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FOURTH
SECTION
CASE OF MINSHALL v. THE UNITED KINGDOM
(Application
no. 7350/06)
JUDGMENT
STRASBOURG
20
December 2011
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 Minshall v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Päivi Hirvelä,
George
Nicolaou,
Ledi Bianku,
Zdravka
Kalaydjieva,
Vincent A. De Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 7350/06) 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 a
British national, Mr Robert John Minshall (“the applicant”),
on 16 February 2006.
- The
applicant was represented by Rustem Guardian Solicitors, a firm based
in London. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr D. Walton of
the Foreign & Commonwealth Office.
- On
12 January 2010 the
Acting President of the Fourth Section 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 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1943 and lives in
Newmarket.
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- On 3 February 2000, at Wood Green Crown Court, the
applicant pleaded guilty to conspiracy fraudulently to evade excise
duty on alcoholic liquor in contravention of section 170 of the
Customs and Excise Act 1979. On 28 February 2000 Newman J made a
restraint order prohibiting disposal by the claimant of his assets
and on 5 May 2000 he was sentenced to 30 months’
imprisonment.
- Pursuant
to section 72A of the Criminal Justice Act 1988 (“the CJA
1988”), save in exceptional circumstances confiscation
proceedings should be concluded no later than six months after
conviction. At a directions hearing on 5 June 2000 the judge
was told that the six-month statutory time limit for making a
confiscation order would expire on 3 August 2000. He noted that
“we may have to extend the period”. A date was agreed for
service of the applicant’s responses to the Crown’s
statements and it was ordered that a further directions hearing
should be listed within the six month period. This further
hearing took place on 3 August 2000. The judge noted the court’s
power to extend the six-month time limit and no objection was raised
by counsel for the applicant. The confiscation proceedings took place
on 13 October 2000. The judge made an order against the applicant in
the sum of GBP 80,000 to be paid by 30 April 2001, with 18 months’
imprisonment in default.
- The
applicant sought leave to appeal against the confiscation order. He
submitted that the court had no jurisdiction to make the order
because it was imposed more than six months after his conviction in
breach of the statutory time limit under section 72A of the CJA 1988.
At the time there was judicial uncertainty about whether failure to
comply with the six-month time limit would deprive the court of
jurisdiction to make a confiscation order. Permission to appeal was
granted on 19 July 2001 and enforcement of the confiscation order was
suspended pending the outcome of the appeal.
- On
16 December 2002 the Court of Appeal considered a group of appeals
lodged on the same ground as that of the applicant, namely that the
Crown Court did not have jurisdiction to make a confiscation order
outside the six-month time limit. The Court of Appeal held that a
procedural irregularity did not necessarily deprive the court of
jurisdiction to make a confiscation order. One of the appellants
(Soneji) obtained leave to appeal to the House of Lords. His appeal
was joined to that of another appellant (Knights).
- On
15 April 2003 the applicant issued an out-of-time notice of appeal
against conviction on the ground that his conviction had been tainted
by non-disclosure.
- On
2 March 2004 the Court of Appeal stayed the applicant’s appeal
against the confiscation order pending the House of Lords’
decisions in R v. Knights and R v. Soneji.
- On
24 June 2004 the Court of Appeal refused the applicant leave to
appeal out of time against his conviction.
- The
decisions in R v. Knights [2005] UKHL 50 and R v. Soneji
[2005] UKHL 49 were handed down by the House of Lords on 21 July
2005. In those decisions the House of Lords affirmed the Court of
Appeal’s conclusion that a procedural irregularity would not
necessarily deprive the court of jurisdiction to make a confiscation
order. Following publication of the decisions, counsel advised the
applicant against continuing his appeal and withdrew from the case.
However, with the assistance of his solicitors the applicant did
continue the appeal. His solicitors sought leave to amend the grounds
of appeal to include two further grounds: first, that the
confiscation order was unlawful because it had been made in respect
of facts constituting a substantive offence when the applicant had
only pleaded guilty to the prior and distinct offence of conspiracy;
and secondly, that the duration of the proceedings up to the date of
the appeal had been unreasonably long, in breach of Article 6 §
1 of the Convention.
- On
14 February 2006 the application to amend the grounds of appeal was
considered together with the substantive merits of the appeal.
