Neutral Citation Number: [2013] EWHC 919 (Admin) 
Case Nos. CO/12119/2012, CO/12386/2012 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Friday, 25 January 2013 
 
B e f o r e:

LORD JUSTICE LAWS 

MRS JUSTICE SWIFT 
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Between: 
MARSDEN AND MCINTOSH 
Claimant

v 

LEICESTER MAGISTRATES COURT 
Defendant 
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Mr S Farrell appeared on behalf of the claimant McIntosh
Ms C Guiloff appeared on behalf of the claimant Marsden 
Mr S Kinnear (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant 
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 J U D G M E N T 

1.	LORD JUSTICE LAWS:  On 21 December 2012 Sir John Thomas PQBD ordered that these two applications for judicial review permission be linked and listed before a Divisional Court.  The hearing has been conducted before us today.  The challenge, which is the same in both sets of proceedings, is directed to the decision of District Judge Temperley at the Leicester Magistrates' Court on August 2012 to dismiss the claimant's applications to stay enforcement proceedings issued against them by the Crown arising out of confiscation orders made at the Northampton Crown Court in December 2008.  It was contended for the claimants that periods of delay which occurred in the course of the confiscation proceedings had given rise to a violation of their rights guaranteed by the European Convention on Human Rights Article 6 to have the proceedings concluded within a reasonable time.  District Judge Temperley rejected that contention and committed each of the claimants to serve the six year term of imprisonment which had been fixed in default of the payment of the confiscation order, which in each case had been in the sum of A33,660,990.  It is said that District Judge Temperley's conclusion on the Article 6 issue was unreasonable and cannot be sustained and that the orders made by him should accordingly be quashed.  
2.	The claimants were convicted of conspiracy to cheat the public revenue on 3 August 2005 at the Northampton Crown Court.  The conspiracy in which others also were involved was a missing trader VAT fraud, commonly referred to as a carousel fraud.  The loss to the public revenue was put at some A335 million.  The period of the conspiracy ran from 31 December 2001 to 23 July 2002.  The claimants were arrested in July 2002.  The prosecution involved investigations in several jurisdictions.  There were some 30,000 pages of evidence served and hundreds of thousands of pages of unused material.  The trial of these claimants as defendants lasted some three months.  Having been convicted on 3 August 2005, Mr McIntosh was sentenced to five years' imprisonment and Mr Marsden to four.  
3.	Confiscation orders were not made until 12 December 2008 (Marsden) and 15 December 2008 (McIntosh).  As I have said, the sum of £33,660,990 with six years in default was the figure in the case of each defendant.  That sum was the agreed benefit figure as regards each.  His Honour Judge Alexander who had presided over the trial held that they had both failed to satisfy him that the amount which might be realised in their cases was less than the benefit figure: see section 71(6) of the Criminal Justice Act 1988.  
4.	It is, and was before the District Judge, common ground that the right given by Article 6 to a trial within a reasonable time applies to confiscation enforcement proceedings: Lloyd v Bow Street Magistrates' Court [2003] EWHC (Admin) 2294.  In the court below the claimants invited the judge to consider the whole period from their arrest in July 2002 until the substantive hearing of the enforcement proceedings on 9 August 2012 when District Judge Temperley reserved judgment, giving his decision as I have indicated on 14 August.  They invited particular attention to three periods of time: (a) the period of three years and three months between their conviction on 3 August 2005 and the conclusion of the confiscation proceedings in December 2008; (b) two years five months or so between their grounds of appeal against the confiscation orders being lodged on 27 January 2009 and judgment on the appeal in the Court of Appeal Criminal Division, Moses LJ, Maddison J and His Honour Judge Goldstone, on 22 June 2011; and (c) the further period of eight months between the Criminal Division's judgment and the prosecution's request for an enforcement hearing, which was made in March 2012.  I should note that the enforcement proceedings were adjourned on 18 April 2012 and in due course resumed and concluded in August.  I should also note and indeed emphasise (because no little importance has been attached to it on behalf of the claimants) that the claimants were released on licence in August 2007 (Marsden) and January 2008 (McIntosh).  They have paid nothing towards the confiscation orders, contending that they have nothing; so that the activation of the default prison terms effected by the warrants of commitment issued by District Judge Temperley meant that they were returned to jail to serve six years after substantial periods at liberty.  
