R First Stop Wholesale Ltd v HM Revenue & Customs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh |
| Judgment Date | 05 October 2012 |
| Neutral Citation | [2012] EWHC 2975 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8098/2011 |
| Date | 05 October 2012 |
[2012] EWHC 2975 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Singh
CO/8098/2011
Mr M Glover (instructed by Rainer Hughes) appeared on behalf of the Appellant
Mr J Puzey (instructed by HMRC) appeared on behalf of the Respondent
Introduction
This is a claim for judicial review of various seizure notices issued by the defendants in July 2011. Permission was granted to bring this claim for judicial review by Cranston J on 3 February 2012. I heard a related case in March of this year and gave judgment in that case on 27 March 2012.
Background
The background to this case can be seen from my earlier judgment of 27 March at paragraphs 1 to 7. It is not therefore necessary to set it out in full. As I said, between 22 June and 24 June 2011 quantities of alcohol were detained and removed by the defendants from the claimant's warehouse at Unit 15, Cousins Street, Wolverhampton and also six retail premises in the Wolverhampton and South Staffordshire area. The retail businesses are owned by the claimant's director, Mr Tajinder Singh, trading as a sole proprietor.
The goods concerned can be divided into three categories, as I said at paragraph 22 of my earlier judgment. The first category is those goods which were seized before 4 November 2011. That is the date on which Sales J granted permission in the previous case. It was common ground before me on that occasion that those goods were not in issue in those proceedings because they were not covered by the scope of the permission granted by Sales J which applied only to those goods which had been detained but not seized by 4 November 2011. The present case does concern the first category of the goods concerned.
It is not necessary for present purposes to refer to all of the notices which are under challenge in this case. It will suffice, by way of example, to refer to one such notice of seizure which was issued on 28 July 2011. That is in the bundle at page 15. The notice so far as material states:
"Pursuant to Section 139(6) of the Customs and Excise Management Act 1979 and paragraph 1 of schedule 3 thereto, the Commissioners of Customs and Excise hereby give you notice that by virtue of the powers contained in the Customs and Excise Acts and enactments amending those Acts, certain goods detained on the 24th June 2011 namely:
Skol Super - 33 cases (24x500 ml)
Special Brew - 17 cases (24x500 ml)
Have been seized as liable to forfeiture under Sections 49 and/or 100(2) c and (e) of the Customs and Excise Management Act 1979 and/or Section 49(3) of the Alcoholic Liquor Duties Act 1979.
In that no evidence of UK duty payment has been provided."
Material legislation
As I said in my earlier judgment, the principal statute which governs this area is the Customs and Excise Management Act 1979. Section 139 provides:
"(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…"
It is not necessary to refer to all of the statutory provisions upon which the defendants purported to rely when they issued the notices under challenge. It will suffice to make reference for present purposes to the main provision relied upon for example in the notice of 28 July 2011 which I have already cited. Section 49 of the 1979 Act provides:
"(1) Where—
(a) except as provided by or under the Customs and Excise Acts 1979, any imported goods, being goods chargeable on their importation with customs or excise duty, are, without payment of that duty—
(i) unshipped in any port,
(ii) unloaded from any aircraft in the United Kingdom,
(iii) unloaded from any vehicle in, or otherwise brought across the boundary into, Northern Ireland, or
(iv) removed from their place of importation or from any approved wharf, examination station or transit shed; or
…
(f) … those goods shall, subject to subsection (2) below, be liable to forfeiture."
Paragraph 1 of schedule 3 to the 1979 Act provides:
"(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."
Subparagraph (2) makes it clear that notice need not be given under paragraph 1 if the seizure was made, for example, in the presence of the person whose offence or suspected offence occasioned the seizure.
Finally, it is necessary to refer to section 154(2) of the 1979 Act which provides:
"2) Where in any proceedings relating to customs or excise any question arises as to the place from which any goods have been brought or as to whether or not—
(a) any duty has been paid or secured in respect of any goods …
…
… the burden of proof shall lie upon the other party to the proceedings."
It is common ground before me that the effect of that provision is to place the legal burden of proof on a person such as the present claimant in proceedings for forfeiture brought by the defendants in the magistrates' court. There are such proceedings pending in the magistrates' court in the present case. I have been informed that those proceedings have been adjourned in order for this court to be able to determine this claim for judicial review.
The issue
The claimant submits that the notices of seizure in this case were defective in law. The claimant submits that the defendants misdirected themselves in law when they issued, for example, the notice of 28 July 2011 at page 15 of the bundle. This is said to be because the defendants gave as a ground for seizure (and therefore liability of goods to seizure) a ground which is not in law a relevant one under the governing legislation. In particular, the claimant submits that the only lawful ground potentially relevant in this context in the list of grounds to be found in section 49 of the 1979 Act would have been that the defendants averred that the goods in question were goods on which duty had not been paid when it should have been. The claimant submits that the notices do not in fact make that averment; rather, it is submitted they say only "that no evidence of UK duty payment has been provided".
The parties' submissions
In support of its submission, the claimant relies on the judgment of the Court of Appeal in Eastenders [2012] EWCA Civ 15, to which I have made reference at length in my earlier judgment. In particular, the claimant relies upon the judgment of Elias LJ at paragraph 78. That judgment was the main judgment for the majority in the Court of Appeal in that case. Elias LJ there said:
"In my judgment, this goes well beyond the legitimate approach to statutory construction. I find it impossible to accept that when Parliament in section 139(1) used the same formula for determining when the powers of detention and seizure could be exercised, it intended this formula to have a different meaning depending upon which power was being exercised. The inevitable inference from the way the section is drafted is that the conditions precedent to the lawful exercise of the power of detention must be precisely the same as those which will justify the lawful exercise of the power of seizure."
In the present case, of course, the court is concerned with the power of seizure and not, as it was in my earlier judgment, with the power of detention.
The claimant also relies on my earlier judgment at paragraph 28 where I sought to summarise the principal submissions on behalf of the claimant, and paragraph 35 where I said this:
"In the present context it seems to me that what the Court of Appeal has decided in Eastenders is that a condition precedent for the power to detain goods is that they are in fact liable to forfeiture, the same condition as for the power of seizure. But that is not necessarily a sufficient condition for the lawful exercise of the power to detain goods. Just as in the context of false imprisonment, either in the context of immigration detention which was considered in Lumba or in the context of the power of arrest which was considered in Christie v Leachinsky, the existence of a power does not necessarily mean that it must be exercised. It follows from well known principles of administrative law - Wednesbury principles as Lord Dyson referred to them in Lumba - that a discretionary power must be exercised lawfully. If it turns out that it was exercised unlawfully, as it seems to me, it would not matter, by way of analogy with false imprisonment cases, that the defendants could have exercised the power lawfully on some other basis."
For their part, the defendants submit that the issue has to be approached with realism and a dose of common sense. They submit that the notices of seizure should not be construed as if they were statutes, contracts or pleadings. The defendants submit that it would have been perfectly clear and apparent to the claimant in the circumstances of this case why it was that the goods were being seized, namely that Customs' view was that the relevant duty had not been paid on the goods concerned.
The defendants submit that there is an analogy to be drawn with Christie v Leachinsky [1947] AC 573, to which I have made reference, in the speech of Viscount Simon at page 587 where he set out certain propositions of principle in relation to what is...
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