John Kenneth Collins v The Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Edis,Mr. Justice Linden |
| Judgment Date | 19 March 2021 |
| Neutral Citation | [2021] EWHC 634 (Admin) |
| Docket Number | Case No: CO/4596/2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 March 2021 |
[2021] EWHC 634 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Edis
and
Mr Justice Linden
Case No: CO/4596/2020
Nathaniel Rudolf, Q.C. (instructed by Blackfords LLP) for the Appellant
Philip Stott and Anna Keighley (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 9 March 2021
Approved Judgment
This is an appeal, by way of case stated, from a decision of District Judge Blake made on 1 st August 2019 at Westminster Magistrates' Court, enforcing a confiscation order made under the Proceeds of Crime Act 2002 (“the 2002 Act”) by HHJ Kinch QC sitting at Woolwich Crown Court (“the confiscation order”). The District Judge issued a warrant of commitment, and there is no challenge to that. The challenge is to his decision not to endorse the warrant of commitment in a way that made clear that the calculation of the time required to be served in prison by the appellant, Mr John Kenneth Collins, had to take into account any service of any period of imprisonment by any other co-conspirator who was subject to what is described (by the appellant) as the “joint and several” element of the order made by HHJ Kinch QC. The District Judge simply found the appellant to be in default in the sum of £7,502,519.68p and ordered him to serve a period of 2309 days imprisonment.
The statutory machinery for enforcing confiscation orders by the imposition of the default term is complex. Its effect is that the issue is dealt with in the Magistrates' Court, which deals with it in the same way as in enforcing fines, subject to amendments made in section 35(3) of the 2002 Act. This involves consideration of provisions in the Magistrates' Courts Act 1980 which were not drafted with confiscation in mind.
The confiscation order in the present case was made following the conviction of a number of people, including the appellant, of conspiracy to burgle the Hatton Garden Safe Deposit Company Ltd. The resulting burglary was committed over the Easter weekend in 2015. On 30 January 2018, following contested confiscation proceedings, HHJ Kinch QC found that the “benefit” from that crime was just under £14 million, which was obtained jointly by four relevant defendants who had been convicted at that stage. A significant amount of the stolen property was recovered, which reduced the amount of the confiscation order. Judge Kinch then found that the defendants had all failed to discharge the persuasive burden on them of establishing that the “available amount” was less than the amount of unrecovered stolen property (or the proceeds thereof) contended for by the prosecution, namely £5.75m in round figures. He also held that the defendants had failed to satisfy him that there should be any apportionment in relation to those remaining, hidden, assets. There were some realisable assets, which were reflected in the confiscation orders against those who had possession of them. The Judge therefore held that the available amount against each of those defendants (and the sum to be paid as a confiscation order) was that amount of hidden assets, together with the value of property which had been identified as realisable in the case of each defendant. In the appellant's case this amounted to a further £2m, again in round figures. The Judge additionally directed that “the confiscation orders are not to be enforced to the extent that a sum has been recovered by way of satisfaction of another confiscation order made in relation to the same joint benefit” stating that this was intended to be in line with the guidance from the Supreme Court in R v Ahmad and Fields [2015] AC 299. He set the period to be served in default of payment at 7 years in respect of each defendant.
This effect of HHJ Kinch QC's orders was that:-
i) Each order was to be satisfied by the payment of the assessed value of the identified realisable assets of each defendant.
ii) In addition, each defendant was ordered to pay whole of the sum representing “hidden assets”, namely £5.75m.
iii) The sum of £5.75m would be reduced in the case of each defendant by the sums, if any, paid by any of them in respect of it.
iv) The total term in default took into account the total sum in the order against each defendant, but at the enforcement stage the court is required to adjust it to reflect payments under (i) and (iii) by section 79(2) of the Magistrates' Courts Act 1980. There is no issue before us about how that will work in practice.
