Lloyd v Bow Street Magistrates Court

This is the judgment of the court. The principal issue that arises in these proceedings is whether a defendant’s right under Article 6.1 of the European Convention on Human Rights (“the Convention”) to have a criminal charge determined within a reasonable time is capable of being violated where delay occurs in the institution or prosecution of proceedings to commit a defendant to prison in default of payment of a sum due under a confiscation order. There appears to be no previous authority on the point.

The claimant was convicted at Snaresbrook Crown Court of conspiracy to handle stolen goods and was sentenced to 3 years’ imprisonment on 23 May 1996. A confiscation order was made on 21 June 1996 pursuant to section 73(6) of the Criminal Justice Act 1988. The court determined that the proceeds of crime were £50,312, and the claimant’s realisable assets £33,236. The confiscation order was made in the sum of £33,326 payable within 12 months. The order provided that “the term of custody which may be liable to be served in default of payment is set at 18 months”. By 21 June 1997, he had paid £6339 in part satisfaction of the confiscation order. On 10 July 1997, the Crown Prosecution Service (“CPS”) wrote to the claimant’s solicitors stating that unless the outstanding sum of £26,897.37 was paid within 14 days, they would apply to the High Court for a receiver to be appointed.

On 18 November 1997, the claimant’s solicitors wrote to the Highbury Corner Magistrates Court stating that he wished to apply for a variation of the confiscation order and for bail pending the determination of his application. He received no reply from the court, and was released from custody on 24 December 1997.

No part of the sum of £26,897.37 was paid, but it was not until 30 November 1998 that the CPS issued a summons for the appointment of a receiver. A receiver was appointed by order of the High Court dated 15 January 1999. What happened during the following year remains something of a mystery. The CPS assert that on 20 January they sent the receiver a copy of the order of 15 January. It seems that the receiver never received the letter or the order, and accordingly did nothing to try to secure payment of the amount outstanding under the confiscation order. The CPS did nothing to establish what progress (if any) had been made by the receiver. Eventually, on 6 December 1999, the CPS wrote to the magistrates court saying that the receiver had not realised any assets, and inviting the court to consider enforcement action (ie by issuing a warrant of commitment to prison). On a date which has not been disclosed to us, the receivership was discharged.

In January 2001, the magistrates court issued a summons for the enforcement of the confiscation order by means of a warrant to commit the claimant to custody for non-payment of the sum outstanding. The claimant surrendered to this summons in November of that year. On 27 February 2002, the claimant’s solicitors wrote to the court asking whether any action had been taken to enforce the confiscation order. The reply dated 4 March 2002 stated that the summons had not been issued until January 2001 because the Inner London Magistrates Courts’ accounts departments were centralised in September 2000. No explanation has been provided as to why the hearing of the summons did not take place until 9 October 2002, when the claimant appeared at Bow Street Magistrates Court before District Judge Evans.

It was submitted to the district judge on behalf of the claimant that the proceedings to enforce the confiscation order should be stayed on the grounds that the delay involved a violation of his rights under Article 6.1 of the Convention. The district judge refused to grant a stay, holding that, although the delay was unjustifiable and unreasonable, there was no reason to depart from the decision in R v Chichester Justice, ex p Crowther (unreported 14 October 1998). He also refused an adjournment to allow the claimant to seek a certificate of inadequacy. A warrant to commit the claimant to custody was issued, and he was ordered to serve 443 days imprisonment.

Following the issue of the warrant to commit, the claimant sought permission to apply for judicial review of the decisions of DJ Evans (a) not to stay the proceedings on the grounds of delay, (b) not to postpone issuing a warrant of commitment to enable the claimant to apply for a certificate of inadequacy, and (c) not to consider an alternative to a warrant of commitment in order to satisfy the terms of the confiscation order. On 11 October 2002, the claimant was granted bail subject to certain conditions.

An application for a certificate of inadequacy was lodged with the High Court on 25 February 2003. On 20 March, the CPS agreed that the value of the claimant’s realisable property was inadequate to meet the sum outstanding under the confiscation order. A certificate of inadequacy was made by Maurice Kay J with the consent of the parties, the effect of which was that the revised sum outstanding was £8000. He also granted the claimant permission to apply for judicial review of the refusal by DJ Evans to stay the proceedings on the grounds of delay.

