Goldsmith v Commissioners of Customs and Excise

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeTHE LORD CHIEF JUSTICE,MR JUSTICE POOLE
Judgment Date25 April 2001
Neutral Citation[2001] EWHC 285 (Admin)
Docket NumberCO/1133/2001
Date25 April 2001

[2001] EWHC 285 (Admin)

IN THE HIGH COURT OF JUSTICE

DIVISIONAL COURT

QUEEN'S BENCH DIVISION

Before:

The Lord Chief Justice of England and Wales

(the Lord Woolf of Barnes) and

Mr Justice Poole

CO/1133/2001

Between:
David Goldsmith
Appellant
and
Her Majesty's Commissioners for Customs and Excise
Respondent

MR N VAN DER BIJL (instructed by Messrs Bradleys, Kent CT16 1PU) appeared on behalf of THE APPELLANT

MR JOHN ANDERSON (instructed by The Solicitor for the Commissioners for Customs & Excise)

appeared on behalf of THE RESPONDENT

_______________

_______________

Wednesday 25 April 2001

THE LORD CHIEF JUSTICE
1

This is an appeal by way of case stated by Maidstone Crown Court, the hearing having been before His Honour Judge Anthony Balston. It raises a matter of general importance with regard to the powers of the Commissioners for Customs and Excise to forfeit goods where they say there has been a failure to pay the appropriate amount of duty in relation to those goods as a consequence of the coming into force of the Human Rights Act 1998. The Act was not in force when the matter came before the Crown Court, and therefore the arguments as to its effect were not deployed. However, it is accepted that the outcome of this appeal depends upon the impact of Article 6 of the European Convention on Human Rights on the legislation under which the Commissioners for Her Majesty's Customs and Excise operate in performing their statutory duties.

2

Article 6 provides:

"(1) In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or any part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice.

(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

3

Paragraph (3) of Article 6, which it is unnecessary to set out, provides the minimum rights of everyone who is charged with a criminal offence.

4

The relevant legislation in relation to the enforcement of the need to pay duty in respect of the importation of goods into this country from the other member states of the European Union can be shortly summarised for the purposes of this appeal as follows. Section 139 of the Customs and Excise Management Act 1979 provides:

"….

(6) Schedule 3 to this Act shall have effect for the purpose of forfeitures, and of proceedings for the condemnation of any thing as being forfeited, under the customs and excise Acts.

…."

5

Schedule 3 provides:

"1. (1) The Commissioners shall …. give notice of the seizure of any thing as liable to forfeiture and of the grounds therefor to any person who to their knowledge was at the time of the seizure the owner or one of the owners thereof."

6

That paragraph is subject to exceptions with which it is not necessary to deal for the purposes of this judgment. Paragraph 3 of Schedule 3 provides:

"Any person claiming that any thing seized as liable to forfeiture is not so liable shall, within one month of the date of the notice of seizure or, where no such notice has been served on him, within one month of the date of the seizure, give notice of his claim in writing to the Commissioners at any office of customs and excise."

7

Paragraph 6 provides:

"Where notice of claim in respect of any thing is duly given in accordance with paragraphs 3 and 4 above, the Commissioners shall take proceedings for the condemnation of that thing by the court, and if the court finds that the thing was at the time of seizure liable to forfeiture the court shall condemn it as forfeited."

8

Paragraph 8 provides:

"Proceedings for condemnation shall be civil proceedings and may be instituted —

(a) in England or Wales either in the High Court or in a magistrates' court;

…."

9

Paragraph 10 provides:

"(1) in any proceedings for condemnation instituted in England, Wales or Northern Ireland, the claimant or his solicitor shall make oath that the thing seized was, or was to the best of his knowledge and belief, the property of the claimant at the time of the seizure.

…."

10

Paragraphs 13 and 14 provide:

"13. In any proceedings arising out of the seizure of any thing, the fact, form and manner of the seizure shall be taken to have been as set forth in the process without any further evidence thereof, unless the contrary is proved.

14. In any proceedings, the condemnation by a court of any thing as forfeited may be proved by the production either of the order or certificate of condemnation or of a certified copy thereof purporting to be signed by an officer of the court by which the order or certificate was made or granted."

11

The proceedings for forfeiture and condemnation have to be distinguished for various proceedings which are brought for a fraudulent evasion of duty etc under section 170 of the Customs and Excise Management Act 1979. As is made clear in Archbold 2001 at paragraph 25–458 and following, in the case of an offence under section 170 the burden of proof is on the Crown to prove the necessary mens rea.