5.	Period A, to the conclusion of the confiscation proceedings in December 2008, was extended by a number of adjournments agreed to or (as I understand it) sometimes sought by the claimants.  In particular the case was adjourned to await the outcome of another case proceeding in their Lordships' house (R v May) and also pending the outcome of related trials.  The District Judge thought these adjournments were proper: see paragraphs 33 and 34 of his judgment.  Overall he considered (paragraph 35) that the delay during this first period was:
"not unreasonable in the context of the case as a whole."
I do not understand the claimants to criticise this conclusion so far as it goes.  
6.	However the District Judge took a different view in relation to periods B and C.  As for B, from the grounds of appeal on 27 January 2009 to judgment in the appeal on 22 June 2011, he noted no unreasonable or unjustifiable delay by the Crown; but he held (paragraph 43) that the passage of some 21 months, 22 June 2009 to 31 March 2011, between the renewal of the claimants' application for leave to appeal the confiscation orders and the grant of leave on a renewed application represented "avoidable" delay and the fault lay entirely with the court.  There was no criticism of the lapse of three months from the grant of leave until judgment in the appeal.  Indeed as it happened the court had expedited the final hearing and delivery of the judgment.  As for period C, between the Criminal Division judgment and the prosecutor's request for an enforcement hearing in March 2012, the District Judge held (paragraph 50) that the Crown should have sought enforcement more diligently; and that staff shortages, a circumstance that was relied on, did not constitute a reasonable excuse.  The District Judge concluded as follows:
"58.  Whilst the authorities have been useful in highlighting basic principles, no two cases are the same.  This is not a mathematical exercise.  I am mindful in particular of the complexity of the original trial and the relative complexity of the confiscation proceedings.  I also take account of what is at stake for these defendants who have been at liberty for several years.  I cannot ignore the fact that the Crown has always made plain their intention to obtain and enforce confiscation orders in this case and the defendant's would have been under no illusions about that.  
"59.  The only criticism I have made of the prosecution is not applying to enforce the confiscation orders as swiftly as they should between June 2011 and March 2012.  
"60.  In addition, I have found there had been avoidable delay in listing the renewal of the application for leave to appeal.  However once leave had been granted, the appeal hearing and the delivery of the court's judgment were expedited thereby reducing the overall delay to some extent. 
"61.  I conclude that those are the only two periods of time where any delay is attributable to either the prosecution or the court.  
"62.  In the light of all the circumstances of this case and bearing in mind all the relevant factors, I find that overall this case has been concluded within a reasonable time and therefore there has been no breach of Article 6.1 of the Convention."
7.	It is clear on authority that in deciding whether proceedings have been concluded within a reasonable time for the purposes of Article 6, the court is to consider all the circumstances of the case and in particular the case's complexity, the applicant's conduct, the conduct of the relevant state authorities and the importance of what is at stake for the applicant: see among other cases Minshull v UK (application number 7350/06) paragraph 45.  It is also right that the fact, where it arises, that the result of proceedings may be that a released prisoner will be returned to jail is important: see Lloyd v Bow Street Magistrates' Court at paragraph 25 per Dyson LJ as he then was.  
8.	In this court, in judicial review proceedings, our task is to consider whether the District Judge's conclusion was perverse or flawed by error of law.  Since the Magistrates' Court was itself fully Article 6 compliant, we are not required by the Human Rights Act to exercise any more intensive jurisdiction.  I do not understand Dyson LJ in the Lloyd case at paragraph 29, to which Mr Farrell QC for McIntosh referred this morning, to indicate any different position.  
9.	The claimants submit (see for example McIntosh's grounds, paragraph 28) that the judge was wrong merely to categorise the two periods of delay, amounting to some two years and four months which he found culpable, merely as avoidable delay.  He should have condemned this delay as unreasonable and in those circumstances to hold that delay of this order did not amount to a violation of Article 6 was perverse.  It is submitted in writing (paragraph 31 of McIntosh grounds) that the case of Howarth v UK (application number 38081/97) should be contrasted.  There a defendant who had received a non‑custodial penalty for offences of dishonesty was sent to prison for 20 months two years later following an Attorney General's reference on which the Criminal Division accepted that the original sentence was unduly lenient.  The Strasbourg court held there was a violation of Article 6 by reason of delay.  