Article 6.1 provides that “in the determination of…any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time…..”. The principal issue that arises on this application is whether the right to have a criminal charge determined within a reasonable time extends to proceedings to commit a defendant to custody under the default provisions of a confiscation order. On behalf of the claimant, Mr Powles submits that it does. Ms Saunt on behalf of the CPS submits that it does not. Since the district judge considered that Crowther was determinative of the issue, and since that authority has assumed considerable importance in the argument before this court, we need to examine it in a little detail.

This was a decision of the Divisional Court (Brooke LJ and Sedley J). Judicial review was sought of an order of the magistrates on 3 June 1998 by which they issued a warrant ordering the applicant to be committed to prison for 15 months for failure to pay the sum outstanding under a confiscation order. That order had been made on 22 March 1991 when the applicant had been sentenced to 6 years imprisonment for an offence, and was ordered to pay £22,000 within 12 months, and in default to serve a consecutive term of 18 months imprisonment. He was released in May 1994. It was not until January 1996 that HM Customs and Excise contacted the applicant in relation to the sum outstanding under the confiscation order. The court held that there was a “wholly unexplained period of three years’ delay” so far as the enforcement authorities were concerned. When the matter came before the magistrates, the applicant submitted that the proceedings should be stayed as an abuse of process on the grounds of this delay. It is important to note that this was a case before the Human Rights Act 1998 came into force. The court considered well-known domestic law cases such as Attorney General’s Reference No 1 of 1990 [1992] QB 630, and distinguished them. Brooke LJ said:

“This is a case which is quite dissimilar, in my judgment, from the default of prosecution cases where the prosecution is said to have delayed an unconscionably long time before bringing proceedings. In such cases the onus is on the prosecution to prosecute. There is nothing for the defendant to do, except perhaps to hope he will not be prosecuted.

…..

The present situation in my judgment is quite different. The applicant has been convicted of serious crime by a court of law. He has been sentenced to a term of six years’ imprisonment for his offence, and under powers given to it by Parliament the court found that he had realisable assets from that crime amounting to £22,000. The court made a confiscation order in that sum. The onus was on the applicant to pay that sum, as it is on everyone who has been ordered to pay a fine or a confiscation order (as the case may be) by a court of law. Mr Talbot has reminded us that there is no statutory limitation period relevant to a court’s power to enforce the payment of a confiscation order. If a defendant disappears and resurfaces ten years after he is ordered to pay a fine, there is no statute of limitation which will prevent the recovery of the fine. Mr Talbot submits that in those circumstances the position is quite different from the position of the prosecution in the cases to which I have referred and which are so often cited, where the next step is not for the defendant to take, as it is in the case of the payment of a fine or confiscation order, but on the prosecution. There may come a time in those cases when the court will say: “Enough is enough. This is seriously prejudicial to the defendant because of the delay that has occurred in having him or her tried”, and the court will interfere to protect its process from being abused.

Mr Talbot conceded that there might be an occasion when such an exceptionally long period had elapsed from the making of the confiscation order to the occasion when it was sought to be enforced by reason of default, that it would be an abuse of process to enforce the order. Whether this was so would depend upon the circumstances of the particular case. He submitted that the circumstances of this case came nowhere near fulfilling the necessary criteria which would have to be fulfilled before a court would intervene.”

Sedley J said:

“If Mr Talbot is to make good his basic contention that the default and hence the delay is on principle the applicant’s from first to last, he cannot in my judgment maintain his concession that even so a time must come when enforcement will amount to an abuse of process. If Mr Talbot is right, all delay is the applicant’s once the applicant has failed to make the payment ordered by the set date. He has rendered himself due from that moment to serve a set term of imprisonment unless before enforcement occurs he has obtained a certificate of inadequacy sufficient to stave it off. Any continuing lapse of time is then in the eye of the law a product of the failure to pay, not of the failure to enforce.

