-time, that such an appointment might have been appropriate. Mr Lanlehin has, as I have indicated, produced a statement for this claim; but he does not suggest any reason why he did not raise it if, in his view, it may have been appropriate. Whilst a receiver can only be appointed by the court on the application of the prosecutor – and, therefore, under the statutory scheme as reflected in the guidance to which I have referred, the primary responsibility for considering whether a receiver is appropriate falls upon the prosecutor - of course, as Mr Cleeve readily accepted during the course of debate, it is always open to an offender faced with committal to prison in default of complying with a confiscation order to make submissions that there are appropriate alternative methods of enforcement; just as he is able to make submissions that he has taken reasonable steps to pay and is not in wilful default, which is another matter which the court is required by the statute to consider. In my respectful view, it does not lie well in the mouth of an offender who is in default of a confiscation order entered into by consent, and who, despite being legally represented by able counsel and having every opportunity to make such submissions, has not even suggested that the appointment of a receiver would or might be an appropriate means of enforcement, then to complain that the District Judge did not consider the appropriateness of appointing a receiver.
46. Indeed, in my view, in a case such as this, there may be very good reasons why an offender would not wish to have such an order imposed. A receiver would of course be entitled to remuneration and expenses, which might be substantial, thus reducing the net proceeds of sale that are available to reduce the sum due under the confiscation order. Once a receiver has been appointed, the sales are taken out of the hands of the offender, who may consider that he or she will be able to obtain a better price than a receiver.
47. Furthermore, although the appointment of a receiver might be appropriate where there are third party interests claimed, in a case such as this where the Claimant is clearly on good terms with those who are making such claims, there are obvious alternative means of reflecting those interests, for example by returning to the Crown Court and seeking a variation of the confiscation order. No such application had been made by the 2 December hearing, and no such application has even yet been made in this case despite the Claimant having many months so to do. The Claimant during the course of the enforcement proceedings repeatedly indicated that it was her intention to apply to vary or appeal the order, and was repeatedly given time by the court to do so.
48. It is now said that, from at least the end of September 2014, one reason for the delay in making an application or appeal was that the Claimant's former solicitors failed to release the file promptly. However, in my view, if the Claimant had been minded to do so, she could have easily made an application to the Crown Court without the file. Such an application would require a copy of the order and schedule of properties, and no doubt some evidence in relation to the third party's alleged interests; but that could have been put together without the file being available. Once the matter was in the Crown Court, as my Lord, Burnett LJ, indicated during the course of debate, the Crown Court has powers to ensure that documents are made available in the event of any difficulties.
49. Mr Cleeve submitted that what has occurred in this case is unfair to the Claimant, because she may now serve the default term and, having served it, an enforcement receiver might be appointed who might then establish that there are a third party of rights; but the answer to that point is that these matters are, as they have been for some time, in the Claimant's own hands. It is and always has been open to her to return to the Crown Court to make an application for variation of the order, or alternatively appeal that order. She has singularly not done so.
50. In this case, the CPS did not make an application for the appointment of a receiver. I accept that there is no express evidence upon the matter; but it seems to me that it is reasonable to assume that the CPS did not do so because they did not consider that such an appointment would be appropriate in this case, i.e. that they acted in accordance with their own guidance, and considered the matter only to reject it. The Claimant herself, as I stress legally advised, did not suggest that such an appointment would be appropriate. In her ruling, the District Judge concluded that imprisonment was in all of the circumstances the only appropriate means of enforcement. While she did not expressly refer to enforcement by the appointment of a receiver – perhaps, in the circumstances of this case, understandably - the judge was an experienced District Judge who can, in my view, be taken to have understood all of the available enforcement measures open to the court, and to have concluded that none but imprisonment was appropriate in all of the circumstances of this case.
51. For those reasons, I do not consider that this ground has been made good.
52. Ground 2: The CPS's Role in the Delay
53. As his second ground, Mr Cleeve submits that it was unconscionable and legally unfair for the CPS to seek the Claimant's committal when they were in effect preventing her from selling Earlham Grove by failing to give the necessary undertaking to remove the restriction from the Land Registry once the net proceeds of sale had been received. The focus of this ground is consequently upon the conduct of the CPS, rather than the court which is the Defendant; but, in any event, I do not consider that this ground has been made good either.
