Commissioners of Customs and Excise v City of London Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MORISON |
| Judgment Date | 17 May 2000 |
| Judgment citation (vLex) | [2000] EWHC J0517-3 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4294/99 |
| Date | 17 May 2000 |
[2000] EWHC J0517-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
The Lord Chief Justice Of England And Wales
(Lord Bingham of Cornhill)
Mr Justice Morison
CO/4294/99
MR JONATHAN FISHER and MR JOHN ANDERSON (instructed by Customs & Excise Solicitor's Office, London SE1 9PJ) appeared on behalf of THE APPELLANT
MR CRAIG BARLOW (instructed by Messrs Morgan Cole, London EC4 2JB)appeared on behalf of THE FOURTH RESPONDENT
Wednesday 17 May 2000
: Her Majesty's Customs and Excise appeal by case stated against a decision made by a justice of the peace for the City of London on 24 May 1999. On that date the justice made an order against the Customs under section 19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986.
The issue in this appeal is whether the justice had jurisdiction to make such an order, and that turns on whether the proceedings before her were criminal proceedings.
On 24 May 1999 an application was made to the justice by the Customs for access orders against three banks and a public limited company under paragraph 11(1) of Schedule 11 to the Value Added Tax Act 1994. In accordance with the guidance given by this court in R v Her Majesty's Customs and Excise, ex parte Asif [1996] Crim LR 725, of which we have a transcript of the judgment delivered on 7 February 1996, notice of the application was given to four respondents, of whom one is represented on this appeal before us.
In the case stated the justice helpfully set out the background. On 24 May she made the access orders which Customs sought. There was, however, a brief history before that date. The Customs made their application for these access orders giving notice, as already mentioned, to the four respondents. A date for the hearing of the case was set for 7 May 1999 at 2pm. It was estimated that the hearing would take half a day. Solicitors acting for the four respondents applied to the court for an adjournment on 5 May, contending that a whole day of the court's time would be required to hear the matter and that it would save unnecessary expense if the adjournment were to be agreed. Customs, however, did not agree and thus it was that the applications came before the court for the first time at the specified time on 7 May. On that date the justice who has settled the case was sitting with two colleagues. An application for an adjournment was made by the respondents on the basis that there were pending proceedings in the High Court which could have a bearing on the outcome of these applications. Customs for their part opposed the adjournment, contending that the judicial review proceedings could have no effect on the outcome of the applications. The justices decided to proceed on the afternoon of 7 May 1999, but by the time they reached that conclusion it was clear that there was insufficient time to hear the substantive applications. Thus it was ordered that the hearing should be adjourned to 24 May and that a full day should be set aside for the hearing.
At that stage the four respondents applied for an order under regulation 3 of the 1986 Regulations against Customs. That application was also adjourned to 24 May. On 24 May the justice made the access orders which were sought. The application for costs was renewed and she granted it under regulation 3. The order that costs should be awarded under regulation 3 was the subject of argument before her. On behalf of Customs it was argued that costs could not be awarded under regulation 3 since it was a regulation which only applied during criminal proceedings, and the proceedings before the court were not criminal proceedings. On behalf of the respondents it was argued that they were criminal proceedings and that therefore an order could be made.
The justice was referred to a body of material which she briefly and helpfully summarised in the statement of case. In paragraph 6 she recorded her opinion in these terms:
"The proceedings before me were criminal proceedings. There being no definition in the 1985 Act or the 1986 Regulations mentioned at 5(iii) above [the Act and regulations already referred to] of 'criminal proceedings' I had to be guided by analogous definitions. I drew assistance from the definition at 5(i) above [of the Contempt of Court Act 1981] and the definition of 'offence' under Section 2 of the Bail Act 1976 (where 'offence' includes 'alleged offence'). I concluded that 'criminal proceedings' included proceedings pursuant to applications for court orders since a pre—condition of making such an order was that I had to satisfy myself that there were reasonable grounds for believing that a particular type of offence had been committed. Accordingly, I decided that I had jurisdiction to make an order under Regulation 3 of The Costs in Criminal Cases (General) Regulations. I then made such an order against the appellant."
The question posed for the opinion of the High Court is in these terms:
"Was I correct in concluding that in respect of an application inter partes for access orders under paragraph 11(b) of Schedule 11 to the Value Added Tax Act 1994 I had jurisdiction under Regulation 3 of The Costs in Criminal Cases (General) Regulations 1986 and Section 19 of the Prosecution of Offences Act 1985 to award costs against a party to the proceedings."