Reluctantly, I accept this analysis. It is one which puts the present class of case outside the run of abuse and delay cases. In particular, it makes legally immaterial the fact (and I agree that it is a fact) that Customs and Excise’s inertia between March 1992 and January 1996 was both inexcusable and, given that somebody’s liberty was involved, unconscionable. Blame does not attach to the justices or their clerk. They were waiting for Customs and Excise, who might have been setting up a receivership, to tell them if it was time to enforce the order. Moreover, the applicant himself has behaved in this time more honourably than many defaulters do.

I am not happy at the impunity with which Customs and Excise are in consequence rewarded for their indolence. But I am persuaded that it is not the policy of Parliament that a drug trafficker should be rewarded for his prolonged failure to meet a confiscation order by being liberated from the consequences of his default. For these reasons, in addition to those given by my Lord, I agree that this application fails.”

Mr Crowther complained to the European Court of Human Rights about the delay in the enforcement of the confiscation order. His complaint under Article 6.1 has only very recently been declared admissible by that court. It is clear that the ultimate decision of the court may, indeed probably will, cast decisive light on the principal issue that we have to determine. But that decision is unlikely to be made for one or two years. In these circumstances, both parties wished us to proceed with the application. We thought it right to do so.

The application has been contested by the CPS. The Bow Street Justices have not played any part in the proceedings. It is right to record at the outset a number of important concessions that have been made by Ms Saunt on behalf of the CPS. It is accepted by her that (a) the proceedings to enforce the confiscation order in the magistrates court are part of the entire criminal proceedings, and part of the determination of the criminal charge within the meaning of Article 6.1; (b) the claimant is entitled to the protection of Article 6.1 in respect of the proceedings to enforce the confiscation order; and (c) if the protection in (b) includes the right to have the enforcement proceedings determined within a reasonable time, then there has been a violation of that right on the facts of this case by reason of the unexplained delay by the CPS in asking the magistrates court to issue a warrant of commitment to prison. She makes no concessions or submissions about the role played by the courts in the history of this case. But Ms Saunt submits that the protection afforded by Article 6.1 does not extend to the right to have the enforcement proceedings determined within a reasonable time. This is because (to put it shortly) the CPS and Magistrates Court are under no obligation to enforce the confiscation order within any particular time, and the claimant therefore has no right to have enforcement proceedings disposed of within a reasonable time. Where delay occurs such as occurred in the present case, it is the claimant who is in breach of his obligation to satisfy the confiscation order within the specified period. It will be seen at once that this is the argument that found favour with the Divisional Court in Crowther, and was accepted by the district judge in the present case. The question for us is whether that argument should be accepted following the incorporation of Article 6 into our domestic law.

It is now clearly established that Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal: see Eckle v Federal Republic of Germany (1982) 5 EHRR 1 at paras 76-77. That includes any confiscation proceedings, ie proceedings that culminate in the making of a confiscation order. This was made clear in McIntosh v Lord Advocate [2001] UKPCD 1, [2003] 1 AC 1078 per Lord Bingham at paras 18 and 28 and R v Rezvi [2002] UKHL 1, [2003] 1 AC 1146 per Lord Steyn at para 10. It is of note that nothing was said by the House of Lords in Rezvi that casts doubt on the observation of Lord Woolf CJ giving the judgment of the court in Benjafield [2003] 1 AC 1099 para 56 that “in English domestic law, confiscation orders are part of the sentencing process which follow upon the conviction of the defendant of the criminal offences with which he is charged”. This observation was also noted without comment by the ECtHR in Phillips v United Kingdom (12 December 2001), where the court stated (para 32) that it was clear that an application for a confiscation order does not involve any new charge in English domestic law. The procedure is “analogous to the determination by a court of the amount of a fine or the length of a period of imprisonment to impose upon a properly convicted offender” (para 34).

But what is the position with regard to the enforcement of a confiscation order? The relevant law applicable to the enforcement of confiscation orders in relation to offences committed before 1 November 1995 is to be found in the Criminal Justice Act 1988 (“the 1988 Act”), as amended by the Criminal Justice Act 1993. Section 75(1) of the 1988 Act provides:

“Where the Crown Court orders the defendant to pay an amount under this Part of this Act, sections 31(1) to (3C) and 32(1) and (2) of the Powers of Criminal Courts Act 1973 (powers of Crown Court in relation to fines and enforcement of Crown Court fines) shall have effect as if that amount were a fine imposed on him by the Crown Court”.

