FOURTH SECTION
DECISION
Applications nos. 2100/10 and 2183/10
Alan WHITE against the United Kingdom
and Shinder Singh GANGAR against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 20 October 2015 as a Chamber composed of:
Guido Raimondi, President,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Paul Mahoney,
Faris Vehabović,
Yonko Grozev, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above applications lodged on 7 January 2010 and 4 January 2010 respectively,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in the first case, Mr Alan White, is a British national, who was born in 1958. His current address has not been notified to the Court. He was represented before the Court by Mr Mark Davies of Frisby & Co., a firm of solicitors practising in Stafford. The second applicant, Mr Shinder Singh Gangar, is a British national who was born in 1961. His current address has not been notified to the Court. He was represented before the Court by Janes Solicitors, a firm of solicitors practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Ruth Tomlinson, of the Foreign and Commonwealth Office.
2. On 22 October 2012 the applicants’ complaint concerning the length of criminal proceedings only was communicated to the Government.
A. The circumstances of the case
3. The applicants, who were both accountants, were partners in the firm Dobbs White. In October 1998 the Financial Services Authority (“FSA”) began investigating the firm. This investigation found that there had been no violation of the Banking Act 1987. In January 2000 the FSA began a second investigation which was subsequently transferred to the Serious Fraud Office (“SFO”) and which formed the basis for criminal charges that followed in 2005.
4. In January 2001 the SFO and the Money Laundering Investigation Team (“MLIT”) raided the offices of Dobbs White, as well as the second applicant’s home, and seized documents. The applicants were subsequently arrested on suspicion of money laundering and granted bail. In October 2002 the SFO carried out a second raid, following which they arrested both applicants on suspicion of conspiracy to defraud. Both applicants were granted bail.
5. In November 2002 the MLIT charged the applicants with money laundering.
6. In March 2003 the SFO carried out a third raid, following which both applicants were arrested on suspicion of conspiracy to corrupt. They were again granted bail.
7. The applicants’ trial in relation to the 2002 money laundering charge was due to commence in September 2003. However, following an application by the MLIT an adjournment was granted and the trial was postponed until September 2004. On 17 September 2004 Her Honour Judge Faber, sitting in Wood Green Crown Court, stayed the prosecution on grounds of abuse of process by reason of a disbelief that the prosecution would honour their disclosure obligations and a violation of the reasonable time guarantee contained within Article 6 § 1.
8. On 13 October 2005 the SFO charged both applicants with conspiracy to defraud and conspiracy to corrupt in connection with an alleged bribe. It was the prosecution’s case that after 2002 the applicants had developed in the United Kingdom a Ponzi scheme referred to as the “Dobbs White” scheme. The value of the alleged fraud was put at over USD 200 million. Both applicants were granted bail.
9. In February 2006 the prosecution provided a case summary to the applicants and on 31 March 2006 His Honour Judge Stokes fixed a trial window for Easter 2007. At the same time the second applicant was remanded in custody and later sentenced to five months’ imprisonment for breaching his bail conditions. He was released in November 2006 as the SFO had failed to extend the custody time limits.
10. On 21 November 2006 Mr Justice Langstaff (Langstaff J) set a firm trial date for 8 May 2007. However, at the same time nearly all defence counsel withdrew citing other professional commitments. A new defence team was subsequently appointed.
11. In December 2006 and March 2007 the prosecution made two late and substantial disclosures of further evidence, consisting of thousands of pages.
12. On 19 March 2007, an application was made jointly by the prosecution and the new defence team to postpone the trial as neither side considered that the case could be made ready in time for the original trial date. The defence sought an adjournment until October 2007. A limited postponement of eight weeks was granted until 3 July 2007.
