Syed & Anor v Westminster Magistrates Court

Where authorities seek to enforce a confiscation order by activating imprisonment in default, they must proceed within a reasonable time under Article 6(1). The defendant’s continuing duty to pay does not remove that protection. Delay may be justified by diligent civil recovery efforts, unusually complex financial affairs, or delay caused by the defendant. It is not justified by unexplained inactivity, ineffective investigation, or an undertaking which merely postpones enforcement. If culpable delay infringes Article 6(1), the appropriate remedy may be to stay enforcement through imprisonment in default, while leaving other means of recovery available.

The claimants had been convicted of fraud-related offences and were made subject to confiscation orders under section 71 of the Criminal Justice Act 1998. They were given two years’ imprisonment in default of payment. A receiver was appointed, but enforcement proceedings to activate the default sentences were not commenced until 2008, several years after substantial recovery efforts had become ineffective.

The district judge rejected their abuse-of-process argument and activated the sentences. The claimants sought judicial review, contending that the delay infringed their Article 6(1) right to determination within a reasonable time. The central issue was whether the delay was unreasonable and, if so, what remedy followed.

1. Claims allowed. The delay in enforcing the confiscation orders was unreasonable and infringed the claimants’ Article 6(1) rights. The activated sentences of imprisonment were quashed.
2. The court applied the principles in Lloyd v Bow Street Magistrates’ Court [2003] EWHC 2294 (Admin). A defendant’s continuing obligation to satisfy a confiscation order does not prevent reliance on the reasonable-time guarantee. If the prosecuting authorities decide to seek imprisonment in default, the enforcement proceedings must themselves be determined within a reasonable time.
3. In assessing reasonableness, the court must consider the efforts made to recover the money by other means, including the appointment and conduct of a receiver. Delay may be justified where the receiver proceeds with reasonable expedition, the financial affairs are unusually complex, or the defendant causes the delay by evasion or obstruction.
4. The receiver and the Crown Prosecution Service had allowed long periods of unexplained inactivity. By October 2005 it was apparent that no substantial further recovery was likely from the principal outstanding asset. The further delay before proceedings were issued was therefore unjustified. The prosecution’s undertaking to Mr Farrell did not extend to Mr Syed and did not itself relieve the authorities of their duty to pursue recovery expeditiously.
5. Following Lloyd v Bow Street Magistrates’ Court and the endorsement of that approach in Crowther v United Kingdom [2005] ECHR 45, the proportionate remedy was a stay of proceedings seeking imprisonment in default. The order did not prevent other civil enforcement methods.

The court made costs orders in favour of both claimants, subject to summary assessment if not agreed.

The judgment itself records the prior decision under review:

• City of Westminster Magistrates’ Court: on 2 March 2010, the District Judge rejected the abuse-of-process argument and activated the default sentences.
• High Court (Administrative Court): the Divisional Court allowed the judicial review claims, quashed the activated sentences, and ordered a stay of enforcement by imprisonment in default.