Permission to amend the grounds was refused, the substantive appeal
was dismissed, and the court declined to certify that points of law
of general public importance were involved in the decision. Mrs
Justice Rafferty found that the Crown Court judge’s reasons for
extending the six-month time limit “were the proper
administration of justice, based upon judicial availability. They
explicitly were not for the purpose of allowing the Crown to secure
more information”. Applying R v. Knights and R v.
Soneji, she held that artificial adherence to statutory time
limits was outwith the intentions of Parliament and that the appeal
should therefore be dismissed.
- On
15 February 2006 the applicant sought leave to appeal to the House of
Lords. On 16 February 2006 leave was refused. On the same day, the
applicant submitted his application to this Court.
- On
20 February 2006 the Revenue & Customs Prosecutions Office
(“RCPO”) wrote to the applicant seeking his proposals for
payment of the outstanding confiscation order. On 27 April 2006 the
applicant’s solicitor asked the RCPO to delay enforcement
proceedings pending consideration of his application to the Court.
The RCPO declined and confiscation enforcement proceedings against
the applicant took place on 23 August 2006. The Magistrates’
Court rejected the applicant’s submission that to continue the
enforcement proceedings would be an abuse of process and a breach of
Article 6 of the Convention. The applicant applied for permission to
judicially review this decision. In the meantime the enforcement
proceedings were adjourned to 31 October 2006 for a means’
enquiry to take place.
- On
31 October 2006 the District Judge refused to stay the enforcement
proceedings pending determination of the application for permission
to apply for judicial review. However, he adjourned the means’
enquiry to 19 December 2006.
- On
14 December 2006 the applicant made a further application to the High
Court for a stay of the enforcement proceedings. On 18 December 2006
the High Court refused the application for permission to apply for
judicial review and the application for urgent interim relief.
However, the application for interim relief was subsequently granted
at an oral hearing on 19 December 2006 and at a further oral hearing
on 23 January 2007 the applicant was granted permission to apply for
judicial review.
- On
25 January 2007 the applicant was found to be in contempt of court in
relation to numerous breaches of the restraint order and was ordered
to pay GBP 75,000 within 28 days. The applicant satisfied this
judgment on 21 February 2007.
- On
4 November 2008 the application for judicial review was heard by the
Administrative Court. The applicant sought to argue that the delay
between his arrest and conviction and the confiscation proceedings
was unreasonable in its length of time and that the proceedings
should be stayed as an abuse of process or a breach of Article 6 of
the Convention. On 21 November 2008 a High Court Judge
dismissed the applicant’s judicial review application. In
particular, he noted that the slow progress of the appeal against the
confiscation order was interrupted by the supervening decision of the
applicant to seek leave to appeal out of time against conviction. As
the application for leave took place within a reasonable time, the
only period of delay which was both material and unexplained was the
period between 24 June 2004 (the hearing of the application for leave
to appeal against conviction out of time) and 21 July 2005
(publication of opinions of the House of Lords in R v. Knights
and R v. Soneji). However, the judge accepted that the
decision to await the outcome of the proceedings before the House of
Lords was eminently sensible even if it did prolong the period before
the applicant’s appeal could be heard by the Court of Appeal.
- On
21 January 2009 the judge refused to certify a point of law of public
importance and refused permission to appeal to the Court of Appeal.
- On
22 September 2009 the applicant was imprisoned until the outstanding
confiscation figure was paid. Following large contributions from
family and friends, the outstanding balance was paid in its entirety
on 23 September 2009 and the applicant was released from prison.
B. Relevant domestic law
- Section
71 of the Criminal Justice Act 1988, in force at the time the
confiscation order was made, states:
“(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
72A of the Criminal Justice Act 1998, in force at the time the
confiscation order was made, states:
“(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.
(4) Where the defendant appeals against his conviction,
the court may, on that account -
(a) postpone making any of the determinations mentioned
in subsection (1) above for such period as it may specify; or
(b) where it has already exercised its powers under this
section to postpone, extend the specified period.
(5) A postponement or extension under subsection (1) or
(4) above may be made -
(a) on application by the defendant or the prosecutor;
or
(b) by the court of its own motion.
(6) Unless the court is satisfied that there are
exceptional circumstances, any postponement or extension under
subsection (4) above shall not exceed the period ending three months
after the date on which the appeal is determined or otherwise
disposed of.”
