O'Connell, R (On the Application Of) v Westminster Magistrates' Court

This is an application for judicial review of a decision by the then Chief Magistrate, Judge Howard Riddle, on 20^th September 2016 when he issued a warrant to commit the claimant to prison. The claimant had been made subject to a confiscation order on 20^th January 2003 in the sum of £6,258,966.41 of which he has paid only £354,407.14. A term of 7 years’ imprisonment was imposed in default of payment and, given that 77 days was to be credited for the sum which was paid, the warrant committed the claimant to prison for 2,479 days. The claimant had been convicted of 5 counts of being knowingly concerned in the evasion of Value Added Tax at the Middlesex Guildhall Crown Court on 9^th August 2000 and sentenced to a total term of 8 years, to which the prison sentence in default of payment of the confiscation order was imposed consecutively. An appeal against the making of the confiscation order was dismissed by the Court of Appeal Criminal Division on 9^th June 2005, see [2005] EWCA Crim 1520. That judgment is in the public domain and sets out the underlying facts of the convictions and of the confiscation proceedings, and it is unnecessary to repeat them here. The only relevant fact which should be recorded is that the unpaid part of this order was made in respect of “hidden assets”, namely money which had been paid into offshore accounts and the whereabouts of which was not known to the prosecution. The order imposed an obligation on the claimant to pay the sum which, in this case, he could only do by taking steps to recover the money or providing information so that the prosecution could do so.

The claimant says that the passage of time between the dismissal of his appeal on 9^th June 2005 and the order of the Chief Magistrate on 20^th September 2016 means that the Chief Magistrate should not have made that order, but rather should have stayed the proceedings for committal to prison as an abuse of process. He relies on two distinct but related sources for a power to stay in these circumstances, namely (1) the power of the Magistrates Court to stay proceedings as an abuse of process and (2) the right of the claimant, guaranteed by Article 6 of the European Convention, to a trial of the allegation against him within a reasonable time. He has not filed evidence (except some documents relating to his address) and did not give evidence. He has said nothing about why this order has not been paid, or how it might now be paid. The only submission he made through counsel was that the warrant of commitment should not be granted because of the delay in seeking it.

The confiscation order in this case was made under the Criminal Justice Act 1988, and required the claimant to pay the sum which is now outstanding by 31^st May 2004. The CPS did not, and does not, know where the assets are but, on the finding of the Crown Court, the claimant does, or at least did. S.75 of the Criminal Justice Act 1988 was in force at the time of the making of the present confiscation order and was saved by the transitional provisions when the Proceeds of Crime Act 2002 came into force a few weeks later. That provided that the order may be enforced by the Magistrates Court as if it were a fine imposed by the Crown Court and a warrant for commitment to prison may be issued. Enforcement by imprisonment is governed by s.140 of the Powers of Criminal Courts (Sentencing) Act 2000. The power to remit fines given by s.85 of the Magistrates Courts Act 1980 is excluded by s.75(5)(a) of the Criminal Justice Act 1988 which limits to this extent the discretion of the Magistrates’ Court on an application for a warrant for commitment.

The powers of the Magistrates Court when deciding whether to issue such a warrant are governed by s.82(4) of the Magistrates Court Act 1980 which provides that before doing so:-

(b)

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.

The court considering an application for a warrant of commitment warrant has a power:-

S.83 of the 1988 Act provides a procedure whereby a defendant who was subject to a confiscation order could apply to the High Court for a certificate that the realisable property is inadequate for the payment of any amount remaining to be recovered under the order. A Magistrates Court considering an application for a warrant of commitment has a power to adjourn if it is informed that such an application is to be made.

Where time has been allowed to pay a fine, a Magistrates Court is entitled, under sections 83 and 86 of the Magistrates Court Act, to fix a date for a means inquiry and to require the offender to attend. That attendance is enforceable by summons or warrant. Therefore, even if the court does not activate the default sentence, it can hold successive means enquiries and require, under section 84, the offender to provide information about his or her means for the purposes of those hearings. The ability to issue a warrant is lost once the default has been served; and the requirement to hold a means enquiry is not mandatory since the term is fixed by the Crown Court and the defendant is therefore deemed to have the means.