12

The liability to pay duty is contained in the Excise Duties (Personal Reliefs) Order 1992, as amended by SI 1999 No 1617 ( Excise Duties (Personal Reliefs) (Amendment) Order ("the Order). Paragraph 5 of the Order applied to the importation with which we are concerned on this appeal. Paragraph 5 states:

"(1) The reliefs afforded under this Order are subject to the condition that the excise goods in question are not …. held or used for [a commercial purpose] whether by the Community traveller who imported them or by some other person who has possession or control of them; and if that condition is not complied with in relation to any excise goods, those goods shall, without prejudice to article 6 below, be liable to forfeiture.

(2) [In determining whether or not the condition imposed under paragraph (1) above has been complied with,] regard shall be taken of —

(a) his reasons for having possession or control of those goods;

(b) whether or not he is a revenue trader;

(c) his conduct in relation to those goods and, for the purposes of this subparagraph, conduct includes his intentions at any time in relation to those goods;

(d) the location of those goods;

(e) the mode of transport used to convey those goods;

(f) any document or other information whatsoever relating to those goods;

(g) the nature of those goods including the nature and condition of any package or container;

(h) the quantity of those goods;

(i) whether he has personally financed the purchase of those goods; and

(j) any other circumstance which appears to be relevant.

[(3) Paragraphs (3A) to (3C) below apply to a person who has in his possession or control any excise goods afforded relief under this Order in excess of any of the quantities shown in the Schedule to this Order.

(3A) The Commissioners may require a person to whom this paragraph applies to satisfy them that the excise goods afforded relief under this Order are not being held or used for a commercial purpose.

(3B) Where a person fails to satisfy the Commissioners that the excise goods in question are not being held or used for a commercial purpose the condition imposed by paragraph (1) above shall, subject to paragraph (3C) below, be treated as not being complied with.

(3C) Paragraph (3B) above shall not apply where a court or tribunal is satisfied that the condition imposed by paragraph (1) has been complied with.]"

13

The Schedule sets out the quantities of excise goods which are specified for the purposes of paragraph (3) of Article 5. They are as follows:

"Tobacco products

(a) 800 cigarettes;

(b)400 cigarillos (that is to say cigars weighing not more than 3 grammes each);

(c) 200 cigars;

(d)1 kilogramme of tobacco products other than in a form mentioned in paragraph (a), (b) or (c) above;

Alcoholic beverages

(e) 10 litres of spirits;

(f)20 litres of intermediate products (that is to say products defined as intermediate products in Article 17(1) of the Council Directive 92/83/EEC);

(g)90 litres of wines (but only 60 litres may be sparkling wines);

(h) 110 litres of beer."

14

The facts are not in dispute on this appeal and can be summarised shortly. It is not argued by Mr Van Der Bijl on behalf of the appellant...

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19 cases
  • R (Mudie and Another) v Dover Magistrates' Court and Another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 4 Febrero 2003
    ...status of condemnation proceedings for the purposes of Article 6 was specifically addressed by the Divisional Court in Goldsmith v HM Commissioners of Customs & Excise [2001] 1 WLR, 1673 (Lord Woolf CJ and Poole J) in which the court held that such proceedings are civil for the purposes......
  • The Scottish Ministers V. George Mcguffie And Others For An Interim Adfministration Order In Terms Of The Proceeds Of Crime Act 2002 And For Warrant For Inhibition And Arrestme
    • United Kingdom
    • Court of Session
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    ...to be preferred in the present case. Goldsmith v Customs and Excise Commissioners [74] Goldsmith v Customs and Excise Commissioners [2001] 1 WLR 1673 concerned the importation of dutiable goods. In February 1999 G brought into the United Kingdom a substantial quantity (26 kg) of hand-rollin......
  • Gora and Others v Commissioners of Customs and Excise; Dannatt v Same
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 11 Abril 2003
    ...nature of the measure, or its severity, as factors which required the measure to be classified as a criminal charge. 32 In Goldsmith v Customs and Excise Commissioners [2001] 1 WLR 1673 it was argued that forfeiture and condemnation proceedings under section 139 and Schedule 3 to the 1979 A......
  • R (Director of the Assets Recovery Agency) v Jia Jin He
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 7 Diciembre 2004
    ...in the High Court have established that condemnation forfeiture proceedings are to be regarded as civil proceedings: see Goldsmith v Customs and Excise Commissioners [2001] 1 WLR 1673 and R (Mudie and Anr) v Dover Magistrates' Court [2003] QB 1238. In Mudie reference was made to Butler v ......
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1 books & journal articles
  • Smuggling, Confiscation and Forfeiture
    • United Kingdom
    • The Modern Law Review Nbr. 65-5, September 2002
    • 1 Septiembre 2002
    ...2.11 RvRezvi [2002] UKHL 1.12 An element of penalty attached to the forfeiture changes the picture.13 Goldsmith vCustoms and Excise [2001] 1 WLR 1673.14 n 10 above.15 Lindsay vCustoms and Excise Commissioners [2002] EWCA Civ 267.16 The expression ‘predicate offence’, borrowed from the Vienn......

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