- In
R v. Knights [2005] UKHL 50 and R v. Soneji [2005] UKHL 49, the House of Lords considered the consequences of failure to
comply with section 72A, and in particular the time limits under
section 72A(3). The court held that, although there existed no common
law power to adjourn, Parliament had not intended to disable the
courts from making confiscation orders after sentence merely because
the time-limits were not strictly adhered to. It further held that
the requirement for “exceptional circumstances” under
section 72A(3) should not be strictly construed.
- By
virtue of section 75 of the Criminal Justice Act 1998 and sections
139 and 140 of the Powers of the Criminal Courts (Sentencing) Act
2000 Crown Court confiscation orders are enforceable in the
Magistrates’ Court as fines. Section 76 of the Magistrates’
Court Act 1980 confers on the Magistrates’ Court several powers
for enforcing fines, including the issue of a warrant for commitment
for service of the default term of imprisonment for non-payment or
the issue of a warrant of distress. By virtue of section 79 of the
Magistrates’ Court Act, payment of the total sum due will
result in a person’s release from the default term of
imprisonment and any partial payment will result in a pro rata
reduction of the term of imprisonment.
- In
the case of Lloyd v. Bow Street Magistrates’ Court
(2004) 1 Cr App R 11 the Divisional Court found that Article 6 §
1 of the Convention applied to all stages of the confiscation order
and enforcement process and that a defendant had a right to have
enforcement proceedings brought against him within a reasonable time.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. As regards the length of the proceedings
- The
applicant complained that the length of the
confiscation proceedings had been incompatible with the “reasonable
time” requirement, laid down in Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of ... any
criminal charge against him everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
1. Period to be taken into consideration
- In
Crowther v. the United Kingdom, no. 53741/00, § 26, 1
February 2005 the Court indicated that in the context of a length
complaint under Article 6 of the Convention, criminal proceedings
incorporated the applicant’s arrest, charge and trial together
with the making and enforcement of a confiscation order.
Consequently, in Crowther v. the United Kingdom the Court held
that the criminal proceedings commenced on the date the applicant was
first arrested and questioned in connection with the charge and were
determined when he was denied leave to appeal to the House of Lords
against the refusal to grant his application for judicial review of
the magistrate’s decision to commit him to prison for
non-payment of the confiscation order. However, in Bullen and
Soneji v. the United Kingdom, no. 3383/06, § 48, 8 January
2009 the Court found that the relevant period began on the date the
applicants were convicted and became liable to have confiscation
orders made against them. As the case did not concern enforcement
proceedings, the Court accepted that the proceedings concluded when
the Court of Appeal re-imposed the confiscation orders and sentences
of imprisonment in default following the order of the House of Lords.
- In
the present case the applicant has complained solely about the length
of the confiscation proceedings. He therefore accepts that the
relevant proceedings began on 3 February 2000 when he was convicted
of conspiracy fraudulently to evade excise duty and were determined
on 16 February 2006 when he was refused leave to appeal to the
House of Lords. As the Government have made no submissions to the
contrary, for the purposes of this judgment the Court accepts that
the period to be taken into consideration began on 3 February 2000
and ended on 16 February 2006. Thus, the relevant period lasted a
total of six years and twelve days.
2. Admissibility
- The
Government submitted that insofar as the applicant’s complaints
related to events prior to February 2006 (the confiscation
proceedings) rather than events subsequent to February 2006 (the
enforcement proceedings), he had failed to exhaust domestic remedies
as required by Article 35 § 1 of the Convention. In particular,
the Government submitted that the applicant had not complained about
the length of proceedings until he unsuccessfully sought to amend his
grounds of appeal to the Court of Appeal in February 2006.
- The
applicant submitted that he had at all material times objected to the
enforcement of the confiscation order on the ground of delay. He had
initially objected to the confiscation order being made outside the
statutory time limit. As soon as the overall delay in enforcing the
order became unreasonable – the applicant submitted that this
happened at some time in late 2005 or early 2006 – he had
sought to specifically rely on the provisions of Article 6 § 1
of the Convention.
