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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> First Stop Wholesale Ltd. R (on the application of) v Revenue & Customs [2012] EWHC 2975 (Admin) (05 October 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/2975.html Cite as: [2012] EWHC 2975 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF FIRST STOP WHOLESALE LIMITED | Appellant | |
v | ||
HER MAJESTY'S REVENUE & CUSTOMS | Respondent |
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr M Glover (instructed by Rainer Hughes) appeared on behalf of the Appellant
Mr J Puzey (instructed by HMRC) appeared on behalf of the Respondent
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Crown Copyright ©
MR JUSTICE SINGH:
Introduction
Background
"Pursuant to Section 139(6) of the Customs and Excise Management Act 1979 and paragraph 1 of schedule 3 thereto, the Commissioners of Customs and Excise hereby give you notice that by virtue of the powers contained in the Customs and Excise Acts and enactments amending those Acts, certain goods detained on the 24th June 2011 namely:
Skol Super - 33 cases (24x500 ml)
Special Brew - 17 cases (24x500 ml)
Have been seized as liable to forfeiture under Sections 49 and/or 100(2) c and (e) of the Customs and Excise Management Act 1979 and/or Section 49(3) of the Alcoholic Liquor Duties Act 1979.
In that no evidence of UK duty payment has been provided."
Material legislation
"(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..."
"(1) Where—
(a) except as provided by or under the Customs and Excise Acts 1979, any imported goods, being goods chargeable on their importation with customs or excise duty, are, without payment of that duty—
(i) unshipped in any port,
(ii) unloaded from any aircraft in the United Kingdom,
(iii) unloaded from any vehicle in, or otherwise brought across the boundary into, Northern Ireland, or
(iv) removed from their place of importation or from any approved wharf, examination station or transit shed; or
...
(f) ... those goods shall, subject to subsection (2) below, be liable to forfeiture."
"(1) The Commissioners shall, except as provided in sub-paragraph (2) below, give notice of the seizure of any thing as liable to forfeiture and of the grounds therefor to any person who to their knowledge was at the time of the seizure the owner or one of the owners thereof."
Subparagraph (2) makes it clear that notice need not be given under paragraph 1 if the seizure was made, for example, in the presence of the person whose offence or suspected offence occasioned the seizure.
"2) Where in any proceedings relating to customs or excise any question arises as to the place from which any goods have been brought or as to whether or not—
(a) any duty has been paid or secured in respect of any goods ...
...
... the burden of proof shall lie upon the other party to the proceedings."
The issue
The parties' submissions
"In my judgment, this goes well beyond the legitimate approach to statutory construction. I find it impossible to accept that when Parliament in section 139(1) used the same formula for determining when the powers of detention and seizure could be exercised, it intended this formula to have a different meaning depending upon which power was being exercised. The inevitable inference from the way the section is drafted is that the conditions precedent to the lawful exercise of the power of detention must be precisely the same as those which will justify the lawful exercise of the power of seizure."
In the present case, of course, the court is concerned with the power of seizure and not, as it was in my earlier judgment, with the power of detention.
"In the present context it seems to me that what the Court of Appeal has decided in Eastenders is that a condition precedent for the power to detain goods is that they are in fact liable to forfeiture, the same condition as for the power of seizure. But that is not necessarily a sufficient condition for the lawful exercise of the power to detain goods. Just as in the context of false imprisonment, either in the context of immigration detention which was considered in Lumba or in the context of the power of arrest which was considered in Christie v Leachinsky, the existence of a power does not necessarily mean that it must be exercised. It follows from well known principles of administrative law - Wednesbury principles as Lord Dyson referred to them in Lumba - that a discretionary power must be exercised lawfully. If it turns out that it was exercised unlawfully, as it seems to me, it would not matter, by way of analogy with false imprisonment cases, that the defendants could have exercised the power lawfully on some other basis."
"The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained."
Attention was also drawn to proposition 4:
"The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed."
"On the 28th July I posted a Notice of Seizure (HEWITT45) for 33 cases of Skol Super and 17 cases of Special Brew detained on the 24th June [those, of course, are the subject of the notice which I have already cited] as the supply chains for these had been traced back to a missing trader and no payment of UK exercise duty could be established. The supply chains for each were as follows:
Skol Super - Time 004 15236 - Tidechain 92394 - Golden Harvest Tide219 - The Chalfont Phoenix 2001089.
Special Brew Time 004 15236 - Tidechain 92394 - Golden Harvest Tide219 - Chalfont Phoenix 2001090."
My assessment
"The second general issue relates to the function of the courts and of this House in its judicial capacity when dealing with applications for judicial review in cases of this sort; is their function limited to deciding whether there was evidence on which the immigration officer or other appropriate official in the Home Office could reasonably come to his decision (provided he acted fairly and not in breach of the rules of natural justice), or does it extend to deciding whether the decision was justified and in accordance with the evidence? On this question I agree with my noble and learned friends, Lord Bridge and Lord Scarman, that an immigration officer is only entitled to order the detention and removal of a person who has entered the country by virtue of an ex facie valid permission if the person is an illegal entrant. That is a 'precedent fact' which has to be established. It is not enough that the immigration officer reasonably believes him to be an illegal entrant if the evidence does not justify his belief. Accordingly, the duty of the court must go beyond enquiring only whether he had reasonable grounds for his belief. In both the present cases the immigration officers stated, in what appears to be a standard formula, that there were 'reasonable grounds to conclude' etc. That formula indicates, in my opinion, that they applied the wrong test, but as it happens, the facts in the present cases are so clear that I do not think the point is of practical importance."
Discretion
Conclusion
"As to the article 6 point, I accept that Stankiewicz supports the submission that there will be situations where differential rules on costs may engage the requirements of article 6, although I confess that I have difficulty in understanding from the decision precisely when that will be the case. I can understand an argument that the denial of costs might in some cases inhibit access to the courts in a similar way to the denial of legal aid or the imposition of court fees..."
"In any event the Claimants in this case were not in fact denied access. So if article 6 is engaged, it must be for some other reason. Paragraph 60 of Stankiewicz goes on to recognise that there may be such situations
'There may also be situations in which the issues linked to the determination of litigation costs can be of relevance to the assessment whether the proceedings in a civil case seen as whole have complied with the requirements of Article 6(1) of the Convention'."
"The court noted that the prosecution in that case had a privileged position with respect to costs. That of itself would not, however, necessarily involve a breach of article 6 because the privilege might be justified (para 69):
'It is true that such a privilege may be justified for the protection of the legal order. However, it should not be applied to put a party to civil proceedings to unfair disadvantage vis a vis the prosecuting authorities'."
"It is difficult to avoid the conclusion that the ECrHR found article 6 to be engaged because the costs orders operated in what the court considered was a manifestly unfair and disproportionate way. How that creates an 'unfair disadvantage' in relation to the trial process is more difficult to discern but we must assume that there are exceptional cases, of which Stankiewicz itself is one, where it does so and involves a breach of article 6."
"HMRC pays nothing if it loses and recovers costs if it wins."