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FOURTH
SECTION
CASE OF
BULLEN AND SONEJI v. THE UNITED KINGDOM
(Application
no. 3383/06)
JUDGMENT
STRASBOURG
8 January
2009
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Bullen and Soneji v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki,
President,
Nicolas
Bratza,
Giovanni
Bonello,
Ljiljana
Mijović,
Ján
Šikuta,
Mihai
Poalelungi,
Nebojša
Vučinić,
judges,
and Fatoş Aracı,
Deputy Registrar,
Having
deliberated in private on 2 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 3383/06) against the
United Kingdom of Great Britain and Northern Ireland
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by two
British nationals, Mr David Frederick Bullen and Mr Kamlesh
Kumar Soneji (“the applicants”), on 19 January 2006.
- The
applicants were represented by Mr N. Seeley, a lawyer practising in
Hertford. The United Kingdom Government (“the
Government”) were represented by their Agent, Ms A. Sharif.
- On
14 June 2007 the Acting
President of the Chamber of the Fourth Section to which the case had
been allocated decided to give notice of the application to the
Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 §3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. The applicants' conviction and sentence
- The
applicants were born in 1946 and 1962 respectively and live in
London. They were charged with involvement in a money laundering
scheme together with a third co-accused, Mr E.
- On
24 March 2000 the second applicant pleaded guilty at a Crown Court to
conspiracy to launder the proceeds of criminal conduct contrary to
section 1 of the Criminal Law Act 1977. On 3 April 2000 the first
applicant pleaded guilty to the same offence.
- On
21 June 2000 the prosecution served notice under section 71(1)(a) of
the Criminal Justice Act 1988 (CJA 1988, see paragraphs 40-41 below),
as amended by the Proceeds of Crime Act 1995, indicating their
intention to seek confiscation orders to recover the proceeds of the
applicants' criminal conduct.
- On
29 June 2000 counsel for the second applicant requested an early
confiscation hearing and counsel for the co-accused, Mr. E.,
requested a confiscation hearing in September. The trial judge
pencilled in a date on the week beginning 30 October 2000, as that
was the first occasion on which he would be available. The trial
judge further directed that the date would be considered again on the
proposed date for sentence, 18 August 2000.
- On
18 August 2000 the second applicant was sentenced to four and a half
years' imprisonment and the first applicant was sentenced to six
years' imprisonment. Prior to sentence the confiscation hearing was
formally postponed until after passing sentence and was fixed for 30
October 2000, outside the six-month period required under section 72A
of the CJA 1988.
2. Adjournment pending R. v. Steele and Shevki
- On
30 October 2000 the case was listed for the confiscation hearing with
a time-estimate of five working days. The applicants objected that
the court lacked jurisdiction to hear the confiscation proceedings on
the grounds that more than six months had elapsed since their
convictions and that the judge had not considered whether there were
“exceptional circumstances” warranting the imposition of
the confiscation orders outside the statutory time-limit, as required
by section 72A (3) of the CJA 1988, as amended (see paragraph 35
below).
- On
3 November 2000 the trial judge held that he had jurisdiction to hear
the confiscation proceedings. It was then agreed by the parties that
the confiscation proceedings should be adjourned to await the outcome
of a similar case which was due to be heard by the Court of Appeal, R
v Steele and Shevki. The confiscation proceedings were adjourned
until 5 February 2001.
- On
21 November 2000 Mr E. was granted leave to appeal against his
conviction. On 24 November 2000 both the applicants' applications for
leave to appeal against sentence were refused by a single judge of
the Court of Appeal.
- On
14 December 2000 the Court of Appeal delivered its judgment in R
v. Steele and Shevki ([2000] EWCA Crim 70).
It found that although adjournments beyond the six-month period
prescribed by statute should be avoided, exceptional circumstances
such as the unavailability of a judge would not deprive a subsequent
confiscation order of its validity.
- On
31 January 2001 the confiscation proceedings were listed again for
mention. Renewal of argument in relation to the Crown Court's
jurisdiction to hear the confiscation proceedings, in light of the
Court of Appeal's judgment in R v. Steele and Shevki, was
listed for 8 and 9 March 2001. Following the hearing on 8 March 2001,
the judge held that the court retained a common law power to adjourn
beyond the statutory six-month time-limit in compelling circumstances
such as where there was an illness or the judge was unavailable. In
his opinion a statutory postponement citing exceptional circumstances
was required only where the purpose of the postponement was to gather
further information, and not in the instant case where the issue had
been the unavailability of the judge.