- The Court reiterates that Article 35 § 1
of the Convention requires that the complaints brought before the
Court should first 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 recalls that in Bullen and Soneji v. the United Kingdom,
no. 3383/06, § 45, 8 January 2009 it found that in contesting
the Crown Court’s jurisdiction to act outside the statutory
time-limit contained in the CJA 1988, the applicants had in substance
invoked the reasonable time requirement under Article 6 § 1 of
the Convention in respect of their complaints concerning the delay in
making a confiscation order. The Court further found that the
Government had failed to identify any other sufficiently certain
remedy which had been available to the applicants to challenge the
delay. As the Government have not suggested any grounds on which the
present case can be distinguished from that of Bullen and Soneji
v. the United Kingdom, the Government’s objection on
non-exhaustion must be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
3. Merits
- The
applicant submitted that the length of the confiscation proceedings
breached the reasonable time requirement under Article 6 of the
Convention. While he accepted that the case was reasonably complex,
as evidenced by the number of hearings, and that some delay between
each stage of the proceedings was unavoidable, he argued that there
were nevertheless several long periods of delay which were not a
result of the complexity of the proceedings and which could be
attributed to the respondent State. In particular, he submitted that
significant periods of culpable delay could be identified between
conviction and the making of a confiscation order, between the making
of the confiscation order and the grant of leave to appeal the
confiscation order, between the grant of leave to appeal the
confiscation order and the stay of proceedings, and between the
judgment of the Court of Appeal in R v. Soneji and Others and
the judgment of the House of Lords in R v. Knights and R v.
Soneji.
- Although
the applicant accepted that his various appeals and applications had
added to the overall delay, he submitted that there had been delay
which was over and above that which was reasonable.
- Finally,
the applicant submitted that until the confiscation figure was paid
in its entirety on 23 September 2009, he had remained at risk of a
default term of imprisonment because the sums of money in question
had not been available to be paid voluntarily. Money which had been
paid into court in the course of the proceedings had been provided by
the applicant’s wife by mortgaging the matrimonial property.
- The
Government submitted that there had been no violation of the
reasonable time requirement. While it accepted that the period
between the imposition of the confiscation order and the enforcement
proceedings was unusually long, it did not consider it to be
unreasonable within the meaning of Article 6. The Government
submitted that the facts of Bullen and Soneji v. the United
Kingdom could readily be distinguished from those of the present
case. First, the total time period attributable to the State in the
present case was at most twelve months (see paragraph 20, above),
whereas in Bullen and Soneji v. the United Kingdom the
Court found fifty-three months of delay attributable to the State.
Secondly, the applicant in the present case had contributed to the
delay by bringing multiple appeals and applications before the
domestic courts. Thirdly, in Bullen and Soneji v. the United
Kingdom the court had taken nearly two years to make the
confiscation order. In the present case, the confiscation order was
made after eight months.
- The
Government argued that both the applicant’s appeal against the
confiscation proceedings and the appeal against conviction were
unusually complex. The issues raised in the confiscation proceedings
involved points of law of general public importance which were
eventually considered by the House of Lords. Likewise, the appeal
against conviction involved inter related appeals and voluminous
documentation.
- With
regard to the applicant’s conduct, the Government submitted
that he had sought a stay of enforcement of the confiscation order
pending his appeal; he had lodged a notice of appeal against
conviction three years out of time; he had pursued the appeal against
the confiscation order even though he had been advised by counsel
that it was unarguable following the House of Lords’ decision
in Bullen and Soneji v. the United Kingdom; it had at all
times been open to him to voluntarily satisfy the confiscation order
but he chose not to even though he appeared to have sufficient funds;
and he had made numerous applications to various levels of the
domestic courts each of which required time to be determined.
- On
the other hand, the Government submitted that neither the applicant
nor the domestic courts had criticised the conduct of the prosecuting
authority in the making and enforcement of the confiscation order. It
had complied with court orders and deadlines throughout and had acted
at all times with reasonable expedition. It had also made it clear to
the applicant that it would seek to uphold the conviction and
confiscation order and seek to enforce it by all means necessary.
- Finally,
the Government submitted that what was at stake for the applicant was
not necessarily the imposition of a default term of imprisonment as
he had at all times had the option of making voluntary payment to
satisfy the confiscation order in full and conclude the proceedings.
- 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).
- 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 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.
The applicant’s appeal against the confiscation order was in
fact stayed pending the outcome of the House of Lords’
decision.
