R Amos v Maidstone Crown Court and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Elias |
| Judgment Date | 06 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1643 |
| Docket Number | C1/2012/1620 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 November 2013 |
[2013] EWCA Civ 1643
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Richards
and
Lord Justice Elias
C1/2012/1620
Mr P Caldwell (acting Pro Bono) appeared on behalf of the Appellant
Mr A Bird (instructed by Litigation Team and Immigration Law Enforcement) appeared on behalf of the Respondent
The issue in this appeal is whether the process of condemnation and forfeiture of goods pursuant to section 139 and Schedule 3 of the Customs and Excise Management Act 1979 is civil or criminal in nature for the purposes of Article 6 of the European Convention on Human Rights.
On 2 August 2009, Roger Amos and Gary Williams were stopped at Dover Eastern Docks by officers of the UK Border Agency. They had travelled with companions in a car to France and then Belgium, but on the ferry back they left their companions in the car and walked through the foot passenger part of terminal. Each of the two men was carrying a bag containing a total of 3 kilograms of hand-rolling tobacco. Mr Amos also had 200 cigars. They were first asked some general questions and then, following a formal decision to stop them, they were interviewed separately. The officers decided thereafter that the tobacco was liable for forfeiture on the ground that it was being imported for commercial purposes without payment of the duty chargeable on it; and the tobacco was then seized. The decision whether the tobacco was held for a commercial purpose rather than for personal use fell to be taken at that time by reference to factors set out in regulation 12 of The Tobacco Products Regulations 2001, which have subsequently been revoked but the detail of which is, in any event, not needed for the present appeal.
Provisions relating to the forfeiture of goods improperly imported are contained in section 49 of the 1979 Act. By section 139 anything liable to forfeiture may be seized; and provision is made by section 139(6) and Schedule 3 for proceedings to be brought for the condemnation of any thing as being forfeited. As the statute provides in paragraph 8 of Schedule 3, such proceedings are civil proceedings and may be brought in the Magistrates' Court. Condemnation proceedings are concerned only with liability to forfeiture. The 1979 Act makes entirely separate provision for criminal offences involving smuggling, offences which require proof of mens rea.
In this case, condemnation proceedings were instituted in the Dover Magistrates' Court which on 30 September 2010 made an order condemning the seized tobacco as forfeit. Mr Amos and Mr Williams appealed to the Crown Court. The appeal was heard on 16 September 2011 at the Crown Court at Maidstone by Mr Recorder S Taylor QC and a bench of magistrates. That court heard the matter de novo, receiving documentary and oral evidence for the purpose. In that connection it ruled that the witness statements of the relevant Customs officers were admissible, rejecting an argument that the proceedings were criminal and that there had been a failure to provide procedural protections applicable to criminal charges or proceedings. The conclusion the court reached was expressed in these terms: "Looking at all the evidence in the round, therefore, we are satisfied on the balance of probabilities that these two quantities of 3 kilograms each were imported for commercial purposes and not for personal use." The court therefore dismissed the appeal.
Mr Amos sought permission to apply for judicial review of that decision on a number of grounds, one of which was in broad terms that there had been a breach of the procedural protections conferred by Article 6 in relation to criminal proceedings. Permission to apply was refused in the Administrative Court by Beatson J on the papers and by HHJ Jarman QC, sitting as a Deputy High Court Judge, on an oral renewal.
An application for permission to appeal to this court was then considered on the papers by Lewison LJ, who granted permission to appeal on the Article 6 point alone and directed that the case should be retained by the Court of Appeal. What he intended was plainly the retention of the substantive judicial review, and I think it right to treat his order as a grant of permission to apply for judicial review with a direction under CPR 52.15(4) that the judicial review claim is to proceed in this court.
At the time of his application to the Administrative Court and his initial application to this court, Mr Amos was acting in person. He has been ably represented before us today by Mr Peter Caldwell acting pro bono. The defendant Crown Court has taken no part in the proceedings. Mr Andrew Bird, counsel for the Secretary of State for the Home Department as interested party, has filed a skeleton argument resisting Mr Caldwell's arguments on Article 6 and inviting us to dismiss the application for judicial review. Mr Williams, the man who accompanied Mr Amos at Dover, is also named as an interested party but has played no part in the proceedings.
The established case law of the European Court of Human Rights sets out three criteria to be considered in assessing whether proceedings are civil or criminal for the purposes of Article 6. They are sometimes referred to as the "Engel criteria" (see Engel v Netherlands [1979-1981] 1 EHRR 647). They have been affirmed repeatedly in cases running through to the latest cited to us, namely a decision of the Grand Chamber in Jussila v Finland [2007] 45 EHRR 39 and the decision of the Chamber of the Court in Ruotsalainen v Finland [2013] 56 EHRR 10.
The criteria and their effect were summarised in this way in paragraph 43 of the judgment in Ruotsalainen:
"The court's established case law sets out three criteria commonly known as the Engel criteria to be considered in determining whether or not there was a criminal charge. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. It is enough that the offence in question is by its nature to be regarded as criminal or that the offence renders the person liable to a penalty which by its nature and degree of severity belongs in the general criminal sphere. The relative lack of seriousness of the penalty cannot divest an offence of its inherently criminal character. This does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge."
Mr Caldwell's written submissions examine in much greater detail what has been said about the criteria but, subject to further consideration of the recent Strasbourg case law to which I will return, I think it unnecessary to go into any of that detail in this judgment.
The fact is that the application of the Engel criteria to proceedings of the very kind in issue in the present case has been the subject of specific consideration and decision by the domestic courts, first by the Divisional Court in Goldsmith v Customs and Excise Commissioners [2001] 1 WLR 1673, and then by the Court of Appeal in R (on the application of Mudie) v Dover Magistrates' Court [2003] QB 1238. In granting permission Lewison LJ referred to Goldsmith and said that the challenge was to the correctness of that decision in the light of later jurisprudence of the Strasbourg court. He had not been referred to Mudie, to which the attention of this court was first drawn by Mr Bird in his written submissions on behalf of the Secretary of State.
Goldsmith , like the present case, concerned forfeiture proceedings under section 139 and Schedule 3 of the 1979 Act in respect of a quantity of hand-rolling tobacco brought into the UK.
At that time, there was a presumption that any amount in excess of a quantity specified in the schedule to the Excise Duties (Personal Reliefs) Order 1992 was imported for a commercial purpose rather than for personal use. Although Mr Caldwell did not appreciate the point when he settled his written submissions, the 1992 Order was revoked with effect from 1 December 2002 by The Excise Duties (Personal Reliefs)(Revocation) Order 2002 and is of no relevance to the...
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