3. Mr E.'s appeal and application for an adjournment
- On
26 and 27 March 2001 the Court of Appeal heard and dismissed Mr E.'s
appeal against conviction. On 30 March 2001 the confiscation
proceedings were listed again for mention before the trial judge, to
notify him of the result of Mr E.'s appeal. At this stage Mr E. was
seeking leave to appeal to the House of Lords and was awaiting the
decision of the Court of Appeal on his application for leave to
appeal. The substantive hearing of the confiscation hearing was again
adjourned.
- On
2 May 2001 the Court of Appeal refused Mr E.'s application for leave
to appeal to the House of Lords and declined to find that a question
of law of general public importance was involved in the decision.
- On
12 June 2001 the confiscation proceedings were listed for directions
and with the agreement of all parties, the hearing was fixed to begin
on 15 October 2001.
- On
20 September 2001 the confiscation proceedings were again listed for
mention at the request of Mr. E. who sought to adjourn the
confiscation hearing that was fixed for 15 October 2001.
- On
26 September 2001 the confiscation proceedings were again listed to
consider Mr E.'s application for adjournment. The proceedings were
adjourned to 28 January 2002 with a time estimate of three weeks.
4. The proceedings before the Court of Appeal
- On
28 January 2002 the Crown Court imposed a confiscation order on the
second applicant in the amount of GBP 75,350, to be paid within 18
months of the resolution of any appeal to the Court of Appeal, with a
consecutive term of twelve months' imprisonment to be served in
default.
- On
4 February 2002 the second applicant lodged an application for leave
to appeal, challenging the confiscation order on the ground that the
Crown Court had no jurisdiction to make it because of the lapse of
the six-month period provided by section 72A(3) of the CJA 1988.
- On
7 February 2002 the Crown Court imposed a confiscation order on the
first applicant in the sum of GBP 375,000, to be paid within
18 months of the resolution of any appeal to the Court of
Appeal, with a consecutive term of 21 months' imprisonment to be
served in default.
- On
25 February 2002 the first applicant lodged an application for leave
to appeal challenging the confiscation order on the same grounds as
the second applicant (see paragraph 20 above).
- On
12 December 2002 the second applicant obtained a Certificate of
Inadequacy from the High Court. This entitled him to return to the
Crown Court to seek a reduction of the confiscation order.
- On
4 February 2003 the second applicant's case was listed before the
Crown Court and the confiscation order was reduced to GBP 30,284,
taking into account the Certificate of Inadequacy.
- On
20 June 2003 the Court of Appeal allowed the applicants' appeals and
quashed the confiscation orders and default sentences of
imprisonment. They noted that on 29 June 2000, defence counsel for
the second applicant and the co-accused Mr. E. had requested an early
hearing at the Crown Court. However, the earliest date that the trial
judge would be available was the week beginning 30 October 2000. That
date was pencilled in by the trial judge, even though it was “more
than four months away”. The Court of Appeal considered that,
given the importance attached by Parliament and the courts to the
link between confiscation orders and sentencing, a high degree of
judicial scrutiny was required before finding exceptional
circumstances to justify the imposition of a confiscation order
outside the six-month time-limit. In the present case, there was no
evidence of any enquiry from 24 March 2000 (when the second applicant
was the first to plead guilty) onwards into whether a space could be
found for the confiscation hearing during the six-month period.
- Furthermore,
on 3 November 2000, the trial judge had acknowledged with “admirable
candour” when finding that he had jurisdiction to hear the
confiscation proceedings outside the six-month time-limit that “no
enquiry was made of the (applicants) as to the postponement”
when the decision to hold the confiscation hearing in the week
beginning 30 October 2000 was finally confirmed on 18 August
2000. Neither had there been any analysis of any factors which might
amount to exceptional circumstances. The trial judge had also
“candidly acknowledged more than once” that there were no
exceptional circumstances. The Court of Appeal ultimately found that
the failure to address the question as to whether the circumstances
could properly be described as exceptional and to make a finding to
that effect was fatal to the upholding of the confiscation orders.
Though in principle confiscation orders should not be quashed for
mere defects in procedure, if the statutory requirement of
exceptional circumstances was to be more than a “mere
incantation”, enquiry into the circumstances and the
possibility and feasibility of a timely hearing were required.
- On
30 July 2003 the Court of Appeal certified that a point of law of
general public importance was involved in the decisions.
5. The proceedings before the House of Lords
- On
1 April 2004 the House of Lords granted the prosecution leave to
appeal against the decisions of the Court of Appeal.
