R Daniel O'Connell v Westminster Magistrates' Court The Crown Prosecution Service (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edis,Lord Justice Lindblom |
| Judgment Date | 06 December 2017 |
| Neutral Citation | [2017] EWHC 3120 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5827/2016 |
| Date | 06 December 2017 |
[2017] EWHC 3120 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
Mr Justice Edis
Case No: CO/5827/2016
and
Geoffrey Payne (instructed by Cartwright King) for the Claimant
Anna Keighley (instructed by The Crown Prosecution Service) for the Interested Party
The Defendant did not appear and was not represented
Hearing date: 16 th November 2017
Judgment Approved
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 statutory context
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:-
i) To issue a warrant of control under section 76 of the Magistrates Courts Act 1980, formally known as a 'distress warrant' empowering bailiffs to take possession and sell property.
ii) To postpone the issue of a warrant of commitment for such time and on such conditions as it sees fit (s.77(2) Magistrates Court Act) and to vary the period of postponement or the conditions if there is a change in circumstance.
iii) To seek the assistance of the High Court or County Court to enforce the fine (s.87) in relation to a third party debt order and to do so without a means inquiry (s.75(5)(b) Criminal Justice Act 1988).
iv) To make a third party debt order or attachment of earnings order.
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 present case
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:-
i) On 28 th June 2004 the CPS wrote to the claimant's solicitors and in their reply the solicitors said that they had no instructions in the matter and said that they did not know his current address.
ii) On 15 th June 2005 the CPS wrote to his solicitors asking for proposals for payment and saying that they would have the matter listed for enforcement in the absence of a satisfactory response by 13 th July 2005. The solicitors replied saying that they no longer held instructions on behalf of the claimant and could assist no further. Although he has since changed firms, the same solicitor, Mr. Fowler, is now acting for him in these proceedings and has been for over a year. He has not replied to the letter of 15 th June 2005 substantively. Since being arrested in August 2016 the claimant has done nothing at all to satisfy the order, or to seek a certificate of inadequacy. He has not explained what he has done in the past to try to recover assets to pay the order, and it is reasonable to infer that this is because he has not done anything.
iii) On 27 th June...
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John Kenneth Collins v The Director of Public Prosecutions
...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 o......