13. In early June 2007 the applicants dismissed their legal representatives, alleging certain deficiencies in the quality of the service they provided. The applicants then sought to transfer their representation orders. This was required to enable the applicants to instruct new representation whilst continuing to benefit from publicly funded legal advice and assistance. On 12 June 2007 the judge refused. Later, following a written application and oral submissions, for which the applicants were assisted by counsel, the judge indicated that he might transfer the representation order. However, one of the requirements of new leading counsel was that the trial be pushed back again to January 2008. The judge again refused as he considered that the applicants had not given a good reason for dismissing their previous representation.
14. The applicants’ trial began on 3 July 2007 and lasted for more than seven months. At the beginning of the trial, the applicants made an out‑of‑time application to Langstaff J to stay the proceedings as an abuse of process arguing a breach of the Article 6 § 1 reasonable-time requirement. In a decision dated 12 July 2007 Langstaff J found that the period of unexplained delay between the beginning of proceedings, deemed to be summer 2004, and the date of the formal charge on 13 October 2005, had amounted to a breach of the reasonable-time requirement.
15. In determining the start date of proceedings, Langstaff J had noted that in October 2003, the SFO investigation was on-going and that no decision had been made whether to bring charges against the applicants; that at some time between late 2003 and 2004 a decision had however been made; that in summer 2004 it had been “indicated” and notified to the applicants that they would probably face charges; and that summer 2004 was therefore, the relevant date for Article 6 § 1 purposes. He explicitly rejected the applicants’ assertion that the relevant time period for the purposes of Article 6 had commenced any earlier. In particular, Langstaff J found that the charges on which the applicants faced trial were sufficiently different to the earlier money-laundering charges, so that the relevant time period did not extend to incorporate those charges; that if the reasonable‑time period necessarily began running the moment there had been an arrest, an investigation or a seizure of documents, such might incline the authorities to take precipitant haste in deciding whether or not to bring charges; that the authorities should take care not to hastily charge an individual where such would be unjustified; and that a proper distinction should be drawn between an investigation and a decision to prosecute, at which time the individual concerned would be duly informed. Langstaff J also concluded that there was no other period of unreasonable delay in the applicants’ case, having regard to the complexity of the case and the conduct of the parties. He determined that the appropriate remedy for the identified breach was not a stay of the indictment: rather that it should be taken into account when deciding the question of costs in the event of acquittal, or by taking it into account at the time of sentence in the event of a conviction.
16. At the close of the prosecution case, the applicants renewed their Article 6 § 1 abuse-of-process submissions to Langstaff J. In a decision promulgated on 19 December 2007, he upheld his previous decision of 12 July 2007.
17. On 22 February 2008 the applicants were convicted by a jury, on a majority verdict, of conspiracy to defraud and conspiracy to corrupt.
18. On 11 April 2008 both applicants were sentenced to seven‑and‑a‑half years’ imprisonment. Langstaff J noted that the maximum sentence available for a conviction of conspiracy to defraud was ten years’ imprisonment and that the offence committed by the applicants fell towards the top of that tariff. The maximum sentence available on the conspiracy‑to‑corrupt conviction was seven years’ imprisonment. Although Langstaff J found that the corruption offence had a close relationship to the defraud offence, it was not “part and parcel” of it. Therefore, a separate penalty was required. Considering however the period of some fifteen months’ unreasonable delay in the course of the case (during which time the applicants had been at liberty), the period of “effective custody” to which the applicants had been subjected during the length of the trial, and the fact that there was no previous involvement in like offending, a sentence of six years in respect of the conspiracy to defraud and one and a half years consecutive in respect of the conspiracy to corrupt was imposed.
19. The applicants sought leave to appeal their conviction to the Court of Appeal. They argued that their conviction was unsafe because, inter alia, the trial judge had refused to transfer the representation order. The applicants’ grounds of appeal did not contain any Article 6 § 1 abuse‑of‑process submissions and did not seek to challenge the trial judge’s finding with regard to the commencement of proceedings for the purposes of the reasonable-time requirement. The application for permission to appeal was refused on 7 July 2009 following an oral hearing, on the ground that the request for a change of representation order was not reasonable and that the judge had been entitled to find same.