The Chief Magistrate gave a reserved decision after hearing submissions from counsel and after considering some documents supplied by the claimant. His decision was framed as a decision on an application to stay proceedings as an abuse of process of the court, reflecting the way in which the application had been put. He summarised his approach to the law as follows:-

In summary, the doctrine of abuse of process can in principle clearly be applied to these proceedings. I start from the proposition that there has been an obvious and lengthy delay. That does not of itself affect the fairness of the proceedings. Any argument open to Mr. O’Connell ten years ago is still open now. The real question is whether it is unfair to proceed. That involves a general assessment of all the relevant facts. In principle, it is possible to infer from the delay that committal now would have a serious detrimental impact on the defendant.

It is, of course, possible in every case to infer that committal would have a serious detrimental impact on the defendant. He would be subjected to the serious detrimental impact of imprisonment: that is precisely the object of the statutory scheme. What the Chief Magistrate means is that in principle it is possible to infer that the detrimental impact now would be greater than it would have been at a far earlier stage.

The case was advanced before the Chief Magistrate on the basis that the CPS could not be criticised for not seeking to enforce the unpaid part of the order until the dismissal of the appeal on 9^th June 2005. By that time the claimant had been at liberty for over two years. The documents he produced to the Magistrates Court showed that he was given permission to return to Ireland in 2003 while still on licence, and that he was then supervised in Ireland by the Irish Probation Service until 25^th August 2005. We have a chronology, which appears to be agreed, of the efforts made to find the claimant or assets to satisfy the order. The position, in summary and in some respects updated to the date of this hearing, is as follows:-

It is submitted that the Chief Magistrate should have found that the claimant would have learned of the warrant he had been contacted at the Ballybrack address. This relies not on any evidence from him, but on a bundle of documents before the Chief Magistrate which were addressed to the claimant at the Ballybrack address over the relevant years. Two of these date from 2015 and the most recent of the others is March 2012. A driving licence was issued to the claimant at the Ballybrack address in September 2002. However, other documents were seized from him on arrest in August 2016 which give a different picture. His passport was in the name “Donal O’Chonaill” and gave a different address in Corbally. This was issued in April 2013. His driving licence with that name and address was dated September 2012. That name and address also appears on his certificate of motor insurance, valid from 24^th September 2015. He was travelling under that name when he entered the United Kingdom in August 2016 and was arrested.

The Chief Magistrate made findings on this evidence. These may be summarised as follows:-

The Chief Magistrate then asked himself whether there had been inordinate, unconscionable and unreasonable delay in bringing these proceedings and, if so, was it caused by fault by the prosecution. He reviewed the facts as just summarised and found that reasonable diligence would have led the prosecution to make enquiries of the probation service and of the Ballybrack address. He found that it was surprising that the Irish authorities had not located the claimant unless he was avoiding them but thought it possible that they had not thought it necessary to devote significant resources to any search.

The thrust of Mr. Geoffrey Payne’s submission to the Chief Magistrate on behalf of the claimant was that the delay of 11 years between the dismissal of the appeal and the arrest was so long that it would be an abuse of process now to permit the application for a warrant of commitment to be heard. In the alternative, he submitted that the shorter period of five years between the dismissal of the appeal and the first issue of a warrant should, on its own, have the same effect. He repeats that submission to us and submits that no reasonable Magistrate properly applying himself to the facts of this case could have rejected it, as did the Chief Magistrate.

The authorities were not entirely idle during the 5 year period between June 2005 and March 2010 when the domestic warrant was first issued, but achieved nothing of substance. The claimant now submits that three particular mistakes were made:-

Mr. Payne’s overarching submission is that the more permissive approach to delay taken by the courts in dealing with applications to stay prosecutions as an abuse of process where a fair trial is still possible should not apply to the present context. It is, he says, one thing to stay a prosecution which means that a case will never be tried and the guilt or innocence of a defendant never determined, and a far less significant step to stay one aspect of the consequences of conviction, namely enforcement by warrant of commitment. As will be seen there is some authority in his favour on this proposition.

Mr. Payne, and Ms. Anna Keighley, who appears for the Crown Prosecution Service, have supplied the court with quite a significant number of decisions of the higher courts which concern the circumstances in which the power to enforce a confiscation order by imprisonment may be lost because of the failure by the authorities (usually now the CPS) to seek its use within a reasonable time. It is not necessary to refer to all of them.

