R (Mudie and Another) v Dover Magistrates' Court and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,LORD JUSTICE LAWS,The Master of the Rolls,LORD JUSTICE BROOKE |
| Judgment Date | 04 February 2003 |
| Neutral Citation | [2003] EWCA Civ 237 |
| Docket Number | C1/02/0649 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 February 2003 |
[2003] EWCA Civ 237
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE GRIGSON)
The Master of the Rolls
(Lord Phillips)
Lord Justice Brooke
Lord Justice Laws
C1/02/0649
MR MATTHEW SHERRATT (instructed by Messrs Royds RDW, London, EC4 2L) appeared on behalf of the Appellants
MR DAVID BARNARD AND MR ANDREW BIRD (instructed by H M Customs & Excise, London, SE1 9PJ) appeared on behalf of the Respondent
LORD PHILLIPS, MR: I will ask Lord Justice Laws to give the first judgment.
This is an appeal against the judgment of Grigson J given in the Administrative Court on 21 March 2002 when he refused to grant permission to seek judicial review of the decision of the Kent Magistrates' Court made on 15 October 2001.
The magistrates had declined to grant a representation order to the appellants in relation to condemnation proceedings brought by Her Majesty's Commissioners for Customs and Excise pursuant to section 139 and Schedule 3 to the Customs and Excise Management Act 1979. They so refused on the grounds that the proceedings were civil and not criminal proceedings. Permission to appeal against the decision of Grigson J was granted by Sir Murray Stuart-Smith on 19 July 2002. The classification of the condemnation proceedings as civil or criminal bears critically on the decision whether to grant a representation order because of the impact of Article 6 of the European Convention on Human Rights which provides, so far as material:
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
…
3. Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."
Provision is made by section 12 of the Access to Justice Act 1999 for the funding by the Legal Services Commission of representation in "criminal proceedings", defined in section 12(2)(a) as including:
"Proceedings before any court for dealing with an individual accused of an offence."
The grant of representation in criminal proceedings falling within section 12 may be made by any court before which the criminal proceedings are to take place (see the Access to Justice Act 1999, Schedule 3, paragraph 2(1)).
The regime in relation to representation in civil cases is different. By section 6 and paragraph 2 of Schedule 2 to the 1999 Act, funding may not be provided for advocacy in any civil proceedings in a Magistrates' Court except for those proceedings listed in paragraph 2(3) of the Schedule. They do not include condemnation proceedings under the Customs and Excise Management Act. It goes without saying, of course, that a person contesting condemnation proceedings may instruct an advocate at his or her own expense. Under section 58 of the Courts and Legal Services Act 1990, he or she may enter into a conditional fee agreement with a solicitor for the purposes of representation in court.
As I shall show in due course, the Magistrates' Court in this case refused to grant representation orders on the ground that they had no jurisdiction to do so. But the appellants point to the fact that case law in Strasbourg establishes that the question whether particular proceedings are to be treated as criminal for the purposes of Article 6 is to be answered by reference to autonomous criteria which the European Court of Human Rights has elaborated for the purposes of applying the Convention. The appellants' case is that the proper application of those criteria must lead to the conclusion that condemnation proceedings, on facts such as those in this case, are criminal within the meaning of Article 6.
I have entertained some doubt whether the appellants are "victims" within the meaning of section 7 of the Human Rights Act 1998. It must be shown that a claimant in proceedings of this kind is such a victim, since that is the test for standing in a case where complaint is made of a violation of a person's Convention rights. In this case evidence that the appellants could not afford representation in the Magistrates' Court is exiguous. It consists of a bare statement in a solicitor's letter. However, the Commissioners have not stood on that ground and I would not therefore regard it as an impediment to our addressing the substantial issues in the case.
By way of preliminary, in answer to questions from the court, Mr Sherratt, for the appellants, submitted that section 12(2)(a) of the Access to Justice Act 1999 can and should be read as including condemnation proceedings. Section 12(2)(a) provides, as I have foreshadowed:
"In this Part 'criminal proceedings' means-
(a) proceedings before any court for dealing with an individual accused of an offence."
Mr Sherratt revised this submission so as to apply it to Schedule 3, paragraph 2(1) of the Access to Justice Act, which provides:
"A court before which any criminal proceedings take place, or are to take place, has power to grant a right to representation in respect of those proceedings except in such circumstances as may be prescribed."
It seems to me, however, that the real question is whether paragraph 8 of Schedule 3 to the Customs and Excise Management Act 1979 could be construed, having regard to section 3 of the Human Rights Act 1998, as if the word "civil" read "criminal". I will turn to the Act of 1979 shortly but for convenience I set out at this stage paragraph 8:
"Proceedings for condemnation shall be civil proceedings."
The question whether paragraph 8 of that Schedule could, by force of section 3 of the Human Rights Act, be so read has not previously been raised in these proceedings. I have the greatest possible doubt whether the section would authorise or empower paragraph 8 to be read as if "civil" meant "criminal". It does not seem to me that it could. If, as Mr Sherratt's substantive argument suggests, there will be some instances of paragraph 8 which are criminal and others which are civil, then I cannot see how section 3 could possibly be prayed in aid in the way contended for.
I do not understand, therefore, how in these proceedings the appellants could obtain effective relief against the Magistrates' Court. There has never been any suggestion in the course of these proceedings that a declaration of incompatibility should be made under the terms of section 4 of the Human Rights Act. It seems to me therefore that there are considerable procedural difficulties facing Mr Sherratt even if he were to carry the day in establishing that, for the purposes of Article 6 of the Convention, condemnation proceedings are to be treated as criminal.
However out of respect for the arguments we have heard and in light of the undoubted importance of the case, I propose to deal with the substantive issue as it has been formulated. It is convenient at this stage to go to the statutory regime under which condemnation proceedings are established. I turn first then, to the provisions dealing with goods liable to forfeiture. By force of section 49(1) of the Customs and Excise Management Act any goods chargeable with customs or excise duty which are imported without payment of that duty are liable to forfeiture, and under section 139(1) may be seized by a Customs officer. Under section 141(1) any vehicle used for the carriage of such goods is also liable to forfeiture. It is well known that tobacco and alcohol products have historically been subject to excise duty.
At the time of events material to this case, the Excise Duties (Personal Reliefs) Order 1992 ("the PRO") was in force. By paragraph 3 of the PRO it was provided that a person travelling from another Member State of the European Union to the United Kingdom shall be relieved from payment of duty on excise goods, thus including tobacco and alcohol, if he has obtained them exclusively for his own use. By paragraph 5 this relief was made subject to the condition that the goods are not to be held for a commercial purpose, otherwise they would be liable to forfeiture. Paragraph 3A provided that the Commissioners might require a person having in his possession a quantity of excise goods in excess of the quantity listed in the Schedule to the PRO to satisfy them, the Commissioners, that the goods were not in fact being held for a commercial purpose. By way of example, the quantity of cigarettes listed in the Schedule was 800.
On 31 July 2002, after the relevant events had occurred in this case, the Divisional Court (Brooke LJ and Bell J) gave judgment in Hoverspeed v Commissioners of Customs & Excise [2002] 3 WLR 1219. The court held that the PRO was incompatible with Council Directive 92/12/EEC and Article 28 of the EC Treaty on two linked grounds, one of which was that the PRO placed a persuasive burden of proof on the traveller to prove that he did not hold the goods in question for a commercial purpose in a case where the quantity of goods held exceeded the quantity listed in the schedule for goods of the type in question. The decision in Hoverspeed was appealed to this court ( neutral citation [2002] EWCA Civil 1804...
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