The legislative background is found in the Value Added Tax Act 1994, section 58 of which provides:
"Schedule 11 shall have effect, subject to section 92(6), with respect to the administration, collection and enforcement of VAT."
Section 92(6) has no bearing on the present case. Schedule 11 to the Act is concerned with the administration, collection and enforcement of the VAT regime laid down by the Act, which is entrusted to the care and management of the Commissioners of Customs and Excise. In the Schedule we find a detailed series of provisions governing the administration of VAT and then we come to paragraph 11 which is in these terms:
"(1) Where, on an application by an authorised person, a justice of the peace …. is satisfied that there are reasonable grounds for believing —
(a) that an offence in connection with VAT is being, has been or is about to be committed, and
(b) that any recorded information (including any document of any nature whatsoever) which may be required as evidence for the purpose of any proceedings in respect of such an offence is in the possession of any person, he may make an order under this paragraph.
(2) An order under this paragraph is an order that the person who appears to the justice to be in possession of the recorded information to which the application relates shall —
(a) give an authorised person access to it, and
(b) permit an authorised person to remove and take away any of it which he reasonably considers necessary, not later than the end of the period of 7 days beginning on the date of the order or the end of such longer period as the order may specify.
(3) The reference in sub-paragraph (2)(a) above to giving an authorised person access to the recorded information to which the application relates includes a reference to permitting the authorised person to take copies of it or to make extracts from it."
Sub-paragraph (4) refers to information contained in a computer and sub-paragraph (5) provides that paragraph 11 is without prejudice to paragraphs 7 and 10 of the Schedule, which relate to the furnishing of information and the production of documents and the entry and searching of premises respectively.
Thus it is plain that, before an order is made under paragraph 11, a justice of the peace must be satisfied that an offence in connection with VAT is being, has been or is about to be committed, and also that information which may be required for the purpose of any proceedings in respect of such an offence is in the possession of a person against whom the access order is sought. It is plain on the language of the paragraph that the order may be sought against the person suspected of committing the offence, but it may be sought also against an entirely innocent party who is not suspected of committing or having committed any offence at all. Such was the case here since there is no suggestion that the banks or the company against whom access orders were sought had committed any offence. There is certainly no requirement that the order should be against a suspected person or that any suspicion should attach to the person against whom the order is sought.
The Prosecution of Offences Act 1985 provides in section 19(1) as follows:
"The Lord Chancellor may by regulations make provision empowering magistrates' courts, the Crown Court and the Court of Appeal, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs."
Subsection (2)(a) makes plain that the regulations may allow the making of such an order at any time during the proceedings.
The 1986 Regulations, in regulation 3, echo that language in providing:
"(1) Subject to the provisions of this regulation, where at any time during criminal proceedings —
(a) a magistrates' court,
(b) the Crown...
To continue reading
Request your trial
-
Commissioner of Police of the Metropolis v Hooper
... ... Õ Courts Act 1980 which allowed the court to adjourn civil proceedings had not been ... cases are referred to in the judgment: Customs and Excise Comrs v City of London MagistratesÕ ... of statutory construction and magistrates courtsÕ practice of general importance. 3 The ... ...
-
R (McCann) v Manchester Crown Court
...nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?" In Customs and Excise Comrs v City of London Magistrates' Courts [2000] 1 WLR 2020, 2025 Lord Bingham of Cornhill CJ, expressed himself in similar vein: "It is in my judgment the ......
-
United Kingdom (Secretary of State for the Home Department) v. M.B., [2007] N.R. Uned. 183 (HL)
...Civ 2015, [2002] IRLR 297, para. 14). [18] It was said in Customs and Excise Commissioners v. City of London Magistrates' Court [2000] 1 W.L.R. 2020, 2025 that in this country "criminal proceedings involve a formal accusation made on behalf of the state or by a private prosecutor ......
-
Williamson v Chief Constable of West Midlands Police
...result in a conviction. As Lord Bingham of Cornhill CJ put it in Customs & Excise Commissioners v City of London Magistrates' Court [2000] 1 WLR 2020, 2025: "It is in my judgment the general understanding that criminal proceedings involve the formal accusation made on behalf of the state or......