The following propositions are rightly agreed in this case and no authority is necessary for them:-

I do not myself find previous decisions where stays have been considered helpful where they are simply applications of principle to a set of facts. The fact that a court may have decided that a warrant should be refused because it had found that the CPS had delayed for a particular number of years before applying for it does not, without more, provide any assistance at all to the proper outcome of this case. I will therefore limit my review of authority to the three cases which seem to me to require attention, because they concern the principles applicable in cases of delay in the particular context of the enforcement of confiscation orders by imprisonment in default of payment. I will also refer to decisions on which the courts in those three cases themselves relied.

This context is not directly comparable with the ordinary case where an application is made to stay a prosecution as an abuse of process. Where the charge against the defendant is yet to be tried, the duty rests on the prosecution and the court to bring him to trial. He has certain procedural obligations but cannot stop that process by inaction. He is also presumed during this period to be innocent of the charge. Where he has been convicted and sentenced and ordered to pay a confiscation order he is required, as part of the consequences of his crime, to take a step, namely to pay the order. That is a continuing duty and there is a strong public interest in securing its satisfaction. In a hidden assets case, the duty is not just to pay the order, but by implication also to take such steps as are necessary to find and recover the assets, or to assist the authorities to do so: R (Johnson) v. Birmingham City Magistrates Court [2012] EWHC 596 (Admin).

The first case in which these factors were considered was decided before the enactment of the Human Rights Act 1998. It was R v. Chichester Justices ex p Crowther, unreported, October 1998. It was subsequently considered by the European Court of Human Rights in Crowther v. United Kingdom 53741/00, 6^th July 2005. The Divisional Court (Brooke LJ and Sedley J) found that there had been inexcusable and unconscionable delay in seeking enforcement of a confiscation order by imprisonment. Sedley J held that the jurisdiction to stay as an abuse by delay was not available in this context because the onus was on the defendant to pay the order and therefore his failure is the cause of any delay which may have occurred however long it was, and however culpably the prosecuting authorities may have behaved. Brooke LJ put that matter differently, apparently endorsing a concession by prosecuting counsel that there may come a time when “enough is enough” even in this context, but accepting his submission that this was not such a case. The ECtHR subsequently held that the delay did constitute a violation of the Article 6 right but ordered no just satisfaction.

The domestic decision in Crowther was considered by the Divisional Court (Dyson LJ and Jackson J) in R (Lloyd) v. Bow Street Magistrates’ Court [2003] EWHC 2294 (Admin); [2004] 1 Cr App R 11. This was decided on 8^th October 2003, before the ECtHR decision in Crowther. The principal issue was whether the reasonable time right guaranteed by Article 6 was 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. The court held that it was, a decision subsequently vindicated by the ECtHR in Crowther. This is now common ground before us, and in my judgment is plainly right. It is noteworthy that in Lloyd the Divisional Court resolved the question by consideration of Article 6, and did not approach the issue by an application of the power to stay proceedings as an abuse of process.

It was conceded by the prosecution in Lloyd that Article 6 applied to all stages of the confiscation proceedings including enforcement, but submitted nevertheless, relying on Crowther, that the reasonable time requirement did not apply to the application for a warrant of commitment. In rejecting that ambitious contention, Dyson LJ held that he was not bound by Crowther because Article 6 was not considered. He declined to follow its reasoning in the Article 6 context for the reasons set out in [22] and [23]. In my judgment it is important not to read these paragraphs as a comprehensive statement of the relevant law, but as responses to the particular arguments with which they deal.

In [22] he held that the fact that there was no obligation on the prosecuting authorities to enforce confiscation did not mean that their delay could not be taken into account. He said

22.

……..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. [emphasis added].

