Robert Minshall v The Commissioners for HM Revenue and Customs and Others

JurisdictionEngland & Wales
JudgeLord Justice Sales,Lady Justice Gloster DBE,Lord Justice McCombe
Judgment Date16 July 2015
Neutral Citation[2015] EWCA Civ 741
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: A3/2013/3497
Date16 July 2015

[2015] EWCA Civ 741



MR L BLOHM QC (sitting as a Deputy High Court Judge)


Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice McCombe

Lady Justice Gloster


Lord Justice Sales

Case No: A3/2013/3497

Robert Minshall
(1) The Commissioners for Her Majesty's Revenue and Customs
(2) The Crown Prosecution Service (formerly Revenue & Customs Prosecutions Office)
Greater London Magistrates' Courts Association Court Funds Office

Mr R Clayton QC & Mr A McGuinness (instructed by Alsters Kelley Solicitors) for the Appellant

Mr W Hansen (instructed by Her Majesty's Revenue & Customs) for the 1 st Respondent

Mr M Gullick (instructed by The Crown Prosecution Service) for the 2 nd Respondent

The 3 rd Respondent did not appear and was not represented

Hearing date: 17 June 2015

Approved Judgment

Lord Justice Sales



This is an appeal from the judgment of Mr L. Blohm QC, sitting as a Deputy Judge of the High Court, by which he struck out the appellant's claim for a payment under the law of restitution of £80,000 and damages for false imprisonment in relation to a period of two days which he spent in prison. The claim in restitution relates to payments totalling that amount which he made in 2007 (when £75,000 was paid) and 2009 (when £5,000 was paid) pursuant to a confiscation order made by the court in 2000 in criminal proceedings against the appellant. The claim for false imprisonment relates to a period spent in prison in 2009 when the appellant was committed to prison for failing to pay the sum due under the confiscation order; he was released when he paid the balance of the sum due under the order. Many of the matters relied on happened long ago, before various organisational changes affecting the respondents. For ease of reference I refer to the first respondent and their predecessor bodies as "HMRC" and to the second respondent and its predecessor bodies as "the CPS".


Prior to making the payments, the appellant brought an appeal against the confiscation order. His principal argument was that by virtue of section 72A of the Criminal Justice Act 1988 and the lapse of time after his conviction before the confiscation order was made, it had been made without jurisdiction. The appeal was stayed behind other cases on appeal to the House of Lords which raised the same issue. In July 2005, the House of Lords decided the point of law in a way adverse to the appellant: see R v Soneji [2005] UKHL 49; [2006] 1 AC 368 and R v Knights [2005] UKHL 50; [2006] 1 AC 340. The appellant's appeal against the confiscation order was then dismissed by the Court of Appeal (Criminal Division) in February 2006: R v Minshall [2006] EWCA Crim 987. That Court declined to certify a point of law of general public importance, so the appellant was unable to pursue his appeal any further within the domestic legal system.


The appellant promptly exercised his right of application to the European Court of Human Rights ("ECtHR") to complain that his rights under Article 6 and Article 7 of the European Convention on Human Rights ("ECHR") had been violated in certain ways, including by the delay in achieving that result at the domestic level. In December 2011 the Fourth Section of the ECtHR delivered a judgment in which it found that the United Kingdom had violated the appellant's Convention rights under Article 6(1) of the ECHR so far as concerned his right to a determination within a reasonable time, by reason of the delay of about two years while the appellant's appeal was stayed pending the decision of the House of Lords in R v Soneji: Minshall v United Kingdom (2012) 55 EHRR 36. His other complaints were dismissed.


Meanwhile, after permission to appeal to challenge the making of the confiscation order in the appellant's case had been refused, the CPS took steps in the magistrates' court to enforce it. The appellant commenced further proceedings in the domestic courts in the form of an application for judicial review to challenge the enforcement of the confiscation order. His claim for judicial review was dismissed by Pitchford J in 2008: R (Minshall) v Marylebone Magistrates' Court [2008] EWHC 2800 (Admin); [2010] 1 WLR 590. In the course of his judgment, delivered well before the judgment of the ECtHR in Minshall v United Kingdom, Pitchford J expressed the view that there had been no breach of the reasonable time requirement under Article 6(1) by reason of the delay in waiting for the final decisions of the House of Lords in R v Soneji and R v Knights. Permission to appeal was refused. As a result of Pitchford J's ruling enforcement of the confiscation order could proceed.