- On
21 July 2005 the House of Lords reversed the decisions of the Court
of Appeal and ordered the latter to re-impose the confiscation orders
in respect of both applicants.
- The
House of Lords observed that the core problem before it was whether,
as a matter of statutory construction, failure to comply with a
statutory time-limit would have the effect of invalidating an act.
The fact that Parliament cast statutory requirements in imperative
form without expressly specifying the consequences of a failure to
comply had caused difficulty and had been the source of a great deal
of litigation over the preceding 130 years. A distinction had first
evolved between mandatory and directory requirements; where a
requirement was mandatory, a failure to comply had the effect of
invalidating the act in question but where a requirement was merely
directory, a failure to comply did not invalidate the act. Over the
years, a further distinction had been made between two types of
directory requirements: requirements of a purely regulatory
character, where a failure to comply would never invalidate an act,
and requirements where a failure to comply would not invalidate an
act provided that there was substantial compliance. In London &
Clydeside Estates Ltd v. Aberdeen District Council [1980] 1 WLR 182, 189E-190C, however, Lord Hailsham had emphasised that it was
within the courts' inherently discretionary jurisdiction to determine
the nature of a particular statutory requirement and to examine the
consequences of non-compliance before determining whether Parliament
had intended total invalidity. In the later case of Wang v.
Commissioner of Inland Revenue [1994] 1 WLR 1286, the Privy
Council followed and applied the dictum of Lord Hailsham in London
and Clydeside Estates (cited above). The
House of Lords also took into consideration a number of cases in
which the Court of Appeal had adopted the same approach, and parallel
developments in the courts of New Zealand, Australia and Canada.
- In
the present case, the House of Lords considered that the prime
purpose behind the statutory provision for confiscation orders was
the recovery of any financial benefit that an offender might have
obtained from his criminal conduct. The Law Lords rejected the
applicants' argument that, given the criminal law context, a strict
approach to the construction of section 72A of the CJA 1988 should be
adopted and instead applied a teleological approach. They noted that
section 71(1) of the CJA 1988 imposed a positive duty to proceed with
confiscation proceedings and that the time limits under section 72A
were linked to the date of conviction rather than sentence. This was
considered to be evidence that Parliament's intention was the early
disgorgement of an offender's criminal gains. Though Parliament had
envisaged that courts would make confiscation orders before
sentencing, unless they exercised their postponement power under
section 72(A)(1), it was of some significance that Parliament
considered it more important that a confiscation order should be made
than that it should be made before the defendant was sentenced.
Though no common law power to adjourn existed, Parliament could not
have intended to disable a court from making a confiscation order
after sentence merely because the time-limits were not strictly
adhered to.
-
In the present case, the Crown Court had postponed its final decision
on confiscation orders in good faith. The prejudice to the applicants
was not significant and was outweighed by the countervailing public
interest in not allowing convicted offenders to escape confiscation
for what were no more than bona fide errors in the judicial
process. In any event, there would always be the safeguard of
judicial review should there be an apparent abuse of process.
- In
October 2005 the Court of Appeal re-imposed the confiscation orders
and sentences of imprisonment in default on the applicants.
II. RELEVANT DOMESTIC LAW
-
Section 1 of the Proceeds of Crime Act 1995 amends section 71 of the
Criminal Justice Act 1988 as follows:
“Section 1 (2) – For subsections (1) to (3)
(orders confiscating the proceeds of an offence) there shall be
substituted the following subsections— (1) Where an offender is
convicted, in any proceedings before the Crown Court or a
magistrates' court, of an offence of a relevant description, it shall
be the duty of the court—
(a) if the prosecutor has given written notice to the
court that he considers that it would be appropriate for the court to
proceed under this section, or
(b) if the court considers, even though it has not been
given such notice, that it would be appropriate for it so to proceed,
to act as follows before sentencing or otherwise dealing
with the offender in respect of that offence or any other relevant
criminal conduct.
(1A) The court shall first determine whether the
offender has benefited from any relevant criminal conduct.
(1B) Subject to subsection (1C) below, if the court
determines that the offender has benefited from any relevant criminal
conduct, it shall then—
(a) determine in accordance with subsection (6) below
the amount to be recovered in his case by virtue of this section, and
(b) make an order under this section ordering the
offender to pay that amount.”
- Section
28 of the Criminal Justice Act 1993 amends the Criminal Justice Act
1988 accordingly:
“28. The following section shall be inserted in
the Criminal Justice Act 1988, after section 72—
Postponed determinations.