54. As I have described, the CPS were not reluctant to give an appropriate undertaking, and had apparently already provided (i) a draft consent order releasing Earlham Grove from the restraint order restrictions, which would have allowed it to be sold; and (ii) an undertaking to the Claimant's previous solicitors in August 2014 that they would remove the restriction applied on the Land Registry upon payment of the net proceeds of sale of Earlham Grove.
55. What happened during the course of December 2014 is not entirely clear from the documents that we have seen. However, as at 2 December 2014, irrespective of what the CPS had and had not done, there was another obvious reason why the sale of Earlham Grove could not proceed, namely that Mr Nga Nga had claimed an interest in the property. It was because of that claim that the Claimant's solicitors wrote to her (the Claimant herself) about seeking a different undertaking from the CPS – effectively to transfer any interest her son had in the property to the proceeds of sale, which (it was proposed) would be held by the solicitors for the Claimant on a cross-undertake by them to hold the monies on account whilst third party interests were determined. However, the correspondence, to which I have already referred, is only between the solicitors for the Claimant and the Claimant herself, and it only refers to obtaining her instructions before seeking the approval of the CPS in relation to this different way of dealing with the proceeds of sale. There is no evidence that the CPS caused delay by (e.g.) not responding to a proposed arrangement promptly.
56. In the event, any different arrangement from that already proposed by the CPS – under which the whole of the net proceeds of sale would be allocated towards part-payment of the sum due under the confiscation order – became unnecessary; because once Mr Nga Nga waived any claim to the property that he may have had, which he did very shortly after the 2 December 2014 hearing, an arrangement under which the net sale proceeds had to be held pending resolution of his interest was unnecessary and inappropriate. Any claim that he might have had was apparently waived between 2 and 9 December 2014. It was that waiver that appears to have freed any blockage in the procedure that there might have been, and with the result that the sale was completed on the 19 December 2014.
57. In any event, there appears to be no evidence whatsoever that any of the delay in this case lay at the door of the CPS. In particular, there was ample evidence upon which the District Judge could conclude, as she did, that there was no such delay in the provision by the CPS of appropriate undertakings.
58. For those reasons I consider that there is no force in this second ground.
59. Ground 3: Refusal to Adjourn Etc
60. Third, and finally, Mr Cleeve relies upon a number of what may be called "procedural grounds".
61. First, he submits that the District Judge failed properly to consider all of the relevant evidence relating to the possible sale of Earlham Grove, and indeed the Kenya properties. The evidence of Mr Lanlehin, in the statement to which I have already referred, suggests that, although he passed certain documents to the District Judge, she simply declined or refused to read them. In respect of some of them, he says, she appeared to refuse to consider them on the basis that they were "personal".
62. This last note is certainly curious, because the relevant documents are not "personal" and, even if they were, that would not affect their admissibility and relevance, if any. They were, of course, proffered by the Claimant herself. I am unconvinced by that note alone that the judge did exclude them on that basis.
63. What is clear from the evidence that we have is that the District Judge adjourned this matter on 2 December to later in her list, to allow further enquiries to be made and submissions to be made thereafter. For the reasons I have given, the District Judge was not concerned with the amount of the confiscation order; but only the extent to which the Claimant was in default of the order. It appears to me that the District Judge had more than a sufficient grasp of the facts of the case in relation to the Earlham Grove property – and, indeed, the Kenya properties - as it was put by Mr Lanlehin, and a full grasp of his submissions as to the efforts she made to realise her assets, to conclude (as she did) that the Claimant was in wilful default, that she had made no effort to vary the confiscation order, and that she had made insubstantial efforts to realise the assets that she did have.
64. Before this court, Mr Cleeve has emphasised the passages in the note of the ruling to which I have referred, that the judge concluded that nothing had been paid towards the confiscation order (in circumstances in which about £1,000 had been paid from her benefits); and that she concluded that "nothing had been done" since the May 2013 order was made (whereas, he submits, there was evidence of substantial steps having been taken, particularly in relation to the Earlham Grove property). However, looking at the documents which, it is said, the District Judge declined to look at, they appear to me to be immaterial to the matters that she had to consider and determine; and the District Judge did not err in failing to take into account such documents, for whatever reason she declined to do so. The facts in December 2014 were that no steps at all had been taken to realise the value of two of the three London properties; and, in respect of Earlham Grove, a sale had been agreed under the imminent threat of the mortgagee taking possession of that property and subjecting it to a forced sale. In respect of the Kenya properties and the other assets, these were relatively small in value.
