NM (Afghanistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE PITCHFORD |
| Judgment Date | 21 November 2008 |
| Neutral Citation | [2007] EWHC 214 (Admin),[2008] EWHC 2800 (Admin) |
| Docket Number | Case No: CO/8948/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 November 2008 |
[2008] EWHC 2800 (Admin)
IN THE HIGH COURT OF JUSTICE
CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Pitchford
Case No: CO/8948/2006
Tony Wyatt (instructed by Roche & Co) for the Claimant
Andrew Munday QC & Rupert Jones for the Interested Party
Hearing date: 4 November 2008
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Pitchford
This is a claim for judicial review of the decision of District Judge Elizabeth Roscoe, sitting at Marylebone Magistrates' Court on 23 August 2006, refusing to order the stay of enforcement of a confiscation order against the claimant and ordering the enforcement proceedings to continue.
The application for permission was considered on the papers by Walker J on 18 December 2006 and refused. It was renewed before Langstaff J on 23 January 2007 when permission was granted.
The full hearing took place on 4 November 2008. The claimant was represented by Mr Tony Wyatt, instructed by Roche & Co. The defendant did not appear. The interested party was represented by Mr Andrew Munday QC and Mr Rupert Jones.
On 1 October 1997 the claimant, Robert Minshall, was arrested on suspicion of conspiracy fraudulently to evade the duty on alcohol in contravention of section 170 Customs & Excise Management Act 1979, contrary to section 1 Criminal Law Act 1977. On 3 February 2000 at Wood Green Crown Court he changed his plea to guilty. The offence involved participation in a diversion fraud in which liquor left the Fort Patrick warehouse ostensibly for European destinations but factually to outlets in the United Kingdom, thereby evading duty. On 5 May 2000 he was sentenced to 2 1/2 years' imprisonment. On 13 October 2000 the claimant was adjudged to have benefited in the sum of £351,871 and made the subject of a confiscation order in the sum £80,000 to be paid by 13 April 2001 with 18 months imprisonment in default.
With accrued interest the sum due and unpaid under the confiscation order on 2 May 2006 was £112,052.60. On that day the London Central Confiscation Unit gave notice to the claimant that a hearing would take place at Marylebone Magistrates Court on 2 June 2006 with a view to enforcement of the outstanding confiscation order. The Magistrates Court listed for hearing on 23 August 2006 the claimant's application for a stay of the proceedings on the ground of abuse and for breach of the requirement that the proceedings should be concluded within a reasonable time under article 6.1 European Convention on Human Rights (ECHR). The parties submitted full skeleton arguments.
It is common ground that in the absence of culpable delay by the prosecutor the application was argued primarily on article 6 considerations. Unfortunately no recording of the District Judge's ruling was made and the following represents the only available note:
“1. Mrs Minshall, on Mr Minshall's behalf, asked the court to hold off enforcement because of appeal. The court agreed.
2. It is the court whose duty it is to enforce. The RCPO are to assist the court.
3. Most of the delay has been taken up by the appeals and the postponement of the appeals decisions pending House of Lords cases (Knights, Soneji and London City Board).
4. After decision in Knights and advice by counsel in August 05 that no prospect of success, Mr Minshall still persisted and appeal was dismissed in February 06.
5. Even now Mr Minshall is seeking to delay enforcement till after a hearing at Strasbourg although delay is the very point he complains of.
6. This court has power to consider abuse through delay and all the circumstances of it. If it finds abuse it can stay proceedings, enforce the order but exclude enforcement through imprisonment and indeed even enforce by any of the normal means including imprisonment. Those are amongst its powers.
7. Clearly, mere passage of time is not enough. In this case the only long time lapses have been as a result of the wait for a higher court's decision on the point raised by Mr Minshall's appeal. I have heard nothing to suggest that that was unreasonable or unjustifiable and after that all steps have, in my view, been taken properly.
