Re F
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MCCOMBE |
| Judgment Date | 12 November 2010 |
| Neutral Citation | [2010] EWHC 3798 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 November 2010 |
| Docket Number | CJA/127/2009 |
[2010] EWHC 3798 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Mccombe
CJA/127/2009
Mr A Bodnar (Instructed By Irwin Mitchell) Appeared On Behalf Of The Claimant
Mr J Fletcher (Instructed By The Crown Prosecution Service) Appeared On Behalf Of The Defendant
MR JUSTICE MCCOMBE: This is an application for the discharge of a restraint order made on 22 October 2009 on a without notice application against the present applicant by Burton J.
The background is this. On 17 June 2002, in the Crown Court at Middlesex Guildhall as it then was, before, I believe, HHJ Smith and a jury, the present applicant, MF, was convicted of two offences of theft involving two identical sums of £420,000. On 28 June the applicant was sentenced to concurrent terms of imprisonment of 5 years on each Count. On 27 September 2002 a confiscation order was made ordering the applicant to pay a sum of £150,000 or to serve a term of 2 years' imprisonment in default. A compensation order in the same sum in favour of Mizuho International PLC was also made. The time for payment of the order expired on 27 March 2004.
At the confiscation hearing the court determined that the applicant's benefit from his offences was £225,000 and that the amount that might be realised was £150,000. That sum was made up of the assessed value of the equity of redemption owned by the applicant in a property at 23 Wheatfield Avenue, Clondalkin, Dublin 22, in the Republic of Ireland, which I will call the Irish property; then cash in a bank account amounting to £1,900; and hidden assets of £142,600.
The applicant's appeal against his conviction was dismissed by the Court of Appeal Criminal Division on 16 October 2003 and his application for leave to appeal against the confiscation order, renewed after refusal of such leave by the single judge, was refused by the full court on 16 December 2004. It is perhaps material to note that, on the proposed appeal, the sole ground appears to have been that the Crown Court had incorrectly identified the benefit derived by the applicant from the offences, not that there was any fault in the findings as to the applicant's realisable assets.
In the absence of any payment being made by the applicant under the confiscation order, the Crown Prosecution Service applied in late 2008 to the City of Westminster Magistrates' Court for the enforcement of the default term of imprisonment. The applicant did not attend the hearing which was fixed for 6 January 2009 and the court issued a warrant for the applicant's arrest. The applicant did not surrender to that warrant.
It appears from the witness statement of Detective Constable Richard Egan, to which I shall come back, made in support of the application for the restraint order, that the application had in fact been triggered by the discovery by the authorities in the United Kingdom of assets of which they had previously been unaware. These were principally a sum of £18,635 received into a bank account as wages from a company called Rewind Creative Media Ltd, which I will call Rewind, and a 10 per cent shareholding in that company.
Following the making of the restraint order, solicitors for Rewind wrote to the Crown Prosecution Service indicating that the shares owned by the applicant were in the process of being sold but the sale had not yet been completed and the purchase money was outstanding. It was arranged that the sale money, about £35,000, would be paid into a trust account by the purchaser, and thereafter there was an agreed variation made to the restraint order permitting the shares to be sold and for the money to be paid into an account restrained by the current restraint order. That variation was made by an order of Lloyd Jones J of 20 January 2010.
The present application to discharge the restraint order is made on two grounds. First, material non-disclosure on the part of the Crown Prosecution Service on the making of the initial application; and secondly, delay by the Crown in prosecuting the confiscation proceedings, constituting a breach of the applicant's rights under Article 6 of the European Convention on Human Rights.
In argument, Mr Bodnar, for the applicant concentrates on the period of delay from the dismissal of the appeal against the confiscation order in December 2004 and the application for the restraint order made to Burton J in October 2009.
It is desirable I should also mention that, on 27 November 2003, at the instigation of the authorities here, a restraint order had been made in the High Court in Ireland restraining dealing with the Irish property. In September 2004 the applicant indicated to the Crown Prosecution Service that he was willing for the property to be sold and for the proceeds to be held pending the outcome of his appeal. In August 2005 it appears that the state solicitor in Ireland informed the Crown Prosecution Service here that it was proposed to appoint a receiver and asked whether the applicant would consent to this. The Crown Prosecution Service duly wrote to the applicant and invited his consent, and invited also his proposals for the satisfaction of the confiscation order otherwise. On 23 September of that year the applicant responded, agreeing in principle to the sale of the Irish property but asking how much would be raised and how the fees would be paid. He also provided some detail of his current employment and remuneration.
On 29 September of that year the Crown Prosecution Service wrote to the applicant again, advising him of the outstanding sum due under the order and threatening to apply for enforcement in the absence of proposals to make payments. It was stated that the likely proceeds of sale of the property were not known and that any fees that arose would be paid out of the sale proceeds. In reply to that letter the applicant gave a summary of his outgoings and offered payments of £200 per month. He requested payment details to effect the payments. It seems that the Crown Prosecution Service then arranged for the necessary paperwork to be sent to the claimant to effect payment to the magistrates' court in the ordinary way, but no payments were received. The applicant was reminded of this offer by a letter of 26 July 2006, and he responded at that stage by telephone to say that he was unemployed. However, it is material to note that, in April 2008, a considerable period down the line in relation to the Irish property, Mr F phoned the Crown Prosecution Service saying that he could sell the property in Ireland much more readily and would get more money for the house than the receivers would. It was apparently explained to him that, following his consent to the appointment of receivers and the house being restrained in Ireland, he was unable to sell the property himself.
By letter of 13 March 2007 it appears that the Irish authorities informed the Crown Prosecution Service that they required a formal letter of request to progress the enforcement process against the Irish property. It seems then, according to the affidavit in the Irish proceedings of Miss Henderson, the Crown's Prosecution Officer now seised of the case, that there was an administrative delay between this country and the Irish Republic in procuring the appropriate letter, which was only formally transmitted to Ireland nearly a year later, on 22 January 2008. At the same time it was pointed out to the applicant, by letter of 21 January of that year, that the equity in the Irish property was only a small part of the make up of the realisable sum identified by the Crown and found by the Crown Court to constitute his property. The substantial part of his property being found in the Crown Court to consist of hidden assets. Again it was said, in the absence of payment, steps would be taken to enforce the default sentence. The point was made, but without action, in further correspondence in the subsequent months.
In August 2008 a new firm of solicitors, not those presently instructed by the applicant, contacted the CPS on the applicant's behalf and indicated that the applicant was seeking advice on a further appeal against the confiscation order. The Crown Prosecution Service responded to the solicitors, stating that the Irish authorities were taking steps to realise the Irish property, but pointing out again the finding in the Crown Court that there were very substantial hidden assets and that nothing had been done either to identify these or make any payments under the order.
On 4 November 2008 the Crown applied to the magistrates' court for the listing of an enforcement hearing. In response, the solicitors for the applicant requested an adjournment of the hearing pending the fresh appeal upon which they were seeking advice. On 23 December 2008 the Crown Prosecution Service indicated that they would agree to an adjournment if appeal papers had been lodged with the Court of Appeal Criminal Division by noon on 5 January 2009. On 5 January 2009 the solicitors asked for an adjournment of the hearing the following day, not on the basis of any appeal, but for the purposes of an intended application to the Criminal Cases Review Commission to investigate the case. To this, the Crown Prosecution Service did not agree. The hearing before the magistrates went ahead. The district judge was apparently shown the letter requesting the adjournment but refused to grant it and issued a warrant.
On 14 January 2009 the Prosecution Service informed the solicitors of the warrant and asked whether the...
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