Section 32(1) of the Powers of Criminal Courts Act 1973 provides that a fine imposed by the Crown Court is treated as being imposed by the Magistrates Court for the purposes of collection and enforcement. The following means of enforcement of a fine are available:

All of these powers may be exercised by the Magistrates Court on its own initiative, and not in response to an application by the prosecutor. We shall refer to these various methods of enforcement collectively as “the civil means of enforcement”.

In our judgment, Ms Saunt is right to concede that Article 6.1 applies not only to the confiscation proceedings up to the making of a confiscation order, but also to any subsequent proceedings to enforce the order by the issue of a warrant of commitment to prison. As she accepts, such proceedings are part and parcel of the confiscation proceedings, which in turn are part and parcel of the original criminal proceedings. They are no more separate from the original criminal proceedings than is the application for a confiscation order itself. They are not fresh proceedings involving the determination of a criminal charge within the meaning of Article 6.1, any more than are the proceedings by which the prosecutor seeks a confiscation order. Article 6.1 applies because, as Ms Saunt rightly accepts, the enforcement proceedings are part of the criminal proceedings. Were the position to be otherwise, we do not see how Article 6.1 could apply to the enforcement proceedings at all.

But in our view, it is obvious that a defendant who is facing a summons for the issue of a warrant of commitment to prison for non-payment of a sum due under a confiscation order is entitled to a “fair and public hearing….by an independent and impartial tribunal established by law” in accordance with Article 6.1. We have omitted the reference to “within a reasonable time” since the issue before this court is whether that is imported into proceedings to enforce a confiscation. Section 76 of the Magistrates Court Act 1980 gives the court the power to issue a warrant of commitment, committing the defaulter to custody. But the court must conduct a fair and public hearing to decide what is the appropriate order to make in all the circumstances. The power to issue the warrant is discretionary. Such a warrant is a mode of enforcement of last resort: see R v Harrow JJ ex p DPP [1991] 1 WLR 395. It would be unthinkable that the magistrates court could decide how to enforce a confiscation order unfairly, (for example, without giving the defendant an opportunity to argue his case), or to do so in private. It is against this background that we turn to the question whether a defendant who fails to satisfy a confiscation order is also entitled to have enforcement proceedings (by commitment to prison) determined within a reasonable time. It is accepted on behalf of the CPS that a defendant is entitled to have the substantive confiscation proceedings themselves (ie proceedings which culminate in the making of a confiscation order) completed within a reasonable time. But although it is accepted that the enforcement in a court of a confiscation order is part of the confiscation proceedings, it is submitted that a defendant is not entitled to have the enforcement proceedings themselves determined within a reasonable time.

Why should this be? Ms Saunt submits that there is no duty on prosecuting authorities or the magistrates court to enforce a confiscation order. If there is no duty to enforce, there cannot be a duty to enforce within a reasonable time. On the other hand, the defendant is under a continuing duty to satisfy a confiscation order. For these reasons, she submits that a defendant has no right under Article 6.1 to have proceedings to enforce a confiscation order determined within a reasonable time. She derives support for these submissions from the judgments in Crowther.

We cannot accept this reasoning. We do not consider that we are required to follow the approach adopted by this court in Crowther. That was a decision on an application to stay proceedings for the enforcement of a confiscation order as an abuse of process. Article 6.1 was not considered. It can be seen that there are two limbs to this reasoning: (a) the prosecuting authorities/court are under no obligation to enforce the order within a reasonable time or at all; and (b) the defendant is under a continuing obligation to satisfy the order.

As regards the first limb, even if the prosecuting authorities and the magistrates court have no obligation to enforce confiscation orders, it does not follow that, if they decide to seek enforcement by commitment to prison, they are not required to ensure that the enforcement proceedings are determined within a reasonable time. The point can be illustrated by a consideration of the analogous case of an application to stay ordinary substantive criminal proceedings as an abuse on the grounds of delay. It is no answer to such an application for the prosecuting authorities to say that they are under no obligation to prosecute a particular person for an alleged crime and that there is no statutory limitation period within which such a prosecution may be brought. The point is that, even though there is no statutory time limit for prosecutions and no obligation to prosecute individual alleged criminals, the law will protect defendants from facing prosecutions after undue delay has occurred.

