Popoola, R (on the application of) v Westminster Magistrates' Court & Anor

When enforcing a confiscation order, a magistrates’ court must apply the statutory test for committal to prison. It must be satisfied both that default resulted from wilful refusal or culpable neglect and that all other enforcement methods have been considered or tried and are inappropriate or unsuccessful.

An offender may rely on an alternative method, such as an enforcement receiver, but a failure to raise that possibility despite legal representation and repeated opportunities may weigh heavily against a later challenge. The magistrates’ court is concerned with default and enforcement, not with recalculating the available amount. Questions about third-party interests or a reduction in available assets should be taken to the Crown Court.

The claimant challenged the decision of District Judge Roscoe at Westminster Magistrates’ Court to commit her to prison for 1,278 days in default of payment of a confiscation order made by consent in the Crown Court.

She argued that the judge had failed to consider alternative enforcement, that the Crown Prosecution Service had caused delay in selling property, and that relevant evidence had not been fairly considered. Permission was granted on those restricted grounds. The central issues were whether the statutory conditions for committal were met and whether the refusal to adjourn was unlawful or procedurally unfair.

1. The application was refused in all respects. The magistrates’ court was enforcing the confiscation order as a fine and was not entitled to reconsider the realisable amount. Any dispute about third-party interests or the available amount had to be pursued in the Crown Court by an application to vary or discharge the order.
2. Under section 82 of the Magistrates’ Courts Act 1980, committal required satisfaction of two conditions: default caused by wilful refusal or culpable neglect, and consideration or attempted use of all other enforcement methods, which had to appear inappropriate or unsuccessful.
3. Although an offender may submit that an enforcement receiver under section 50 of the Proceeds of Crime Act 2002 would be appropriate, the claimant had not raised that possibility despite legal representation and repeated opportunities. The prosecutor had not applied for a receiver, and the District Judge was entitled to conclude that imprisonment was the only appropriate enforcement method in the circumstances.
4. The Crown Prosecution Service had provided, or was willing to provide, arrangements permitting sale of the principal property. The evidence did not show that CPS conduct caused the relevant delay. The claimant’s failure to pursue a Crown Court variation application, together with limited efforts to realise assets, entitled the District Judge to find wilful default.
5. The judge had sufficient grasp of the relevant evidence and submissions. Her decision to proceed rather than adjourn fell within her discretion and was neither procedurally unfair nor unlawful. Payments made after committal could reduce the detention period under section 79 of the Magistrates’ Courts Act 1980, but did not extinguish the outstanding confiscation liability. The CPS’s application for costs was refused.

• Westminster Magistrates’ Court: District Judge Roscoe committed the claimant to prison on 2 December 2014 for default in paying the confiscation order.
• High Court (Administrative Court): The judicial review claim was refused in full. The CPS’s application for costs was also refused.