Commissioners of Customs and Excise v Air Canada

JurisdictionEngland & Wales
JudgeLORD JUSTICE PURCHAS,LORD JUSTICE BALCOMBE,SIR DAVID CROOM-JOHNSON
Judgment Date14 June 1990
Judgment citation (vLex)[1990] EWCA Civ J0614-7
Docket Number90/0549
CourtCourt of Appeal (Civil Division)
Date14 June 1990

[1990] EWCA Civ J0614-7

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TUCKER J.

Royal Courts of Justice

Before:-

Lord Justice Purchas

Lord Justice Balcombe

and

Sir David Croom-Johnson

90/0549

Commissioners of Customs & Excise
Appellants (Plaintiffs)
and
Air Canada
Respondents) Defendants)

MR. JOHN LAWS and MR. E. TER HARR (instructed by P.V.H. Smith) appeared on behalf of the Appellants (Plaintiffs).

MR. R. WEBB Q.C. and MR. D. FISHER (instructed by Messrs Beaumont & Son) appeared on behalf of the Respondents (Defendants).

LORD JUSTICE PURCHAS
1

This is an appeal by the Commissioners of Customs and Excise ("the Commissioners") from a judgment of Tucker J. delivered in condemnation proceedings on 7th November 1988. The proceedings had been brought by the Commissioners against Air Canada pursuant to paragraph 8 of Schedule 3 to the Customs and Excise Management Act 1979 ("the 1979 Act"). On the hearing of a preliminary issue the judge gave answers to five questions relating to the interpretation of section 141(1) of the 1979 Act. Hereafter in this judgment the reference to section numbers, schedules and paragraphs without more are references to the provisions of the 1979 Act.

2

The relevant facts can be shortly stated. A Tristar aeroplane, owned and operated by Air Canada, landed at Heathrow airport, London on 26th April 1987 where it discharged cargo including a container which, when opened, was found to contain 331 kgs. of cannabis resin. The aircraft was on a regular scheduled flight starting in Singapore and travelling to Toronto landing en route at Bombay and Heathrow. It carried both fare-paying passengers and cargo. Subsequently the aircraft made further international flights which included return visits to the United Kingdom. On one of these subsequent visits which occurred on 1st May 1987, which was a Monday, representatives of the commissioners seized the aircraft as liable to forfeiture under section 141(1). This occurred in the morning. Later on the same day, acting under powers contained in section 139(5) and paragraph 16 of Schedule 3, the aircraft was delivered back to Air Canada upon payment by the latter of £50,000. On 20th May 1987 solicitors acting on behalf of Air Canada gave notice of claim under paragraph 3 of Schedule 3 challenging the commissioners' assertion that the aircraft was liable to forfeiture. Accordingly, acting under paragraph 6 of Schedule 3, the commissioners initiated the condemnation proceedings.

3

For the purposes of the preliminary issue it was assumed that the aircraft was owned and operated by Air Canada, that it landed at Heathrow on 26th April having arrived from Bombay, that freight from the aircraft was unloaded and one of the containers contained the amount of cannabis resin already described. It was further accepted that the importation of cannabis resin was prohibited under section 3(1) of the Misuse of Drugs Act 1971 and that the cannabis was liable to forfeiture by virtue of section 49(1)(b). It was also assumed that after landing on 26th April the aircraft made several scheduled international flights including flights into the United Kingdom before it was seized on 1st May 1987.

4

The questions formulated for the trial of the preliminary issue ordered by Master Hodgson on 8th June 1988 were:—

"(1) Whether the facts (a) that cannabis resin was found in container ULD 6075AC and (b) that that container had been carried by Aircraft on Flight AC859 on 26th April 1987 alone constitute 'use of aircraft for the carriage of a thing liable to forfeiture' within the meaning of section 14(1)(a) of the Customs and Excise Management Act 1979 such as to justify its subsequent seizure on 1st May 1987.

(2) Whether it is a defence to the plaintiff's claim in this action if the defendants establish that they did not know that the aforesaid container contained cannabis resin and were not reckless in failing so to discover;

(3) Whether it is a defence to the plaintiff's claim in this action if the defendants established that they could not with reasonable diligence have discovered that cannabis had been secreted and hidden or was being carried in the container nor could they by the exercise of reasonable diligence have prevented its being secreted and hidden in the container.