- As
regards the eight-month delay between conviction and the making of
the confiscation order (3 February 2000 to 13 October 2000), the
Court has accepted that the making of a confiscation order outside
the six month statutory time limit does not necessarily deprive
it of its validity or render the proceedings unfair within the
meaning of Article 6 § 1 of the Convention (Bullen and Soneji
v. the United Kingdom, cited above, § 78). Moreover, the
Court notes that at the hearing on 3 August 2000 the applicant did
not object to the listing of the confiscation proceedings on
13 October 2000, more than two months after the expiry of the
six-month time limit. Finally, the Court observes that this period of
delay was considered by the Court of Appeal, which concluded on 14
February 2006 that the Crown Court judge’s reasons for
extending the six-month time limit “were the proper
administration of justice, based upon judicial availability. They
explicitly were not for the purpose of allowing the Crown to secure
more information”. Applying R v. Knights and R v.
Soneji, she held that artificial adherence to statutory time
limits was outwith the intentions of Parliament and that the appeal
should therefore be dismissed. The Court finds no reason to disagree
with the Court of Appeal’s conclusion that the State could not
be criticised in respect of this delay.
- It
is not clear when the applicant sought leave to appeal against the
confiscation order, but as the application was not considered to be
out of time, it would appear to have been lodged at the latest on 10
November 2000. Leave to appeal was granted on 19 July 2001. On 16
December 2002 the Court of Appeal gave judgment in a group of related
appeals and one of the applicants was subsequently granted leave to
appeal to the House of Lords. The applicant’s appeal was stayed
on 2 March 2004 pending consideration of the matter by the House of
Lords. The House of Lords decisions were handed down on 21 July 2005
and the applicant’s appeal was determined on 14 February 2006.
- In
view of the complexity of the issues involved and the number of
related appeals troubling the domestic courts, the Court does not
consider the passage of time between the application for leave to
appeal the confiscation order and the grant of leave to appeal to be
material. However, the same could not be said of the delay of four
years and seven months between the grant of leave to appeal and the
determination of the appeal.
- The
Court observes that a number of factors contributed to this delay.
First, the applicant issued an out-of-time notice of appeal against
conviction on 15 April 2003 which was refused on 24 June 2004. During
this time the domestic courts could not be expected to have
considered the applicant’s appeal against the confiscation
order because, had the appeal against conviction been successful, the
confiscation order would no longer have been valid. Consequently,
this delay is not attributable to the conduct of the State
authorities. Moreover, although applicants should generally not be
blamed for exercising their legal entitlement to appeal, in the
present case the Court notes that the application for leave to appeal
was lodged more than three years out of time and in spite of advice
from counsel to the effect that there were no grounds for the
applicant to appeal against his conviction. The Court therefore
considers that the applicant was himself responsible for this period
of delay.
- With
regard to the subsequent delay, the Court considers that in principle
it was reasonable for the applicant’s appeal to be stayed
pending judgment of the House of Lords in R v. Knights and R
v. Soneji and, indeed, there is no evidence to suggest that the
applicant objected to the appeal being stayed on this ground.
Nevertheless, the Court is concerned by the length of the resulting
delay.
- The
Court recalls that in Bullen and Soneji v. the United
Kingdom it found a number of periods of delay to be attributable
to the State, including the period of two years between the Court of
Appeal’s certification of the case and the House of Lords’
judgment. It also recalls that in the present case the Administrative
Court, in its decision of 4 November 2008, indicated that this period
of delay was “both material and unexplained”. Although
the Court recognises that this delay was entirely attributable to the
delay in the related cases of R v. Knights and R v. Soneji,
it notes that the Court of Appeal and House of Lords in those cases
were at all times aware of the significant number of follow-up cases
pending before the lower courts and would therefore have known that
any delay in determining those appeals would have a knock-on effect
on other cases. The Court does not, therefore, consider that the
State can avoid responsibility for this period of delay in the
applicant’s case by attributing it to the delay in R v.
Knights and R v. Soneji. Consequently, insofar as the
delay in the applicant’s case was attributable to the delay in
R v. Knights and R v. Soneji, the Court considers that
it was attributable to the State.
- The
Court does not consider the period of delay between the publication
of the decisions of the House of Lords in R v. Knights and
R v. Soneji and the conclusion of the applicant’s
appeal to be material.
- As
to what was at stake for the applicant during the proceedings, the
Court notes that he faced a confiscation order for a substantial sum
of money, namely GBP 80,000. As a consequence, he remained liable to
an eighteen-month term of imprisonment until this sum was eventually
paid on 23 September 2009, some nine years after the date of his
conviction and seven years after his release 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). There it found a delay of two years between the applicant’s
original sentence which was non-custodial and his subsequent
custodial sentence to be in breach of the reasonable time requirement
under Article 6 § 1 of the Convention. Moreover, the Court
recalls that in Bullen and Soneji v. the United
Kingdom it found that the fact the applicants continued to be
liable to terms of imprisonment ranging from twelve months to
twenty-one months, five years after their convictions, to be in
breach of the reasonable time requirement under Article 6 § 1 of
the Convention.
