R Leslie John Drain v Birmingham Crown Court

JurisdictionEngland & Wales
JudgeMr Justice Morgan,Lord Justice Treacy
Judgment Date25 May 2018
Neutral Citation[2018] EWHC 1255 (Admin)
Date25 May 2018
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/4462/2017

[2018] EWHC 1255 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Treacy

and

Mr Justice Morgan

Case No: CO/4462/2017

Between:
The Queen on the Application of Leslie John Drain
Claimant
and
Birmingham Crown Court
Defendant

and

Birmingham and Trading Standards
Interested Party

and

Department for Business, Energy and Industrial Strategy
Intervener

Mr Neil Corre (instructed by Hollingsworth Edwards Solicitors LLP) for the Claimant

Mr Ben Mills (instructed by Birmingham City Council Legal Department) for the Interested Party

Ms Christina Michalos (instructed by the Government Legal Department) for the Intervener

Hearing date: 3 May 2018

Judgment Approved

Mr Justice Morgan

Lord Justice Treacy and

1

This is the judgment of the court. This is an application to quash a forfeiture order made pursuant to s.97 of the Trade Marks Act 1994 by Her Honour Judge Stacey at Birmingham Crown Court on 18 May 2016. There had been a trial at Birmingham Crown Court before the same judge on an indictment alleging a number of counts of unauthorised possession, custody or control of goods bearing a sign identical to, or likely to be mistaken for, a registered trade mark with the consent or connivance of a company director or secretary. The primary offence was alleged to have been committed by a company contrary to s.92(1)(c) of the Act. This claimant was said to be criminally liable in that he had, as an officer of the company, consented or connived in the offence pursuant to s.101(5) of the Act. The jury was unable to reach a verdict and after consideration, the prosecutor indicated in March 2016 that it intended to offer no further evidence against the claimant on the grounds that the public interest did not require a retrial. That formal step was taken on 18 May 2016, the day of the hearing of the forfeiture application, and not guilty verdicts were entered.

2

On that occasion, the prosecutor (Birmingham City Council) made an application for forfeiture of the items seized by the council's trading standards officers in connection with the investigation or prosecution of the offences on the indictment. That application was made under s.97 of the Trade Marks Act 1994.

3

Section 97 provides as follows:

97 Forfeiture: England and Wales or Northern Ireland.

(1) In England and Wales or Northern Ireland where there has come into the possession of any person in connection with the investigation or prosecution of a relevant offence—

(a) goods which, or the packaging of which, bears a sign identical to or likely to be mistaken for a registered trade mark,

(b) material bearing such a sign and intended to be used for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods, or

(c) articles specifically designed or adapted for making copies of such a sign,

that person may apply under this section for an order for the forfeiture of the goods, material or articles.

(2) An application under this section may be made—

(a) where proceedings have been brought in any court for a relevant offence relating to some or all of the goods, material or articles, to that court;

(b) where no application for the forfeiture of the goods, material or articles has been made under paragraph (a), by way of complaint to a magistrates' court.

(3) On an application under this section the court shall make an order for the forfeiture of any goods, material or articles only if it is satisfied that a relevant offence has been committed in relation to the goods, material or articles.

(4) A court may infer for the purposes of this section that such an offence has been committed in relation to any goods, material or articles if it is satisfied that such an offence has been committed in relation to goods, material or articles which are representative of them (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

(5) Any person aggrieved by an order made under this section by a magistrates' court, or by a decision of such a court not to make such an order, may appeal against that order or decision—

(a) in England and Wales, to the Crown Court;

(b) in Northern Ireland, to the county court;

and an order so made may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates' Courts Act 1980 or Article 146 of the Magistrates' Courts (Northern Ireland) Order 1981 (statement of case)).

(6) Subject to subsection (7), where any goods, material or articles are forfeited under this section they shall be destroyed in accordance with such directions as the court may give.

(7) On making an order under this section the court may, if it considers it appropriate to do so, direct that the goods, material or articles to which the order relates shall (instead of being destroyed) be released, to such person as the court may specify, on condition that that person—

(a) causes the offending sign to be erased, removed or obliterated, and

(b) complies with any order to pay costs which has been made against him in the proceedings for the order for forfeiture.