Lloyd was decided a few weeks before Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72 was decided by the House of Lords. However, the decision of the Court of Appeal in that case was considered by Dyson LJ later in his judgment when he was deciding what remedy should follow the breach of the Article 8 right. He considered that there was a distinction between a trial which was affected by delay, which the Court of Appeal had said should ordinarily proceed if a fair trial were still possible, and enforcement proceedings of the present kind. In effect, he held that the principle enunciated by the Court of Appeal in Attorney General’s Reference (No 2 of 2001) did not apply to post-conviction events. This is the authority most helpful to Mr. Payne on what I have called his “overarching submission”. Whether or not this distinction is valid, the terms of paragraph [22] just quoted must be read in their context. In particular, the last sentence which is underlined above cannot be read to suggest that the law will always stay prosecutions after undue delay. That is the opposite of the true position. Nowadays delay on its own will very rarely, if ever, result in a stay where a fair trial remains possible. What that sentence means is that there is a jurisdiction to stay proceedings after undue delay even though the prosecution is under no legal obligation to take proceedings at any particular time. It does not purport to explain how that jurisdiction will be exercised.

Similarly, paragraph [23] must be read in the context of the proposition with which it was dealing. It reads:-

23.

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.

Again, this is an observation about the existence of jurisdiction, and not about how that jurisdiction should be exercised. The fact that a defendant may have behaved criminally or in some other culpable way does not deprive him of his Article 6 right to a determination within a reasonable time. That is all this paragraph means. It is, however, clear, in my judgment, that the conduct of a defendant is directly relevant to what a reasonable time means in the particular case, and to what remedy should be afforded if a breach is found.

This approach to Lloyd is consistent with the decision of the Divisional Court in R (Marsden & McIntosh) v. Leicester Magistrates Court [2013] EWHC (Admin) 919 (Laws LJ and Swift J), which is the third case where the principles applicable to this particular exercise were considered. Dealing with paragraph [23] of Lloyd Laws LJ said this at [15]:-

I accept without cavil that the Article 6 reasonable time requirement applies to confiscation proceedings even where the amount is incontestably due and unpaid in its entirety. But I do not, with great respect, accept that those factors are altogether irrelevant to the court's assessment of what is a reasonable time. The premise of enforcement proceedings is that the defendant has not established that he cannot pay. The fact that it lies within a defendant's own power to bring the proceedings to a close by satisfying the order, or at any rate take some steps in that direction, yet he does nothing, is an aspect of his conduct which on Strasbourg authority we are enjoined to consider. In my judgment such a circumstance raises the threshold, already high, of the proof required to establish a breach of Article 6 on time grounds, for which see Dyer v. Watson & Anor; K v. HM Advocate [2002] UKPC D1, [2004] 1 AC 379 per Lord Bingham at paragraph 80 [case name and reference amended]. I do not consider that Dyson LJ in Lloyd intended to contradict this position. If he did, I would with very great respect venture to differ.

In my judgment it is wrong to cite paragraphs [22] and [23] of Lloyd as authority for the propositions that (1) a court will always stay enforcement proceedings where there has been unreasonable delay and (2) that the conduct of the offender is not capable of being relevant to deciding whether there has been a breach of the reasonable time requirement, and what order to make if there has. Dyson LJ went on to say

27.

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.

From this it is clear that Laws LJ was right to read Lloyd in the way he did. The conduct of the defendant is irrelevant to the existence of his Article 6 right, but highly relevant to whether there has been a breach and, if so, what the remedy should be. That is also clear from [29]-[36] of Lloyd where the court considers remedy and adverts at [33] to the fact that the claimant had obtained a certificate of inadequacy. This meant that he had done something in the proceedings to show that he could not pay the original order, and that he could pay the adjusted order. The new sum of £8,000 was ordered by consent and was no doubt fixed as the amount which was actually available. Therefore, there were other means of enforcement than imprisonment, which was not a factor the Magistrate had been able to consider because he had refused to adjourn while the certificate application was made and determined. Further, on the facts of the case the Divisional Court held that it would be “inhuman” to imprison him when he had rebuilt his home life and obtained employment since the release from the original sentence 5 years earlier. In other words, the court looked at the conduct of the offender when reaching a fact specific decision in his case. The word “inhuman” is a strong one and it is unlikely that any court would impose a prison sentence having formed such a view.

Ms. Keighley drew our attention to paragraphs [52]-[55] of the judgment of Lord Bingham in Dyer v. Watson [2004] 1 AC 379, with which Lords Hutton, Millett and Rodger agreed and with which Lord Hope did not disagree. The Board was considering the proper approach to deciding whether there has been a breach of the reasonable time requirement.

