Gorgievski v Customs and Excise & Anor

MR JUSTICE MACKAY: This is an application for judicial review to quash the decision of the district judge at Horseferry Road Magistrates' Court made on 5th March 2003 ordering forfeiture of certain money in the claimant's possession under section 43 of the Drug Trafficking Act 1994 (the DTA). The claimant has the permission of Moses J.

On 30th August 2001 this claimant was stopped on foot at Waterloo station and cash in various European currencies, principally Dutch gilders, was found in his footwear and in his luggage totalling some £87,000. That money was seized by the Customs and various orders were made at the Magistrates' Court from time to time for its continued detention under section 42 of the DTA. Section 42 entitles a Customs officer to seize and detain cash where he has reasonable grounds for suspecting that it directly or indirectly represents a person's proceeds of drug trafficking, or is intended for use in drug trafficking.

It sets out a scheme, the exact words of which need not, in my judgment, be set out here, authorising its continued detention for no longer than 48 hours and thereafter for periods not exceeding 3 months under the sanction of an order of a Magistrates' Court. By this means four orders were made by the court under section 42 authorising the detention of this cash up to a final date of 3rd May 2002. No challenge is made to the detention of the money up to this date.

It seems that on 9th April the claimant's solicitors sent the Customs and Excise documents relating to the sale of a property in Macedonia, evidently proffering these as an explanation, for the first time, as to how their client had come to be holding such a large amount of cash on the day he was stopped.

At about the same time, indeed on 10th April, the Customs and Excise sent an application to the court for forfeiture of the money seized. It was in Customs Form E, which I will have to deal with below, and was addressed to the Clerk to the Justices asking him to set a date for a forfeiture hearing in this matter and stating, "This form stops the clock with regard to the detention period."

These last words reflected section 42(7) which reads:

The Customs letter of 10th April concluded with a note that, "To date the matter has not been contested."

So this notice, if valid, had the effect of authorising the continued detention of the cash beyond the date of 3rd May 2002, if necessary, and until any proceedings pursuant to the application for forfeiture had been concluded.

On 11th April Customs and Excise wrote to the claimant's solicitors announcing their intention to apply under section 43 and saying that:

On 17th April, having given that information to the claimant's solicitors, Customs and Excise wrote to the chief clerk at the Magistrates' Court recording the fact that they had been given evidence by the claimant's solicitors which they wanted to investigate. The letter went on:

Two days later, on 19th April, they notified the claimant's solicitors that they had asked the court to postpone, "the Forfeiture hearing".

The next development appears to have been a telephone call from the office of the Magistrates' Court to the claimant's solicitors, which was not picked up until the morning of 29th April 2002, though the call was probably made on the working day before that date. This is recorded in a fax of 29th April, from the claimant's solicitors to the court, in which they said:

There never was, on the evidence before us, any hearing on 29th April. But more to the point, for reasons that will become apparent, the claimant argues that the date of 29th April was never fixed for the hearing of the forfeiture application. He argues that despite Hazel's intervention in the form of the message I have just set out, the matter had already been adjourned to some later date without any earlier date ever having been fixed for the hearing.

I regard this as an inherently unlikely submission in the light of the documents that have been put before the court. The plain inference from them, in my judgment, is that the Magistrates had fixed the date of 29th April, had notified Customs and Excise, but had failed to give adequate notice, as they should have done, to the claimant, and in some desperation had sought to do so by telephone with the results that I have described.

A fax message was sent from the court by the same Hazel, from the general office, which, on its face, bears the date of 30th April, but has a fax header dated 29th April at 10.26 am. Doubt has been cast on the accuracy of these dates. In my judgment that doubt does not deflect the obvious significance of the message she sent. It read:

The solicitors duly replied on 2nd May thanking the court for its fax communication, "advising us that there is to be a hearing at your Court on 3 May in relation to this matter." They went on to say that they had been unable to get their client's instructions and saw no point in attending.

So far as the court's fax dated 30th May is concerned, the claimant argues in this application that it is not clear that it is relating to forfeiture proceedings under section 43 and that it could equally have related to a hearing in relation to a further application for extension of the time for detention under section 42.

In my judgment one needs look no further for an answer to this than the terms of the solicitor's own fax of 29th April 2002, in which they made clear that they had been told that the abortive hearing, as it was to become, was, "of an application by Customs and Excise for forfeiture of cash..." That can only, in my judgment, indicate that what was on the agenda was a section 43 forfeiture proceedings, not a further section 42 application.

It is not necessary to go in detail into the events that followed. It is enough to say that the date of 3rd May was further adjourned to 31st May, that the claimant's solicitors did not attend on that day seeing, as they put it, no point in their so doing. Then matters were overtaken by an application for judicial review, which was eventually unsuccessful on renewal, the court indicating that the point at the centre of the application should be taken before the Magistrates' Court. It was so taken. On 27th February 2003 the district judge ruled against the claimant and on 5th March 2003 decided the substantive forfeiture issue against the claimant.

