Simon Price v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foxton |
| Judgment Date | 26 May 2022 |
| Neutral Citation | [2022] EWHC 1278 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: DT/30/2006 |
[2022] EWHC 1278 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foxton
Case No: DT/30/2006
Dr Simon Price (in person)
Michael Newbold (instructed by and for the Crown Prosecution Service)
Hearing dates: 12 May 2022
Further submissions: 19 May 2022
Draft Judgment to parties: 20 May 2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Foxton
This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be Thursday 26 May 2022 at 10:00am.
Introduction
This is the hearing of an application by Dr Simon Price to discharge:
i) A Confiscation Order made on 20 March 2007; and
ii) A Restraint Order made on 25 May 2006.
As will be apparent from those dates, the applications have a long and complex background, and issues relating to these orders have been before the courts on a number of previous occasions. Dr Price candidly informed the court that the application had been brought for the purpose of exhausting any potential domestic remedies, so that he could bring a challenge under the European Convention on Human Rights to the European Court of Human Rights. That reflected, at least so far as the Administrative Court is concerned, a realistic assessment of the effect of prior decisions of the court or statutory provisions whose status and effect is not open to argument before me.
For those reasons, I mean no discourtesy to either party in not setting out the detailed history of this matter at length. It is well-known to both of them and has been comprehensively set out in one of the many judgments which I have been referred to, the decision of Mr Justice Garnham in Price v Crown Prosecution Service [2016] EWHC 455 (Admin), [9]–[17]. In short:
i) Dr Price was convicted on 11 July 2005 of being knowingly concerned in the importation of cocaine and sentenced to 28 years' imprisonment. The Restraint Order and the Confiscation Order followed in 2006 and 2007 (the Confiscation Order being for some £2.3m). Appeals against these orders failed, save to the extent of a 3-year reduction in sentence.
ii) Applications to vary the Restraint Order were dismissed on 21 October 2010, 11 May 2011 and 18 May 2013, as were attempts to appeal those orders.
iii) On 15 May 2015, Dr Price was committed to a term of 10 years imprisonment in default of payment of the Confiscation Order, to run from the date he became eligible for release from the 25-year sentence at the end of December 2016.
iv) On 7 March 2016, Mr Justice Garnham rejected an application by Dr Price for a Certificate of Inadequacy (which would have certified that his realisable property was less than the amount of the Confiscation Order). Had such a Certificate of Inadequacy been granted, Dr Price could then have applied to the Crown Court to vary the terms of the Confiscation Order.
v) On 6 November 2019, Mrs Justice Steyn dismissed a further application for a Certificate of Inadequacy.
vi) Dr Price was released from imprisonment in November 2021 after serving a 5- year period of imprisonment in default of satisfying the Confiscation Order.
The challenge to the Confiscation Order
Dr Price's challenge to the Confiscation Order is advanced on two grounds:
i) First, that it was imposed under the wrong statute, the Drug Trafficking Act 1994 (“DTA 1994”) instead of the Proceeds of Crime Act 2002 (“ POCA 2002”).
ii) Second, that it was imposed without affording to those interested in property which was subject to the Confiscation Order the opportunity to be heard and represented on the making of the application. In this connection, Dr Price relies on the decision of the Court of Justice of the European Union in Reference for a Preliminary Ruling under Article 267 TFEU from the Apelativen sad – Varna in Joined Cases C-845/19 and C-836/19. Dr Price's particular complaint appeared to be the effect of the Confiscation Order on the interests of Ms Susan Bond, Ms Laura Bond and/or Mr Christopher Bond in the French Property (see [21] below), albeit I accept that the complaint may go wider than this.
