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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Blackside Ltd, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 2087 (Admin) (23 July 2013) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2013/2087.html Cite as: [2013] EWHC 2087 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Rolls Building, 7 Rolls Buildings London EC4A 1NL |
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B e f o r e :
____________________
The Queen (on the application of Blackside Ltd) |
Claimant |
|
- and - |
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The Secretary of State for the Home Department |
Defendant |
____________________
William Hays Esq (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 10th July 2013
____________________
Crown Copyright ©
Mr. Justice Edwards-Stuart:
Introduction
i) No objective fact sufficient to justify seizure has been averred;ii) Same was not given at the time of seizure.
"... 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
"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."
"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."
"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."
"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."
"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."
"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)
The relevant statutory framework
"(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."
"1. …
(1) The Commissioners shall, except as provided in sub-paragraph (2) below, give notice of their seizure of any thing as liable to forfeiture and of the grounds therefor to any person who to their knowledge was at the time the seizure the owner of one of the owners thereof
(2) Notice need not be given under this paragraph if the seizure was made in the presence of-
(a) the person whose offence or suspected offence occasioned the seizure; or
(b) the owner or any of the owners of the things seized or any servant or agent of his; or
…
2. Notice under paragraph 1 above shall be given in writing and shall be deemed to have been duly served on the person concerned -
if delivered to him personally;
(a) if addressed to him and left or forwarded by post to him at his usual or last known place of abode or business
…
3. Any person claiming that anything 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 date of seizure, give notice of its claim in writing to the Commissioners at any office of customs and excise.
…
5. If on the expiration of the relevant period under paragraph 3 above for the giving of notice of claim in respect of anything no such notice has been given to the Commissioners, or if, in the case of any such notice given, any requirement of paragraph 4 above is not complied with, the thing in question shall be deemed to have been duly condemned as forfeited.
6. When notice of claim in respect of anything is duly given in accordance with paragraphs 3 and 4 above, the Commissioners shall take proceedings for the condemnation of that thing by the court, and if the court finds that the thing was at the time of seizure liable to forfeiture the court shall condemn it as forfeited.
Paragraph 8 of the Schedule provides that proceedings for condemnation shall be civil proceedings and may be instituted either in the High Court or in a magistrates court."
"(1) Where, in any proceedings for the condemnation of any thing seized as liable to forfeiture under the customs and excise Acts, judgment is given for the Claimant, the court may, if it sees fit, certify that there were reasonable grounds for the seizure.
(2) Where any proceedings, whether civil or criminal, are brought against the Commissioners ... and judgment is given for the plaintiff or prosecutor, then if either-
(a) …
(b) the court is satisfied that the were reasonable grounds for seizing detaining that thing under the customs and excise Acts,
the plaintiff or prosecutor shall not be entitled to recover any damages or costs and the defendant shall not be liable to any punishment."
"(1) If any person is knowingly concerned in the taking of any steps with a view to the fraudulent evasion, whether by himself or another, of any duty of excise on any goods, he shall be liable -
…
(2) Where any person is guilty of an offence under this section, the goods in respect of which the offence was committed shall be liable to forfeiture."
"52.-
(1) this Part applies to the movement of excise goods dispatched from another Member State to the United Kingdom under duty suspension arrangements.
53.-
(1) A movement to which this Part applies must take place under cover of an electronic administrative document or a fallback accompanying document.
(2) A printed version of the electronic administrative document, the fallback accompanying document or any other commercial document on which the unique administrative reference code is clearly stated, must accompany the goods.
54.-
(1) ... The consignee of those goods must, using the computerised system, send to the Commissioners without delay, and in any event no later than five business days after their receipt by the consignee or, as the case may be, their arrival at a place of direct delivery ... a report of receipt that complies with the EU requirements.
(2) ...
(3) The Commissioners must carry out an electronic verification of the data in the report of receipt.
(4) Where the data in the report of receipt are invalid, the Commissioners must, using the computerised system, inform the consignee of that fact without delay.
(5) Where the data in the report of receipt are valid, the Commissioners must, using the computerised system -
(a) register the report;
(b) notify the consignee that it has been registered; and
(c) send it to the competent authorities of the Member State from where the excise goods were dispatched."
