Olabinjo v Westminster Magistrates Court & Anor

A default sentence enforcing a confiscation order may be imposed where the court is satisfied that non-payment resulted from wilful refusal or culpable neglect and has considered or tried other enforcement methods. The statutory test may be inferred from the judge’s reasoning; express use of the statutory words is not essential. A litigant in person need not be separately instructed on the statutory criteria where the factual matters relevant to them have been fully addressed and further explanation would have made no difference. Judicial review is concerned with legality and fairness, not whether the reviewing court would have reached the same decision.

The claimant sought judicial review of a Westminster Magistrates’ Court decision committing him to prison for 226 days in default of payment of a confiscation order made under the Proceeds of Crime Act 2002. He alleged that he had been denied legal representation and that the District Judge had failed to apply the statutory criteria governing enforcement.

The Crown Prosecution Service disputed both grounds. The court considered the available evidence, including the contemporaneous hearing note and the history of numerous enforcement hearings. The central issues were whether the claimant had been denied a fair hearing and whether the District Judge had lawfully applied section 84 of the Magistrates’ Court Act 1980.

1. Legal representation. The reliable evidence showed that the claimant attended without representation and had chosen not to obtain legal assistance. The contemporaneous note contained no indication that he had requested the duty solicitor or other representation. The claim that representation had been refused was inconsistent with the claimant’s own evidence, the history of earlier hearings and the judge’s recorded conduct. The hearing was therefore fair in this respect.
2. Statutory test. Under section 84 of the Magistrates’ Court Act 1980, a warrant of commitment could be issued only if the court was satisfied that default was due to wilful refusal or culpable neglect and had considered or tried other enforcement methods, finding them inappropriate or unsuccessful. The meaning of those requirements was explained in Munir v Bolton Magistrates’ Court [2010] EWHC 3794 (Admin) and Cooper v Birmingham Magistrates’ Court [2015] EWHC 2341 (Admin).
3. The District Judge’s references to the prolonged failure to realise the identified asset, the claimant’s repeated assurances and the absence of progress permitted the court to infer that the statutory test was in mind. The claimant’s conduct was properly characterised as wilful refusal or culpable neglect.
4. The absence of an express reference to appointing a receiver did not invalidate the decision. The warrant recorded that other enforcement methods had been considered or tried. Appointment of a receiver was not appropriate where a single asset could be realised by the claimant and receiver’s fees would reduce the compensation available to the victim.
5. The claimant was not disadvantaged by the District Judge’s failure expressly to state the statutory criteria, since he had addressed the factual issues relevant to wilful refusal, culpable neglect and his efforts to pay. The application for judicial review was dismissed.