Rajan Marwaha (a bankrupt) v Director of Border Revenue

Hearing dates: 10 th – 13 th February 2025; supplemental written submissions on 20 th and 24 th February 2025

APPROVED JUDGMENT

This judgment was handed down remotely at 10.30am on 10 th April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archive.

Jason Beer QC (Sitting as a Deputy Judge of the High Court):

A. Introduction

Papaver somniferum, the flowering plant of the family Papaveraceae, is a smooth glaucous annual, with heart-shaped leaves (the upper ones of which clasp the stem, with toothed, wavy margins) and wide-open flowers with large petals surrounding a green, urn-shaped capsule with a flat cap, and many dark purple or yellow stamens. Opium, morphine, codeine, and heroin are all derived from the milky latex found in its unripe seed capsule. But dried poppy heads also make attractive ornamental and decorative objects. When a person imports such products into this country, those who safeguard our borders are obviously interested to discover the purpose of the importation and the use to which the product may be put.

In this case, the Defendants seized, forfeited and then destroyed three consignments of poppy heads imported by the Claimant. This Court subsequently found that the first two consignments (and, it followed from the Court's reasoning, the third) were not poppy straw within the meaning of the Misuse of Drugs Act 1971 (“ the 1971 Act”) and so there was no relevant prohibition on their importation: they were not liable to forfeiture at the time of their seizure.

Utilising a mechanism provided for under the Customs and Excise Management Act 1979 (“ the 1979 Act”), the Claimant subsequently claimed, and was paid by the Defendants (following a determination by an Assessor, Tom Kark KC), a sum of money equal to the market value of the consignments at the time of their seizure – some £174,072. But the Claimant says that this does not represent the true value of his loss – he says that he suffered losses put variously in these proceedings at some £7m (Claim Form) or £14m (Schedule of Loss). He seeks to recover damages representing those losses in these proceedings.

The Defendants say that certain provisions of the 1979 Act preclude the Claimant from recovering such damages; that any such losses as he may have suffered were caused by the seizure of the consignments and not the destruction of the products (and this claim is only concerned with consequences of destruction, and not seizure); and that in any event the losses claimed are exaggerated.

The trial of these issues was principally taken up with submissions as to the law (and upon the findings that I should make by reference to the substantial body of written material that was placed before me), but I heard oral evidence from the Claimant himself over the course of a full day. The Claimant did not require the Defendants' two witnesses – Paul Walker (a Higher Officer and Team Leader for the Container Targeting Team within the Border Force) and Mark Smither (a designated Customs Officer within the Border Force) to give oral evidence, and so I have had regard to the evidence contained in their witness statements. Applications were made by the Claimant on the first day of the trial (i) to file and serve out of time (and in breach of an Unless Order) a witness statement from the Claimant's son that purported to give expert forensic accountancy evidence; and (ii) to call the authors of the forensic accountancy reports served by each party to give oral evidence. I refused both applications, and gave an ex tempore judgment at the time – my perfected reasoning is set out in the Coda at the end of this judgment.

B. The Facts

The Claimant and his business

The Claimant is an enterprising man. Having tried his hand at other business ventures, in 2013 he started a flower purchase and re-selling business as a sole-trader — trading as “UK Flower Power”. From August 2019 some or all of this business was transacted from Globalprisenter Ltd (“ Globalprisenter”), a company in which the Claimant is a shareholder. The Claimant became a member of the Society of American Florists. The business involved buying dried poppy heads (principally from growers in the Netherlands, but also to a lesser extent in the UK) in bulk, splitting the consignments he received, and then selling the poppy heads to 4 main customers, who themselves were wholesalers or retailers (principally in the USA – which he says accounted for 99% of his market). Dried poppy heads may be used for floral, decorative or ornamental purposes.

