O'leary International Ltd v The Chief Constable of North Wales Police Crown Prosecution Service (Interested Party)
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 31 May 2012 |
| Neutral Citation | [2012] EWHC 1516 (Admin) |
| Docket Number | Case No: CO/7479/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 May 2012 |
[2012] EWHC 1516 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Mold Crown Court
President of the Queen's Bench Division
and
Mr Justice Beatson
Case No: CO/7479/2011
Claim No: 2012–635
and
Timothy Nesbitt (instructed by Marshall Glover) for the Appellant
Matthew Curtis (instructed by Solicitor North Wales Police) for the Respondent
Simon Ray (instructed by the CPS) for the Interested Party
Hearing date: 17 January 2012
Further submissions: 6 February 2012, 20 February 2012 and 5 March 2012
This is the judgment of the court.
The issue in this appeal from the Magistrates' Court in proceedings under s.1 of the Police (Property) Act 1897 (the 1897 Act) and conjoined civil proceedings is whether the appellant, a firm of road hauliers, can recover four lorries seized by the police and in respect of which an order of deprivation was made under s.143 of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act). The issues are related to an issue in another case before this court, differently constituted, Chief Constable of Merseyside v Owens [2012] EWHC 1515 (Admin) where the judgment is handed down at the same time.
It is convenient first to set out the facts as appear from the case stated by District Judge Clancy sitting at Dolgellau on 28 March 2011.
The facts
The appellant is a company incorporated in the Republic of Ireland. It has a fleet of lorries and employs drivers who carry loads from the continent of Europe to Ireland through North Wales. On four occasions drivers employed by the appellant were stopped by the North Wales Police.
i) The first who was stopped was Anton Bosch who was texting whilst driving. He was asked to produce his tachograph records. He could only produce five. However, he also produced a letter of attestation stating he had been on leave from 2 March 2010 to 17 May 2010. Such a letter is the accepted method of covering a driver under EC Regulation 561/2006. It was established that the letter of attestation was untrue, as he had in fact driven the same lorry on nine occasions in the UK when, according to the letter of attestation, he was meant to have been on holiday. Bosch admitted he had produced a false letter, stating that this was something the appellant regularly provided. He often drove with little or no rest, knowing of the possible danger. The appellant was well aware of this and helped facilitate the deception. He had been instructed to dispose of the records of illegal hours. He was sentenced to 16 weeks imprisonment for producing a false attestation with intent to deceive. An order was made for the forfeiture of the lorry and trailer under s.143 of the 2000 Act.
ii) The second driver, Agnis Gocs, a Latvian, was stopped on 11 June 2010. He also produced a false letter of attestation. He gave a similar explanation to that given by Anton Bosch. A similar forfeiture order was made.
iii) The third driver Stanislas Kadisevskis, a Latvian, was stopped on 29 September 2010. He also provided a false letter of attestation and gave a similar account to that of Anton Bosch. A similar forfeiture order was made.
iv) The fourth, Constantin Cojocaru was stopped on 5 January 2011. He was using a duplicate tachograph card. On 6 January 2011 he pleaded guilty to offences of fraud and failing to keep tachograph records. He was sent to prison for 12 weeks. A similar forfeiture order was made. Mr Cojocaru stated it was not the fault of the appellant as he had acquired and used the fraudulent card without the appellant's knowledge.
v) The appellant wrote to the Magistrates asking about the deprivation Orders. The Magistrates stated that they could not accept that the appellant did not know about the activities of the drivers. Nor did they accept Mr Cojocaru's explanation that he accepted full responsibility in respect of the false tachograph cards.
vi) An appeal was brought in respect of the last offence to the Crown Court, but the judge did not allow the appellant to make representations as it was not a party. The sentence and the order of deprivation was upheld.
The application to District Judge Clancy under s.1(1) of the Police Property Act 1897
On 11 October 2010 an application was made by the appellant against the Chief Constable of North Wales for the delivery of the lorries to the appellant. That application was heard by District Judge Clancy in March 2011. The statutory provision under which the claim for the return of the property was made was s.1(1) of the 1897 Act. It provided:
"Where any property has come into the possession of the police in connexion with their investigation of a suspected offence a court of summary jurisdiction may, on application, either by an officer of police or by a claimant of the property, make an order for the delivery of the property to the person appearing to the magistrate or court to be the owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as to the magistrate or court may seem meet."
The claim by the owner of property in respect of which a deprivation order had been made under s.143 of the 2000 Act (which we set out at paragraph 12 below) is expressly provided for in s.144 of the 2000 Act in the following terms:
" Property which is in possession of police by virtue of section 143" E+W
(1) The Police (Property) Act 1897 shall apply, with the following modifications, to property which is in the possession of the police by virtue of section 143 above—
(a) no application shall be made under section 1(1) of that Act by any claimant of the property after the end of six months from the date on which the order in respect of the property was made under section 143 above; and
(b) no such application shall succeed unless the claimant satisfies the court either—
(i) that he had not consented to the offender having possession of the property; or
(ii) where an order is made under subsection (1) of section 143 above, that he did not know, and had no reason to suspect, that the property was likely to be used for the purpose mentioned in that subsection.
S.144(2)-(4) provides for power to make additional regulations under the 1897 Act. There is, however, nothing material in the Police (Property) Regulations 1997.
In the hearing before the District Judge it was the contention of the appellant that it was entitled to have the property returned as it did not know and had no reason to suspect the property was likely to be used for the purpose of committing or facilitating the commission of any offence.
The judge heard evidence from Mr O'Leary, the Sales Director of the appellant, Mr O'Sullivan, the Accounts Manager of the appellant, and Mr Dermot McMurnagh, the Export Manager of the appellant. The case stated sets out the evidence and the contentions at some length. It is sufficient to state that the judge found that the evidence called by the appellant was not to be relied on; that it was an inescapable conclusion that the appellant knew what was going on. The District Judge stated that he did not believe the explanations put forward by the appellant and concluded that the appellant had every reason to know what was going on.
The appellant contended before the District Judge that in those circumstances it would have been disproportionate to refuse the return of the trailers. S.143(5) provides:
"(5) In considering whether to make an order under this section in respect of any property, a court shall have regard –
(a) to the value of the property; and
(b) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making)."
It was submitted on behalf of the appellant that as the Magistrates had to take into account the effect on the offender when the order was originally made, the court must do the same in respect of the actual owner of the property. As the appellant was not a party to the original proceedings, it was the obligation of the court, when the appellant sought the return of the lorries to have regard to the effect upon it. It was also contended that the powers under s.144 should be interpreted under the Human Rights Act so as to read into the section a requirement of proportionality.
The District Judge accepted that the loss of the vehicles was a very substantial loss to the appellant. Three questions were therefore stated for the opinion of the court:
"(1) Whether as a result of the principle of proportionality arising under Article 1 of the First Protocol to the European Convention on Human Rights, and the obligation to interpret legislation consistently with the European Convention on Human Rights, section 144 of the Powers of Criminal Courts (Sentencing) Act 2000 should be interpreted as providing the Court with a discretion to allow the return of property in possession of the police where it would be disproportionate not to so order.
(2) If the answer to (1) is "yes", whether it was disproportionate on the facts here to deprive the Applicant of the four vehicles and trailers which were the subject of the application.
(3) If the answer to (1) is "no", whether in the absence of discretion under section 144 of the Powers of Criminal Courts (Sentencing) Act 2000 to order the return of property to its owner where it is disproportionate to deprive him of it makes the section incompatible with Article 1 of the First Protocol of the European Convention on...
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