So, the sole issue raised in these proceedings is whether there ever was a valid application under section 43 of the DTA. If there was not, it was argued that the continued detention of the money and the proceedings that flowed thereafter were both unlawful and beyond the powers of the court to make them.

The claimant argues that merely serving Form E on the court, as the Customs did, does not of itself amount to the making of an application. There also has to be compliance with the Rules which exist as a form of procedure to enable this Act to be put in force.

These Rules are the Magistrates' Courts (Detention and Forfeiture of Drug Trafficking Cash) Rules 1991. They were enacted for use with the predecessor statute to the DTA and have not been redrawn for use with the later statute, but it is common ground that they set out the rules which the Magistrates' Court had to follow under the DTA itself. The relevant rule 9 reads as follows:

It is to be noted that no timetable is contained in these rules either within which the date for the hearing must be fixed, or stipulating the length of the notice that the person to whom it is to be sent must receive.

The claimant's argument is that although a Form E was sent to the court there has been no compliance with Rule 9(2) and therefore the application for forfeiture is invalid. For reasons I have already given, in my judgment, he did receive notice of a fixed date for hearing, that is to say, 29th April 2002, albeit that notice was given late and was almost certainly inadequate. Issues might have arisen had the hearing proceeded on that day, but, in my judgment, it is plain that it did not.

The argument that the next date fixed, 3rd May, did not make good any defect, if there had been one, as in my judgment there was not, also fails for the reasons that I have given above.

That is enough to dispose of this application. We have, however, been referred to the helpful case R v Luton Justicesex parte Abecasis, (unreported) March 2000, which considered the requirements of another Rule, Rule 7(1), which states that an application under section 42(3) for continued detention, "shall be in Form C". It was assumed that that had not been done. It is clear from the judgment of May LJ in that case that the court did not feel that any such procedural irregularity or failure irretrievably flawed the proceedings which followed.

I have also considered the Court of Appeal's decision in the Secretary of State for the Home Department v Ravichandran [1999], 11 Admin.L.R. 824 and the guidance given there as to procedural irregularities. Without extensive citation of that authority it seems to me plain that the simple mandatory/directory dichotomy, which has in the past been regarded as the key to this question, is not, without more, to be used to resolve issues of this nature. As Lord Wolf, Chief Justice, at 826 said:

Though this legislation is described as draconian, it strikes me that there is an air of unreality about much of the claimant's submissions. This is meant to be a simple and summary procedure for the determination of forfeiture questions without elaborate rules. These rules direct how that should be achieved. I therefore incline to the view that if there were the alleged breaches of procedure they would not found the argument that the proceedings thereafter were a nullity.

However, for the reasons I have given above compliance with the procedural rules was in fact achieved in this case and the district judge was fully entitled to reach the decision he reached on this point on 27th February 2003. I can see no error of law in his decision. I would therefore dismiss this application.

MR JUSTICE MAURICE KAY: I agree and it follows that the application for judicial review will be dismissed.

MR HEWITT: My Lord, I do make an application for costs in the circumstances of this matter. In the court below, and indeed here, they are civil proceedings. The first defendant has felt it right to put in grounds contesting the claim, skeleton argument, and indeed representation today. There is an application for costs, inclusive of VAT, in the sum of £1,350. I can break that down: it includes the drafting of the two documents I have referred to and representation today.

MR JUSTICE MAURICE KAY: That is the costs of these proceedings, the judicial review proceedings?

MR HEWITT: It is solely the costs of these proceedings, and, as I have said, it relates solely to the drafting of the two documents I have referred to and to my attendance today.

MR JUSTICE MAURICE KAY: Yes, if you are asking us to assess them summarily, has Mr McCormick been served with a schedule?

MR HEWITT: He has not. I do not know whether in the circumstances he has any comments on the figure. I could break them down for him, but in the circumstances it may well be that he does not.

MR JUSTICE MAURICE KAY: Let us see how he responds to your application so far.

MR MCCORMICK: Well, my Lord, I do not think I can fairly resist the order for costs. I am not surprised that Mr Hewitt is here, so I do not resist the order for costs itself. The figure strikes me as not being unreasonable, but I do not have instructions on the matter. In the circumstances I cannot really consent to it.

MR JUSTICE MAURICE KAY: No.

MR MCCORMICK: I could make a telephone call if your Lordships felt able to give 5 minutes. I could make the phone call and I will certainly make my view on the figure that is being sought known.

It just occurred to me, if your Lordships make the usual order to be assessed in detail if not agreed, it may well be agreed by the close of business today. It is not going to be economic --

MR JUSTICE MAURICE KAY: Yes.

MR HEWITT: I do not seek to persuade the court to adopt another approach.

MR JUSTICE MAURICE KAY: We will do that. Thank you both very much.