The Queen (on the application of Blackside Ltd) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Edwards-Stuart |
| Judgment Date | 23 July 2013 |
| Neutral Citation | [2013] EWHC 2087 (Admin) |
| Docket Number | Case No: CO/10398/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 July 2013 |
[2013] EWHC 2087 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
London EC4A 1NL
Mr. Justice Edwards-Stuart
Case No: CO/10398/2012
Marc Glover Esq (instructed by Rainer Hughes) for the Claimant
William Hays Esq (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 10 th July 2013
Approved Judgment
Introduction
In this application for judicial review the Claimant challenges the seizure by the UKBA of a consignment of about 25,000 litres of mixed beers on 20 September 2012 at Eastern Docks, Dover.
The Claimant says that the Defendant has not given a lawful reason for the seizure, either at the time or subsequently. Accordingly the Claimant seeks a declaration that the seizure was unlawful. However, on closer analysis the Claimant's original challenge had two components, which are identified at paragraph 16 of the Claimant's Grounds in the following terms:
i) No objective fact sufficient to justify seizure has been averred;
ii) Same was not given at the time of seizure.
The basis of these grounds of challenge is an email of 26 September 2012 from the UKBA to the Claimant, in which it was stated that the Claimants' goods were seized:
"… as it is believed that the unique Administrative Reference Code has been used on more than one occasion. Concerns into the paperwork have also been raised."
The background
The Claimant carries on business in Cyprus and is the owner of bonded goods, that is to say goods on which duty has not been paid, which are stored in a bonded warehouse outside Calais run by a company called Consortium. The Claimant also has an account with another bonded warehouse in the UK, in Barking, called Seabrook Warehousing. Goods on which duty has not been paid can be moved between bonded warehouses under prescribed duty suspension arrangements.
On 20 September 2012 a lorry carrying a consignment of beer from Consortium's bonded warehouse entered the UK, purportedly en route for Seabrook. It was carrying paperwork which, on its face, was valid and corresponded with the goods carried. The UKBA says that there are legitimate grounds for concern about this paperwork.
When the driver was stopped at Dover, he was told that the goods were being seized. He was given a document called a "Seizure Information Notice". This gave the registration number of the vehicle stopped, YIL 3012, and its trailer, No. 1257, and described the load as 24,900.48 litres. It then stated:
"Please note that the above things are liable to forfeiture and have been seized under Section 139 of the Customs and Excise Management Act 1979 from …"
It then gave the details of the driver, Mr. Leon Ray.
This notice was also accompanied by a warning letter, addressed to Mr. Ray, which included the following:
"The goods listed on the attached schedule (as detailed on form BOR 156) have been seized under section 139 of the Customs and Excise Management Act 1979. This is without prejudice to any further action that may be taken against you in connection with this matter."
When the Claimant got to hear of the seizure, its director, Mr. Rashid Haq, sent an email to the UKBA on 24 September 2012 in which he said:
"I have received notification of seizure of goods with the above reference. I note that there is no reason provided for the seizure. I believe you are duty bound to provide a legitimate reason and request one be presented immediately.
Further I would like to remind you that pursuant to a Judgment obtained in the High Court, The Queen on the Application of Eastenders Cash and Carry PLC v The Commissioners of HMRC, in which the court found that there could be no detention of goods and this power was taken away from them, HMRC must be sure that the goods that they have seized are liable to forfeiture."
Following a brief acknowledgement, Mr. Haq then sent a further email, on 26 September 2012, in these terms:
"I have received notification of seizure of goods with the above reference. I note that there is no reason provided for the seizure. I believe you are duty bound to provide a legitimate reason and request one be presented immediately.
The goods were in transit from my company account at Consortium's bonded warehouse, in France to the account of Norvic Limited at Seabrook's bonded warehouse in UK.
The only reason I have been given (by the transporter) for the seizure is that the load is suspected to be identical to a previous load, transported two days prior. It was in fact an identical load, but a separate order with separate documentation. I believe HMRC have not checked this.