- In
light of the importance of what was at stake for the applicant in
this case and without discounting the complexity of the legal issue
in question, the Court finds the period of delay attributable to the
State 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 fairness of the proceedings
- The
applicant further complained that he was denied a fair trial within a
reasonable time in breach of Article 6 § 1 of the Convention
because the Court of Appeal refused to grant him leave to amend his
grounds of appeal out of time and because the confiscation order was
imposed outside the six-month statutory time limit.
- 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).
- In
R v. Knights and R v. Soneji 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.
Moreover, in Bullen and Soneji v. the United Kingdom
this Court accepted the House of Lords’ conclusions and found
the applicants’ complaint concerning the imposition of a
confiscation order outside the six-month time limit to be manifestly
ill-founded.
- In
the present case the Court finds no evidence to substantiate the
applicant’s complaint that either the imposition of the
confiscation order outside the statutory time limit or the refusal of
leave to amend his grounds of appeal rendered the proceedings unfair
within the meaning of Article 6 § 1 of the Convention. In
particular, it notes that despite the delay there was no evidence to
suggest that the imposition of the confiscation order against the
applicant was inconsistent with the offence to which he pleaded
guilty or was not reasonably foreseeable.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
- The
applicant also complained that the confiscation order was imposed in
breach of Article 7 of the Convention as the order was based on the
facts of the substantive offence even though he had only been found
guilty of the prior and distinct offence of conspiracy.
- Article
7 of the Convention provides as follows:
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed.
2. This article shall not prejudice the trial and
punishment of any person for any act or omission which, at the time
when it was committed, was criminal according to the general
principles of law recognised by civilised nations.”
- The
Court recalls that this complaint was only raised before the domestic
courts when the applicant sought leave to amend his grounds of appeal
after the House of Lords handed down its decision in R v. Knights
and R v. Soneji. The applicant has not advanced any
explanation as to why this complaint was raised at such a late stage
in the proceedings, when the application for leave to appeal was
already a number of years out of time. Consequently, it follows that
the applicant has failed to exhaust domestic remedies in respect of
this complaint and it must therefore be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
III. 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.”
A. Damages
- With
regard to pecuniary damage, the applicant
claimed compensation for the interest that had been paid over and
above inflation as a result of his exercising his legitimate right to
appeal. In the alternative, he claimed compensation for the interest
that had been paid over and above inflation as a result of the
culpable delay in enforcing the confiscation order. He submitted that
from 13 October 2000 to February 2006 the amount paid in real terms
over the capital amount (the statutory interest minus the increase
due to inflation) was GBP 26,554.16. From February 2006 to June 2010
this figure was GBP 30,644.21. The applicant conceded that the
capital sum was properly upheld and enforceable.
- In
respect of non-pecuniary damage, the applicant claimed GBP 1,000
for the exacerbation of the aggravation and anguish associated with
criminal proceedings which resulted from the unreasonable delay.
- The
Government contested these claims. They submitted that if the capital
amount was payable, then no claim should be granted to recompense the
applicant for payment of interest thereon as interest was mandatory
and to be treated for enforcement purposes as part of the
confiscation order. Moreover, the Government submitted that insofar
as the claim for pecuniary damage concerned interest which accrued
after February 2006, the claim was untenable because the applicant
had not complained about the delay after February 2006.
- The
Government further submitted that the claim for non-pecuniary damage
was wholly unparticularised and, in any case, the finding of a
violation of Article 6 § 1 of the Convention would constitute
sufficient just satisfaction.
- In
all the circumstances of the case, and taking into account the
applicant’s contribution to the delay in the proceedings, the
Court makes a global award of EUR 2,000 covering both pecuniary and
non-pecuniary damage.
B. Costs and expenses
- The
applicant has not made a claim for the costs and
expenses incurred before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 6 § 1
of the Convention concerning the excessive length of the proceedings
to be admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the sum of EUR 2,000 (two thousand euros),
plus any tax that may be chargeable, in respect of pecuniary and
non-pecuniary damage, to be converted into British Pounds at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of
the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 20 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech
Garlicki Registrar President
