R v The Dover Magistrates' Court and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAUGHTON,MR JUSTICE ROUGIER |
| Judgment Date | 29 November 1995 |
| Judgment citation (vLex) | [1995] EWHC J1129-11 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO 3333/94 |
| Date | 29 November 1995 |
[1995] EWHC J1129-11
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Before: Lord Justice Staughton -and- Mr Justice Rougier
CO 3333/94
MR M CHAWLA (instructed by DEJ Nissen Esq, Solicitor for ustoms and Excise, London SE1 9PJ) appeared on behalf of the Applicants.
THE RESPONDENT did not appear and was unrepresented.
MR P CHAMBERLAYNE (instructed by Bradley's Solicitors, Dover, Kent CT16 1PU) appeared on behalf of the interested party.
Section 25 of the Criminal Justice (International Co-operation) Act 1990 provides:
"(1) A customs officer or constable may seize and, in accordance with this section, detain any cash which is being imported into or exported from the United Kingdom if its amount is not less than the prescribed sum and he has reasonable grounds for suspecting that it directly or indirectly represents any person's proceeds of, or is intended by any person for use in, drug trafficking.
(2) Cash seized by virtue of this section shall not be detained for more than forty-eight hours unless its continued detention is authorised by an order made by a justice of the peace …… and no such order shall be made unless the justice ….. is satisfied -
(a) that there are reasonable grounds for the suspicion mentioned in subsection (1)
above; and
(b) that continued detention of the cash is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the United Kingdom or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.
(3) Any order under subsection (2) above shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the order, as may be specified in the order; and a magistrates' court ….., if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by order authorise the further detention of the cash but so that-
(a) no period of detention specified in such an order shall exceed three months beginning with the date of the order; and
(b) the total period of detention shall not exceed two years from the date of the order under subsection (2) above."
Section 26 provides:
"(1) A magistrates' court ….. may order the forfeiture of any cash which has been seized under section 25 above if satisfied, on an application made while the cash is detained under that section, that the cash directly or indirectly represents any person's proceeds of, or is intended by any person for use in, drug trafficking."
There the statute is providing, it has been said, a draconian remedy for the detention of large sums of money. The prescribed amount is £10,000. One is told that in the United States possession of cash to pay any bill is regarded as evidence of dishonesty, because an honest person would pay with plastic. We have not quite reached that stage yet, but apparently having cash in a sum larger than £10,000, while entering or leaving the country, is a matter for investigation.
The facts are as follows. On 7th January 1994 Mr Dale Henderson-Thynne had in his possession £60,000 in cash. That was seized by the Customs and Excise at Dover. We are told that upon subsequent investigation he said that he had the cash because he was a dealer in clothing and was going abroad to buy clothing.
On the following day, 8th January 1994, the Magistrates made an Order under section 25(2) for the continued detention of the money. On that day Mr Henderson-Thynne was neither present nor represented. Three months went by almost, and on 7th April 1994 a further order was made for the continued detention of the money. On that occasion Mr Henderson-Thynne was represented but was not present, because there had been some misunderstanding in the fixing of the hearing.
A further hearing took place on 28th April 1994, when Mr Henderson-Thynne was both present and represented. That was a contested hearing. The Customs and Excise succeeded in obtaining an Order for the further detention of the money for a period of six weeks. Within that period notice was given of an application for forfeiture under section 26. However, after that the Customs and Excise gave notice that they did not intend to proceed with the forfeiture application.
On 15th September an application was made to the Magistrates for an Order that the Customs should pay the costs of Mr Henderson-Thynne. The Magistrates did make such an Order, and said that if the costs had not been agreed by 29th September, they would assess the costs themselves.
On 29th September the Magistrates made an Order that the costs should be paid in accordance with the bill submitted by Mr Henderson-Thynne's solicitors. That bill included the following items:
"Advocacy —three hours 225.00
Travel —40 mins 50.00
Waiting —2 hours 150.00
Preparation —6 hrs 45 minutes 506.25.
Attendances —2 hrs 35 minutes 153.75. Letters/telephone calls —68 510.00.
Care & Control £817.50"
Total: £2,452.50 plus Value Added Tax: £429.19; total: £2,881.69. Those were the solicitors' charges, and then the bill says:
" Add Client's expenses —4 journeys to Dover + plus accommodation @ £250 each £1000.00."
—a total of £3,881.69. That was the amount which the Magistrates ordered to be paid by the Customs and Excise.
Amongst other puzzling features of the bill is the figure of four journeys to Dover on the part of Mr Henderson-Thynne. We only know of three occasions when he may have been there before the Magistrates, that is to say 28th April 1994 and the two costs hearings —possibly. It may be that he went to Dover to consult his solicitors and that that journey and his accommodation cost £250. That may be somewhat surprising in the light of the fact that there were 68 letters and telephone calls.
However that may be, the point taken in these proceedings is that those costs relate both to the earlier hearings, or some of them, when the Customs were applying for detention of the money, and for the later hearing, when they were applying for forfeiture. It is said on behalf of the Customs and Excise that the Magistrates only had power to deal with the costs of the forfeiture proceedings and not of the detention proceedings. For that reason the Customs and Excise applied for judicial review of the decision of the Magistrates. The question then is whether it was lawful for the Magistrates to award the cost of the detention proceedings as well as of the forfeiture proceedings.
We were referred to section 52(3) of the Courts Act 1971. That provides:
"Where -
(a) …..
(b) a complaint is made to a justice of the peace acting for any area but the complaint is not proceeded with, a magistrates' court for that area may make such order as to costs to be paid by the complainant to the defendant as it thinks just and reasonable."
In this case there was a complaint made to the Justices, in that the complainant asked for forfeiture. It was not proceeded with, so the condition for the application of the section is fulfilled. One can contrast that with section 64 of the Magistrates' Courts Act 1980 which provides in subsection (1):
"On the hearing of a complaint, a magistrates' court shall have power in its discretion to make such order as to costs-
(a) on making the order for which the complaint is made, to be paid by the defendant to the complainant;
(b) on...
To continue reading
Request your trial