O'Connell, R (On the Application Of) v Westminster Magistrates' Court

A court considering late enforcement of a confiscation order by imprisonment should determine the application on its merits. The central question is whether, in the circumstances now prevailing, imprisonment would be unjust and disproportionate, having regard to the Article 6 reasonable-time guarantee. The assessment is fact-specific. The court must consider the length and causes of delay, the offender’s conduct, the authorities’ efforts, alternative enforcement methods and the practical hardship of imprisonment. The offender’s continuing duty to pay, or to assist in recovering hidden assets, is relevant to whether there has been a breach and to the remedy, although it does not remove the Article 6 right. Where the offender has remained outside the jurisdiction, failed to co-operate and provides no evidence of additional hardship, a long delay may not justify a stay.

The claimant had been convicted of VAT evasion and made subject to a confiscation order under the Criminal Justice Act 1988. A substantial balance remained unpaid, and a term of imprisonment in default had been imposed. After the claimant’s appeal against the confiscation order was dismissed, enforcement efforts continued while the authorities did not know his whereabouts. A domestic warrant was eventually executed when he was arrested in England.

The Chief Magistrate refused to stay the committal proceedings as an abuse of process. The claimant sought judicial review, arguing that the delay between the order, the dismissal of his appeal and his arrest violated Article 6 and made enforcement unlawful. The issue was whether the delay and the circumstances of enforcement required the warrant to be refused or stayed.

1. Claim dismissed. The Divisional Court held that the application for a warrant should be heard and determined on its merits. The court may refuse a warrant, or stay enforcement, where imposing imprisonment after delay would be unjust and disproportionate. The threshold is high because imprisonment in default is an enforcement mechanism for an order made after a fair trial, not an additional punishment.
2. The reasonable-time issue and the remedy are conceptually distinct. The court must first ask whether the delay violated Article 6, applying the fact-sensitive approach in Dyer v Watson [2004] 1 AC 379. It must then decide what remedy is appropriate. The length of delay, case complexity, the offender’s conduct and the conduct of the administrative and judicial authorities are relevant. The offender’s conduct cannot remove the Article 6 right, but it may materially affect whether there was a violation and whether imprisonment remains proportionate.
3. In confiscation cases involving hidden assets, the offender has a continuing duty to pay and, by implication, to take steps to recover the assets or assist the authorities. The court must also consider alternative enforcement methods, including a certificate of inadequacy and other statutory enforcement procedures. A decision to wait until an offender is before the court may be reasonable, particularly where he is outside the jurisdiction, his whereabouts are unknown, he has not co-operated and there are no known assets. Delay caused by that decision will very rarely justify a stay.
4. The claimant had provided no evidence of personal hardship, inability to pay or efforts to recover the assets. The Chief Magistrate was entitled to find that the claimant had not co-operated, that the delay was substantially attributable to his conduct, and that earlier enforcement would not probably have secured his arrest. The authorities’ failures to make some enquiries did not make the decision unlawful.
5. The claimant could not establish that the passage of time alone made enforcement unlawful. The Chief Magistrate’s decision and reasoning were properly open to him. The judicial review claim therefore failed.

The judgment describes the claimant’s conviction and confiscation proceedings, including dismissal of an appeal by the Court of Appeal Criminal Division on [2005] EWCA Crim 1520. The present claim was a judicial review of the Chief Magistrate’s decision of 20 September 2016. The Divisional Court dismissed the claim.