As for the second limb of the reasoning, we do not see how the fact that the defendant is in breach of his continuing duty to satisfy the confiscation order can be relevant. In our view, the conduct of the defendant can have no bearing on the question whether he has a right to have proceedings against him in respect of that conduct instituted and determined within a reasonable time. It is common ground that a defendant is entitled to have a substantive criminal charge against him determined within a reasonable time. That right is predicated on the basis that the defendant is alleged to have broken the law by committing a crime. The fact that a defendant is alleged to have committed a crime is plainly not a reason for denying him the right to have the criminal charge determined within a reasonable time. Indeed, the existence of the criminal charge is the very reason why he has the right. Similarly, in our view the fact that a defendant is alleged to be in breach of a confiscation order is no reason to deny him the right to have proceedings brought to enforce the order by commitment to prison determined within a reasonable time.

In our judgment, a defendant enjoys the full benefit of all the rights conferred by Article 6.1 in all aspects of confiscation proceedings (including their enforcement by means of a summons for the issue of a warrant to commit in the magistrates court). We heard no argument as to the application of Article 6 to the civil methods of enforcement. What we say in this judgment is to be understood as applying only to the enforcement of a confiscation order by the issue of a warrant of commitment to prison.

We see no justification for holding that the reasonable time guarantee is excluded in relation to enforcement proceedings. If the submission of Ms Saunt is accepted, proceedings to enforce may be taken many years after the time for payment has expired in circumstances when the delay in taking steps to enforce is unexplained and wholly unreasonable. We are not willing so to interpret Article 6.1 unless we are compelled to do so. We are not required to do so by any authority to which our attention has been drawn. Nor do we think that principle obliges us to adopt such an unreasonable interpretation. Convicted criminals who are the subject of confiscation orders do not attract sympathy, and not entitled to favoured treatment. But there is nothing surprising about a requirement that, if the prosecuting authorities/magistrates court seek to enforce a confiscation order, they should do so within a reasonable time. It is potentially very unfair on a defendant that he should be liable to be committed to prison for non-payment of sums due under a confiscation order many years after the time for payment has expired, and long after he has been released from custody and resumed work and family life.

We acknowledge that the threshold of proving a breach of the reasonable time requirement is a high one: see per Lord Bingham in Procurator Fiscal, Linlithgow v Watson and Burrows (Privy Council DRA No 2 of 2001) at para 80. Moreover, it is well established that, in determining what is a reasonable time, all the circumstances of the case must be taken into account. Thus in Howarth v United Kingdom (Application no 38081/97) the ECtHR said at para 25:

“According to the Court’s case-law, the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and the authorities dealing with the case (see, among other authorities, the Pelissier et Sassi v France judgment of 25 March 1999, [to be] published in Reports of Judgments and Decisions 1999, p 67).”

It follows that, in deciding what is a reasonable time, regard should be had to the efforts made to extract the money by other methods, for example (as in the present case) by the appointment of a receiver. If a receiver has been appointed within a reasonable time and has proceeded with reasonable expedition, then the fact that all of this may have taken some time will not prevent the court from concluding that there has been no violation of the defendant’s Article 6.1 rights if the unsuccessful attempts to recover the money have led to delay in the institution of proceedings to commit. Likewise, if the defendant has been evasive and has avoided diligent attempts to extract the money from him, he will be unable to rely on the resultant delay in support of an argument that his right to a determination within a reasonable time has been violated.

We conclude, therefore, that the reasonable time guarantee afforded by Article 6.1 does apply to proceedings before the magistrates court for the enforcement of a confiscation order.