10.	Other cases too have been referred to, not least by Ms Guiloff for Mr Marsden, who has principally referred to domestic authority, Flaherty [2008] EWHC 2589, paragraphs 21 to 22, where Moses LJ referred to inexcusable delay and Syed and Hamilton‑Farrell [2010] EWHC (Admin) 1617, paragraph 36.  Stays were granted in those cases which involved delays respectively of two years, three months and nearly three years.  
11.	It is also said that the District Judge took account of irrelevant factors: the fact that a co‑conspirator had asked the Criminal Division to certify a point of general importance and the fact that the claimants well knew that the prosecution persisted in their intention to enforce the confiscation orders.  As for the former, certainly that had no bearing on the period of delay for which the District Judge held the Criminal Division to be culpable; but it was no doubt part of the overall picture.  I will return to the latter point.  
12.	It is said moreover that the judge was wrongly moved by the case's complexity.  That too, it is submitted, had no bearing on the Criminal Division's delay and is perhaps to some extent a matter of impression.  
13.	In my judgment, the judge was surely right to look at the case as a whole.  He was also right to take account of the fact that the claimants were well aware at all material times of the Crown's continuing intention to enforce the order.  As the acknowledgment of service states, paragraph 10, so much is factually clear from the correspondence described in detail in the Crown's skeleton prepared for the Magistrates' Court hearing.  The claimants had declined to enter into any dialogue with the Crown concerning payment.  They assert of course that they have no money.  This is an important part of the case and I will return to it after considering authority.  
14.	There is plain learning to the effect that the fact that an applicant remains liable to pay the sum due on the confiscation order cannot absolve the authorities of their duty to conclude the proceedings within a reasonable time: see in Strasbourg Crowther v UK (application No 53741/00) paragraph 29.  In Lloyd v Bow Street Magistrates' Court, delivering the judgment of this court Dyson LJ said this at paragraph 23: 
"As for the second limb of the reasoning, we do not see how the fact that the defendant is in breach of his continuing duty to satisfy the confiscation order can be relevant.  In our view, the conduct of the defendant can have no bearing on the question of whether he has a right to have proceedings against him in respect of that conduct instituted and determined within a reasonable time.  It is common ground that a defendant is entitled to have a substantive criminal charge against him determined within a reasonable time.  That right is predicated on the basis that the defendant is alleged to have broken the law by committing a crime.  The fact that a defendant is alleged to have committed a crime is plainly not a reason for denying him the right to have the criminal charge determined within a reasonable time.  Indeed the existence of the criminal charge is the very reason why he has the right.  Similarly, in our view the fact that a defendant is alleged to be in breach of a confiscation order is no reason to deny him the right to have proceedings brought to enforce the order by commitment to prison determined within a reasonable time."
15.	I accept without cavil that the Article 6 reasonable time requirement applies to confiscation proceedings even where the amount is incontestably due and unpaid in its entirety.  But I do not, with great respect, accept that those factors are all together irrelevant to the court's assessment of what is a reasonable time.  The premise of enforcement proceedings is that the defendant has not established that he cannot pay.  The fact that it lies within a defendant's own power to bring the proceedings to a close by satisfying the order, or at any rate take some steps in that direction, yet he does nothing, is an aspect of his conduct which on Strasbourg authority we are enjoined to consider.  In my judgment such a circumstance raises the threshold, already high, of the proof required to establish a breach of Article 6 on time grounds, for which see Procurator Fiscal, Linlithgow Privy Council DRA No 2 of 2001 per Lord Bingham at paragraph 80.  I do not consider that Dyson LJ in Lloyd intended to contradict this position.  If he did, I would with very great respect venture to differ.  
16.	Nothing in the authorities, it seems to me, suggests that the considerations which I have here canvassed are misplaced.  In any case, as I have already indicated, in my judgment a defendant's plain awareness of the Crown's continuing intention to enforce is relevant.  As the District Judge held, it must affect the impact of the proceedings on the mind of the defendant.  Mr Farrell for McIntosh accepted that this factor raised the bar in what has to be proved for an Article 6 breach.  Ms Guiloff for Marsden however very determinedly did not.  In my judgment it is of some importance as a whole in the case that the Crown were active in pursuing the claimants; they did not remain silent and let time pass despite what had been held to be the faults of the Court of Appeal.  I accept the submission of Mr Kinnear QC for the Crown that the claimants have effectively failed to engage altogether in the process relating to the confiscation order.  
