Barnett v Director of Public Prosecutions

Although legislation does not expressly require a court to consider alternative enforcement methods before imprisonment for default under a confiscation order, established authority requires that approach. An enforcement hearing should be adjourned where there remains a realistic prospect that an asset can be sold and the confiscation order thereby satisfied, at least in part. The enforcement authority’s agreement to an adjournment is important, although not determinative. A refusal to adjourn and an immediate committal may be Wednesbury unreasonable where the available enforcement options have not been properly assessed.

The claimant appealed by case stated against a decision of the Sheffield Magistrates’ Court committing him to 534 days’ imprisonment for default in paying the balance of a confiscation order made under the Proceeds of Crime Act 2002. The balance was secured principally by the equity in a property subject to a restraint order. A proposed sale had recently collapsed, but the property remained capable of sale and the enforcement authority supported a further adjournment.

The Divisional Court considered whether the magistrates should have adjourned the enforcement hearing, whether imprisonment was the only available enforcement method, and whether an express finding of wilful refusal or culpable neglect was required.

1. Appeal allowed. The warrant of commitment dated 26 January 2009 was quashed and the confiscation proceedings were remitted to the Magistrates’ Court for further consideration.

2. There was no express statutory requirement that the court be satisfied that no alternative means of enforcement were available before committing a defendant to prison. However, R v Harrow Justice ex p Director of Public Prosecutions [1991] 1 WLR 395 and R v City of London Justices ex p Garotte [2002] EWHC 2909 (QB) established that principle.

3. The magistrates should have granted the further adjournment. The enforcement authority’s agreement was important, though not determinative. There remained a realistic prospect of sale through the open market, auction or mortgagee repossession. The claimant had not indicated that he would obstruct a sale, and the evidence showed that he wished the sale to proceed.

4. The refusal to adjourn and the conclusion that imprisonment was the only remaining enforcement method were demonstrably wrong and properly characterised as Wednesbury unreasonable.

5. It was unnecessary to decide whether an express finding of wilful refusal or culpable neglect was required. The parties agreed that, in the circumstances, no such statutory requirement existed.

• Sheffield Magistrates’ Court: on 26 January 2009, committed the claimant to 534 days’ imprisonment for default under a confiscation order.
• High Court (Administrative Court): allowed the appeal, quashed the warrant of commitment and remitted the confiscation proceedings to the Magistrates’ Court.