52 In any case in which it is said that the reasonable time requirement (to which I will henceforward confine myself) has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the Convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for real concern, two consequences follow. First, it is necessary for the court to look into the detailed facts and circumstances of the particular case. The Strasbourg case law shows very clearly that the outcome is closely dependent on the facts of each case. Secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive.

53 The court has identified three areas as calling for particular inquiry. The first of these is the complexity of the case. It is recognised, realistically enough, that the more complex a case, the greater the number of witnesses, the heavier the burden of documentation, the longer the time which must necessarily be taken to prepare it adequately for trial and for any appellate hearing. But with any case, however complex, there comes a time when the passage of time becomes excessive and unacceptable.

54 The second matter to which the court has routinely paid regard is the conduct of the defendant. In almost any fair and developed legal system it is possible for a recalcitrant defendant to cause delay by making spurious applications and challenges, changing legal advisers, absenting himself, exploiting procedural technicalities, and so on. A defendant cannot properly complain of delay of which he is the author. But procedural time-wasting on his part does not entitle the prosecuting authorities themselves to waste time unnecessarily and excessively.

55 The third matter routinely and carefully considered by the court is the manner in which the case has been dealt with by the administrative and judicial authorities. It is plain that contracting states cannot blame unacceptable delays on a general want of prosecutors or judges or courthouses or on chronic under-funding of the legal system. It is, generally speaking, incumbent on contracting states so to organise their legal systems as to ensure that the reasonable time requirement is honoured. But nothing in the Convention jurisprudence requires courts to shut their eyes to the practical realities of litigious life even in a reasonably well-organised legal system. Thus it is not objectionable for a prosecutor to deal with cases according to what he reasonably regards as their priority, so as to achieve an orderly dispatch of business. It must be accepted that a prosecutor cannot ordinarily devote his whole time and attention to a single case. ……..There is no general obligation on a prosecutor, such as that imposed on a prosecutor seeking to extend a custody time limit under section 22(3)(b) of the Prosecution of Offences Act 1985, to show that he has acted "with all due diligence and expedition." But a marked lack of expedition, if unjustified, will point towards a breach of the reasonable time requirement, and the authorities make clear that while, for purposes of the reasonable time requirement, time runs from the date when the defendant is charged, the passage of any considerable period of time before charge may call for greater than normal expedition thereafter.

This passage is of general application and, as Laws LJ said in Marsden & McIntosh, applies in the present context. It is describing a different exercise from that conducted by a court considering whether a prosecution is an abuse of process and should be stayed. In such an application the question is (1) whether there can be a fair trial or (2) whether there has been such an abuse of executive power that a trial (even a fair one) would undermine public confidence in the criminal justice system and bring it into disrepute. The fair trial right guaranteed by Article 6 (which is separate from the reasonable time right) is guaranteed in domestic law by the first type of abuse. The second requires egregious abuse of power. The focus there is on the extent to which the proceedings constitute an invitation to a court to become complicit in serious misconduct.

In analysing a case under Article 6, the questions are not the same. They are

These two questions are conceptually different, but closely related in the present context where the only question is whether a sanction should be imposed. It will, by this stage of any case, be the position that those consequences were determined after a fair hearing and according to law. They will have been communicated to the offender in very clear terms when the order was made and there was a right of appeal against them. It is unsurprising that the threshold for intervention by the court to prevent them from ensuing is high. The question is really whether, in the circumstances which now prevail, it would be so unjust and disproportionate to require an offender to suffer the consequences of failure to satisfy the confiscation order, which was one of the consequences of his proved criminal conduct, that an application that he should do so should be refused. If that is so it is likely that the court will find that the reasonable time right has been violated and that the remedy will be a stay.

It seems to me that the transposition into the criminal law of the expression “inordinate, and inexcusable delay” may not be entirely helpful. This was a criterion which was applied when a court was considering whether to strike out civil proceedings for want of prosecution before the Civil Procedure Rules came into force, see Birkett v. James [1978] AC 297. In those days, the court had first to decide whether such delay was proved and, if so, whether the fair trial of the proceedings was not possible or whether there was serious prejudice to the defendant. That approach in civil proceedings was found wanting and abrogated by the Civil Procedure Rules in 1998, see Biguzzi v. Rank Leisure Plc [1999] 1 WLR 1926.

