R Sanghera v Birmingham Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Goss,Lord Justice Irwin |
| Judgment Date | 07 December 2017 |
| Neutral Citation | [2017] EWHC 3323 (Admin) |
| Docket Number | CO/2612/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 December 2017 |
[2017] EWHC 3323 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Lord Justice Irwin
Mr Justice Goss
CO/2612/2017
Mr F Osman (instructed by Jonas Roy Bloom) appeared on behalf of the Appellant.
Ms R Earis (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent/Defendant.
This is an application for judicial review of the decision relating to the warrant of commitment of the claimant issued by the Birmingham Magistrates' Court on 9 th February 2017, and the District Judge's refusal on 23 rd February 2017 to state a case.
Reasons for refusing to state a case were provided by the District Judge on 9 th March 2017. The original relief claimed was for an order pursuant to s.111(6) of the Magistrates Court Act 1980, requiring the Magistrates' Court to state a case. The claimant applies to vary the relief by extending it to an order quashing the warrant of commitment as being wrong in law.
The Crown Prosecution Service, (“CPS”), who was made an interested party by the judge granting permission to bring the claim, supports the application to vary the relief sought in as much that it agrees that this court can consider the underlying claim, and it takes a neutral stance in relation to the claim itself. The CPS was not represented at the hearing on 9 th February 2017 at which the warrant of commitment was issued.
The real issue to be decided relates to the lawfulness of the substantive decision to issue a warrant of commitment. In these circumstances, the approach to be followed is that set out in R. v. Blackfriars Crown Court, ex parte Sunworld Ltd [2000] 1 WLR 2102 at 2106:
“(1) Where a court, be it a Magistrates' Court or a Crown Court, refuses to state a case, then the party aggrieved should without delay apply for permission to bring judicial review, either (a) to mandamus it to state a case and/or (b) to quash the order sought to be appealed. (2) If the court below has already (a) given a reasoned judgment containing all the necessary findings of fact and/or (b) explained its refusal to state a case in terms which clearly raise the true point of law in issue, then the correct course would be for the single judge, assuming he thinks the point properly arguable, to grant permission for judicial review which directly challenges the order complained of, thereby avoiding the need for a case to be stated at all […] (4) This court for its part will adopt whatever course involves the fewest additional steps and the least expense, delay and duplication of proceedings.”
This approach has been followed without challenge in other cases in this court. Although no fully reasoned judgment exists, the defendant has provided the District Judge's reasons for refusing to state a case.
The defendant has also filed an acknowledgment of service and does not wish to make submissions in relation to the claim in its original or varied form. The District Judge has stated he made no findings of fact and the defendant has in terms of step (b) of the guidance in Sunworld Ltd. (supra) “(b) explained its refusal to state a case in terms which clearly raise the true point of law in issue.”
By way of factual background, the claimant was made the subject of a confiscation order in the Crown Court at Birmingham under s.6 of the Proceeds of Crime Act 2002, following his conviction of an offence of conspiracy to supply Class A drugs on 14th March 2016. The value of his benefit was certified as £130,000 and the available amount he was ordered to pay was £42,194.00.
Initially, he was ordered to pay this sum within 3 months. The claimant's only available asset was a 50 per cent shareholding in a company Hi Flyre Limited (“the company”). The amount of the confiscation order represented the estimated value of the claimant's shareholding. The company ceased trading in 2016, at around the time of the confiscation proceedings for failing to file any statutory returns. The claimant sought advice on how to liquidate the company's assets and was afforded an extension of time to pay by the Crown Court on 16 th June 2016 to 14 th September 2016. The order was not paid. Of its own motion, the defendant initiated enforcement proceedings which were heard on 10 th February 2017.
The CPS was not represented at that hearing at which application was made for the enforcement proceedings to be adjourned to allow for the winding up of the company. The company had to be restored to the Register before it could be liquidated. The claimant had instructed an insolvency solicitor to undertake the process of realising the asset in April 2016. The letter from the insolvency solicitor before the Crown Court judge who extended time for payment, which was dated 13 th June 2016, referred to the considerable time that the process of realising the company's assets would take. The defendant made the order the subject of this claim without hearing evidence.
By s.35 of the Proceeds of Crime Act, the enforcement of a conviction order is vested in the Magistrates' Court. By s.14(1) of the Powers of Criminal Courts Sentencing Act 2000, confiscation orders are to be treated as if they are fines. Section 76 of the Magistrates Courts Act 1980 gives the power to the Magistrates' Court to commit a defaulter to prison for non-payment of a confiscation order by a warrant of commitment. The Magistrates Court Act provides:
“82(4) Where a Magistrates' Court is required by subsection (3) above to inquire into a person's means, the court may not on the occasion of the inquiry or at any time thereafter issue a warrant of commitment for a default in paying any such sum unless —
[…]
(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.”
These provisions, where considered in the case of Munir v Bolton Magistrates Court [2010] EWHC 3794 (Admin). In para.4 of his judgment, Charles J stated:
“The position is […] that under that statutory framework the confiscation order is treated as a fine, which is then enforced through the Magistrates' Court. The Magistrates' Court is not required under s.82(3) [of the Magistrates' Courts Act 1980] to hold any further means inquiry, because the Crown Court has done that, and the section which the Magistrates' Court...
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...Magistrates’ Court Act 1980 refers. We note that a line of authority, culminating in R (Sanghera) v Birmingham Magistrates’ Court [2017] EWHC 3323 (Admin), has emphasised the requirement (in s82 of the MCA 1980) that the default is due to ‘the offender’s wilful refusal or culpable neglect’ ......
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...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 s......