72A. — (1) Where a court is acting under section
71 above but considers that it requires further information before—
(a) determining whether the defendant has benefited as
mentioned in section 71(2)(b)(i) above;
(b) determining whether his benefit is at least the
minimum amount; or
(c) determining the amount to be recovered in his case
by virtue of section 72 above,
it may, for the purpose of enabling that information to
be obtained, postpone making that determination for such period as it
may specify.
(2) More than one postponement may be made under
subsection (1) above in relation to the same case.
(3) Unless it is satisfied that there are exceptional
circumstances, the court shall not specify a period under subsection
(1) above which—
(a) by itself; or
(b) where there have been one or more previous
postponements under subsection (1) above or (4) below, when taken
together with the earlier specified period or periods,
exceeds six months beginning with the date of
conviction.”
- The
Human Rights Act 1998 (“1998 Act”) entered into force on
2 October 2000. Section 3(1) provides:
“So far as it is possible to do so, primary
legislation and subordinate legislation must be read and given effect
in a way which is compatible with the Convention rights.”
Section 4 of the
1998 Act provides (so far as relevant):
“(1) Subsection (2) applies in any proceedings in
which a court determines whether a provision of primary legislation
is compatible with a Convention right.
(2) If the court is satisfied that the provision is
incompatible with a Convention right, it may make a declaration of
that incompatibility. ...
(6) A declaration under this section ... -
(a) does not affect the validity, continuing operation
or enforcement of the provision in respect of which it was given; and
(b) is not binding on the parties to the proceedings in
which it is made.”
Section
8 provides (so far as relevant):
“(1) In
relation to any act (or proposed act) of a public authority which the
court finds is (or would be) unlawful, it may grant such relief or
remedy, or make such order, within its powers as it considers just
and appropriate.
(2) But
damages may be awarded only by a court which has power to award
damages, or to order the payment of compensation, in civil
proceedings.
(3) No
award of damages is to be made unless, taking account of all the
circumstances of the case, including—
(a) any
other relief or remedy granted, or order made, in relation to the act
in question (by that or any other court), and
(b) the
consequences of any decision (of that or any other court) in respect
of that act,
the court is satisfied that the award is necessary to
afford just satisfaction to the person in whose favour it is made.
(4) In
determining—
(a) whether
to award damages, or
(b) the
amount of an award,
the court must take into account the
principles applied by the European Court of Human Rights in relation
to the award of compensation under Article 41 of the Convention.”
Section
10 provides:
“(1) This section applies if –
(a) a provision of legislation has been declared under
section 4 to be incompatible with a Convention right and, if an
appeal lies –
(i) all persons who may appeal have stated in writing
that they do not intend to do so; or
(ii) the time for bringing an appeal has expired and no
appeal has been brought within that time; or
(iii) an appeal brought within that time has been
determined or abandoned; or
(b) it appears to a Minister of the Crown or Her Majesty
in Council that, having regard to a finding of the European Court of
Human Rights made after the coming into force of this section in
proceedings against the United Kingdom, a provision of legislation is
incompatible with an obligation of the United Kingdom arising from
the Convention.
(2) If a Minister of the Crown considers that there are
compelling reasons for proceeding under this section, he may by order
make such amendments to the legislation as he considers necessary to
remove the incompatibility.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the criminal proceedings
against them had contravened the “reasonable time”
requirement. They further complained that they had been deprived of
their right to a fair trial by the domestic courts' failure to abide
by the statutory time-limit for the imposition of confiscation
orders. They invoked Article 6 § 1 of the
Convention, which reads, in so far as relevant, as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public hearing within
a reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
As regards the length of the proceedings
1. Admissibility
- The
Government contended that the applicants had failed to exhaust
domestic remedies as they did not complain about the alleged
unreasonable length of the proceedings before the national courts.
The applicants' argument before the domestic courts had been that the
Crown Court had lost its jurisdiction to impose confiscation orders
by failing to comply with the statutory requirements of the CJA 1988,
and not that there had been a breach of the reasonable time
requirement under Article 6 of the Convention.
- The
Government argued further that the applicants could have sought to
expedite their confiscation hearings, by relying on the Human Rights
Act 1998. The applicants had agreed that the confiscation hearing
should be conducted by the trial judge and had not applied at any
stage for their cases to proceed to a confiscation hearing on the
basis that there would otherwise be a breach of the reasonable time
requirement. Furthermore, they had not sought to sever their case
from that of their co-accused Mr E., which might have speeded up the
process.