It appears to me that since Article 6 and the reasonable time guarantee has been part of domestic law it is no longer necessary to analyse applications to enforce confiscation orders in any other way. Indeed, as to the common law position the decision in Crowther may still be good law. The relevant issue on applications by the prosecution for warrants to enforce confiscation orders can be fully addressed by considering whether the imposition of the default sentence would violate the reasonable time Convention right, and, if so, considering what remedy should be granted to vindicate that right. The court, on such an application, is not considering whether the proceedings are an abuse of process in the conventional sense, but whether the imposition of a prison sentence after a long period of delay is lawful in this sense. Any misconduct by the prosecution (whether by culpable delay or otherwise) will be one highly relevant factor in this assessment and may be a decisive one in many cases. It is not, however, a condition precedent to a court’s jurisdiction to decline to impose a prison sentence after a long time has elapsed. The fact that the delay has occurred because the claimant has left the jurisdiction and failed to take any steps at all to pay the order, or to inform the prosecution where he is, will be another relevant factor. The outcome of any application to the High Court for a certificate of inadequacy will be important, as will the fact (if such it is) that an offender has not troubled to avail himself of the other remedies against injustice built into the system. The court cannot grant the warrant unless it

(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.

And the defendant has a right to be heard on those questions and to give evidence about them. The grant of a warrant is not a punishment for not paying the order, or for not paying it sooner. It is a means of enforcement. The principles are set out in R v. Harrow Justices, ex. P. the DPP [1991] 1 WLR 395.

In my judgment, it is not a helpful exercise for a court to start by asking whether to entertain an application at all. The application should be heard and determined on its merits. This may lead to the court refusing to grant a warrant of commitment where it would be unjust and disproportionate to do so. The threshold for reaching such a conclusion is a high one where the prison sentence has been imposed to address a default by the offender to pay a confiscation order. In all cases, and especially after very long delay, the court will consider whether there is any other way of enforcing the order because that is the object of the prison term, rather than additional punishment. There is no doubt that the court can grant a remedy, called a stay, which removes the sanction of imprisonment in the event of further default. That was done in Lloyd and other cases. The court can also postpone the application, leaving it open to the prosecution to apply again if enforcement does not succeed.

I agree with the Chief Magistrate that there can be no proper criticism of the decision not to seek to secure a warrant of commitment without informing the claimant of the application and therefore in his absence. I read his observations about the law having changed as a reference to the decision in Hickman. This means that an EAW can be obtained in respect of a person out of the jurisdiction by giving notice at his last known address. It does not mean that the court has to grant such an application in every case. Proceeding against a person in their absence denies them an opportunity to be heard, and that is of particular importance in enforcement proceedings concerning hidden assets. The desired outcome is that, confronted with immediate imprisonment, a defaulter will pay the order or at least seek a certificate of inadequacy supported by honest evidence. There may be cases where it is appropriate to seek a warrant of commitment in the absence of the offender, but it is impossible for a defaulter to complain that the authorities decided to proceed by warrant to secure his presence rather than proceeding in his absence. Proceeding in the absence of the offender makes imprisonment very likely. Since only one term in default can be imposed, and the default may continue after release, it is no doubt often more effective to wait until all other enforcement methods have been attempted without success before imposing the sentence. This is especially so where the defaulter has not been co-operating in the enforcement of the order and where he is out of the jurisdiction, whereabouts unknown. The first real dialogue will occur when imprisonment is a real and imminent possibility. In my judgment, where an offender is out of the jurisdiction and his whereabouts are unknown, delay caused by a decision to ensure he is before the court when enforcement proceedings are heard will very rarely be capable of amounting to a reason to stay them.

On this reading of his decision, the phrase used by the Chief Magistrate, “The only option was a warrant”, is not strictly accurate. It was not the only option, but it was not an unreasonable option as the law was then understood.

It is also the case that the prosecution are entitled, as Lord Bingham said in Dyer v. Watson, to prioritise their cases and to regard a case where they do not believe that the offender is in the jurisdiction and they do not know where he is, and where there are no known assets, as one where recovery is very unlikely until he is found and arrested.