The authorities
"29. Thirdly, even in the case of seizure, notice is not required where goods are seized in the presence of the owner or the owner's agent: see paragraph 1(2) of Schedule 3. In the light of this, it cannot be argued that the articulation of the reasons for detention is a condition precedent to the legality of the detention.
30. There is a more fundamental difficulty. Despite the general public law arguments which persuaded the judge and to which I have referred, requiring such reasons at the time the goods are detained cuts directly across and is inconsistent with the reasoning in Eastenders No 1 that goods could be liable to forfeiture on grounds which were not advanced or even known at the point of seizure or detention. I reject the submission that the statements by Elias and Davis LJJ at [93] and [108] were obiter. This court is bound by them. It will be for the Supreme Court to assess how the general public law principles which are referred to by the judge at [16] and by me at [24] are to be accommodated within the structure of the 1979 Act when Eastenders No 1 comes before it."
"In my view, the reason why no notice of seizure is required when it takes place in the circumstances specified in paragraph 1(2), is that it would have been made clear to the persons referred to in that paragraph, being present at the time, that the goods were being seized as liable to forfeiture and why that was so. I cannot think that they should be in any worse position than the owner referred to in paragraph 1(1) who has to be so notified because he was not present at the time."
"I accept that there is a difference between the words 'seized' and 'detained' in section 139. In my view, the word 'detained' connotes that the person already has possession of the thing and is keeping it. I note that section 139 uses the words 'seized or detained' rather than 'seized and detained'. It is not, therefore, dealing with a detention following a seizure under section 139. It is, in my judgment, dealing with a situation where the thing has already come into the appellant's position by some means other than a seizure under section 139."
"In those circumstances, when seizure is made in the presence of any of the persons specified in paragraph 1(2) of Schedule 3 it is, in my judgment, necessary, in order to constitute a valid seizure under section 139, that it is made clear unequivocally to such a person that the goods are being seized as being liable to forfeiture and why that is so. If that is done, any failure by such a person to give notice of claim within the one month period, such as occurred in this case, can only be that person's fault."
"Secondly, for the reasons I have given, a notice under paragraph 1 of Schedule 3 is not a requirement for the exercise of the power to seize. Paragraph 1(2) of Schedule 3, to which I have referred, identifies circumstances in which there is no need to serve any notice at all. Even where a notice is required, there is no requirement that the notice be given at the time of the seizure. The lawfulness of the decision is a matter that will be decided in condemnation proceedings. The consequence of not serving a notice or serving one at a later stage relates to the time from which the goods' owner will have to serve a notice under paragraph 3 of Schedule 3 claiming that the goods are not liable to forfeiture."
(My emphasis)
Was the driver the agent of the Claimant?
The allegation that the driver committed an offence
The facts known to Border Force at the time of seizure
i) The tractor unit left the UK driven by Mr. Ray on "the early train" on 20 September 2012.
ii) The trailer was picked up already loaded.
iii) When asked if he was delivering the load to Seabrooks, Mr. Ray said: "yes, probably".
iv) The contents of the Consignment Note and the Delivery Note which accompanied the goods, the latter being dated 18 September 2012.
v) That the unique Administrative Reference Code ("ARC") was automatically generated by the EU customs computer at 17:15 hours on 19 September 2012. It was a valid code.
vi) The fact that multiple use of a single ARC is a well-known means of avoiding payment of duty.
vii) The same tractor unit had previously entered the UK on 18 September 2012 at 20:35 hours with a load of alcoholic beverages.
viii) The driver, Mr. Ray, told the interviewing officer at Dover that the earlier load brought in on 18 September 2012 had not been delivered to a bonded warehouse, but to a business called "Titan Truckstop".
Was the decision to seize irrational?
Was the decision to seize proportionate?
Did the Defendant serve a notice of seizure?
Conclusion
Post script
Note 1 See, for example, Lord Nicholls and Baroness Hale in Glaydon v Godin [2004] 2 AC 557, at [9] and [132], respectively. [Back] Note 2 It is suggested on behalf of the Claimant that it was conceded in First Stop (at paragraph 32) that a lack of reasonable grounds for detaining goods would justify a public law challenge. I am not sure that that is correct but, if it is, I do not agree that the concession was correctly made. [Back]