R Eat & Drink Trading Ltd v Uk Border Force
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 27 March 2013 |
| Neutral Citation | [2013] EWHC 905 (Admin) |
| Date | 27 March 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8797, 8065, 10068, 11273, 12704, 10769/2012 |
[2013] EWHC 905 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Collins
CO/8797, 8065, 10068, 11273, 12704, 10769/2012
Mr M Glover (instructed by Rainer Hughes) appeared on behalf of the Claimants
Mr W Hayes (instructed by the Treasury Solicitor) appeared on behalf of the Defendants in cases CO/8797/2012, CO/8065/2012, CO/11273/2012, CO/12704/2012 and CO/10769/2012
Mr J Bremner (instructed by the Treasury Solicitor) appeared on behalf of the Defendant in case CO/10068/2012
There are before me six separate applications for permission to seek judicial review, essentially directed against the decision of the defendants, who in some cases are Her Majesty's Commissioners of Revenue and Customs and in others what has now become the Border Force. The decisions relate to the seizure of alcohol, which in four of the cases had come into the port at Dover and in two were being moved from warehouses in this country.
The issue as to the lawful exercise of the power of seizure has troubled the courts in a number of recent cases, and to say that the law is in a satisfactory state would be a complete misstatement. The starting point is the provisions of the Customs and Excise Management Act 1979, which largely followed the previous Act of 1952, and, in relation to these powers, goes back a number of years.
The section which is relied upon in all these cases as giving rise to the power of seizure is section 139, which provides by subsection (1):
"Any thing liable to forfeiture under the customs and excise Acts may be seized or detained by any officer or constable or any member of Her Majesty's armed forces or coastguard."
Subsection (6) provides:
"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."
So we turn to schedule 3. By paragraph 1 it provides, so far as material:
"(1) The Commissioners shall, except as provided in sub-paragraph (2) below, 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.
(2) Notice need not be given under this paragraph if the seizure was made in the presence of—
…
(b) the owner or any of the owners of the thing seized or any servant or agent of his …"
Paragraph 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."
There are further detailed provisions in schedule 3, which I do not need to read.
The other relevant provision of the Act is to be found in section 152, which gives the commissioners very wide powers of restoration of any goods which have been seized as liable to forfeiture, or indeed have been declared as forfeit. If there is a refusal by the commissioners to comply with a request for restoration, there is a right of appeal to the Tribunal.
The construction of the relevant paragraph of schedule 3 was considered by the Court of Appeal in Eastenders Cash & Carry Plc & Ors v HM Revenue & Customs [2012] EWCA Civ 15. The question raised before that court included whether the exercise of the power of detention was lawful, but the court in the course of its decision considered generally what was required to enable the powers to be exercised. The decision was that of the majority; Mummery LJ dissented. What the majority of the court decided — putting it briefly, because I am not going to go into a lengthy judgment for the purposes of my decision on permission — was that the power granted by the third schedule to the Act depended upon the goods in fact being liable to forfeiture. Accordingly it was necessary for that to be established in order for the seizure to be lawful in public law terms. Essentially it was being argued that reasonable suspicion was sufficient and the court said no, it was not enough. It gave reasons, which I am bound to say I am singularly unattracted by, but I recognise that the decision of the majority is clearly binding.
I should have referred to one further provision of the Act, which was regarded as material by the court in Eastenders, namely section 144, which provides under the heading "Protection of officers, etc in relation to seizure and detention of goods, etc" by subsection (1):
"(1) Where, in any proceedings for the condemnation of any thing seized as liable to forfeiture under the customs and excise Acts, judgment is given for the claimant, the court may, if it sees fit, certify that there were reasonable grounds for the seizure.
(2) Where any proceedings, whether civil or criminal, are brought against the Commissioners, a law officer of the Crown or any person authorised by or under the Customs and Excise Acts 1979 to seize or detain any thing liable to forfeiture under the customs and excise Acts on account of the seizure or detention of any thing, and judgment is given for the plaintiff or prosecutor, then if either—
(a) a certificate relating to the seizure has been granted under subsection (1) above; or
(b) the court is satisfied that there were reasonable grounds for seizing or detaining that thing under the customs and excise Acts
The plaintiff or prosecutor shall not be entitled to recover any damages or costs and the defendant shall not be liable to any punishment."
It was said by the majority of the court that those provisions in section 144 were consistent only with the absence of a power to seize other than one which was based upon the actual liability of the goods in question to forfeiture.
It was, however, recognised (and inevitably so recognised) that whether or not the goods were indeed liable to forfeiture would only be established once the condemnation proceedings had been completed and a decision of the magistrates obtained. It followed that it was likely that the decision to seize itself was one which might, in those circumstances, turn out not to have been lawful. Indeed, whether or not it was lawful would not be known until, as I say, the condemnation proceedings were completed. The strange result of that is all too obvious.
However, the matter came again before the Court of Appeal in HM Revenue and Customs v First Stop Wholesale Ltd & Anor, and in fact there were three separate appeals involved in that case. That was a decision of [2013] EWCA Civ 183, judgment having been given some two weeks ago. The judgment of the court was there given by Beatson LJ. He accepted that the court was bound by the majority decision in Eastenders, but the decision itself, so far as material to these proceedings, involved decisions of Singh J that seizures were unlawful because they failed to comply with a fundamental principle of public law that statutory powers would only be exercised in accordance with the law, and the question of illegality in public law concerned the decision-making process, rather than the end result. Thus the decision would be susceptible to judicial review and liable to be set aside, even though the same result could be achieved lawfully without recourse to the illegitimate part of the reason. That was said to be, and indeed was correctly said to be, the public law position. The majority in Eastenders made it clear that reasonable suspicion was not enough, and that applied to detention as well as to seizure.
The Commissioners and the Border Force since then have not sought to rely on reasonable suspicion, knowing that the decision of the Court of Appeal made that difficult, albeit that case is going to the Supreme Court, but they had to apply the law as it at present stands. Accordingly, what has been done, and at least two of these cases echo that, was to rely on what is said to be a belief, and a belief which is a positive assertion on the part of the officer, that, on the material which was before him, he had formed the conclusion, and thus the belief, that the goods were indeed liable to forfeiture. He may of course turn out to have been wrong when everything is taken into account in any condemnation proceedings, but that was the situation as it appeared to him. That, it is said, is sufficient to make the decision lawful within the approach that appears to have been adopted in Eastenders.
Mr Hayes has pointed out that what actually has been decided by the court in First Stop is, in effect, that the state of mind of the officer seizing is not a material factor. It may or may not have been unlawful in public law terms. But the key issue is whether in fact the goods are liable to forfeiture, and that is what the Act requires to be determined in the condemnation...
To continue reading
Request your trial