CASE OF MINSHALL v. THE UNITED KINGDOM
Violation of Art. 6-1
George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
4. The applicant was born in 1943 and lives in Newmarket. 5. , may be summarised as follows. 6. On 3 February 2000, at Wood Green Crown Court, the applicant pleaded guilty to conspiracy fraudulently to evade excise duty on alcoholic liquor in contravention of section 170 of the Customs and Excise Act 1979. On 28 February 2000 Newman J made a restraint order prohibiting disposal by the claimant of his assets and on 5 May 2000 he was sentenced to 30 months’ imprisonment. 7. Pursuant to section 72A of the Criminal Justice Act 1988 (“the CJA 1988”), save in exceptional circumstances confiscation proceedings should be concluded no later than six months after conviction. At a directions hearing on 5 June 2000 the judge was told that the six-month statutory time limit for making a confiscation order would expire on 3 August 2000. He noted that “we may have to extend the period”. A date was agreed for service of the applicant’s responses to the Crown’s statements and it was ordered that a further directions hearing should be listed within the sixmonth period. This further hearing took place on 3 August 2000. The judge noted the court’s power to extend the six-month time limit and no objection was raised by counsel for the applicant. The confiscation proceedings took place on 13 October 2000. The judge made an order against the applicant in the sum of GBP 80,000 to be paid by 30 April 2001, with 18 months’ imprisonment in default. 8. The applicant sought leave to appeal against the confiscation order. He submitted that the court had no jurisdiction to make the order because it was imposed more than six months after his conviction in breach of the statutory time limit under section 72A of the CJA 1988. At the time there was judicial uncertainty about whether failure to comply with the six-month time limit would deprive the court of jurisdiction to make a confiscation order. Permission to appeal was granted on 19 July 2001 and enforcement of the confiscation order was suspended pending the outcome of the appeal. 9. On 16 December 2002 the Court of Appeal considered a group of appeals lodged on the same ground as that of the applicant, namely that the Crown Court did not have jurisdiction to make a confiscation order outside the six-month time limit. The Court of Appeal held that a procedural irregularity did not necessarily deprive the court of jurisdiction to make a confiscation order. One of the appellants (Soneji) obtained leave to appeal to the House of Lords. His appeal was joined to that of another appellant (Knights). 10. On 15 April 2003 the applicant issued an out-of-time notice of appeal against conviction on the ground that his conviction had been tainted by non-disclosure. 11. On 2 March 2004 the Court of Appeal stayed the applicant’s appeal against the confiscation order pending the House of Lords’ decisions in R v. Knights and R v. Soneji. 12. On 24 June 2004 the Court of Appeal refused the applicant leave to appeal out of time against his conviction. 13. The decisions in R v. Knights [2005] UKHL 50 and R v. Soneji [2005] UKHL 49 were handed down by the House of Lords on 21 July 2005. In those decisions the House of Lords affirmed the Court of Appeal’s conclusion that a procedural irregularity would not necessarily deprive the court of jurisdiction to make a confiscation order. Following publication of the decisions, counsel advised the applicant against continuing his appeal and withdrew from the case. However, with the assistance of his solicitors the applicant did continue the appeal. His solicitors sought leave to amend the grounds of appeal to include two further grounds: first, that the confiscation order was unlawful because it had been made in respect of facts constituting a substantive offence when the applicant had only pleaded guilty to the prior and distinct offence of conspiracy; and secondly, that the duration of the proceedings up to the date of the appeal had been unreasonably long, in breach of Article 6 § 1 of the Convention. 14. On 14 February 2006 the application to amend the grounds of appeal was considered together with the substantive merits of the appeal. Permission to amend the grounds was refused, the substantive appeal was dismissed, and the court declined to certify that points of law of general public importance were involved in the decision. Mrs Justice Rafferty found that the Crown Court judge’s reasons for extending the six-month time limit “were the proper administration of justice, based upon judicial availability. They explicitly were not for the purpose of allowing the Crown to secure more information”. Applying R v. Knights and R v. Soneji, she held that artificial adherence to statutory time limits was outwith the intentions of Parliament and that the appeal should therefore be dismissed. 15. On 15 February 2006 the applicant sought leave to appeal to the House of Lords. On 16 February 2006 leave was refused. On the same day, the applicant submitted his application to this Court. 16. On 20 February 2006 the Revenue & Customs Prosecutions Office (“RCPO”) wrote to the applicant seeking his proposals for payment of the outstanding confiscation order. On 27 April 2006 the applicant’s solicitor asked the RCPO to delay enforcement proceedings pending consideration of his application to the Court. The RCPO declined and confiscation enforcement proceedings against the applicant took place on 23 August 2006. The Magistrates’ Court rejected the applicant’s submission that to continue the enforcement proceedings would be an abuse of process and a breach of Article 6 of the Convention. The applicant applied for permission to judicially review this decision. In the meantime the enforcement proceedings were adjourned to 31 October 2006 for a means’ enquiry to take place. 17. On 31 October 2006 the District Judge refused to stay the enforcement proceedings pending determination of the application for permission to apply for judicial review. However, he adjourned the means’ enquiry to 19 December 2006. 