20. Meanwhile, on 22 February 2008, following conviction, confiscation proceedings were brought against both applicants. On 1 April 2009 all parties to the proceedings agreed that the applicants had each benefited by over GBP 60 million. Contested hearings took place in October 2009 and June 2010. Provisional judgment was given on 2 July 2010 and an amended and finalised judgment was handed down on 28 July 2010. In respect of the first applicant, a confiscation order was made in the sum of GBP 1,166,339 to be paid within eighteen months, with a sentence in default of five years’ imprisonment. In respect of the second applicant, a confiscation order was made in the sum of GBP 2,758,416 to be paid within an unknown period of time, with a sentence in default of six years’ imprisonment.
21. Both applicants sought leave to appeal those orders. Permission to appeal was granted to argue the specific point of the realisable value of jointly held assets and refused on all other grounds. The applicants pursued an application for leave to appeal on unparticularised additional grounds. That application and the appeal on the ground for which leave had been granted were considered at one hearing held on 22 and 23 May 2012.
22. On 21 June 2012 the Court of Appeal refused leave to appeal on the additional grounds argued. Furthermore, in considering the appeal before it, the court concluded that the orders made were wrong insofar as they were based upon treating the jointly held assets as one hundred percent available to each of the applicants. The appeals were allowed to the limited extent of repairing the identified error. The previous orders were quashed and substitute orders made. In respect of the first applicant, a confiscation order was made in the sum of GBP 686,996.81 to be paid within eighteen months, with a sentence in default of three and a half years’ imprisonment. In respect of the second applicant, a confiscation order was made in the sum of GBP 2,289,074.03 to be paid within an unknown period of time, with a sentence in default of six years’ imprisonment.
B. Relevant domestic law and practice
23. In Attorney General’s Reference (No 2 of 2001) [2004] 2 A.C. 72, HL, the majority in the House of Lords considered the implications of Article 6 on the question whether a prosecution should be stayed by reason of delay alone. Lord Bingham, delivering the majority judgment, stated:
“24. If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant’s Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant’s Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant’s Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.
25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor’s breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant’s Convention right.”
24. Lord Bingham concluded that:
“(1) Criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 6(1) of the Convention only if (a) a fair hearing is no longer possible, or (b) it is for any compelling reason unfair to try the defendant.”
25. That approach was followed by the Court of Appeal in Altaf v The Crown Prosecution Service, West Midlands [2007] EWCA Crim. 691, in which Moses LJ said:
“A breach of the defendant’s right to have a criminal charge determined within a reasonable time, contrary to Article 6(1) of the Convention, will not necessarily require criminal proceedings to be stayed. It will only be appropriate to stay or dismiss proceedings if there can no longer be a fair hearing or it will otherwise be unfair to try the defendant ... Once there has been a conviction, this court should only quash that conviction if the hearing has proved to be unfair, or it was unfair to try the defendant at all.”
26. Where an abuse of process is alleged, the burden of establishing that the bringing or the continuation of criminal proceedings amounts to an abuse of the court’s process is on the accused: R v Telford Justices ex parte Badhan [1991] 2 Q.B. 78; R v Great Yarmouth Magistrates ex parte Thomas [1992] Crim. L.R. 116. As a general principle of domestic United Kingdom law, it will normally be necessary to prove not only that an abuse has taken place but that the accused has been prejudiced in the presentation of his or her case as a result, so that a fair trial is no longer possible. As Lord Woolf LCJ said in the Court of Appeal hearing in Attorney General’s Reference (No 2 of 2001) [2004] 2 A.C. 72, HL:
“... if there has been prejudice caused to a defendant which interferes with his right to a fair trial in a way which cannot otherwise be remedied, then of course a stay is an appropriate remedy. But in the absence of prejudice of that sort, there is normally no justification for granting a stay.”
