Butler, R (on the application of) v Leeds Magistrates’ Court

In confiscation-order enforcement proceedings, the Magistrates’ Court must proceed on the basis that the Crown Court’s order was lawfully made and that the assets found available were available when the order was made. It cannot reconsider the correctness of that order or determine an argument that the offender never possessed the available assets. A challenge to the order belongs in the Court of Appeal Criminal Division, while the statutory variation procedure has limited scope.

The Magistrates’ Court must consider the statutory alternatives to committal and be satisfied that non-payment resulted from wilful refusal or culpable neglect. However, where the offender advances only the impermissible contention that the confiscation order was wrong, no lengthy inquiry into the assets’ present existence is required.

The claimant sought judicial review of a decision of Leeds Magistrates’ Court made on 22 November 2022. The Magistrates had refused an adjournment and committed him to custody for 2,317 days for culpable neglect in failing to pay a confiscation order made by the Crown Court.

The confiscation order under the Proceeds of Crime Act 2002 had recorded an available amount of £1,112,670.24 and had been agreed between the parties. The claimant later asserted that those assets had never been available and sought an adjournment to pursue a variation application. It was accepted that section 23 could not correct an error in the original case, and that any challenge lay by appeal to the Court of Appeal Criminal Division.

The central issue was whether the Magistrates’ Court had unlawfully failed to apply section 82(4) of the Magistrates’ Courts Act 1980 before ordering committal.

1. Claim dismissed. The Magistrates’ Court did not err in law, act irrationally or act with procedural impropriety in committing the claimant to custody for 2,317 days.
2. The statutory scheme assigns the making of confiscation orders to the Crown Court and their enforcement to the Magistrates’ Court. Once a lawful confiscation order has been made, the Magistrates’ Court must enforce it on the basis that the offender had assets available at least equal to the amount specified when the order was made. The principle of finality prevents the Magistrates’ Court from going behind that order.
3. The Magistrates’ Court had no power to amend the confiscation order. A section 23 application under the Proceeds of Crime Act 2002 could not be used to correct deficiencies in the case presented when the order was made. An alleged error in the order had to be pursued by appeal to the Court of Appeal Criminal Division.
4. Section 82(4) of the Magistrates’ Courts Act 1980 required consideration of other enforcement methods before committal. That requirement did not oblige the Magistrates’ Court to conduct a lengthy inquiry into whether the assets remained available where the claimant’s case was simply that the original order was wrong. The claimant had not identified assets or proposals for payment, and the available enforcement methods were inapplicable to the case advanced.
5. The court distinguished situations in which an offender accepted the order and relied on evidence of efforts to realise assets. In such cases, an involved evidential hearing might be required. That was not the present case, where the claimant sought to challenge the basis of the Crown Court’s order.

The claim was accordingly dismissed.

The judgment describes the underlying enforcement decision but is a first-instance judicial review determination.

• Leeds Magistrates’ Court: on 22 November 2022, refused an adjournment and committed the claimant to custody for 2,317 days.
• High Court (Administrative Court): dismissed the judicial review claim. Permission had been granted on the section 82(4) ground only.