The stated case
There is no attack before this court on anything which was done by HHJ Kinch QC in the Crown Court. Proposed attacks on other parts of District Judge Blake's August 2019 ruling have not been pursued. We are solely concerned with one issue, which is an issue of law. The way in which Judge Blake expressed the question for us when he stated the case is as follows:-
“Was I wrong in law, in declining to endorse the warrant of commitment to prison, in respect of John Kenneth Collins for non-payment of his confiscation order, that any term of imprisonment served by a person in default of payment of a confiscation order made in relation to the same joint benefit should reduce the term of imprisonment to be served by John Kenneth Collins for his default of payment?”
The case stated by Judge Blake recorded the current situation so far as the others who were ordered to pay the sum of £5.75m, reflecting jointly obtained property in addition to other sums relating to identified assets held by them individually. It says:-
“Apart from the Appellant, Mr Perkins is dead, Mr Jones did not challenge the order and is serving the default term and Mr Reader was accepted by the prosecution not to be fit and able to participate in enforcement proceedings. On the 1st October 2020 Mr Seed [a recently convicted fifth defendant] was made subject to a proceeds of crime order by HHJ Kinch QC at the Crown Court sitting at Woolwich and given 3 months to pay in full.”
This means that Mr. Perkins and Mr. Reader will not be subject to imprisonment following their failure to pay £5.75m or any part of it. Mr. Jones is serving the default term, part at least of which relates to that £5.75m. We were informed at the hearing that Mr. Seed appealed to the Court of Appeal Criminal Division against the confiscation order imposed on him, and that appeal is pending.
The District Judge's ruling
In his ruling, the District Judge set out the facts concerning the recovery of payments in respect of the orders. He put it this way:-
“Subsequent to the conviction and sentence of Mr Collins, Michael Seed has been convicted of conspiracy to burgle and sentenced to 10 years' imprisonment. Items of jewellery were found in his possession to the value of £143,129.74. I understand that some 90% of this property has been identified as items stolen in the burglary or consistent with such items. To date £110,324.50 of the jewellery been realised at auction. A confiscation timetable has been ordered in respect of Mr Seed that will be heard sometime after 15 November 2019. Mr Collins has to date paid £591,059.29. The total paid towards the order is £738,334.35p. Interest accrues at approximately £1,543,93. The amount outstanding is £7,583,560.64p which is some 98% of the order of £7,635,233.31. Payment has been made in respect of part of the identified assets and no payment has been made in respect of the jointly obtained hidden assets.”
The District Judge correctly followed the line of decisions in this court culminating in R. (oao Sanghera) v. Birmingham Magistrates' Court [2017] EWHC 3323 (Admin). This makes it clear that section 82(4) of the Magistrates' Court Act 1980 applies, which means that a warrant of commitment for default should not be issued 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.
The District Judge said this.
“I am further satisfied that there has been wilful refusal and culpable neglect with regard to the ‘hidden assets’. Mr Collins has made no payment towards this sum. He has not assisted in the realisation and recovery of any of this property. I do not accept the submissions made on behalf of Mr Collins with regard to the approach to the enforcement of this sum. The default periods are individual. It is quite wrong to see this as a default period which should be shared across all five defendants due to the joint and several liability approach as per Ahmad & Fields.
“In my view the defence seek to muddle the enforcement procedure with the sum that is due as the ‘hidden assets.’ It is not a case of the state having ‘multiple sentences’ for the same sum of money. I am satisfied that the period in respect of each defendant was set by HHJ Kinch QC at the Woolwich Crown Court that the enforcement of that order in respect of each defendant is appropriate and proportionate. The term which is to be served is not a term of imprisonment for the offence but the default period for enforcement of the order.”
It will not be uncommon in hidden assets cases for a finding of wilful refusal or culpable neglect to follow from a failure by the offender to explain, in a way which is believed, what happened to the property which he, together with others, had stolen. In R. (oao O'Connell) v, Westminster Magistrates' Court & the Crown Prosecution Service [2017] EWHC 3120 (Admin) at [20] I, with the agreement of Lindblom LJ, said that the imposition of a confiscation order created a continuing duty to pay the order, and added this:
“In a...
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