We have referred at para 13 above to the concession by Ms Saunt that, in these circumstances, the delay by the CPS in enforcing the confiscation order constituted a breach of article 6.1 of the Convention. We have heard no submissions on behalf of the justices. But we are in no doubt that the delay on the part of the courts in determining the proceedings also amounted to a breach of Article 6.1. The district judge was right to describe the delay as unjustifiable and unreasonable. On the material before us, it is not possible to determine which court(s) was/were at fault. But the simple fact is that the CPS wrote to the court on 6 December 1999 inviting it to consider enforcement action. A summons was not issued until January 2001. The claimant surrendered in November 2001, and yet the hearing did not take place until 9 October 2002. It therefore took 2 years and 9 months from the date of the CPS request until the date of the hearing. The claimant may have been responsible for about 10 months of this period (January-November 2001), but no material has been placed before this court which seeks to explain, still less to justify, the delay. We consider such a long period of inexcusable delay to be unacceptable. The breach of Article 6.1 was unlawful conduct within the meaning of section 6(1) of the 1998 Act. Accordingly, the question of remedy arises.

Section 8(1) of the 1998 provides:

“In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.”

Ms Saunt submits that the appropriate remedy would be to make a declaration that the conduct in question was unlawful, but to grant no other relief. She points out that it is in the public interest that criminals should be stripped of the proceeds of their criminal activities. Accordingly, the claimant should remain liable to serve the default term of imprisonment fixed by the Crown Court (subject to any necessary pro rata reduction). In support of this submission Ms Saunt relies upon the judgment of the Court of Appeal in Attorney General’s Reference No. 2 of 2001(J) [2001] EWCA Crim 1568.

In that case, the Attorney General sought the opinion of the Court of Appeal on the question whether proceedings may be stayed on the ground that there had been a breach of the reasonable time requirement of article 6.1, not causing prejudice to the accused. The court gave a “qualified negative answer” to this question: see para 24. At para 20 Lord Woolf CJ, giving the judgment of the Court, said this:

“If a person complains of a contravention of the reasonable time time requirement in Article 6, and if the court comes to the conclusion that there has been a contravention, then at the request of the complainant the court is required to provide the appropriate remedy. If the court is willing and able to provide the appropriate remedy, then the court is not compelled to take the course of staying the proceedings. That is a remedy which the court can grant, but it is certainly not a remedy which it is required to grant. It seems to us in general that the approach that previously existed as to the provision of the remedy of staying the proceedings should be confined, as it was prior to the Convention becoming part of our domestic law, to situations which in general terms can be described as amounting to an abuse of process of the courts. But there are many other actions which the court can take which avoid the need for such action. In particular, if the court comes to the conclusion that this would provide the appropriate remedy, the court can mark the fact that the way the prosecution has been conducted does contravene the reasonable time provision in Article 6(1) and acknowledges the rights of the defendant by so doing. In many cases the court will come to the conclusion that that is not a sufficient recognition of the defendant’s rights. If that be so, then the court can take other action. It can, for example, take account of the failure to proceed with due expedition in the sentence which the court imposes.”

It should be noted that the court in Attorney General’s Reference No.2 was considering the effect of delay in criminal proceedings prior to verdict. It would, self-evidently, be a drastic step to abort criminal proceedings on the grounds of delay by the prosecution, when a fair trial is still possible. In the present case, by contrast, the criminal trial has been concluded; a sentence of 3 years imprisonment has been imposed and served; the confiscation order (in a sum which falls to be reduced by reason of the certificate of inadequacy dated 20 March 2003) remains in existence and is capable of being enforced by a variety of methods other than imprisonment.

Against that background, we reach the conclusion that the only proper remedy for the breaches of Article 6.1 in this case is to order that the proceedings to commit the claimant to prison for default in paying be stayed. We reach this conclusion for three reasons:

We agree entirely with Ms Saunt’s submission that the public interest requires that criminals be stripped of the proceeds of their criminal activities. That public interest is best served if those authorities whose task it is to enforce confiscation orders (a) take prompt steps to secure payment by “civil” procedures and (if those fail) (b) take prompt steps to activate any term of imprisonment in default. The longer the authorities delay, the less likely it is that the offender will still have assets to meet the confiscation order (as this case illustrates).

If the authorities whose task it is to enforce confiscation orders are so slow in communicating with one another or in activating enforcement mechanisms that they become in breach of Article 6.1, then the appropriate remedy may well be (as in this case) that the weapon of imprisonment in default is lost. The sooner this is appreciated by all agencies of the criminal justice system, the better.