In 2009, having failed to pay the balance due under the confiscation order, the appellant was committed to prison and detained for two days. He then paid the balance due and was released.


In 2013 the appellant commenced the present proceedings in the Chancery Division. In these proceedings he claims that the decision of Pitchford J to allow enforcement of the confiscation order to proceed was made in error, by reason of the difference of view between the judge and the ECtHR regarding the significance of the delay before the House of Lords decisions in R v Soneji and R v Knights; that the appellant paid the sum due under the confiscation order by reason of a mistake of law that the order was being enforced without violation of his Convention rights; and that by reason of the error of the domestic court as to the enforceability of the confiscation order, he could not lawfully have been imprisoned in enforcement of the order and therefore is entitled to claim damages for false imprisonment.


The deputy judge found that the claim disclosed no arguable claim in law and so struck it out. Vos LJ granted permission to appeal. At the hearing before us, we heard full argument from Mr Clayton QC for the appellant in opening the appeal. At the end of the opening, we considered that the claim and the appeal were unsustainable and indicated that we did not need to hear from counsel for the respondents. We reserved judgment to explain our reasons.

Factual background


On 3 February 2000, at Wood Green Crown Court, the appellant pleaded guilty to conspiracy fraudulently to evade excise duty on alcoholic liquor contrary to section 170 of the Customs and Excise Act 1979. On 28 February 2000 Newman J made a restraint order against the appellant to prohibit disposal by him of his assets, in contemplation of the making by HMRC and the CPS of an application for a confiscation order against him. On 5 May 2000 the appellant was sentenced to two-and-a-half years' imprisonment.


Section 72A of the Criminal Justice Act 1988 provides that, absent exceptional circumstances, a confiscation order should be made within six months of conviction. There were directions hearings in relation to the application by HMRC and the CPS for such an order on 5 June and 3 August 2000 before the judge in the Crown Court. At the second hearing, the judge gave directions (to which the appellant did not object) for a substantive trial of the issue whether a confiscation order should be made, to take place in October 2000.


On 2 October 2000, the Human Rights Act 1998 ("the HRA") and the Convention rights set out in that Act came into effect at the domestic level in the United Kingdom.


On 13 October 2000 the Crown Court judge made a confiscation order against the appellant to pay £80,000 by 30 April 2001, with 18 months' imprisonment in default of payment.


The appellant sought leave to appeal against the confiscation order, on the ground that it had been made more than six months after his conviction in breach of section 72A. At the time, there was uncertainty about the effect of section 72A in such circumstances. On 19 July 2001 permission to appeal was granted and enforcement of the confiscation order was suspended pending the outcome of the appeal (with the restraint order remaining in place in the meantime).


Other test cases on the effect of section 72A in such circumstances were heard by the Court of Appeal, which on 16 December 2002 gave judgment holding that a failure to comply with the statutory six month time limit in that provision did not deprive the courts of jurisdiction to make a confiscation order. The appellant in one of these cases, R v Soneji, sought and obtained permission to appeal to the House of Lords. Permission was also granted in the case of R v Knights.


In a distinct development, on 15 April 2003 the appellant issued an out of time notice of appeal against conviction on the grounds of alleged non-disclosure by the prosecution at his trial. This went nowhere: on 24 June 2004 the Court of Appeal refused the appellant permission to appeal his conviction out of time.


Meanwhile, on 2 March 2004 the Court of Appeal continued the stay of the appellant's appeal against the confiscation order in his case, pending the judgment of the House of Lords in R v Soneji and R v Knights.


On 21 July 2005 the House of Lords handed down its judgments in R v Soneji and R v Knights. The House of Lords affirmed the judgment of the Court of Appeal that breach of the time limit in section 72A would not necessarily deprive a court of jurisdiction to make a confiscation order.


The appellant sought permission to amend his grounds of appeal in respect of the confiscation order to add two new grounds: (i) that the confiscation order was unlawful because made in respect of a conspiracy to commit another substantive offence, rather than in relation to the substantive offence itself; and (ii) that the duration of the proceedings up to the date of the appeal had been unreasonably long, in breach of the appellant's...

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