There has, however, already been an appeal against the Confiscation Order which was refused on 14 December 2009 ( R v Simon Price [2009] EWCA Crim 2918). It is the Court of Appeal Criminal Division (“CACD”) to which any such challenge would have to be referred, and it is not open to Dr Price simply to issue an application in the Administrative Court. The application would need to be brought:
i) by way of a reference to the CACD by the Criminal Cases Review Commission (“CCRC”) under s.9 of the Criminal Appeal Act 1995. I accept Mr Newbold's submission that a confiscation order could, in an appropriate case, be referred by the CCRC to the CACD under this provision, having regard to s.50(1)(d) of the Criminal Appeal Act 1968 which defines an appeal against “sentence” as including an appeal against “a confiscation order under the Drug Trafficking Act 1994 other than one made by the High Court”. Section 30(2) of the 1995 Act provides that “in section 9 sentence has the same meaning as in the 1968 Act”;
ii) or, possibly, to the CACD itself under Crim. PR 36.15 (although that procedure can only properly be invoked in very narrow circumstances, as discussed in R v Yasain [2016] QB 146 and R v Gohil and Preko [2018] 1 WLR 3697).
In these circumstances, as I think Dr Price realistically accepted, the points argued before me are not ones which are open at first instance. However, in the hope of narrowing and focussing any further argument, I make some brief observations on them.
The wrong statute?
As I have mentioned, Dr Price argues that the Confiscation Order should not have been made under the DTA 1994 but under POCA 2002. I note that it was common ground when the Confiscation Order was made that it should be made under the DTA 1994. A restraint order had originally been made under POCA 2002, but it was replaced by the Restraint Order under the DTA 1994. In this context, Dr Price's counsel, Mr Nathan QC, described POCA 2002 at the hearing of 20 March 2007 as “the wrong legislation”.
Dr Price was convicted of two offences. The first was the offence of being “knowingly concerned in a fraudulent attempt at evasion of a prohibition on the importation of goods, contrary to section 170(2)(b) of the Customs and Excise Management Act 1979”. The indictment was in respect of conduct between 1 April 2004 and 30 June 2004. The second offence, assisting in the United Kingdom in the commission outside the United Kingdom of an offence punishable under a corresponding law, contrary to section 20 of the Misuse of Drugs Act 1971, was in respect of conduct between 1 January 2003 and 30 June 2004.
Part 2 of POCA 2002 (containing the provisions for criminal confiscation) came into force with effect from 24 March 2003 by virtue of Article 2 of the Proceeds of Crime Act 2002 (Commencement No.5, Transitional Provisions, Savings and Amendments) Order 2003 (SI 2003/333) (“the 2003 Order”). Article 3(1) of the 2003 Order provides that:
“Section 6 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 6(2) was committed before 24th March 2003.”
In cases where POCA 2002 does not apply, Article 10(1)(e) of the 2003 Order preserved the provisions of the DTA 1994.
Article 1(3) of the 2003 Order provides:
“Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this Order to have been committed on the earliest of those days.”
As the second count of which Dr Price was convicted was indicted over a period of time commencing before 24 March 2003, it appears to be the position that, by virtue of Article 1(3), the offence was taken to have been committed on the earliest date indicted (1 January 2003) with the result that POCA 2002 did not apply, and the DTA 1994 continued to apply. Dr Price will need to consider these provisions if he wishes to take this point further.
The Varna point
Varna was concerned with Bulgarian legislation which “confiscated in favour of the state …. property which had been the subject matter or instrument of a criminal offence”: Article 53 of the Nakazatelen kodeks (the Bulgarian Criminal Code). The case arose from the conviction of two drug dealers, DR and TS. A sum of money was found at an address where DR lived with his mother and grandmother. A further sum of money was found at the address where TS lived with his mother. Confiscation orders were sought in respect of both sums before the Regional Court in Varna. It was DR's evidence at that hearing that the money belonged to his grandmother, who did not take part in the proceedings because this was not permitted as a matter of Bulgarian law. It was TS's evidence that the sum of money found where he lived belonged to his mother and sister. TS's mother was not permitted to participate in the proceedings, although she did give evidence.
The Regional Court did not make confiscation orders on the basis that the offences of which DR and TS had been convicted did not fall within the scope of the confiscation legislation. On appeal, the Varna Court of Appeal referred certain questions to the Court of Justice of the European Union for a preliminary ruling, including whether the confiscation legislation was compatible with...
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