17.	I do not make light of the fact that on the District Judge's order these claimants were returned to prison after being at liberty from dates in 2007 and 2008 respectively but it seems to me to be significant that they were released before the confiscation orders were made on 12 December 2008.  So even had their appeal been expeditiously processed by the Criminal Division and the enforcement proceedings expeditiously processed by the Crown, some time would inevitably have lapsed between their release and return to prison.  Mr Farrell submitted that if everything had been done as swiftly as it should, the confiscation proceedings might have been brought to an end in 2010.  Mr Kinnear accepts that avoidable delay must be unreasonable but submits that the specific periods in question have to be looked at in the context of the whole case and that is what the District Judge has properly done.  I see the force of Ms Guiloff's argument, if I may say so tenaciously and skillfully advanced, that the culpable periods of delay were all the worse because of the substantial period that had already lapsed.  That was the approach she said in the Flaherty case.  
18.	Having considered all of these matters and having concluded as I have on the points relating to failure to pay and knowledge of the Crown's intentions, I find it impossible to categorise the District Judge's finding as perverse or legally erroneous.  Given the force of the claimants' submissions however, in particular on the issue relating to the claimants' failure to pay and their knowledge of the Crown's settled intention to enforce, I would grant permission to seek judicial review and treat this hearing as the substantive application.  But I would dismiss the claims for the reasons I have given.
19.	MRS JUSTICE SWIFT:  I agree for the reasons my Lord has given.
20.	MR FARRELL:  Could I just ask, we would like to consider the issue of permission to appeal.  It may be that, because you have granted leave, if you had not granted leave at all ‑‑ 
21.	LORD JUSTICE LAWS:  You would have nowhere to go, but as it is you can seek permission.
22.	MR FARRELL:  We can and I wondered whether one way of doing it could perhaps be in writing in the next week? 
23.	LORD JUSTICE LAWS:  Yes, we are not together but we shall be both in the building.
24.	MR FARRELL:  It would just give us time to consider putting a proper question to you.
25.	LORD JUSTICE LAWS:  It is an important case and you should not be put under any pressure.
26.	MR FARRELL:  We could perhaps have two ‑‑ 
27.	LORD JUSTICE LAWS:  It does raise one thing in my mind about which I ought to be clear but I am not.  Is this a case in which you can only go to the Supreme Court if you get a certificate? 
28.	MR FARRELL:  Forgive me for ‑‑ if this is a criminal causal matter, is that right? 
29.	LORD JUSTICE LAWS:  That is the general rule and presumably it is.
30.	MR FARRELL:  That is right.  My understanding is it is but we would have to check. 
31.	LORD JUSTICE LAWS:  You would have to get a certificate from us, a certificate of a point of importance.
32.	MR FARRELL:  And permission from the Supreme Court.
33.	LORD JUSTICE LAWS:  If we did not grant it ‑‑ 
34.	MR FARRELL:  If you did not grant it, that would probably be the end of it.  We will need to check that, that is certainly my understanding.
35.	LORD JUSTICE LAWS:  Do check it because you do not want to ‑‑
36.	MR FARRELL:  Certainly we will check that but perhaps, I don't know if 14 days would be acceptable? 
37.	LORD JUSTICE LAWS:  I think you can probably do it in a week, can you not? 
38.	MR FARRELL:  We can certainly do it in that time.  So perhaps in seven days, should we feel it appropriate, we will circulate a potential question of permission. 
39.	LORD JUSTICE LAWS:  Assuming you decide to go ahead.
40.	MR FARRELL:  Of course, I do not say we will but I just want to ‑‑ 
41.	LORD JUSTICE LAWS:  Absolutely right.  Ms Guiloff, do you want to saying anything about this? 
42.	MS GUILOFF:  No, I respectfully agree with my learned friend.
43.	LORD JUSTICE LAWS:  Mr Kinnear, are you content that the claimants have seven days in which to consider whether to apply for a certificate and leave.
44.	MR KINNEAR:  Content, your Lordship.
45.	LORD JUSTICE LAWS:  Thank you very much.  Anything else for today?  Then it only remains for me to express the court's thanks and obligation to counsel for their learned submissions.