- The
applicants contended that their argument before the domestic courts,
which centred on the statutory time-limit provided by section 72A of
the CJA 1988, was in effect a complaint concerning the reasonable
time requirement under Article 6 § 1 of the Convention.
- The
applicants further asserted that all parties had agreed that the
confiscation proceedings should be conducted by the trial judge.
Moreover, the procedure under national law was that the trial judge
should hear the confiscation proceedings. They contested the
Government's suggestion that they should have sought to sever their
cases from that of their co-accused Mr E. Mr E. had at all material
times been in a different position, as the Crown Court had retained
its statutory jurisdiction to impose a confiscation order on him.
43. The Court reiterates that Article 35 § 1
of the Convention requires that the complaints intended to be brought
subsequently before the Court should have been made to the
appropriate domestic body, at least in substance and in compliance
with the formal requirements laid down in domestic law, but that no
recourse need be had to remedies which are inadequate or ineffective
(see, for example, Kucheruk v. Ukraine, no.
2570/04, § 108, 6 September 2007). The existence of the remedy
must be sufficiently certain, failing which it will lack the
requisite accessibility and effectiveness. Article 35 of the
Convention also provides for a distribution of the burden of proof.
It is incumbent on the Government claiming non exhaustion to
satisfy the Court that the remedy was an effective one available in
theory and in practice at the relevant time, that is to say, that it
was accessible, was one which was capable of providing redress in
respect of the applicant's complaints and offered reasonable
prospects of success (see Selmouni v. France [GC],
no. 25803/94, § 76, ECHR 1999-V; and Mifsud v.
France (dec.), no. 57220/00, § 15, ECHR 2002-VIII).
- The
Court will address the Government's submissions on non exhaustion
in turn. First, as regards the Government's preliminary objection
that the applicants never complained about the length of the
confiscation proceedings domestically, the Court finds that in
contesting the Crown Court's jurisdiction to act outside the
statutory time-limit contained in the CJA 1988, the applicants
invoked the reasonable time requirement under Article 6 § 1 of
the Convention in substance.
- Second,
in relation to the Government's assertion that the applicants failed
to expedite the confiscation proceedings by relying on the Human
Rights Act 1998, the Court finds that the Government have neither
cited with sufficient clarity a particular remedy that was available
to the applicants, nor a similar case in which such an alleged remedy
had been successfully pursued before the domestic courts. It
follows that the Government have failed to identify a sufficiently
certain remedy which was available to the applicants and which they
failed to exhaust. They have therefore failed to discharge the burden
of proof incumbent on them in claiming non-exhaustion. It follows
that the Government's objection on non-exhaustion must therefore be
dismissed.
- Finally,
as to the Government's submissions that the applicants agreed to
their confiscation hearings being heard by the trial judge and did
not seek to sever their cases from that of their co-accused, Mr E.,
the Court finds that these issues go to the merits of the
application.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- The
periods to be taken into consideration began on 24 March 2000 and 3
April 2000, respectively, when the second and first applicants were
each convicted and became liable to have confiscation orders made
against them. The periods ended in October 2005 when the Court of
Appeal re imposed the confiscation orders and sentences of
imprisonment in default, following the House of Lords' order of 21
July 2005. The relevant proceedings thus lasted approximately five
years and six months.
(a) The parties' submissions
i) The Government
- The
Government submitted that the Crown Court and the Crown Prosecution
Service were in a position to deal with the confiscation hearing in
October 2000. This was just six months from the date of the
applicants' convictions and less than three months after they had
been sentenced to imprisonment. The period of time was entirely
reasonable having regard to the complexity of the case and the
desirability of allowing the parties time to prepare for the
confiscation hearing. They further maintained that any subsequent
delay was attributable to the applicants' conduct, as they had put in
question the Crown Court's jurisdiction to make confiscation orders
against them, and that of Mr E., who had sought leave to appeal
against his conviction.
- As
to the complexity of the case, the Government asserted that the
confiscation proceedings in the applicants' case involved an
extremely complicated issue of law, which eventually had to be
determined by the House of Lords. The factual issues were complicated
by the proceedings against the co accused, Mr E., against whom a
confiscation order was also being sought.
