Mr Abim Olabinjo v Westminster Magistrates Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde,Mr Justice William Davis |
| Judgment Date | 06 May 2020 |
| Neutral Citation | [2020] EWHC 1093 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/947/2019 |
| Date | 06 May 2020 |
and
[2020] EWHC 1093 (Admin)
Lord Justice Holroyde
and
Mr Justice William Davis
Case No: CO/947/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Adam Tear (instructed by Scott Moncrieff & Associates Ltd) for the Claimant
Tyrone Silcott (instructed by CPS) for the Interested Party
Hearing dates: 28 th April 2020
Approved Judgment
Lord Justice Holroyde AND Mr Justice William Davis
This is the judgment of the Court:
Introduction
On 6 November 2018 the Claimant was committed to prison for 227 (subsequently amended to 226) days by District Judge Kreiman sitting at the Westminster Magistrates' Court. The sentence was a default sentence imposed to enforce a Crown Court confiscation order. The Claimant now applies with leave for judicial review of the decision to commit him to prison. He has served the sentence. The remedy he seeks is a declaration that (a) in violation of his Article 6 rights he was not given a fair hearing and that consequently (b) he was deprived of his liberty unlawfully and in violation of his Article 5 rights.
His case is twofold. First, he was not legally represented at the hearing on 6 November 2018. He asserts that the District Judge declined to allow him to instruct a solicitor. As a result he was deprived of a fair hearing. Second, the decision to impose the default sentence was made when the District Judge did not have all the relevant material before him. In any event, the District Judge erred in that he did not apply the correct legal test before committing the Claimant to prison.
The Magistrates' Court has entered an appearance but has made no representations in these proceedings. The Crown Prosecution Service, as the Interested Party, oppose the application for judicial review. They argue that the Claimant was not refused legal representation. Rather, he chose not to be represented. Further, in the light of the history of the enforcement proceedings, the District Judge was entitled to activate the default sentence.
It is conceded on behalf of the Claimant that it would have been preferable had he applied for the District Judge to state a case in relation to the hearing on 6 November 2018. That would have provided a clear basis of fact on which to judge whether any error was made by the District Judge. Judicial review proceedings are less appropriate when matters of fact are in issue. However, where a proper inference can be drawn from the available materials, this court can make findings of fact even in proceedings for judicial review.
History of the criminal proceedings
On 19 December 2013 in the Crown Court at Isleworth the Claimant was convicted of three offences of false accounting. He was sentenced to a term of 6 years' imprisonment. His application for leave to appeal against the sentence was refused by the single judge. The Claimant renewed his application to the full Court. That renewed application was refused on 17 June 2014.
Confiscation proceedings were taken pursuant to the Proceeds of Crime Act 2002. On 24 April 2015 a confiscation order was made against the Claimant. His benefit from his particular criminal conduct was assessed in the sum of £401,940.00. This was the amount which the Claimant stole by means of the false accounting of which he was convicted.
The victim was a not-for-profit company of which the Claimant was the CEO between 2004 and 2007. The order specified (pursuant to Section 13 of the 2002 Act) that the sum confiscated was to be paid by way of compensation to that company. The available amount was assessed in the sum of £14,238.50. The schedule of assets attached to the confiscation order identified this sum as the Claimant's beneficial interest in a property at 215 Burnt Ash Hill, London SE12. The Claimant was given 6 months to pay the sum due.
The Claimant applied for leave to appeal against the confiscation order on the basis that the order was disproportionate. His argument was that the property at Burnt Ash Hill was the family home and that he could not satisfy the order without the property being sold. His application was made 18 months out of time. The application was refused by the single judge. The Claimant renewed this application before the full Court. The renewed application was refused on 26 October 2017. In its judgment the Court noted that both the benefit figure and the available amount had been the subject of agreement in the Crown Court. The Court rejected the proposition that it was disproportionate to make a confiscation order based on the Claimant's beneficial interest in the property.
The Claimant's evidence
The application for permission to apply for judicial review, filed by claimant in person whilst in prison, was supported by a hand-written statement of facts signed by the Claimant on 7 March 2019. He stated that an extension to the original confiscation order had been made in April 2016 against the family home. Initially he had paid modest instalment payments each month to discharge the confiscation order. In December 2017 the court had asked him to try and raise a loan. The court at the same time had advised the Crown Prosecution Service confiscation unit to remove the restraint order on the property at Burnt Ash Hill in order to facilitate the loan. The Claimant stated that applications to various finance companies for a loan had been declined because of the existence of the restraint order. The court thereafter had ordered the Claimant to write to the confiscation unit asking that unit to remove the restraint order. The Claimant had complied with this order but the restraint order had remained in place. In July and September 2018 there had been hearings in which the court had said that the Claimant had done everything possible to satisfy the confiscation order but the refusal to remove the restraint order had frustrated every attempt to obtain a loan. The court had agreed that the Claimant should try and get a job in order to fulfil a monthly payment plan. At the hearing on 6 November 2018 the District Judge had simply asked him whether he had a job but gave him no chance to explain that he was awaiting the results of interviews. The order for commitment to prison was made despite the Claimant having completed legal aid forms and asking to see the duty solicitor.
When granting permission to apply for judicial review the single judge ordered the Claimant to file a witness statement in support of his grounds. This statement is dated 18 October 2019. The Claimant stated that, as a result of his conviction in 2013, his indefinite leave to remain in the United Kingdom had been revoked whilst he was serving the sentence of six years' imprisonment. As a consequence, he was not permitted to work. He said that he had hoped to secure a job so that the Home Office would change their mind and allow him to work. He said that he had applied for loans because the court had ordered him to prove that he would not be eligible for a loan. He had repeatedly applied for loans. On every occasion he had been told that he could not qualify for a loan because he was not working. The Claimant stated that the Crown Prosecution Service knew that he had been subject to immigration detention at the expiry of his sentence and that he then had been released on immigration bail. Therefore, they were aware that he had no right to work in this country. He said that he had tried to explain to judges at Westminster Magistrates' Court about his immigration status and its effect on his ability to work and to obtain a loan. They had nearly always not understood the issues. He had attended court on 6 November 2018 to explain that he had not been able to locate a job and to obtain a loan because of his immigration status.
The enforcement proceedings
Before the commitment of the Claimant on 6 November 2018 there were no fewer than 20 hearings listed before the Westminster Magistrates' Court. The first was on 23 February 2016. Not all of the hearings were effective. Prior to his release from custody there were several occasions when the Claimant was not produced whether in person or via a video link. However, there were at least ten effective hearings prior to 6 November 2018.
The only court record of any hearing which we have is the note made by the legal advisor or court associate on 6 November 2018. The Crown Prosecution Service have provided their contemporaneous record of every hearing including the note made by their representative at court on each occasion. The following chronology – which deals only with those hearings where any matter of substance was raised — is taken from that record.
On 14 June 2016 the Claimant informed the court that he was waiting for the Court of Appeal Criminal Division to decide his appeal against conviction. There had been a hearing on 20 May but he did not know the result. The proceedings were adjourned for the Claimant to make progress on the sale of the property if his appeal failed.
On 12 July 2016 the Claimant told the court that he had received a written notice that his appeal had been refused as being without merit. The proceedings were adjourned for him to obtain legal representation and to show a realistic prospect of satisfying the order. The District Judge told the Claimant that there was a real risk of the default sentence being imposed.
On 20 September 2016 the Claimant said that his appeal now was with...
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