Where a defendant is struggling to pay a costs order, properly made in the Crown Court, the correct forum to deal with this is the Magistrates Court; not the Criminal Court of Appeal.
The defendant in this case, Mr Coleman, pleaded guilty to three counts of carrying on the business of a company with intent to defraud creditors contrary to s.458 of the Companies Act 1985. At sentencing, confiscation proceedings were brought under the then applicable provisions of the Criminal Justice Act 1988, and the benefit figure was an agreed sum of £326,412. There was no dispute the available amount exceeded this. Mr Coleman was sentenced to three years' imprisonment, a confiscation order in the sum of £326,412 and an order for costs in the sum of £16,000. Mr Coleman was given 18 months to pay both sums in full.
In 2007 Mr Coleman applied to the High Court for a certificate of inadequacy with regard to his confiscation order, which was eventually varied by consent to a nominal £1 order. Mr Coleman then sought to appeal against the original costs order, on the basis that his financial circumstances had changed and he had no means to pay.
This was referred to the Criminal Cases Review Commission which made its decision to refer to the Court of Appeal under s.9 of the Criminal Appeal Act 1995.
The Court of Appeal Criminal Division is not the appropriate forum for this dispute. The Court of Appeal is not well equipped to engage in fact finding concerning the means and assets of debtors.
The Magistrates Court is the correct forum for enforcement, as per s.41 Administration of Justice Act 1970 and paragraph 4 of Part 1 of Schedule 9 to that Act.
The Magistrates' Court has been conferred wide powers under s.75 and following sections of the Magistrates Courts Act 1980 and part 30 of the Criminal Procedure Rules 2015. These include powers to enquire as to means, to dispense with immediate payment, for payment by instalments, to issue or to postpone the issue of a warrant of enforcement, to make an attachment of earnings order and so on. For this, and all other similar future applications, the appellants should look to the Magistrates Court and not the Criminal Court of Appeal.
Furthermore, the Crown's agreement to a certificate of inadequacy does not mean the Crown is precluded from pursuing the costs order. No issue of estoppel arises.
21 November 2016