- The
Government cited the following instances as examples of delay
attributable to the applicants' conduct. First, the applicants'
request for an adjournment pending the Court of Appeal's decision in
R. v. Steele and Shevki, following their challenge to the
Crown Court's jurisdiction to impose confiscation orders against them
outside the statutory time-limit. Second, the second applicant's
changing of his legal representative in January 2001, which led to a
new timetable being agreed between the parties, with the substantive
confiscation hearing fixed to take place between 2 April 2001 and 11
May 2001. Thirdly, the applicants did not press for the confiscation
hearing to take place in April and May 2001, but rather agreed to the
hearing being fixed for 15 October 2001. Finally, the Government
asserted that it was the third co-accused, Mr E., who was responsible
for the adjournment of the confiscation hearing from 15 October 2001
to 28 January 2002.
- The
Government argued that both the prosecution and Crown Court had acted
with reasonable expedition at all times and that any delays were not
attributable to the State. Had the applicants not raised objections
to the Crown Court's jurisdiction, the confiscation proceedings would
have been concluded much earlier.
ii) The applicants
- The
applicants submitted that the ultimate imposition of the confiscation
orders against them did not take place until October 2005. They
highlighted that, according to the relevant provisions of the CJA
1988, the confiscation order and sentence in default should have been
imposed against the first applicant by 3 October 2000. In the case of
the second applicant this should have been done by 24 September 2000.
There was therefore a delay of over five years between when the
confiscation orders should have been imposed and when they were
eventually imposed. Relying on this Court's judgment in Howarth v.
the United Kingdom, (no. 38081/97, 21 September 2000)
they argued that this delay constituted a breach of the reasonable
time requirement under Article 6 § 1 of the Convention.
- As
to the Government's contention that the confiscation proceedings
would have been concluded by October 2000 but for the applicants'
conduct, the applicants replied that they were entitled in law to
raise the argument that the Crown Court lacked jurisdiction to make
the confiscation orders against them. They therefore could not be
blamed for delaying the process by exercising their legal right. All
parties had agreed that arguments in connection with the jurisdiction
point should be adjourned to await the Court of Appeal's decision in
R. v Steele v Shevki. As the confiscation proceedings had been
partly heard already it was also agreed that the same judge,
prosecution counsel and defence counsel should be available to attend
when the proceedings were eventually resumed. All parties had agreed
that the confiscation hearing should be conducted by the trial judge
and the procedure under domestic law was that the trial judge should
hear the confiscation proceedings.
- The
applicants contested the Government's assertion that the Crown Court
and prosecution had acted at all times with reasonable expedition.
They cited two specific examples of delay attributable to the State:
first, the Crown Court failed to provide a confiscation hearing
within six months of their convictions as required by statute and,
secondly, the prosecution failed to serve the statutory notices that
they intended to pursue confiscation proceedings against the
applicants until 21 June 2000.
- As
regards the complexity of the case, the applicants submitted that
their cases were not complicated by the presence of the third
co-accused, Mr E. His case was to be distinguished from theirs
in that he did not plead guilty but rather continued with his trial.
Moreover, he was on 30 October 2000 still within the “six
months from the date of conviction” time period required by
section 72A of the CJA 1988. The applicants contested the
Government's assertion that the fact that the Crown Court's
jurisdiction to make confiscation orders outside the statutory
time-limit was being challenged in a number of cases before the Court
of Appeal was evidence of complexity. The issue in the present case
was fairly straightforward: whether the Crown Court had complied with
the statutory regime which governed the imposition of confiscation
orders in the applicants' case.
- They
asserted the importance of what was at stake for them, namely that
they faced a return to prison after having served their original
sentences and having been released in July 2005. They also argued
that in the case of sentences of imprisonment in default of payment,
offenders were not entitled to remission of their sentences and were
obliged to serve full terms. Furthermore, the passage of time since
their convictions had impaired their ability to pay the confiscation
orders and thus rendered them more vulnerable to having to serve
their respective sentences of imprisonment in default.
b) The Court's assessment
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities and what
was at stake for the applicants (see, among many other authorities,
Pélissier and Sassi v. France [GC], no. 25444/94, §
67, ECHR 1999-II and Çaplik v. Turkey, no. 57019/00,
§ 37, 15 July 2005).
- The
Court recalls its judgment in the case of Crowther v. the United
Kingdom, (no. 53741/00, §§ 24 and 25, 1
February 2005) which also concerned a complaint concerning the length
of criminal proceedings where a confiscation order had been imposed.
The Court re-affirmed the principle that “Article 6 § 1
applies throughout the entirety of proceedings for... the
determination of ... any criminal charge, including proceedings
whereby a sentence is fixed” and went on to find that
“confiscation proceedings of the type brought against the
applicant are analogous to the determination by a court of the amount
of a fine or the length of a period of imprisonment to be imposed on
a properly convicted offender.”
