R (O'Connell) v Westminster Magistrates' Court (Crown Prosecution Service, Interested Party)

Queen's Bench Division (Administrative Court), [2017] EWHC 3120 (Admin), Lord Justice Lindblom and Mr Justice Edis, 16 November; 6 December 2017

Confiscation - Enforcement proceedings - Delay - Abuse of process - European Convention on Human Rights, article 6 reasonable time requirement.

The claimant challenged a decision of the Chief Magistrate dated 20 September 2016 to issue a warrant to commit to prison on the basis that a delay of 11 years required the stay of the proceedings as an abuse or to remedy a violation of the reasonable time requirement in article 6 of the European Convention on Human Rights. In 2000 the claimant was convicted of evading Value Added Tax in 2000 and sentenced to eight years' imprisonment. Consequent on the conviction, in January 2003, the claimant was ordered pay a confiscation order in the sum of £6,258,966.41 failing which a period of seven years' imprisonment was ordered to be served in default. Of the sum, the claimant had paid £354,407.14. The remainder of the sum was found by the Crown Court making the order to be hidden assets, paid into offshore accounts the whereabouts of which were unknown to the prosecution. Since that time the claimant had not paid any further monies, he had not applied for a certificate of inadequacy, he had made no contact with the authorities or provided explanation or assistance in respect of the balance. An appeal against the confiscation order was dismissed in June 2005. In 2010 a warrant was issued for the claimant, re-issued in 2011 and 2012. It was not executed until 2016. There was evidence that the prosecution had not commenced proceedings until notice had been given to the claimant in person. The claimant argued that the proceedings should be stayed as an abuse of process. On hearing argument that the delay between the determination of the appeal in 2005 and the application for the warrant in 2016 was unconscionable, resulted in unfair hardship and could have been avoided by the prosecution acting with more diligence, in the case of the claimant unsupported by evidence save documentation about an address in Ireland, the Chief Magistrate found that: "On the evidence before me it is more than probable that whatever steps were taken enforcement could not have taken place until the defendant appeared in court in custody last month. There is obvious hardship, as there as for the defendants in the cases cited to me. However, there is no evidence of any additional hardship. There is no abuse of process". Applying to judicially review the decision the claimant reiterated the arguments, in particular, that the passage of time between the dismissal of his appeal on 9 June 2005 and the order of the Chief Magistrate on 20 September 2016 meant that the Chief Magistrate's order should not have been made, relying on two distinct but related sources for a power to stay in these circumstances, namely: (1) the power of the magistrates' court to stay proceedings as an abuse of process; and (2) the right of the claimant, guaranteed by article 6 of the European Convention on Human Rights, to a trial of the allegation against him within a reasonable time. The Administrative Court were therefore asked to determine whether a delay, either of five years or 11 years should result in the proceedings being stayed.