That being so, the view of the prosecution that proceedings should not take place in this case until the claimant was arrested was not unreasonable. It is also not persuasive for the claimant to complain about the passage of time caused by the failure to have him committed to prison in his absence. That time resulted from a decision which preserved his rights to resist the granting of a warrant, and to be heard on the question. It may be an unreasonable length of time in the public interest, but it is not open to him to complain about it on the facts of this case.

Although it is asserted that greater hardship will necessarily flow from imprisonment now as opposed to in 2007, it should not be assumed that this is so. As Dyson LJ said in Lloyd at [25]

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. [emphasis added]

In deciding whether it would actually be unjust and disproportionate to impose the sentence of imprisonment the court must look at the detailed facts and circumstances of the particular case, Dyer v. Watson at [52] per Lord Bingham. In Lloyd the court did just that and concluded that it would be, and so granted the stay. In this case the court had no evidence to enable it to reach that conclusion because of the choice of the claimant not to supply any. The Chief Magistrate correctly observed that this was a case where there was no evidence that the claimant would suffer any greater hardship by being imprisoned now as opposed to having been imprisoned in 2005. The claimant is now 64 years old and the court knows nothing about his employment status either now or in 2007. It may be that he would have lost 10 years of earnings had he been imprisoned 10 years ago which he will not now lose. Had he been imprisoned then he may have found it difficult to find work on release. The only piece of evidence which the court has about his personal circumstances is that his wife died in 2007. Further, if there are indeed hidden assets, the claimant has had the benefit of them for 10 years when he should not have done. He has not yet reached an age where a prison term is likely to be reduced simply on that account because it may be regarded as harsh to imprison very old people for the full appropriate term. There is no evidence about his current state of health or family life or how it has changed in the relevant period. The court is entitled to infer that he has not given any such evidence because there is nothing which would help him.

Having found that it was not unreasonable to proceed by way of domestic warrant, the Chief Magistrate found and was entitled to find that there was no reason to suppose that anything which the authorities did or failed to do delayed the moment of his arrest. There was no evidence that a letter to Ballybrack, even if it had reached the claimant, would have procured his co-operation with enforcement and presence at a hearing in the United Kingdom. He would have been likely to ignore it. That would be entirely consistent with his approach to this confiscation order since his release from prison. The Chief Magistrate was also entitled to find that the claimant had failed to make any attempt to comply with his obligation to pay the confiscation order, and that the delay was of his making.

At [34] above I suggest that the question which arises on these applications is whether, in the circumstances which now prevail, it would be so unjust and disproportionate to grant the warrant that a stay should be granted to remove the possibility of imprisonment notwithstanding the continuing failure of the claimant to pay the order. That is really the same question whether the analysis is conducted under Article 6 or by an application of

the duty of the court to prevent misuse of its procedure in a way which although not inconsistent with the literal application of its procedural rules would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people which was identified by Lord Diplock in Hunter v. Chief Constable of West Midlands Police [1982] AC 529, at 536, when describing the concept of abuse of process in civil proceedings.

The length of time which has passed in this case is very long and would be a very powerful factor militating against the grant of a warrant if the principal contributor to it had not been the claimant. He has done nothing at all to pay the order since the dismissal of his appeal and has spent the whole of that time, on his case as presented to us, living abroad. That was his choice. More energetic steps by the UK authorities and, perhaps, by the Irish police may have tracked him down and resulted in an EAW being applied for and granted, but for the reasons I have given it is not unjust to refuse to allow him to benefit from his disregard of his obligations under the confiscation order. It would have been better for the State if he had been brought before the court long ago, but there is no reason to conclude that it would also have been substantially better for him. In that regard, he has chosen to invite the court to speculate, which I would decline to do.

In reality, I would dismiss this application based on the simple assertion that a default sentence imposed in 2003 cannot in any circumstances lawfully be imposed in 2016 (or 2017 now) because the time between those dates is too long. I do not accept that assertion. In some cases such a period may have the effect of relieving an offender of the imprisonment otherwise consequent upon his default in paying the order. In some cases a much shorter period of time may have that effect. In each case a fact specific decision is required of the kind made by the Chief Magistrate in this case on the evidence available to him. As I have indicated in my judgment the decision to which he came and the process by which he reached it were properly open to him and not unlawful.

For these reasons this claim for judicial review fails.

I agree.