- As
to the complexity of the case, the Court observes that the issue in
question, namely the exact legal consequences of non-compliance with
the statutory time-limits under section 72(A) (3) of the CJA 1988,
had been a point of contention for many years. Indeed, the Court of
Appeal had certified in June 2003 that a point of law of general
public importance was involved (see paragraph 27 above). The matter
eventually fell to be resolved by the House of Lords, who were called
upon to conduct a difficult and complex exercise of statutory
interpretation, for which they examined the legislative history
behind the provision for confiscation orders and the intention of
Parliament in the event that the statutory time-limits were not
complied with (see paragraphs 30 to 32 above).
-
As for the period prior to 30 October 2000, the Court notes the Court
of Appeal's criticisms of the trial judge for not conducting any
enquiry from 24 March 2000 (when the second applicant was the first
to plead guilty) onwards into whether a space could be found for the
confiscation hearing during the six-month statutory period (see
paragraph 25 above). It further takes into account the Court of
Appeal's observation that the trial judge had neither consulted the
applicants about the postponement beyond the six-month period nor
made any attempt to consider whether there existed any exceptional
circumstances for the delay as required by statute (see paragraph 26
above). The Court finds no reason to disagree with the findings of
the Court of Appeal on this matter and consequently considers that
this period of delay is attributable to the conduct of the State
authorities.
- As
regards the adjournment pending the Court of Appeal's decision in R.
v Steel and Shevki which was delivered on 14 December 2000, the
Court notes that all parties agreed to it. Moreover, the applicants
cannot be blamed for exercising their legal entitlement to have the
question of the Crown Court judge's jurisdiction resolved. It
therefore finds that any delay that arose as a consequence cannot be
attributed to the applicants' conduct. Nor, however, can the State be
criticised in respect of this delay.
- As
to the period after 14 December 2000, the Court does not find any
evidence to substantiate the Government's assertion that the second
applicant's changing his legal representatives significantly delayed
the proceedings.
- Nor,
in the Court's opinion, can the applicants be criticised for agreeing
that their respective confiscation hearings should be conducted by
the trial judge. In this vein, the Court notes that the Government do
not contest the applicants' assertion that all the parties had agreed
that the trial judge should preside over the confiscation hearings.
Moreover, examination of the applicable legislation, in particular,
section 71 of the CJA 1988 as amended by section 1 of the Proceeds of
Crime Act 1995 (see paragraph 34 above) demonstrates that it is for
the Crown Court trial judge to make a confiscation order.
- Finally,
as regards the Government's submissions that the applicants did not
press for the confiscation hearing to take place in April and May
2001, but rather agreed to the hearing being fixed for 15 October
2001, and their preliminary objection that the applicants failed to
exhaust domestic remedies by not seeking to sever their cases from
that of their co-accused, Mr. E., the Court has had regard to its
findings in the cases of Price and Lowe v. the United Kingdom
(nos. 43185/98 and 43186/98, § 23, 29 July
2003) and Crowther v. the United Kingdom (no. 53741/00, §
29, 1 February 2005) where it held:
“a principle of domestic law or practice that the
parties to civil proceedings are required to take the initiative with
regard to the progress of the proceedings, does not dispense the
State from complying with the requirement to deal with cases in a
reasonable time...The manner in which a State provides for mechanisms
to comply with this requirement, whether by way of increasing the
numbers of judges, or by automatic time-limits and directions, or by
some other method, is for the State to decide. If a State lets
proceedings continue beyond the “reasonable time”
prescribed by Article 6 of the Convention without doing anything to
advance them, it will be responsible for the resultant delay.”
-
The domestic court could have decided to sever the applicants' cases
of its own motion at the hearing of 30 March 2001 and cannot
rely on the applicants' omission to apply for severance in
attributing the delay entirely to the latter's conduct. Similarly, it
was open to the domestic court to expedite the confiscation hearing
itself. The Government cannot therefore attribute delay to the
applicants' conduct in agreeing to the hearing being fixed for
October 2001, when the domestic authorities did nothing to advance
the proceedings themselves. This being so, the Government's argument
concerning the alleged failure of the applicants to sever their cases
from that of their co-accused Mr E. cannot be accepted (see paragraph
46 above).
- As
to the conduct of the authorities, the Court notes certain periods of
delay which appear to be attributable to the conduct of the State.
