Malik v Crown Prosecution Service

Prolonged and culpable delay by prosecuting authorities in enforcing a confiscation order may make continued enforcement oppressive and an abuse of process. The court must assess whether it would be unfair to investigate the defendant’s means or resort to established means of enforcement, considering the extent, culpability and explanation for the delay. The remedy must be proportionate. Although delay may justify staying imprisonment while permitting civil enforcement, exceptional circumstances may require a stay of all enforcement. Persistent attempts by the defendant to cooperate, material changes in family and property circumstances, and prejudice caused by the delay may justify that wider stay.

The claimant had pleaded guilty to conspiracy to defraud and was made subject to a confiscation order. The prosecution failed to respond substantively to repeated attempts to arrange payment and did not actively enforce the order for approximately six years and five months.

The District Judge refused to stay civil enforcement, although the prosecution accepted that imprisonment would be oppressive. By case stated, the High Court was asked whether all enforcement should be stayed as an abuse of process and whether the Magistrates’ Court could stay interest payments.

1. The appeal was allowed. The High Court reversed the District Judge’s decision and stayed the entirety of the enforcement proceedings as an abuse of the process of the court. Payments already made were unaffected.
2. The reasonable-time protection under Article 6(1) of the ECHR applies to confiscation proceedings, including enforcement. The common-law power to stay proceedings for abuse of process is at least equally protective.
3. The relevant inquiry was whether reinstating enforcement would be oppressive or unfair. The court had to consider whether it would be unfair to hold an inquiry into the claimant’s means or to resort to established means of enforcement. It also had to assess whether the delay was so extensive, culpable or unexplained that a stay was appropriate, while ensuring that the remedy was proportionate.
4. The delay was approximately six and a half years, was culpable and essentially unexplained. The claimant and his solicitors had repeatedly sought the prosecution’s cooperation so that assets could be sold and the order could be addressed. The prosecution’s failure to respond caused continuing interest to accrue and contributed to the prejudice.
5. The circumstances had materially changed. In particular, the family home had been adapted for the claimant’s severely disabled daughter, and enforcement would require renewed consideration of the interests of several affected persons. In those exceptional circumstances, continuing even civil enforcement would be unfair, oppressive and disproportionate.
6. The second question concerning the Magistrates’ Court’s power to stay interest payments did not arise because all enforcement proceedings were stayed.

• Westminster Magistrates’ Court: The District Judge refused to stay civil enforcement proceedings and concluded that civil enforcement must continue. A later ruling held that the court had no discretion to modify the outstanding confiscation monies, including interest.
• High Court (Administrative Court): The decision was reversed. The entirety of the enforcement proceedings was stayed as an abuse of process.