8. Mr Minshall has never been given the impression or given to understand in any way that this order would not be enforced and I find no abuse of process.”
In the absence of any noted reference to article 6 in the ruling, I asked the parties to address me upon the appropriate relief were I to conclude that no decision had in fact been made under article 6. Mr Wyatt submitted that I should in those circumstances remit the matter for a further hearing before the District Judge. Having reconsidered the District Judge's noted remarks in the light of the skeleton arguments submitted to her, I am in no doubt that she rejected the application both under common law and under article 6. I have reached that conclusion as a result of her references to “delay and all the circumstances of it” and “mere passage of time is not enough”, and the District Judge's reference to delay caused by the appeal process, its reasonableness or otherwise. The grounds of the claim were advanced under article 6 and it was on this ground that Langstaff J granted permission. Originally it was contended that the order of the Crown Court and its confiscation certificate were ineffective. Further points were taken on the restraint order. Those grounds have not been pursued before me.
Application of Article 6 to the enforcement proceedings
No warrant for commitment of the claimant has been issued by the Magistrates Court. On 23 August 2006 District Judge Roscoe held a means inquiry and ordered the applicant to disclose information relating to his bank accounts and other financial data. Counsel pointed to the terms of article 6.1:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….”
Mr Munday, in his supplementary skeleton argument, argued that proceedings to enforce a confiscation order by civil means does not attract the protection of article 6.1 since they neither determine the claimant's civil rights, nor amount to the resolution of a criminal charge. Mr Munday acknowledges that this point was not taken in the Magistrates' Court. He would be content if I confined my decision to the enforcement of the confiscation order by issue of a warrant for commitment. Since I am not dealing with a decision to commit but with a decision to continue enforcement proceedings I consider that I should decide the point.
In Schouten & Meldrum v Netherlands [1994] EHRR 432, ECtHR the court said at paragraph 50:
“Nor is it in itself sufficient to show that a dispute is “pecuniary” in nature. There may exist “pecuniary” obligations vis a vis the state or its subordinate authorities which, for the purpose of Article 6 para. 1 (art.6–1), are to be considered as belonging exclusively to the realm of public law and are accordingly not covered by the notion of “civil rights and obligations”. Apart from fines imposed by way of “criminal sanction”, this will be the case, in particular, where an obligation which is pecuniary in nature derives from tax legislation or is otherwise part of normal civic duties in a democratic society.”
Mr Munday submits that the enforcement of a confiscation order other than by the criminal sanction of imprisonment (by means, for example, of an enquiry into means, the setting of periodical payments and an attachment of earnings order) involves the enforcement by civil means of a public rather than civil obligation. I agree that the obligation to meet the requirements of a confiscation order is public rather than private in nature but, in my view, the critical question is whether, notwithstanding the 'civil' nature of the enforcement the proceedings are nevertheless to be regarded as part of and the culmination of “determination of…any criminal charge” for the purposes of art 6.
Mr Munday recognises that section 75 Criminal Justice Act 1988 treats the enforcement of a confiscation order as the enforcement of a fine imposed on him by the Crown Court. One means of enforcement of a fine is the imposition of a term of imprisonment and by section 75(3):
“Where (a) a warrant of commitment is issued for a default in payment of an amount ordered to be paid under this part of this Act in respect of an offence; and (b) at the time the warrant is issued the defendant is liable to serve a term of custody in respect of the offence; the term of imprisonment… to be served in default of payment of the amount shall not begin to run until after the term mentioned in paragraph (b) above.”
The power to order a term of imprisonment in default of payment derives from section 139 powers of Criminal Courts (Sentencing) Act 2000; thus, the ultimate sanction upon any enforcement of a confiscation order is the period set in default by the Crown Court.
Mr Munday's argument is that enforcement proceedings short of the issue of a warrant for commitment constitute neither the resolution of a criminal charge nor of a dispute as to civil rights and obligations. The status of fine enforcement proceedings was considered by the Divisional Court in...
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