Zykin v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BEAN,MR JUSTICE LLOYD JONES |
| Judgment Date | 14 May 2009 |
| Neutral Citation | [2009] EWHC 1469 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3157/2009 |
| Date | 14 May 2009 |
[2009] EWHC 1469 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION DIVISIONAL COURT
Before: Mr Justice Bean
Mr Justice Lloyd Jones
CO/3157/2009
Bharat Kumar Gupta (instructed by Stringfellow & Co Solicitors,) appeared on behalf of the Appellant
Sonal Dashani (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
(Approved by the court)
: This is an appeal by way of case stated.
The matter has a curious procedural history. Mr Zykin pleaded guilty at Southwark Crown Court on 23rd April 2007 to a number of offences of dishonesty, including conspiracy to steal, for which he was sentenced, on 10th May 2007, by His Honour Judge Stone QC, to a total of 5 1/2 years' imprisonment.
On 15th April 2008 the learned judge made a confiscation order in the sum of £33,088.28, to be paid by 23rd May 2008, and imposed a default term of 15 months' imprisonment consecutive to the sentence imposed in 2007.
The total sum of the confiscation order comprised three elements. The first was cash and the credit balances of bank accounts in the defendant's name. These amounted to £7,325.77. The Crown was able to enforce the confiscation order in respect of these sums and nothing more need be said about them.
The second element was what the judge found to have been hidden assets to the value of £5,800. This sum, and the assets it was said to represent, were never handed over. Mr Gupta, appearing before us today, realistically accepted that there can be no quarrel with the judge's decision to impose a confiscation order in respect of those assets, nor with the subsequent enforcement of that element of the confiscation order in the Magistrates' Court by way of a default term.
The third part of the total sum is the one which gives rise to the present appeal. Mr Zykin was found to have a beneficial interest to the value of £19,962.51 in a sum of money in a bank account in the name of a Mr Edward Dujon, which represented the proceeds, or part of the proceeds, of a property called 19 Moffats Lane, which had been in Mr Dujon's name, but which the Crown allege had been bought by him with money from Mr and Mrs Zykin. The property had been sold with the agreement of the Crown and the proceeds were subject to a restraint order.
The first hearing of proceedings to enforce the unpaid balance of the confiscation order —that is the hidden assets element and the proceeds of sale element —took place at the City of Westminster Magistrates' Court on 5th August 2008. Mr Zykin was present on that occasion and was represented. We understand that the Magistrates' Court was told that an application would be made for a certificate of inadequacy to this court. On that basis, the magistrates granted an adjournment. We should add that we understand that the solicitors now acting for Mr Zykin, and instructing Mr Gupta, were not the solicitors who represented Mr Zykin on that occasion.
Be that as it may, when the next hearing took place in the Magistrates' Court on 9th September 2008, Mr Zykin, though he had the services of a Russian interpreter, since he is a Russian speaker, was not legally represented. He was asked whether he wished to be legally represented and said that he did not. We are told that he indicated that he was not in a position to pay and wished to be sent to jail. The Crown Prosecution Service were not represented at the hearing by a lawyer either, but by one of their financial investigators, a Mr Down. The Magistrates' Court issued a warrant of commitment against Mr Zykin, ordering him to serve a further 364 days' imprisonment to take effect at the end of the custodial period of his original 5 1/2-year term.
We need not, as it seems to me, be concerned with the proceedings against Mrs Zykin. It appears that the confiscation order against her was made under the Proceeds of Crime Act 2002, rather than, as in Mr Zykin's case, the Criminal Justice Act 1988. Accordingly, it was open to her to make an application under section 67 of the 2002 Act, but that was not open to him.
In December Mr Zykin instructed new solicitors. They asked for a hearing seeking to re-open the decision of 9th September under section 142(1) of the Magistrates' Court Act 1980. That application was heard by Deputy District Judge Kevin Gladwell on 17th February 2009. He refused the application. His reasons are contained in the case stated. He had the advantage of a skeleton argument drafted by Mr Gupta. This raised the points to which we shall come in a moment.
The Deputy District Judge said this:
“I noted that the role of the Magistrates' Court in the enforcement of confiscation orders was to enforce the order in the terms made by the Crown Court. It had no power to vary or alter the terms of the order. I considered that if complaint were made about any of the terms of the Crown Court order then the appropriate course of action for Mr Zykin was to institute proceedings in a higher court, which he had not done. I also considered that the application...
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