The Defendants

The First Defendant is the Director of Border Revenue and is an official designated by the Secretary of State under s6 of the Borders, Citizenship and Immigration Act 2009 (“ the 2009 Act”) to exercise general customs functions (as to which: see s1(1) of the 2009 Act) concurrently with the Commissioners of Her Majesty's Revenue and Customs (“ HMRC”). Of relevance to these proceedings, condemnation proceedings are brought under the authority of the Director of Border Revenue – this includes, among other functions, the making of payments pursuant to paragraph 17 of Schedule 3 to the 1979 Act.

The Second Defendant is the UK Border Agency (“ UKBA”) and was formed as an executive agency of the Home Office on 1 ^st April 2009 by a merger of the Border and Immigration Agency, UK Visas and the detection functions of HMRC.

In April 2012, the border control division of the UKBA was separated from the balance of UKBA to form a separate command unit (but not a separate legal entity) within the Home Office known as the UK Border Force (the “ Border Force”). Border Force officers act under Carltona principles on behalf of the Secretary of State for the Home Department to carry out “general customs functions” (see s3 of the 2009 Act), and they may also have “customs revenue functions” delegated to them by the Director of Border Revenue (see s9 of the 2009 Act).

I understand that, in practice, the statutory role of Director of Border Revenue is usually held by the Director General of Border Force, who in his capacity as Director General is accountable to the Secretary of State for the Home Department for general customs functions at the border.

For ease of reference (and because there is no need in the context of this claim to differentiate between the functions of the Director of Border Revenue and UKBA), I shall refer to them (and their officers) collectively as the Border Force.

The First Seizure

On 10 ^th or 13 ^th January 2015 (the Statements of Case join together in agreement that the date was 13 ^th January 2015, but the witness evidence is that it was 10 ^th January 2015), the Border Force seized a consignment of dried poppy heads – contained in 1004 boxes — at the Port of Felixstowe that had been imported (and therefore were owned) by the Claimant from the Netherlands. The consignment weighed approximately 6,000kgs.

It seems that the Border Force believed that the dried poppy heads were “poppy straw” – if that had been the case, the consignment would have consisted of a Class A controlled drug for the purposes of Part 1 of Schedule 2 to the 1971 Act and the importation of such a controlled drugs would have been unlawful by reason of s3 of the 1971 Act.

The seizure was made under powers given to the Border Force by s139(1) of the 1979 Act (“Any thing liable to forfeiture under the customs and excise Acts may be seized or detained by any officer or constable or any member of Her Majesty's armed forces or coastguard….”).

The Second Seizure

On 13 ^th or 15 ^th January 2015 (again, there is common ground in the Statements of Case that the date was 15 ^th January 2015, but the witness evidence suggests that it was 13 ^th January 2015), the Border Force seized a second consignment of dried poppy heads – this time contained in some 891 boxes, and weighing some 5,500kgs — at the Port of Felixstowe. This was similarly the Claimant's property and had been imported from the Netherlands by him.

Retention

Mr Smither (who at the relevant times was a Higher Officer in charge of the local lockup facilities at the Port of Felixstowe which were used for the storage of seized and detained goods) explained that the goods seized in the course of the First and Second Seizures were not taken to the Queen's Warehouse (where they would, in the ordinary course of events, have been destroyed within 30 days), but were instead stored in a “shed”. This building is not designed for the long-term storage of goods: it is close to the sea, is damp in the winter and suffers from infestations of pigeons and rodents. The seized poppy heads were removed from the trailers on which they had been transported, the cardboard boxes in which they were contained palletised and the pallets stored on the floor of the “shed”.

The Condemnation: Proceedings in the Magistrates' Court and Crown Court

On 6 ^th February 2015 the Claimant's then solicitor wrote to the Border Force, giving notice that the two consignments of poppy heads seized by the Border Force were not liable to forfeiture. That was pursuant to paragraph 3 of Schedule 3 to the 1979 Act (“Any person claiming that any thing seized as liable to forfeiture is not so liable shall, within one month of the date of the notice of seizure or, where no such notice has been served on him, within one month of the...