27. In the context of confiscation proceedings, in R v Shabir [2008] EWCA Crim 1809 the Court of Appeal held that:
“22. Once the Crown decides to invoke the confiscation process, the making of an order is mandatory, and its amount is arithmetically determined but can be moderated by judicial decision.
[...]
23. The court retains the jurisdiction to stay an application for confiscation, as any other criminal process, where it amounts to an abuse of the court’s process. In the present context, that power exists where it would be oppressive to seek confiscation, or to do so on a particular basis.
[...]
24. This jurisdiction must be exercised with considerable caution, indeed sparingly. It must be confined to cases of true oppression. In particular, it cannot be exercised simply on the grounds that the Judge disagrees with the decision of the Crown to pursue confiscation, or with the way it puts its case on that topic.”
28. In the case of R v P [2008] EW Misc 2 (EWCC) the applicant, having been convicted of criminal offending, had confiscation proceedings initiated against him. Moreover, he was subject to a restraint order which related to funds the Crown Prosecution Service believed could constitute the proceeds of criminal activity. Until a judicial determination had been made as to the source of those funds, the applicant was unable to employ them for the purposes of securing legal representation. The alternative was to rely upon state legal aid funding. HHJ Mole QC however accepted that, not least owing to the complexity of the case, if the applicant were to rely on the State legal aid fund, there was no prospect of him being able to engage properly qualified and competent counsel so as to ensure a fair trial. HHJ Mole QC therefore stayed the confiscation proceedings as an abuse of process.
COMPLAINTS
29. The applicants complained that the length of the proceedings had been incompatible with the reasonable-time requirement, laid down in Article 6 § 1 of the Convention.
30. They also complained under Article 6 § 3 (b) of the Convention that they did not have adequate time and facilities for the preparation of their defences and under Article 6 § 3 (c) of the Convention that they were not able to defend themselves through legal assistance of their own choice.
THE LAW
I. JOINDER OF THE APPLICATIONS
31. The two applications in the present case (nos. 2100/10 and 2183/10) raise the same issues. The Court considers therefore that they should be joined pursuant to Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
32. The applicants complained that the length of the 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...”
A. Preliminary Issue
Failure to raise a reasonable-time complaint
33. In their observations, the Government averred that the first applicant had not in fact raised a reasonable-time complaint before this Court as his complaints, which echoed those raised before the Court of Appeal, “principally concerned the adequacy of his legal representation”.
34. In response to the Government’s observations, the first applicant wrote to the Court on 17 April 2013 stating “[i]f the application does not sufficiently deal with the reasonable-time point, or Article 6 § 1, [he] will seek leave to amend his application by incorporating within it by reference the second applicant’s application”.
35. The Court considers that there is some merit to the Government’s submissions as the first applicant’s original application form did not particularise a length-of-proceedings complaint in any detail. Nevertheless, he did refer the Court to a document entitled “Skeleton Argument for the Applicant”, in which he complained about the delay in bringing his case to trial before the Crown Court. It may be argued that this raises a complaint as to the length of proceedings generally. In any case, given its conclusions set out at paragraphs 54-60 below, the Court does not need to reach any firm conclusion on the point. It will therefore proceed on the basis that such a complaint was properly raised by the first applicant.
B. Admissibility
1. Six months
36. In relying upon the approach taken in Bullen and Soneji v. the United Kingdom, no. 3383/06, 8 January 2009, the Government asserted that the criminal proceedings should be considered as distinct from the confiscation proceedings. On this basis, the criminal proceedings ran from summer 2004 until 7 July 2009 (having accepted the trial judge’s finding as to the start of proceedings) and the confiscation proceedings lasted from 22 February 2008 until 21 June 2012.
