McLeod v City of Westminster Magistrates Court

A magistrates’ court enforcing a confiscation order must exercise its discretion judicially. It may impose a default term of imprisonment where the payment period has expired, the defendant has been warned, and the defendant provides no reliable evidence or payment proposals. The court must consider the available enforcement options, but it need not adjourn merely because a receiver might later be considered, particularly where the prosecution has not sought that course and is fully represented. Unsupported assertions do not require acceptance. Judicial review does not permit the reviewing court to substitute its own view for a supportable discretionary decision.

The applicant had been convicted of conspiracy to cheat and acquiring criminal property. The Crown Court made a confiscation order of £110,000, based in part on his estimated interest in a matrimonial property, and allowed nine months for payment.

After no payment was made, the City of Westminster Magistrates’ Court considered enforcement. The applicant sought an adjournment to investigate the possible appointment of an enforcement receiver and to obtain evidence about difficulties selling the property. The District Judge refused the adjournment and imposed the two-year default term. The applicant sought permission to bring judicial review proceedings, alleging that the discretion had been exercised unfairly and unlawfully.

1. Application refused. The District Judge had made a reasoned decision after considering the submissions and the proposed adjournment. The issue was whether he had failed properly to exercise his judicial discretion, not whether this court would have reached the same decision.
2. The principles in R v Harrow Justices ex parte DPP [1991] 1 WLR 395 remained relevant. Enforcement courts should bear in mind that a confiscation order identifies realisable assets and that enforcement methods should be considered before commitment. However, the statutory position had materially changed since that decision because imprisonment in default no longer reduced or extinguished the confiscation debt.
3. The District Judge was entitled to reject unsupported assertions that the applicant was unable to sell the property. The applicant had been warned that committal was a live issue, had legal representation and had sufficient time to produce evidence. No evidence of the alleged sale difficulties or divorce proceedings was produced, and no proposal for payment was made.
4. The suggestion of an enforcement receiver did not require an adjournment. The prosecution had not sought a receivership order at the hearing and was not absent or unable to address the issue. It was therefore materially different from Garrotte v City of London Magistrates’ Court [2002] EWHC 2909, where the court had been left without the prosecution’s position when carrying out the balancing exercise.
5. The subsequent proposal by the prosecution to seek an enforcement receiver did not demonstrate that the earlier decision was unlawful. The court remained in no better evidential position than the District Judge. Permission to bring judicial review proceedings was refused.

• Kingston Crown Court: convicted the applicant and later made a confiscation order of £110,000, with nine months allowed for payment.
• City of Westminster Magistrates’ Court: after enforcement hearings, the District Judge imposed the two-year default term on 4 November 2008.
• High Court (Administrative Court): refused permission to bring judicial review proceedings.