The Queen v Dover Magistrates' Court and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DYSON,THE LORD CHIEF JUSTICE |
| Judgment Date | 18 March 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0318-10 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 March 1998 |
| Docket Number | CO/4423/96 |
[1998] EWCA Civ J0318-10
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
The Lord Chief Justice of England
(Lord Bingham of Cornhill)
and
Mr Justice Dyson
CO/4423/96
MR K GLEDHILL (instructed by Messrs Harrison Bundey & Co, Leeds LS7 3DX) appeared on behalf of THE APPLICANT
MR ANDREW BIRD (instructed by Solicitors for Customs & Excise, London SE1 9PJ) appeared on behalf of THE RESPONDENT
Wednesday 18 March 1998
The applicant (Mr Norman Webb) moves to quash the decision of the Dover Magistrates' Court on 16 September 1996 to forfeit £39,000 in cash seized from the applicant on 26 October 1994 under the Criminal Justice (International Co-operation) Act 1990.
The central ground of the application is that HM Customs & Excise as claimants applied for forfeiture of the cash, and the Dover Magistrates' Court made its order for forfeiture, under the 1990 Act at a time when it had been repealed.
The factual history of the case is straightforward. On 26 October 1994 the applicant was stopped at the Eastern Docks in Dover by a customs officer. He was asked if he had any large sums of money on his person and explained that he had £27,000 or £28,000 for investment; these figures he corrected to £39,000 very shortly afterwards. He explained that the money was only partly his, but declined to say who else owned part of the money. He explained that he was planning to buy furniture or an antique car in Europe. The cash was seized by HM Customs under section 25 of the 1990 Act. On the following day, 27 October 1994, HM Customs made application to the Dover Justices for the interim detention of the cash under the same section of the same Act, and an order was made for detention for three months. On 19 January 1995, on a further application by HM Customs, a further detention order was made under the 1990 Act for a further period of three months.
On 13 April 1995 HM Customs made formal written application for forfeiture of the cash. The application bore the heading "Application for Forfeiture of Cash Seized Under Section 25 Criminal Justice (International Co-operation) Act 1990 (Criminal Justice (International Co-operation) Act 1990 S.26(1); S.27)."
The application was made by a customs officer and was in terms:
"I apply for an order under section 26(1) of the Criminal Justice (International Co-operation) Act 1990 for the forfeiture of cash, together with any interest on it under section 27 of that Act, on the grounds that the cash amounting to £39,020 seized on (date) 26 October 1994 (time) 23.55 hours from Norman Lionel Webb (i) is directly or indirectly the proceeds of drug trafficking, and/or is intended for use in drug trafficking."
On 25 May 1996 the hearing of the application for forfeiture began, pursuant to this application, before the Dover Magistrates' Court. The hearing was not concluded on that day, and continued on 16 September 1996. On that date an order was made for the forfeiture to HM Customs of the cash seized and the interest accrued on it. The court register records these orders as made under section 26(1) and section 27 of the 1990 Act. The justices gave no reasons for their decision when making their order. Following the hearing, the applicant's solicitor wrote to the clerk to the justices asking for the magistrates' written reasons for their decision, but these the legal adviser to the magistrates declined to give, pointing out that the magistrates were not obliged to give reasons for a decision of this nature either in open court or subsequently in writing.
The legislation relevant to this application for judicial review is by no means straightforward. Section 25(1) and (2) of the 1990 Act provided:
"(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 it 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 or in Scotland the sheriff; and no such order shall be made unless the justice or, as the case may be, the sheriff 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."
Subsection (3) provided that an order under subsection (2) should not continue in force for a period longer than three months; but further applications could be made provided that no order was made for a period longer than three months and the total period of detention did not exceed two years from the date of the first order. Provision was made in subsection (5) for the release of the cash in certain circumstances, and subsection (6) provided:
"(6) If at a time when any cash is being detained by virtue of the foregoing provisions of this section—
(a) an application for its forfeiture is made under section 26 below; or
(b) proceedings are instituted (whether in the United Kingdom or elsewhere) against any person for an offence with which the cash is connected,
the cash shall not be released until any proceedings pursuant to the application or, as the case may be, the proceedings for that offence have been concluded."
Section 26 (1) of the Act provided:
"(1) A magistrates' court or in Scotland the sheriff 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."
The section went on to provide that the standard of proof in proceedings on an application under the section should be that applicable to civil proceedings. Section 27 provided for the accrual of interest on cash seized, and its addition to the cash on its forfeiture or release.
The 1990 Act made no provision for an appeal to the Crown Court by way of re-hearing against a forfeiture order made under section 26 by a magistrates' court. This omission was made good by section 25(1) of the Criminal Justice Act 1993, which provided for the insertion of a new section 26A after section 26 of the 1990 Act. Section 25(3) of the 1993 Act also provided for the addition of a further subsection to section 26 of the 1990 Act, providing that an application under the section to the sheriff should be civil proceedings. By section 78(3) of this Act these provisions were to come into force on such day as might be appointed by the Secretary of State by an order made by statutory instrument. No such order was ever made. Section 25 never, therefore, came into force.
On 3 November 1994 the Drug Trafficking Act 1994 was passed. By section 69(2) of that Act it was to come into force at the end of three months after it was passed. It accordingly came into force on 3 February 1995. That date fell after the second interim detention order made by the Dover justices in this case, but before the application for forfeiture was made.
Section 42 of the 1994 Act broadly re-enacts section 25 of the 1990 Act, although it also includes, in subsection (8), the effect of section 27 of the 1990 Act. Section 43 broadly reproduces section 26 of the 1990 Act, although it also includes, in subsection (4), the provision in section 25(3) of the Criminal Justice Act 1993 that the proceedings on a forfeiture application to the sheriff shall be civil proceedings. Section 44 of the 1994 Act makes provision for appeal to the Crown Court by way of re-hearing against an order for forfeiture made under section 43 by a magistrates' court. This section had no counterpart in the 1990 Act as originally enacted, but reproduces the effect of the unimplemented section inserted by section 25 of the 1993 Act. Schedule 3 to the 1994 Act lists the statutes and provisions repealed by it, which include sections 25 to 29 of the 1990 Act and section 25 of the 1993 Act. Section 66(1) provides that the transitional provisions and savings set out in Schedule 2 to the Act shall have effect.
The transitional provisions and savings set out in Schedule 2, so far as relevant to this application, provide:
"1. Anything done or having effect as if done (including the making of subordinate legislation) under or for the purposes of any provision repealed or revoked by this Act has effect as if done under or for the purposes of any corresponding provision of this Act.
2. Any reference (express or implied) in this Act or any other enactment, or in any instrument or document, to a provision of this Act is (so far as the context permits) to be read as being or (according to the context) including in relation to times, circumstances and purposes before the commencement of this Act a reference to the corresponding provision repealed or revoked by this Act.
3. Any reference (express or implied) in any enactment, or any instrument or document, to a provision repealed or revoked by this Act is (so far as the context permits) to be read as being or (according to the context) including in...
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