37. Insofar as the applicants’ complaints concerned the length of criminal proceedings, which had ended on 7 July 2009, the Government pointed out that the applications from the first and second applicants had been received by the Court on 12 January 2010 and 1 February 2010 respectively. Consequently, the Government submitted, the applicants had failed to comply with the six-month time limit and for that reason, the applications should be declared inadmissible under Article 35 § 1 of the Convention.
38. In essence, both applicants argued that the length of the criminal proceedings and that of the confiscation proceedings were unreasonable in themselves but that, for the purposes of Article 6 § 1, those proceedings should in any event be considered as one. Proceedings therefore ended on 21 June 2012 when the Court of Appeal modified the confiscation orders against them, such that their complaints had been lodged in time.
39. The Court recalls that Article 6 § 1 applies throughout the entirety of proceedings for “the determination of ... any criminal charge”, including proceedings whereby a sentence is fixed (see, for example, Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 279, § 69; Phillips v. the United Kingdom, judgment of 5 July 2001, Reports 2000-VII, § 39; and Crowther v. the United Kingdom, no. 53741/00, § 24, 1 February 2005). It has also held that “confiscation proceedings 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” and that “in common with such sentencing procedures, the setting and enforcement of a confiscation order does not involve the bringing of any new criminal charge against the convicted person” (see Phillips, cited above, §§ 34-35; Welch v. the United Kingdom, judgment of 9 February 1995, Series A no. 307-A, p. 13, §§ 27‑28; and Crowther, cited above, § 24‑25).
40. Although in Bullen and Soneji the Court appeared to treat the confiscation proceedings as discrete, in that case the applicants’ length complaints focused on the confiscation proceedings and arguments were not advanced in respect of the antecedent criminal proceedings. Consequently that judgment cannot be relied upon as authority for the proposition advanced by the Government, namely that for the purposes of Article 6 § 1 criminal proceedings should be considered as distinct from confiscation proceedings. Rather, as the current applicants complain that the proceedings against them as a whole violated the reasonable-time requirement under Article 6 § 1 (incorporating both the criminal and confiscation elements), the Court considers that the appropriate approach is that followed in cases such as Crowther and Phillips. It therefore finds that the last relevant domestic decision was taken on 21 June 2012.
41. In light of that finding, it cannot be argued that either applicant failed to comply with the six-month time limit under Article 35 § 1 of the Convention. In any case, the Court observes that the Government are mistaken regarding the dates that determine when the applicants’ complaints were lodged for the purposes of the six-month rule. The relevant dates are those on which the applicants posted their applications, namely 7 January 2010 and 4 January 2010 respectively. This being so, even if the Government had been correct in their assertion that the date of the last domestic decision was 7 July 2009, both applications would have been submitted in time.
2. Non-exhaustion
42. The Government submitted that the applicants had failed to exhaust domestic remedies as they did not raise all of their complaints before the domestic authorities. Neither applicant pursued an application for permission to appeal against sentence. Although the applicants did apply for permission to appeal against conviction, the grounds advanced did not deal with the complaints currently before the Court. Notably, neither applicant challenged the trial judge’s finding as to the start-date of proceedings, or his calculation of pre-sentence delay, or sought to advance a breach of reasonable-time argument. Furthermore, during the course of the confiscation proceedings, the applicants could have, but failed, to raise an Article 6 § 1 reasonable-time argument either in respect of those proceedings in isolation or taken together with the criminal proceedings. Had the argument been raised, it would have been open to the domestic courts to stay the proceedings as an abuse of process, or to otherwise exercise discretion to provide a remedy to the applicants.
43. Both applicants maintained that they had exhausted domestic remedies.
44. 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 amongst other authorities Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996‑IV; Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V; Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII; and Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 other cases, §§ 69-77, 25 March 2014).
45. The Court finds that neither applicant challenged the effectiveness of the mitigation in sentence afforded to them by the trial judge on account of an acknowledged unreasonable delay in the conduct of their case (see paragraphs 14 and 18 above), nor did they raise any delay complaint in the criminal proceedings before the Court of Appeal, despite these avenues being available to them. Insofar as the applicants’ complaints relate to the criminal proceedings, the Court accepts the Government’s argument that they have failed to exhaust domestic remedies.