(4) Whether it is necessary for the plaintiffs to prove in this action:

  • i. that the defendant knew or ought to have known that cannabis resin was on board the aircraft on 26th April 1987 and/or

  • ii. That the aircraft was on other than a regular scheduled and legitimate flight.

5

Tucker J. answered the questions as follows:—

"1 No.

2 Yes.

3 Yes.

4 It is necessary for the plaintiffs to prove in this action:—

(i) that the defendants knew or ought to have known that cannabis resin was on board the aircraft on 26th April 1987; or (but not and)

(ii) that the aircraft was on other than a regular, scheduled, legitimate flight".

6

The Commissioners now appeal against the answers given by Tucker J. and assert that the answers should have been:—

"1. Yes.

2. No.

3. No.

4. No".

7

They further seek an order that judgment be entered for them on the preliminary issue; that the aircraft stand condemned pursuant to paragraph 6 of Schedule 3 and a declaration pursuant to section 144 that there were reasonable grounds for the seizure of the aircraft and for an order for costs.

8

Section 141 provides:—

"(1) Without prejudice to any other provision of the Customs and Excise Acts 1979, where any thing has become liable to forfeiture under the customs and excise Acts—

  • (a) any ship, aircraft, vehicle, animal, container (including any article of passengers' baggage) or other thing whatsoever which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture, either at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and

  • (b) any other thing mixed, packed or found with the thing so liable,

shall also be liable to forfeiture.

(3) Where any of the following, that is to say—

  • (a) any ship not exceeding 100 tons register;

  • (b) any aircraft; or

  • (c) any hovercraft,

becomes liable to forfeiture under this section by reason of having been used in the importation, exportation or carriage of goods contrary to or for the purpose of contravening any prohibition or restriction for the time being in force with respect to those goods, or without payment having been made of, or security given for, any duty payable thereon, the owner and the master or commander shall each be liable on summary conviction to a penalty equal to the value of the ship, aircraft or hovercraft or [level 5 on the standard scale], whichever is the less".

9

The question raised in the appeal is a short one, namely "does the aircraft or other vehicle container, etc become liable to forfeiture without more merely because it is established that it was used for the carriage of prohibited goods; or is it necessary before the forfeiture provisions of section 141(1) can be invoked to establish that there was some degree of knowledge in the owner or user or proprietor of the aircraft; or a reckless disregard in relation to what was being carried on the aircraft?"

10

Tucker J. came to the conclusion that the provisions of section 141(1) were so draconian that it was not conceivable that Parliament intended that the forfeiture provisions should operate upon owners and operators who were entirely innocent of any intention to transgress in any way. He adopted the words of Lord Reid in Warner v. The Metropolitan Police Commissioner [1969] 2 Q.B. 256 at page 279:—

"I refuse to believe that Parliament can ever have intended such an oppressive result".

11

Lest I should do less than justice to the carefully structured analysis of the authorities to which he was referred both by Mr. Ter Haar, counsel for the Commissioners, and by Mr. Webb, who appears for Air Canada. I will summarise the arguments below. The judge came to the conclusion in favour of Air Canada that the expression "has been used for the carriage of…" in section 141(1) imported an element of knowledge or motive in the proprietor of the vehicle or aircraft which would be necessary before that vehicle or aircraft became liable to forfeiture under the section. Tucker J. considered that this approach which was advocated by counsel for Air Canada was the realistic interpretation of the section and, furthermore, was in accord with the presumption that in the case of a statutory provision of a criminal or quasi-criminal nature mens rea was a necessary constituent. Furthermore, this approach was, in the judge's view, in accordance with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") upon which counsel for the airline also relied by analogy. The identical authorities have been argued before us and it is not in any sense of disrespect that I do not consider it necessary to review in any detail those parts of Tucker J.'s judgment where he summarises the arguments and the authorities and reaches the conclusion to which I have just referred.

12

Mr. Laws submitted, on behalf of the Commissioners, that the language of section 141(1) both as it stood on its own and when considered in the context of other provisions of the 1979 Act was clear, unambiguous and indicated that Parliament deliberately omitted any words referring to knowledge or motive. Secondly, he submitted that such a construction was in accordance with previous authority albeit that this related to previous legislation, namely the Customs and Excise...

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