R Martin William Clayton v HM Court Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 10 March 2020 |
| Neutral Citation | [2020] EWHC 1729 (Admin) |
| Date | 10 March 2020 |
| Docket Number | CO/3406/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 1729 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Courtroom No. 45
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
THE HONOURABLE Mr Justice Kerr
CO/3406/2019
and
THE CLAIMANT appeared in person
THE DEFENDANT did not appear and was not represented
Mr Joshua Carey appeared on behalf of the Interested Party
APPROVED JUDGMENT
This Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
The claimant, Mr Clayton, seeks an order quashing or setting aside a decision of the Crown Court at Maidstone given on 5 July 2019, dismissing his appeal against an order for condemnation, in respect of some 25 kilograms of hand rolling tobacco.
The Crown Court upheld a decision by the Folkestone Magistrates Court, given on 8 July 2018, to grant an application for an order for condemnation in respect of that tobacco. The claimant's case is that the tobacco was unlawfully seized on the claimant's return from France, because it had been purchased as a gift for six of his brothers.
At the hearings in the Magistrates Court and Crown Court, it was contended on behalf of Her Majesty's Border Force or the Director of Border Revenue, the interested party in this judicial review, that the tobacco had been purchased for a commercial purpose, and with the intention of evading excise duty.
The background was briefly as follows. On 23 October 2017, the claimant and a companion entered this country from France at Dover Eastern Docks. They were travelling in a camper van. On inspection, 25 kilograms of hand rolling tobacco was found in the van and seized. On 8 July 2018, the Magistrates Court at Folkestone granted the interested party's application for an order of forfeiture in respect of the tobacco. The claimant appealed against that decision unsuccessfully and, as I have said, the Crown Court at Maidstone upheld the decision in a ruling given on 5 July 2019.
In his judicial review application, the claimant contends that the Crown Court's decision on his appeal is flawed, irrational and unlawful. He argues that there was no proof to support the contention that the tobacco was not for his own use; that it was, on the evidence, a gift for his brothers; and that the interviewing customs officer had given incorrect evidence. The claim was brought against Maidstone Crown Court, which in the usual way, did not take part in the proceedings.
The claim was also served on the interested party, the Director of Border Revenue, who lodged an acknowledgement of service in October 2019. In that document, it was contended, first, that the claimant should have proceeded by way of appeal by case stated. However, at the hearing before me, that proposition was not advanced and, although the matter has proceeded by way of judicial review, the effect is in practice no different from proceeding on appeal by case stated.
The interested party contended, further, that the Crown Court's decision was correct and lawful. Alternatively, he contended that if there had been any error and the matter had to be remitted, the result would be highly likely to be the same, given the strength of the evidence. The interested party relied, in that regard, on Section 31(3C) of the Senior Courts Act 1981.
The matter came before Julian Knowles J on the papers on 28 October 2019. He granted permission to apply for judicial review and stayed the order condemning or forfeiting the tobacco in question, pending the outcome of the application that is before me today. He gave his reasons as follows:
“Although not clearly pleaded as such, I have granted permission on the question whether where (as the Crown Court found) there is an arrangement between the Claimant and his brothers that each year one brother would buy tobacco abroad and gift to the other brothers in the expectation (but without legally enforceable obligation) that in the years to come the Claimant might be the recipient of a similar gift from another brother, this counts as a transfer for, ‘money or money's worth’, as found by the Crown Court, and hence not ‘own use’ under regulation 13(5)(b) of the Excise Goods (Holding, Movement and Duty Point) Regulations 2010 (SI 2010/593).”
Mr Clayton represented himself before me today, as he did in the Crown Court. He spoke ably and courteously but, at times, he did try to re-argue the case in the Crown Court; for example, referring to written statements from his brothers that were not in evidence before the Crown Court. He has sought to attack as irrational and perverse the finding of the Crown Court that he had an expectation of something from his six smoker brothers that was, “money's worth” in return for the tobacco.
I have considered carefully the decision of the Crown Court and, in addition, I was shown today a transcript of the answers given by the claimant in his oral evidence on oath at the hearing of his appeal in the Crown Court. Those answers, in turn, referred to answers given by him in interview, when interviewed on the occasion of the seizure of the tobacco. The transcript of the ruling of the Crown Court shows the following.
The learned judge, His Honour Judge St John-Stevens sat with two magistrates, although they are not identified on the transcript. The judge recited the undisputed facts relating to search of the van and seizure of the tobacco on 23 October 2017. He went on as follows (transcript at 2D):
‘What is clear [is] that the appellant was interviewed and has also given evidence in this court explaining that he has seven brothers and in interview said that one of them didn't smoke, but the effective arrangement was that once a year one of them would buy tobacco sufficient to give to the others as a...
To continue reading
Request your trial