First, there was a lapse of 11 months between the Crown Court's
decision on 8 March 2001 that it had jurisdiction to make the
confiscation orders and their actual imposition of the orders against
the applicants on 28 January 2002 and 7 February 2002.
- Second,
there was a delay of 18 months between the lodging of the applicants'
appeals in February 2002 and the Court of Appeal's eventual delivery
of its judgment on 20 June 2003.
- Finally,
the Court notes a delay of two years between the Court of Appeal's
certification of the case on 30 July 2003 and the House of Lords'
judgment of 21 July 2005.
- As
for what was at stake for the applicants during these proceedings, it
is observed that the first and second applicants faced confiscation
orders for substantial sums of money, namely GBP 30,284 and GBP
75,350 respectively. In the event that they were unable to pay these
sums, they would be liable to considerable terms of imprisonment of
21 months' and 12 months' respectively. Due to the earlier quashing
of the confiscation orders by the Court of Appeal and their
subsequent re-imposition following the direction by the House of
Lords, the applicants faced this prospect after the lapse of over
five years since their convictions in early 2000 and at a time when
they had both already served their original sentences of imprisonment
and had been released from prison. The Court recalls its judgment in
the case of Howarth v. the United Kingdom (no. 38081/97,
§§ 29 and 30, 21 September 2000), relied on by the
applicant at paragraph 58 above. There it found a delay of two years
between the applicant's original sentence which was non-custodial and
his subsequent custodial sentence, following the Attorney General's
reference to the Court of Appeal for review of his sentence, to be in
breach of the reasonable time requirement under Article 6 § 1 of
the Convention. The Court also takes into consideration the
applicants' submission (see paragraph 57 above) that the passage of
time had made it significantly more difficult for them to pay the
sums involved in the confiscation orders.
- In
light of the importance of what was at stake for the applicants in
this case and without discounting the complexity of the legal issue
in question, the Court finds the periods of delay attributable to the
State, when taken cumulatively, to be unreasonably long and in breach
of the reasonable time requirement as provided by Article 6 of the
Convention.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
B. As regards the unfairness of the proceedings
- The
applicants further complained that the imposition of the confiscation
orders against them outside the statutory time-limit, without
consideration as to whether there were any exceptional circumstances,
rendered the proceedings against them unfair.
-
The Government submitted that the House of Lords had authoritatively
decided the fact that the confiscation orders were made outside the
six month statutory time period did not deprive them of their
validity. The applicants' arguments were an attempt to use the Court
as a fourth instance appeal against the House of Lords' statutory
interpretation of the relevant provisions of the CJA 1988.
- The Court recalls at the outset that it is not its
task to act as an appeal court of “fourth instance” by
calling into question the outcome of the domestic proceedings. The
domestic courts are best placed to interpret and apply rules of
substantive and procedural law (see, amongst many authorities,
Gurepka v. Ukraine, no. 61406/00, § 45, 6
September 2005).
- The
Court further recalls its judgment in the case of C.R. v the
United Kingdom, (22 November 1995, § 34, Series A
no. 335 C), which with regards to Article 7, held that it
“cannot be read as outlawing gradual clarification of the rules
of criminal liability through judicial interpretation from case to
case, provided that the resultant development is consistent with the
essence of the offence and could be reasonably foreseen.”
- The
House of Lords gave full and reasoned arguments in support of their
interpretation of section 72A of the CJA 1988, giving careful
consideration in particular to Parliament's intention as to the
consequences of non compliance with the applicable statutory
provisions and the ultimate purpose behind the provision for
confiscation orders (see paragraphs 30 to 32 above).
- The
applicants acknowledged that the Crown Court's jurisdiction to impose
confiscation orders outside the statutory time-limit was a contested
issue which had resulted in a spate of related cases being heard
before the Court of Appeal. There are no grounds to suggest that the
ultimate re-imposition of the confiscation orders against the
applicants, albeit significantly delayed, was inconsistent with the
essence of the offences to which they had pleaded guilty or that they
were not reasonably foreseeable, given the contentious legal debate
over the domestic courts' jurisdiction outside the time-limit
provided by section 72A(3) of the CJA 1988. In sum, the Court finds
no evidence to substantiate the applicants' complaint that the
imposition of the confiscation orders against them outside the
statutory time-limit rendered the proceedings unfair within the
meaning of Article 6 § 1 of the Convention.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicants did not submit a claim for just satisfaction.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done
in English, and notified in writing on 8 January 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
