R Weintroub v Central Criminal Court
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip |
| Judgment Date | 01 March 2018 |
| Neutral Citation | [2018] EWHC 1283 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 March 2018 |
| Docket Number | CO/5370/2017 |
[2018] EWHC 1283 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice Yip
CO/5370/2017
and
APPEARANCES
Mr A Weintroub and Mr J Weintroub appeared in Person.
Mr J Underhill (instructed by Secretary of State for BEIS) appeared on behalf of the Interested Party.
This is a claim for judicial review. Permission to seek judicial review was refused on the papers and the claimants therefore renew their application before me today. The claim was made on 14 November 2017. This is a matter with some history that dates back to 2008. For reasons that will become apparent, I am going to deal with the facts very briefly, because this is a matter in which there is already a well-documented history to the case.
The claimants were convicted of offences under the Insolvency Act 1986 in the Magistrates' Court. Each of them was convicted of a single offence. They were committed to the Crown Court for sentence under s.70 of the Proceeds of Crime Act 2002 as the prosecution wished the Court to consider a Confiscation Order and the Magistrates' Court, unlike the Crown Court, do not have power to make such an order. The magistrates indicated at the time, as they were required to do under the provisions of that Act, that they would not have committed for sentence other than the request for a Confiscation Order to be considered.
The matter was committed to the Crown Court. There was some delay in it coming on for sentence, because in the meantime there has been an appeal against conviction, but in due course the claimants were sentenced in the Crown Court and a Confiscation Order in the sum of £7,500 was made against each claimant.
The claimants appealed against that order. The appeal was heard by the full court of the Court of Appeal Criminal Division on 14 July 2011 and was dismissed. I have considered the judgment in relation to that matter, noting that the Court of Appeal concluded that the judge had erred in law, but had done so to the claimants' benefit. In fact, the Court of Appeal considered that the benefit was properly assessed in the sum £72,830, but the claimants had been ordered to pay only £7,500. Therefore, there had been a very significant discount in their favour.
Following the dismissal of their appeal in the Criminal Division, there was an application for permission to claim judicial review. That was dealt with by way of an oral hearing, presumably permission having been refused on the papers. It came before Irwin J, as he then was, for an oral renewal. At that time, it appears that the claimants were seeking to challenge their conviction.
It is right to note that Irwin J expressed some sympathy for their position. He accepted, as had the sentencing judge, His Honour Judge Testar, that they had not acted with dishonest intent and suggested that the Crown might consider not enforcing the Confiscation Order. I note that although His Honour Judge Testar had concluded that there had not been a dishonest intent, he had noted that there had apparently been a stubbornness and unwillingness to accept advice by the claimants.
In December 2011, the claimants applied to the Criminal Cases Review Commission seeking again to challenge the Confiscation Order. Reference was made to the comments of Irwin J. It appears that that reference was brought when enforcement action was taken against the claimants. The Commission accepted their application and made a reference, initially to the Court of Appeal. However, the Court of Appeal indicated that that was not the proper route and, subsequently, a reference was made to the Crown Court instead. That was on the basis of the provisions of s.11 of the Criminal Appeal Act 1995, which refers to power to refer to the Crown Court in relation to any sentence imposed on or any subsequent proceedings relating to a conviction in the Magistrates' Court. It was on that basis that the matter was referred to the Crown Court.
Clearly, consideration was given to the fact that the matter was to be determined by a Crown Court when it was an appeal or a review of a matter originally determined in the Crown Court and, for that reason, it was referred to the Central Criminal Court rather than being heard at Southwark Crown Court, where it was originally being dealt with. It was heard by His Honour Lucraft QC and two lay justices. I would observe that it was heard by an extremely experienced judge who regularly sits in the Court of Appeal Criminal Division. A full and careful ruling was given in relation to the appeal. Ultimately, the decision was to uphold the Confiscation Order.
The claimants now seek to ultimately challenge that decision. Two points are made before me today. Firstly, that it was not possible for the Crown Court to hear an appeal of a Confiscation Order. There was no jurisdiction to do that and, therefore, that those proceedings were a nullity and should be quashed. Secondly, there is the underlying argument that there is no power for a Crown Court to make a Confiscation Order when the matter has been committed from the magistrates in relation to a single summary offence.
It seems to me that there has been delay in bringing this claim for judicial review in so far as it is a challenge to the jurisdiction of the Crown Court. In May 2016 the reference was made. The ruling was given in February 2017. However, this claim was not brought until November 2017. The effect of the delay is that the matter has gone through the Crown Court. A full hearing has taken place and the Court of Appeal indeed have considered the matter further.
It was not made plain in the appeal bundle, or in any documents sent to me subsequently to the filing of the bundle, that the Court of Appeal Criminal Division had in fact considered the ruling of His Honour Judge Lucraft QC. I am concerned about that. The claimants have a duty of full disclosure to this Court. I am not entirely satisfied that they have complied with that. They tell me...
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