46. In the context of confiscation proceedings, the Court notes the cautious approach taken by the domestic courts in respect of granting stays, notably judicial statements to the effect that the courts’ jurisdiction to stay an application for confiscation must be exercised “sparingly” (see paragraph 27 above); and the lack of any examples of domestic case‑law in the Government’s observations illustrating the extent to which individuals can and have succeeded in Article 6 reasonable-time arguments in circumstances such as the applicants’. Furthermore, other than raising the possibility of the Court of Appeal granting a stay on proceedings, the Government have not given any suggestion of how the domestic authorities could have “otherwise exercised discretion” to provide a remedy, or to guarantee that the length of proceedings remained reasonable with regard to Article 6 § 1 (for example by way of an expedited process).
47. Notwithstanding the lack of detail on this point in the Government’s observations, the Court is aware of the possibility of advancing an argument before the domestic authorities that confiscation proceedings should be stayed owing to an unreasonable delay (see Piper v. the United Kingdom, no. 44547/10, 21 April 2015). This latter case shows that the Court of Appeal are evidently prepared to examine carefully any complaint about length of confiscation proceedings, to make a declaration where relevant, and even to contemplate staying confiscation proceedings if any identified delay rendered them unfair.
48. On the basis of the Piper case, the Court considers that there is some merit to the Government’s submission regarding the applicants’ failure to raise an Article 6 § 1 reasonable-time argument during the confiscation proceedings. However, it is not necessary to give a ruling on the point in the instant case as the applicants’ complaint regarding the length of the confiscation proceedings is, in any event, to be rejected as inadmissible on another ground as set out below.
3. Manifestly ill-founded
49. Finally, the Government contended that the applicants’ complaint was manifestly ill-founded and should therefore be declared inadmissible.
50. With specific reference to the confiscation proceedings, whether viewed separately or together with the underlying criminal proceedings, the Government submitted that there was no basis for contending that there had been a breach of Article 6 § 1.
51. The Government emphasised the fact that the applicants’ offending had been of a sophisticated nature; that proceedings had involved complex matters; that the applicants had declined to assist financial investigators rendering the identification of criminal property a long and difficult process; that the prosecution had sought to advance the proceedings; and that the length had been neither unusual nor unreasonable in the circumstances. In a detailed chronology of proceedings the Government noted that although the confiscation hearing had been scheduled for March 2009, owing to a previous trial over-running, Langstaff J had only one week available to hear the applicants’ case; that all parties agreed that there was insufficient time to resolve all the issues in the case; that the one week available was dedicated to a consideration of benefit assets; that a further two-week hearing for the consideration of realisable assets was fixed for the next available date, namely 26 October 2009; and that as every issue was contested, it became apparent during that hearing that the two-week period set aside was insufficient to hear the entirety of the evidence. In addition, a request by the applicants’ legal representative for further SFO disclosure was made during the hearing; a date of 1 February 2010 was set by the court for disclosure of the material requested, a deadline which was met; between January and June 2010, further requests for disclosure were made by the applicants and disclosure was provided by the prosecution; the applicants’ statements and skeleton arguments were thereafter filed; the hearing resumed between 10 June and 1 July 2010; and a provisional judgment was given on 2 July 2010 and an amended and finalised judgment was handed down on 28 July 2010. The applicants sought leave to appeal the order made. Although they were granted leave to argue the specific point of the realisable value of jointly held assets, they continued to seek leave to appeal on other additional grounds. The single judge refused leave to appeal on additional grounds and, in or around May 2011, the applicants renewed their application to an oral hearing. Ultimately, on 21 June 2012 the Court of Appeal refused leave to appeal on the additional grounds and, ruling on the appeal before it, amended the confiscation orders in place.