18. On 14 December 2006 the applicant made a further application to the High Court for a stay of the enforcement proceedings. On 18 December 2006 the High Court refused the application for permission to apply for judicial review and the application for urgent interim relief. However, the application for interim relief was subsequently granted at an oral hearing on 19 December 2006 and at a further oral hearing on 23 January 2007 the applicant was granted permission to apply for judicial review. 19. On 25 January 2007 the applicant was found to be in contempt of court in relation to numerous breaches of the restraint order and was ordered to pay GBP 75,000 within 28 days. The applicant satisfied this judgment on 21 February 2007. 20. On 4 November 2008 the application for judicial review was heard by the Administrative Court. The applicant sought to argue that the delay between his arrest and conviction and the confiscation proceedings was unreasonable in its length of time and that the proceedings should be stayed as an abuse of process or a breach of Article 6 of the Convention. On 21 November 2008 a High Court Judge dismissed the applicant’s judicial review application. In particular, he noted that the slow progress of the appeal against the confiscation order was interrupted by the supervening decision of the applicant to seek leave to appeal out of time against conviction. As the application for leave took place within a reasonable time, the only period of delay which was both material and unexplained was the period between 24 June 2004 (the hearing of the application for leave to appeal against conviction out of time) and 21 July 2005 (publication of opinions of the House of Lords in R v. Knights and R v. Soneji). However, the judge accepted that the decision to await the outcome of the proceedings before the House of Lords was eminently sensible even if it did prolong the period before the applicant’s appeal could be heard by the Court of Appeal. 21. On 21 January 2009 the judge refused to certify a point of law of public importance and refused permission to appeal to the Court of Appeal. 22. On 22 September 2009 the applicant was imprisoned until the outstanding confiscation figure was paid. Following large contributions from family and friends, the outstanding balance was paid in its entirety on 23 September 2009 and the applicant was released from prison. 23. Section 71 of the Criminal Justice Act 1988, in force at the time the confiscation order was made, states: “(1) Where an offender is convicted, in any proceedings before the Crown Court or a magistrates’ court, of an offence of a relevant description, it shall be the duty of the court— (a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or (b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed, to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct. (1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct. (1B) Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then— (a) determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and (b) make an order under this section ordering the offender to pay that amount.” 24. Section 72A of the Criminal Justice Act 1998, in force at the time the confiscation order was made, states: “(1) Where a court is acting under section 71 above but considers that it requires further information before— (a) determining whether the defendant has benefited as mentioned in section 71(2)(b)(i) above; (b) determining whether his benefit is at least the minimum amount; or (c) determining the amount to be recovered in his case by virtue of section 72 above, it may, for the purpose of enabling that information to be obtained, postpone making that determination for such period as it may specify. (2) More than one postponement may be made under subsection (1) above in relation to the same case. (3) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above which— (a) by itself; or (b) where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods, exceeds six months beginning with the date of conviction. (4) Where the defendant appeals against his conviction, the court may, on that account - (a) postpone making any of the determinations mentioned in subsection (1) above for such period as it may specify; or (b) where it has already exercised its powers under this section to postpone, extend the specified period. (5) A postponement or extension under subsection (1) or (4) above may be made - (a) on application by the defendant or the prosecutor; or (b) by the court of its own motion. (6) Unless the court is satisfied that there are exceptional circumstances, any postponement or extension under subsection (4) above shall not exceed the period ending three months after the date on which the appeal is determined or otherwise disposed of.” 25. In R v. Knights [2005] UKHL 50 and R v. Soneji [2005] UKHL 49, the House of Lords considered the consequences of failure to comply with section 72A, and in particular the time limits under section 72A(3). The court held that, although there existed no common law power to adjourn, Parliament had not intended to disable the courts from making confiscation orders after sentence merely because the time-limits were not strictly adhered to. It further held that the requirement for “exceptional circumstances” under section 72A(3) should not be strictly construed. 26. By virtue of section 75 of the Criminal Justice Act 1998 and sections 139 and 140 of the Powers of the Criminal Courts (Sentencing) Act 2000 Crown Court confiscation orders are enforceable in the Magistrates’ Court as fines. Section 76 of the Magistrates’ Court Act 1980 confers on the Magistrates’ Court several powers for enforcing fines, including the issue of a warrant for commitment for service of the default term of imprisonment for non-payment or the issue of a warrant of distress. By virtue of section 79 of the Magistrates’ Court Act, payment of the total sum due will result in a person’s release from the default term of imprisonment and any partial payment will result in a pro rata reduction of the term of imprisonment. 27. In the case of Lloyd v. Bow Street Magistrates’ Court (2004) 1 Cr App R 11 the Divisional Court found that Article 6 § 1 of the Convention applied to all stages of the confiscation order and enforcement process and that a defendant had a right to have enforcement proceedings brought against him within a reasonable time.