I have attached my Invoice (…) to my client and my Purchase Order (…) to my supplier. Also attached is the invoice from my supplier to me (Invoice 14). I have yet to transfer the funds to my supplier for these goods and will be doing so shortly.
If you want to check the documentation (ARC numbers) of the two loads that you believe are one and the same, you will see that these are two separate orders. Once this has been established, I expect the goods to be released and allowed to be delivered to the intended destination."
On the same day, 26 September 2012, the Defendant replied in the following terms:
"I can inform you that the vehicle, trailer and goods were seized as it is believed that the unique ARC has been used on more than one occasion. Concerns into the paperwork have also been raised.
Once a tally of the goods has been completed you will receive an official notice of seizure by post stating reason for seizure and how you can request restoration and/or appeal against the seizure.
In the meantime, if you wish to request restoration and/or appeal against the seizure, please address this to:
…
Further to your emails, I would like to gain some clarification on the information you have provided, therefore can you please provide a response to the following:
1) Can you please inform me which consignment the invoices/purchase orders you have sent in your email of 25/09/2012 refer to? (The previously imported consignment or the second consignment)
You state that you have sent two identical consignments to the UK on or around the date of the seizure relating to 1717/12 therefore please provide the following:
1) ARC number for each consignment.
…
[there followed 16 further requests]
Your co-operation is appreciated."
Two days later, on 28 September 2012, Mr. Haq replied in these terms:
"The invoices/purchase orders I have supplied you obviously refer to the consignment you have seized. Why would I supply you with those of another consignment?
The answers to the rest of your email are mostly irrelevant, as they are not required nor requested by my company, ie. the CMR, ARC, etc. You are well aware of these and which other documents I am required to keep and provide, but you insist on wasting people's time, including that of you and your colleagues.
You will be receiving correspondence from my solicitor in due course: I have forwarded your email to him."
So far as I am aware, Mr. Haq has never supplied the ARC for the consignment on 18 September 2012.
Three weeks later the UKBA, now renamed Border Force, sent a letter dated 19 October 2012 to the Claimant. It said this:
"This letter follows the issue of the BOR 156 Seizure Information Notice. It sets out in more detail why the items were seized and confirms the actual amount of goods seized. This is not a Notice of Seizure and it does not affect the date by which you may appeal the legality of the seizure.
By virtue of paragraph 1(2) of Schedule 3 of the Customs and Excise Management Act 1979 (CEMA), the seizure was properly made on 20/09/2012 and you have one month from that date to give notice if you wish to claim the goods are not liable to forfeiture (paragraph 3 of Schedule 3 of CEMA). Failure to give proper Notice of Claim within the relevant time will result in the goods being deemed condemned (paragraph 5 Schedule 3 of CEMA).
…
Border Force has identified that the vehicle YIL 3012 also travelled to the UK at 20:35 hours on 18/09/2012 manifested as alcoholic beverages.
There was a discrepancy between the date of the paperwork (18/09/12) which appeared to have been produced before the ARC had been submitted (19/09/12)."
(Original emphasis)
I observe in passing that is hard to imagine a more cynical letter. It told the Claimant on 19 October 2012, the very day on which the time for making a claim expired, that it had one month from 20 September 2012 in which to make such a claim.
However, the Claimant's solicitors had in fact already written to Border Force to request the defendant to start condemnation proceedings and to demand the restoration of the goods because they had been unlawfully seized.
The relevant statutory framework
Section 139 of the Customs Exercise Management Act 1979 ("CEMA") provides:
"(1) 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.
…
(5) Schedule 3 to this Act shall have effect for the purpose of forfeitures, and of proceedings for the condemnation of any thing as being forfeited, under the Customs and excise Acts."
Schedule 3 contains the following provisions:
"1. …
(1) The Commissioners shall, except as provided in sub-paragraph (2) below, give notice of their seizure of any thing as liable...
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