52. The first applicant, in his submissions to this Court, made no specific comment in respect of the Government’s observation.
53. The second applicant, in his submissions to this Court, maintained that there had been unacceptable delays in the confiscation proceedings. He identified an initial delay between 22 February 2008 and 31 March 2009 as reasonable as his legal representatives had needed the time to prepare his case. However he complained about a six-month delay to the original hearing date, scheduled for 31 March 2009, owing to the judge’s unavailability; a later failure by the SFO to make full and timely disclosure, again delaying the confiscation hearing; a two-year delay between the confiscation order being made and the subsequent appeal being heard; and that fault for the delays identified was wholly attributable to the Government.
54. The Court has already accepted that the applicants failed to exhaust domestic remedies in respect of the criminal proceedings (see paragraph 45 above). Nonetheless, while in the present case the Court may not entertain the applicants’ complaints concerning the length of the criminal proceedings proper, in considering their length complaint in relation to the confiscation proceedings, extended until their conclusion on 21 June 2012, it may take account of the state of affairs that existed at the commencement of those proceedings: namely, that criminal proceedings had already been running for approximately three and a half years (see, mutatis mutandis, Abdi v. the United Kingdom, no. 27770/08, § 53, 9 April 2013). In light of those factual circumstances, the Government would have been particularly aware of the need to ensure that proceedings against the applicants did not suffer from any further delay.
55. 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 applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
56. Although the Court considers that what was at stake for the applicants in the domestic litigation was of significant importance to them, it also accepts that the case was a complex one concerning large amounts of money in numerous jurisdictions.
57. As regards the conduct of the parties, the Court notes that a delay between 22 February 2008 and 31 March 2009 is clearly attributable to, and accepted by, the second applicant.
58. Although the Court notes that the confiscation proceedings lasted for four years and four months for two levels of jurisdiction, it also observes that the timetable of proceedings had been closely supervised by the trial judge; that the litigation had been vigorously contested; that during the confiscation proceedings, numerous requests by the applicants for disclosure by the SFO had necessarily led to the protraction of those proceedings; that there was no indication of a failure by the SFO to make full and timely disclosure; that there had been no periods of inactivity on the part of the prosecution; and that the applicants, by seeking and renewing an application for leave to appeal the confiscation order on additional grounds to that already granted, had inevitably delayed the final appeal proceedings before the Court of Appeal.
59. The applicants have not substantiated their claims of shortcomings in the conduct of the domestic authorities. The Court does not find that there were any periods of excessive delay for which the domestic authorities can be held responsible.
60. Having regard to its case-law on the subject, the Court considers that in the instant case the domestic proceedings were determined within a reasonable time. Accordingly, the applicants’ complaint under Article 6 § 1 of the Convention is manifestly ill-founded and the Court rejects it pursuant to Article 35 §§ 3 and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
61. The applicants further complain under Article 6 § 3 (b) of the Convention that they did not have adequate time and facilities for the preparation of their defences and under Article 6 § 3 (c) of the Convention that they were not able to defend themselves through legal assistance of their own choice.
62. The applicants have not substantiated these other Convention complaints. With regard to the lack of representation, the Court notes that the applicants discharged their legal teams provided under the legal aid scheme and that the Court of Appeal recorded that they gave no good reason for doing so (see paragraph 19 above). Although such a discharge may have caused problems for the applicants, it is clear that Article 6 does not confer a right on applicants to an unlimited veto where their representation is publicly funded (see, for example, Croissant v. Germany, 25 September 1992, Series A no. 237‑B). Consequently, the Court does not consider that the facts of the present case are capable of giving rise to an issue under Article 6 § 3 (b) or (c). The applicants’ complaints are therefore manifestly ill-founded and fall to be rejected as inadmissible under Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 12 November 2015.
Françoise Elens-PassosGuido Raimondi
RegistrarPresident
Full & Egal Universal Law Academy