(8) For the purposes of this section a “relevant offence” means

(a) an offence under section 92 above (unauthorised use of trade mark, &c in relation to goods),

(b) an offence under the Trade Descriptions Act 1968,

(c) an offence under the Business Protection from Misleading Marketing Regulations 2008,

(d) an offence under the Consumer Protection from Unfair Trading Regulations 2008, or

(e) any offence involving dishonesty or deception.”

4

At the hearing before the judge there was no dispute that the court had power to consider forfeiture pursuant to s.97 and that the items concerned had been lawfully seized by the prosecuting authority. Further, there was no dispute that an offence pursuant to s.92 was a relevant offence for the purposes of s.97. It was also agreed that the proceedings were civil in nature, with a burden of proof on the balance of probabilities lying with the prosecutor.

5

There had been no conviction before the Crown Court but that of itself is not a bar to an application for a forfeiture order, as s.97(3) shows. If the court is satisfied that a relevant offence has been committed in relation to the goods, then the court has jurisdiction to make an order for forfeiture.

6

The issues before the Crown Court judge were:

i) whether she was satisfied that the relevant offence (i.e., one under s.92) had been committed in relation to the goods, and

ii) whether the claimant could rely on the defence under s.92(5) for the purposes of this application.

The judge held that she was satisfied that a relevant offence had been committed and, secondly, that the claimant could not in the forfeiture proceedings rely on the defence provided to a person facing a criminal allegation provided by s.92(5). The judge went on to hold that if the Claimant could rely on s.92(5), in the context of an application under s. 97(3), he would have failed to prove the defence of reasonable belief required by s.92(5). Having reached those conclusions, the judge made a forfeiture order. Thereafter, an application was made to the Court of Appeal Criminal Division, which was rightly rejected for want of jurisdiction. The grounds advanced did not raise the matters which are the subject of this judicial review application.

7

An application for judicial review was then made to this court and leave has been granted by the single judge. The matter now raised before us is whether the order made was compatible with the claimant's European Convention rights, and in particular the question of proportionality when Article 1, Protocol 1 to the European Convention on Human Rights concerning a person's entitlement to the peaceful enjoyment of his possessions is taken into account.

8

At the hearing before the Crown Court, no point was taken as to any requirement for proportionality in relation to the making of the forfeiture order. At one point during argument the judge raised the question of whether the word “shall” used in s.97(3) was mandatory and whether the court should consider the Human Rights Act and international obligations (and thus, by inference, the European Convention on Human Rights), before making an order. Notwithstanding the judge's query, leading counsel then acting for the claimant did not accept the opportunity to follow the judge's lead. Accordingly, the judge's ruling did not deal with the question of proportionality since it had not been put forward as a relevant consideration on behalf of the claimant.

9

We deal first of all with the issue of jurisdiction. Section 29(3) of the Senior Courts Act 1981 provides that the High Court has jurisdiction over decisions of the Crown Court other than in matters relating to trial on indictment. The parties agree that this court has jurisdiction on the basis that the criminal proceedings had effectively been terminated with the prosecution's indication that it would not seek a retrial, and since it was well-established that a forfeiture application of this type constitutes separate civil proceedings. (See R v Harrow Trading Standards ex-parte UNIC Centre Sarl [2000] 2 All ER 449 at 459f–460a.) We accept that this court has jurisdiction for those reasons and also because the forfeiture application is not an issue between prosecutor and defendant formulated by the criminal indictment. As the wording of s.97(3) shows, the application is one which is made in relation to goods rather than an individual.

10

At the hearing below the judge decided the two issues placed for determination before her. In deciding the first issue, the judge clearly had in mind the...

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1 cases
  • R Leslie John Drain v Birmingham Crown Court
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 25 June 2018
    ...in relation to costs following our earlier judgment on the substantive issues; the neutral citation of the earlier judgment is [2018] EWHC 1255 (Admin). 2 Birmingham Trading Standards (of Birmingham City Council) (“BCC”) has applied for an order that Mr Drain pay its costs of, and incident......

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