AS TO THE ADMISSIBILITY OF
Application no. 53741/00
by Stephen Alexander CROWTHER
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 8 July 2003 as a Chamber composed of
Mr M. Pellonpää, President,
Sir Nicolas Bratza,
Mr M. Fischbach,
Mr J. Casadevall,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mrs V. Strážnická, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 9 February 1999,
Having regard to the partial decision of 27 August 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Stephen Alexander Crowther, is a United Kingdom national, who was born in 1946 and lives in East Sussex, England. He is represented before the Court by Mr P.A. Kealey, a lawyer practising in Londonderry. The respondent Government are represented by Ms H. Upton, Foreign and Commonwealth Office.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In December 1990 the applicant was convicted in Northampton Crown Court of a drug offence and on 21 March 1991 he was sentenced to six years’ imprisonment. On the same date, a confiscation order in the sum of GBP 22,000 was imposed, with a term of 18 months’ imprisonment to be served consecutively to his main sentence if he failed to make the payment by 21 March 1992.
At the time of the applicant’s conviction Her Majesty’s Customs and Excise (henceforth, “Customs”) were in possession of a Rolex watch and GBP 2,600 belonging to the applicant. According to the Government, the applicant was informed by a letter dated 16 May 1991 that the order had been registered with Chichester Magistrates’ Court, but the applicant denies ever having received such a letter.
On 30 September 1991 Customs wrote to the solicitors who had acted for the applicant at trial and asked how and when he intended to pay the sum ordered. According to the applicant, the solicitors, who had ceased to act for him in May 1991, never informed him of this letter. They wrote to Customs on 7 November 1991 that they had no instructions from the applicant.
On 20 March 1992 the Magistrates’ Court wrote to Customs to enquire whether action would be taken to enforce the order in default of payment. Customs replied on 23 March 1992 that the sum ordered had not been paid and that they were considering applying for a distress warrant to be issued in respect of the watch and a receiver to be appointed to deal with the applicant’s property.
By a letter dated 8 April 1992, the Magistrates’ Court informed Customs that a distress warrant could not be issued. In another letter, dated 12 August 1992, the magistrates sought information from Customs about the appointing of a receiver. Customs replied on 22 October 1992 that the sum ordered had not been paid, but that they had not applied to the High Court to appoint a receiver in the attempt to identify any realisable assets held by the applicant and that they were awaiting further instructions from their Asset Forfeiture Unit.
The applicant was released from prison in May 1994. He had not paid the money due under the confiscation order, but the order had not been enforced.
By a letter dated 24 October 1995 Customs contacted the Magistrates’ Court to discover whether payment had been made. The court replied on 27 October 1995 that it had not. On 23 January 1996 Customs contacted the applicant’s former solicitors to inform them that they intended to enforce payment of the order.
On 29 February 1996 Customs asked the court to issue a distress warrant in respect of the watch. This was issued in March 1996 and an executed copy of the warrant was sent to Customs in May 1996.
On 25 June 1996 a warrant was issued for the applicant’s arrest to bring him to court for a means inquiry to take place in respect of the sum of GBP 17,670 outstanding on the order. The inquiry took place on 10 July 1996. The applicant attended but was not represented. The proceedings were adjourned at the applicant’s request to allow him to seek legal aid and a Certificate of Inadequacy (which would dispense him from the obligation to pay the order). According to the Government, the proceedings were adjourned a further twelve times over the following seventeen months at the applicant’s request. The applicant denies requesting so many adjournments.
On 18 November 1997 the High Court dismissed the applicant’s application for a Certificate of Inadequacy. On 10 December 1997 the Magistrates’ Court ordered that proceedings to enforce the confiscation order should take place. The proceedings were subsequently adjourned several more times, but the reason for the adjournments is not clear.
On 13 May 1998 the case was listed for 3 June 1998, and on the latter date the applicant was committed to prison for 15 months for non-payment of the sum outstanding.
On 7 August 1998 the applicant was granted leave by the High Court to apply for judicial review of the magistrates’ decision. On 14 October 1998 the High Court refused his application for judicial review, holding that there was no reason to construe the word “consecutive” in the confiscation order in such a strict manner as to mean “in unbroken succession to the time served under the original order”. Lord Justice Brooke in the High Court described the delay on the part of the enforcement authorities between October 1992 and January 1996 in enforcing the order as “wholly unexplained”, and Mr Justice Sedley observed that the “Customs and Excise’s inertia between March 1992 and January 1996 was both inexcusable and, given that somebody’s liberty was involved, unconscionable”. However, the High Court held that, as a matter of English law, once the confiscation order had been made the onus was on the applicant to pay, and “any continuing lapse of time is then in the eye of the law a product of the failure to pay, not of the failure to enforce”. On 19 October 1998 the High Court refused leave to appeal to the House of Lords.
On 27 August 2002 the Court declared a number of the applicant’s complaints inadmissible. The only outstanding complaint is about the length of the proceedings, under Article 6 § 1.
The applicant complains that the confiscation procedure took an unreasonably long time, contrary to Article 6 § 1, which states:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government ask the Court to find this complaint manifestly ill- founded. They submit that the criminal proceedings in question commenced, at the earliest, in October 1995, when the Magistrates’ Court informed Customs that the confiscation order had not been satisfied, because it could not be said that the applicant was “charged with a criminal offence” until steps had been taken to enforce the order. The relevant period came to an end on 3 June 1998 when the applicant was committed to prison for non-payment of the order. The delay between June 1996 and June 1998 was caused by the applicant’s attempts to seek a Certificate of Inadequacy and his requests for adjournment of the enforcement proceedings.
In the alternative, the Government argue that, if the Court finds that the reasonable time requirement began to run from the time that enforcement proceedings could have been brought, namely 22 March 1992, the delay did not violate Article 6 § 1, because throughout the relevant period the applicant was under an obligation to pay the amount ordered by the Crown Court.
The applicant submits that he was “charged with a criminal offence” from 21 March 1991, when he received the confiscation order, or, if not then, certainly from March 1992 when he defaulted on payment and became liable to be imprisoned.
He denies that the delay was his fault. He claims that the amount of the confiscation order was wrongly calculated and that he was never able to pay it, a fact of which Customs were aware, as evidenced by their failure ever to apply to have a receiver appointed. Throughout the enforcement proceedings he remained at a fixed address known to the authorities and attended court whenever required. He did not request frivolous adjournments or attempt to prolong the proceedings unnecessarily.
The Court considers that the application raises complex issues of law and fact under Article 6 of the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court unanimously
Declares the remainder of the application admissible, without prejudicing the merits of the case.
Michael O’Boyle Matti Pellonpää
CROWTHER v. THE UNITED KINGDOM DECISION
CROWTHER v. THE UNITED KINGDOM DECISION