R v Menocal
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Lord Salmon,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Keith of Kinkel |
| Judgment Date | 23 May 1979 |
| Judgment citation (vLex) | [1979] UKHL J0523-2 |
| Date | 23 May 1979 |
| Court | House of Lords |
[1979] UKHL J0523-2
House of Lords
Lord Wilberforce
Lord Salmon
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Upon Report from the Appellate Committee to whom was referred the Cause Commissioners of Customs and Excise against Menocal, That the Committee had heard Counsel on Thursday the 29th day of March last upon the Petition and Appeal of Frances Kathleen Menocal then detained at Her Majesty's Prison Holloway praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal (Criminal Division) of the 4th day of July 1978 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; and Counsel having been heard on behalf of the Commissioners of Customs and Excise the Respondents to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Order of Her Majesty's Court of Appeal (Criminal Division) of the 4th day of July 1978 complained of in the said Appeal be, and the same is hereby, Reversed and that the forfeiture Order of Judge Martin of the 9th day of May 1977 be, and the same is hereby, Discharged: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellant the Costs incurred by her in the Courts below and also the Costs incurred by her in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments if not agreed between the parties: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Middlesex Crown Court to do therein as shall be just and consistent with this Judgment.
My Lords,
I have had the benefit of reading in advance the speeches to be delivered by my noble and learned friends Lord Salmon and Lord Edmund-Davies. It is, I hope, no reflection upon the learning exhibited in them if I say that I am left in considerable doubt whether the conclusion reached as to the application of section 27 of the Misuse of Drugs Act 1971—an important and necessary section for the suppression of the traffic in drugs—can be said to reflect the intention of Parliament. In view, however, of their Lordships' experience in this field, I am not prepared to differ from their proposal that the appeal be allowed.
My Lords,
On the 14th August 1976 two women arrived from Bogota at Heathrow Airport. One of them was carrying a suitcase which had a hidden compartment containing 2,646 grammes of cocaine. Both these women were met by the appellant who was carrying a handbag containing sterling, U.S. dollars and pesetas, worth in all £4,371. All three were detained by customs officers who discovered the cocaine and the money to which I have referred. The appellant eventually admitted to the customs officers (1) that she had been involved with a drug ring since January 1975, (2) that she had provided the suitcase in which the cocaine had arrived at Heathrow and (3) that her role had been to take over the cocaine when it arrived and await instructions.
On 31st January 1977 she pleaded guilty to the following count:
" Statement of Offence
Being knowingly concerned in the fraudulent evasion of the prohibition on importation of a controlled drug, contrary to section 304 of the Customs and Excise Act 1952 as amended by section 26 of the Misuse of Drugs Act 1971.
Particulars of Offence
FRANCES KATHLEEN MENOCAL on the 14th day of August 1976 was in relation to a Class A controlled drug, namely 2,646 grammes of cocaine knowingly concerned in the fraudulent evasion of the prohibition on importation imposed by section 3(1) of the Misuse of Drugs Act 1971."
The learned judge before whom she appeared sentenced her to five years imprisonment. On 9th May 1977 she was brought back before the same judge in the same Crown Court on an application made by H.M. Commissioners of Customs and Excise for forfeiture by the appellant of the £4,371. She elected not to give any evidence; and the learned judge held that the whole of the money "was intended to be used for the purpose of facilitating the commission of this particular offence" and ordered that it be forfeited by the appellant under section 27 of the Misuse of Drugs Act 1971, alternatively under section 43 of the Powers of Criminal Courts Act 1973.
The appellant appealed to the Court of Appeal (Criminal Division) against the forfeiture order. The first ground of appeal, which has now been abandoned, was that there was no evidence on which the learned judge's findings of fact could be justified. The second ground of appeal was that, having regard to section 11(2) of the Courts Act 1971, the learned judge had no power to make the forfeiture order more than twenty-eight days after the prison sentence; that it was, in fact, made more than three months after the prison sentence and was therefore null and void.
The Court of Appeal dismissed the appeal and certified that a point of law of general public importance was involved in their decision. This point of law was, perhaps, not very aptly defined. It reads thus:
"Whether in exercising its powers under section 27 of the Misuse of Drugs Act 1971, the Court is imposing a sentence or other order within the meaning of section 11 of the Courts Act 1971".
The appellant now appeals to your Lordships' House against the decision of the Court of Appeal.
My Lords, I think it necessary to set out the material parts of the three statutes to which I have referred.
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1. The Courts Act 1971
"Section 11(1) A sentence imposed, or other order made, by the Crown Court when dealing with an offender shall take effect from the beginning of the day on which it is imposed, unless the court otherwise directs.
(2) Subject to the following provisions of this section, a sentence imposed, or other order made, by the Crown Court when dealing with an offender may be varied or rescinded by the Crown Court within the period of 28 days beginning with the day on which the sentence or other order was imposed or made, …"
"…
(4) A sentence or other order shall not be varied or rescinded under this section except by the court constituted as it was when the sentence or other order was imposed or made, …"
"Section 57(1) In this Act, unless the context otherwise requires—
…
'sentence', in relation to an offence, includes any order made by a court when dealing with an offender …"
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2. Misuse of Drugs Act 1971
"Section 3(1)(a) the importation of a controlled drug; and
(b) …
are hereby prohibited."
"Section 26(1) In relation to an offence in connection with a prohibition … on importation … having effect by virtue of section 3 of this Act, the following provision of the Customs and Excise Act 1952, that is to say section 45(1) (improper importation) … shall have effect subject to the modifications specified in … subsection (2) below …
(2) Where the controlled drug constituting the goods in respect in of which the offence was committed was a Class A drug … the said section 45(1) … shall have effect as if for the words from 'shall be liable' to 'or to both' there were substituted the following words …
'shall be liable—
(a) …
(b) on conviction on indictment, to a pecuniary penalty of such amount as the court may determine, or to imprisonment for a term not exceeding 14 years, or to both'."
Cocaine is a Class A drug (see Schedule 2 to this Act).
"Section 27(1) Subject to subsection (2) below, the court by or before which a person is convicted of an offence under this Act may order anything shown to the satisfaction of the court to relate to the offence, to be forfeited and either destroyed or dealt with in such other manner as the court may order.
(2) The court shall not order anything to be forefeited under this section, where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made."
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3. The Powers of Criminal Courts Act 1973
"Section 43(1) Where a person is convicted of an offence punishable on indictment with imprisonment for a term of two years or more and the court by or before which he is convicted is satisfied that any property which was in his possession or under his control at the time of his apprehension—
(a) has been used for the purpose of committing, or facilitating the commission of, any offence; or
(b) was intended by him to be used for that purpose;
the court may make an order under this section in respect of that property."
"…
(3) An order under this section shall operate to deprive the offender of his rights, if any, in the property to which it relates, and the property shall (if not already in their possession) be taken into the possession of the police."
In considering the true meaning of section 11(2) of the Courts Act 1971 it is important to remember that that Act, which came into force on 1st January 1972, abolished the courts of assize which had existed since the reign of Henry II and the courts of quarter sessions, which had existed since the fourteenth century. In their place, it created a single Crown Court to deal with all the cases which had previously been heard on assize or at quarter sessions. The policy of the Act was to alter the machinery by which the law was administered but not to interfere with the law itself.
Prior to 1972, at the end of...
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