Ward, R (on the application of) v Portsmouth Crown Court & Anor

J U D G M E N T

1. LORD JUSTICE SCOTT BAKER: This application is for permission to appeal against a decision of Mr Justice Walker on 14 February 2005.

2. The application is somewhat unusual because the applicant succeeded in obtaining from Mr Justice Walker the main order of substance that he sought, namely the judicial review and the quashing of an order of the Portsmouth Crown Court made on 26 November 2001. It is however the peripheral and/or consequential orders with which the applicant takes issue.

3. It is necessary to say a brief word about the background facts. On 21 November 2000 the applicant and a friend called Mr Boxall, who has appeared in court today and has spoken on behalf of Mr Ward, arrived at the Portsmouth ferry terminal from Spain with a large quantity of cigarettes as well as tobacco and cigars. Each contended that this material was for their personal use. Mr Ward had over 20,000 cigarettes. The Customs officers were not persuaded that this was for his own use and they seized the goods. Separate summonses were taken in the Magistrates' Court against the applicant and Mr Boxall seeking condemnation orders forfeiting the goods under the Customs and Excise (Management) Act 1979. On 13 September 2001 the Portsmouth justices heard both summonses and made the forfeiture orders sought in each case.

4. Mr Ward and Mr Boxall both appealed to the Crown Court. On 26 November 2001 the Crown Court dismissed both their appeals. The two cases had been running in parallel until that time, but they then diverged in that Mr Boxall applied for judicial review of the Crown Court decision in the light of the decision in Hoverspeed[2002] 3 WLR 1219. His argument was that the burden of proof was on the Customs and Excise to show that the goods were not for personal use and not, as had previously been supposed, on the individual to show that they were. In those judicial review proceedings the applicant Mr Ward was named as an interested party. On 29 January 2004 Mr Justice Henriques quashed the decision of the Portsmouth Crown Court and remitted the matter to the Portsmouth justices so that they might re-try the condemnation proceedings according to law. Mr Boxall was not satisfied. His argument was that Mr Justice Henriques was wrong to send the case back for re-trial. He applied for permission to appeal.

5. The matter came before Lord Justice Laws as a single Lord Justice. He described Mr Boxall's contentions as "manifestly bad" and "hopeless to the point of being abusive". That was on 1 April 2004.

6. On 12 May 2004 the applicant sought judicial review of the Crown Court decision in his case. He was granted permission by Mr Justice Richards on 29 September 2004. About a fortnight later, on 15 October 2004, the Portsmouth justices re-heard Mr Boxall's case. I do not have any papers with regard to the re-hearing, but Mr Boxall today tells me that the hearing was on a different basis from the original hearing and, in any event, he was not present because he could not afford the fare to go to the Portsmouth Magistrates' Court. He says that the proceedings have now been changed so that they are criminal in nature, and he is very concerned about them. He has lodged an appeal to the Portsmouth Crown Court. He says that he has had great difficulty in obtaining any legal representation.

7. Be all that as it may, what has happened to Mr Boxall's case is only of marginal, if any, relevance to Mr Ward's application. It is unfortunate that Mr Ward's case was not in a position to be dealt with at the same time as Mr Boxall's. When Mr Justice Henriques sent Mr Boxall's case back to the Magistrates' Court it was no doubt envisaged that both cases would be dealt with at the same time. In the event, they were not because Mr Ward's case was still the subject of unresolved judicial review proceedings. It may be - and I do not know - that the Customs and Excise thought the delay by Mr Ward in seeking judicial review would prove fatal to his judicial review claim, but it did not.

8. On 14 February his application for judicial review came before Mr Justice Walker who made an order in the following terms: that the decision of the defendant - that is the Portsmouth Crown Court - be quashed, that the matter be remitted to the Portsmouth Magistrates' Court for re-trial, that the naming of the Customs and Excise as second defendant be struck out and they be substituted as an interested party, that Mr Boxall be no longer an interested party, that permission to appeal - to Mr Ward - be refused and also permission to appeal to Mr Boxall be refused and that there be no order as to costs. It is unnecessary, for present purposes, to recite any other part of Mr Justice Henriques' order.

9. The applicant's first argument is that the case should not have been remitted for re-trial at all. The answer to that, in my judgment, is that there is no material distinction between the applicant's case and Mr Boxall's case, no reason why in the circumstances it would be unjust for Mr Ward's case to be sent back to be re-tried.

10. Secondly, it is said that Mr Boxall should not have been struck out as an interested party from Mr Ward's judicial review proceedings. The answer to that is that Mr Boxall has no legitimate interest in Mr Ward's judicial review proceedings. His claim has been dealt with separately on the basis of his cigarettes and his tobacco.

11. Thirdly, the Customs and Excise should not have been moved from being a defendant to being an interested party. The answer to this is that it was entirely appropriate because it was a decision of the Crown Court that was under challenge in the judicial review proceedings, and not any decision of the Customs and Excise.

12. Fourthly, it is said that Mr Justice Walker should have given the applicant his costs rather than making no order as to costs. It is said that Mr Boxall's team received a substantial sum by way of costs. The judge said this:

"While Mr Ward did incur costs and might in the ordinary course have a reasonable claim to recover those costs from Customs and Excise in bringing the proceedings, from 10 October onwards [that is 2004] he was starkly maintaining his opposition to there being any remittal of the matter to the Magistrates' Court, and that is a point which I have decided against him at the hearing today. It seems to me that it will be adequate justice to both parties if I make no order as to costs."

13. In my judgment, the order that the judge made was well within the ambit of his discretion. If the applicant's application for judicial review had been made promptly, it could have been heard and dealt with at the same time as Mr Boxall's application. In these circumstances it seems to me that there is no real prospect of an appeal succeeding on any of the grounds advanced by Mr Ward. In those circumstances it is inappropriate for me to grant permission to appeal.

14. There is a quite separate appeal by Mr Boxall who claims that he should not have been struck out as an interested party. I have already indicated that in my judgment that was an entirely appropriate order for the judge to have made. It is impossible, in my judgment, to see how he could have made any different order. In those circumstances, on the narrow ground on which Mr Boxall seeks permission to appeal, there is no realistic prospect of success either. In those circumstances he, too, is refused permission.

15. I would not like to leave this application without saying this. Mr Boxall has raised before the court matters in relation to the further hearing in his case before the magistrates which, if correct, are, on their face, somewhat disturbing and matters that require some further investigation. It would be to the greatest benefit if some pro bono advice could be provided to Mr Boxall, and obviously to Mr Ward as well because his case is now following the same track as Mr Boxall's. In those circumstances I am going to ask the court associate to make arrangements to refer Mr Boxall to the nearest pro bono unit to see if they can provide any assistance for him and Mr Ward. That apart, there is nothing else I can do for either Mr Ward or Mr Boxall this morning.

Order: Applications refused