65. In all of the circumstances, it seems to me that it was open to the judge to conclude (as she did) that insubstantial efforts had been made to realise the assets that the Claimant did have; and that, when she indicated that "nothing" had been paid, and "nothing had been done" since the order was made, it is clear that she meant nothing of any real substance had done towards paying the order off in full.
66. In respect of the overall submission that the District Judge erred in not agreeing to adjourn the hearing to allow the Claimant time to sell Earlham Grove and deal with the interested third parties by way of an application to vary or an appeal, again, despite Mr Cleeve's best and able efforts I am unpersuaded that the judge did err
67. The confiscation order had been made in May 2013, and time for compliance had been extended to 12 months. Thereafter, there had been hearings in August and October 2014 at which the Claimant had been warned of the prospect of committal and had been given further time, especially to sell Earlham Grove and make an application to deal with third party interests. By December 2014, she had in fact done neither; and, in particular, she had not taken any steps to make such an application. The judge was entitled to conclude that the delay in selling Earlham Grove was down to the Claimant herself, and was not due to any default on the part of the CPS; and, in any event, the judge would have been aware of the effect of section 79 to reduce the term of imprisonment if a sale was made after a committal.
68. In respect of any application to vary or appeal the confiscation order, as I have emphasised, no application has been made even now. Remarkably, no application to vary the order has been made to reflect the shortfall on the Kenya properties, sold in late 2014, nearly a year ago. Although it was suggested that some of the delay resulted from a failure of the Claimant's earlier solicitors to transfer the file, I understand the file was transferred on 8 December 2014 or thereabouts. The judge consequently appears to have been justified in being somewhat sceptical about the requests for further time to enable an application to vary or an appeal to be made.
69. In the circumstances, I do not consider that the hearing before the District Judge was unfair; or that her decision to proceed with the hearing and not to adjourn was unlawful. In my view, it fell well within her discretion to make.
70. For those reasons, I do not find any strand of Ground 3 made good.
71. Conclusion
72. Therefore, subject to the views of my Lord, Burnett LJ, I would refuse this application in all its parts.
73. LORD JUSTICE BURNETT: I agree. It is striking that in the 10 months that have passed since the order made in the Magistrates' Court, the claimant has still not made an application to the Crown Court to vary the confiscation order to reflect the alleged third party interests in the two unsold properties which were taken into account as part of her realisable assets. Neither has she taken steps to seek a variation to reflect the fact that the sale of Kenyan properties produced only £1,400, rather than the realisable sum of £31,000 attributed to them by the confiscation order made by consent.
74. If the sum due under the confiscation order is reduced by a further order of the court then, as my Lord has indicated, the period of detention in default is also reduced. That has already occurred as a result of the payment of the proceeds of sale from the property at Earlham Grove a few weeks after the claimant was committed to prison.
75. For that reason, it is in the claimant's interests to make an application in respect of the Kenyan properties.
76. In so far as she continues to assert the third party interest arguments, it is also in her interests to make an application in respect of those. I would not wish to pre-judge in any way the outcome but I cannot leave this case without recording my surprise at being told that no application has been made, given that the original extension of time to discharge the confiscation order and the two adjournments of the enforcement proceedings themselves were all founded on the premise that that was precisely what she proposed to do.
77. Thank you Mr Cleeve and Mr Bunting. We are grateful for your assistance.
78. MR BUNTING: My Lord, could I rise, with some levels of trepidation in terms of costs. I appreciate we are an interested party, although without stepping in the shoes of the defendant is a there schedule in the sum of £2,276 (Handed) As I say, I do appreciate the history of the matter.
79. LORD JUSTICE BURNETT: Your trepidation, perhaps, stems in part from the fact that you only had leave yesterday to intervene after the unfortunate sequence of events that you referred to earlier.
80. MR BUNTING: Yes, and obviously I accept that is something that the court will take into account in terms of the situation.
81. LORD JUSTICE BURNETT: Thank you. We need not trouble you on costs, Mr Cleeve.
82. There is an application for costs on the part of the CPS. In the light of the history of the involvement of the CPS in this case, which includes a comprehensive failure to comply with any of the directions made by Mitting J and the need to make a late application to become an interested party and rely upon materials, we consider this application misconceived. We would note also that the late application and the production of a certain volume of material no doubt put the claimant to additional trouble and expense. We refuse the application.