R (Secretary of State for Work and Pensions) v Crown Court sitting at Croydon
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TOULSON,MR JUSTICE GRIFFITH WILLIAMS |
| Judgment Date | 24 March 2010 |
| Neutral Citation | [2010] EWHC 805 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 March 2010 |
| Docket Number | CO/8449/2009 |
[2010] EWHC 805 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Toulson
Mr Justice Griffith Williams
CO/8449/2009
MR S MURRAY (instructed by THE DEPARTMENT FOR WORK AND PENSIONS) appeared on behalf of the Claimant
MR T WYATT (instructed by BLOCK & CO) appeared on behalf of the INTERESTED PARTY
: The Secretary of State for Work and Pensions challenges the legality of a decision made by Her Honour Judge Downing at Croydon Crown Court on 27 May 2009 to stop confiscation proceedings under Section 6 of the Proceeds of Crime Act 2002 as an abuse of process. The principal question is whether the judge was wrong in law to consider that it would have been an abuse for the court to proceed with the confiscation application in circumstances where the court had on an earlier occasion told the offender that the matter would not proceed if she repaid the benefit obtained by her from her criminal conduct before the date fixed for the hearing of the application and she had done so.
The facts may be summarised shortly. On 16 June 2008 Miss Wendy Stubbs pleaded guilty at Bromley Magistrates Court to an offence under Section 111A(1)of the Social Security Administration 1992 of dishonestly making a false representation with a view to obtaining benefit and she asked for 109 other offences to be taken into consideration. In all, she dishonestly obtained income support of £25,703.30 over a period of three years two months from November 2003 to January 2007. It was a bad case because she was not in great financial need, but on the contrary was the owner of more than one property, one which she acquired on mortgage during the period over which she was dishonestly obtaining benefit.
The Minister seeks a confiscation order in the sum mentioned, that is £25,703.30. She was sent by the Magistrates to the Crown Court where she was sentenced by His Honour Judge Ainley on 16 June 2008 to 50 weeks imprisonment suspended for two years. At the end of the sentencing hearing he gave directions regarding the confiscation application. He set dates for various steps, beginning with service of an affidavit by Miss Stubbs on 14 July, and culminating in a hearing of the application, which he fixed for 29 September 2008. He continued by addressing Miss Stubbs in these words which have lead to the issue now before the court:
“And, if the payment is made, there won't be any need for it at all [meaning the hearing of the confiscation application].
But bear this in mind, if it gets to the stage where you have not made any or any significant payment and a confiscation order is made by the court the court will fix an amount that has to be paid within the given time. If you don't pay it, you go to prison.”
Counsel for the prosecution said nothing. There was present also in court a financial investigator from the Department, but she was sitting in the public gallery. On 10 July 2008 Miss Stubbs paid the £25,703.30 by cheque. Concluding that the confiscation hearing would not go ahead she did not serve an affidavit as had been ordered, but on 1 August 2008 the prosecution served a statement under Section 16(5) of the Act identifying her benefit from her offending in the sum mentioned and seeking a confiscation order in that amount.
When the matter came back before Judge Ainley Miss Stubbs's legal representatives submitted that it would be an abuse of process for the application to continue. Her counsel said that the prosecution had made a representation on a previous occasion that it would not continue if voluntary repayment can be made. Judge Ainley directed a transcript. When the transcript was obtained it showed that the representation had come from the judge himself rather than from the prosecution. In those circumstances he wisely recused himself and so the matter came before Her Honour judge Downing. She held that the judge had given an unequivocal representation that there would be no confiscation proceeding if she repaid the money, that the prosecution had said nothing to correct what the offender had been told, and that it would be an abuse of process if the confiscation application were to be allowed to continue after she had repaid the money. He also considered that it would be oppressive and therefore an abuse of process for the application to continue in any event, relying for this purpose on the decision in Morgan and Bygrave [2008] EWCA 1323.
Certain matters are not contested. Mr Murray for the Minister does not dispute that as a matter of simple English what the judge said did amount to an unequivocal representation that the confiscation proceedings would not go ahead if in the meantime the offender repaid the money. He also realistically and wisely does not dispute that she repaid under the inducement of the representation which the court had made, but he submits that that is irrelevant in law. The prosecution's submissions can be summarised in the following propositions: one, Judge Ainley was wrong to say what he did; two, the Act required the court to hold a confiscation hearing when requested by the prosecution to do so; three, the prosecution was not responsible for his ill-considered remark and not bound by it; four, although the court has a power to stay a confiscation application where it would be an abuse for the prosecution to pursue it, the circumstances in which that...
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