Customs & Excise v Atkinson

J U D G M E N T

14th, Friday February 2003

1. LORD JUSTICE ROSE: This is an appeal, by way of case stated, from a decision of the Dover Justices on 22nd August 2002. The Justices were following a decision of the Divisional Court in R (Hoverspeed Limited) v Customs & Excise Commissioners [2002] 3 WLR 1219.

2. Since the Justices' decision, the Court of Appeal, on appeal by the Commissioners of Customs & Excise against the decision of the Divisional Court, has, in aspects material to the present appeal, overturned the decision of the Divisional Court.

3. Mr Bird, on behalf of the appellants, relies on the decision of the Court of Appeal, and invites this court to quash the Justices' decision and to remit the case for determination as to whether or not the goods seized, and the car carrying them, were liable to forfeiture.

4. Because that is the issue raised in this appeal, the circumstances can be very shortly stated.

5. Complaints were preferred by the appellants against the three respondents, Mr Atkinson, Mr Dore and Mr Binns for condemnation and forfeiture of goods, namely 34 kilograms of hand rolling tobacco, 784 cigarettes, 150 cigarillos, 2.4 litres of spirits, 67 litres of wine, 85.92 litres of beer and a Volvo 740 estate motor car, pursuant to section 139 and Schedule 3 of the Customs & Excise Management Act 1979.

6. The Justices, as appears from the case, found the following facts. The three respondents were the owners of the excise goods which I have identified, and, on 9th August 2002, they brought them into the United Kingdom in a Volvo vehicle belonging to Mr Dore. The vehicle was stopped by Customs & Excise officers. The three respondents were travelling in it at the time. The goods in the vehicle were seized, as being liable to forfeiture, pursuant to sections 139 and 141 of the Act.

7. Mr Dore gave notice of a claim that the goods were not liable to seizure. The Justices went on to say, in the case, that the appellants' grounds for suspecting that the goods were liable to forfeiture were that the three respondents fitted a smuggling profile. The officer in question did not base his suspicions upon anything else pertaining to the individual respondents.

8. The submission was made -- well founded, as the law has now developed -- on behalf of the appellants, that why the respondents were stopped was irrelevant to whether or not the goods were liable to forfeiture.

9. The Justices, however, were referred to the Hoverspeed decision in the Divisional Court, and, in the light of that, they expressed this opinion:

"The officer who stopped the respondents did not have reasonable ground to suspect that they had goods liable to forfeiture. Accordingly, the respondents should not have been stopped in the absence of reasonable grounds and 'without a lawful interception, there could not be a lawful seizure of goods and there could not be a finding that the goods were in fact liable to forfeiture'".

10. In that conclusion, the Justices were following the views expressed, albeit apparently without any argument having been addressed to the court, by the Divisional Court in the Hoverspeed case.

11. The case then poses four questions, to which in a moment I shall return.

12. It is apparent from the Court of Appeal's judgment that the Divisional Court's conclusion, and therefore that of the Justices reliant upon it, was misconceived. It suffices to rehearse from the judgment of the Court of Appeal delivered by Mance LJ, paragraph 44, which is in material parts in these terms:

". . . the powers of seizure conferred by sections 49(1)(a), 141(1), 139(1) and Schedule 3 of the Customs & Excise Management Act are not made dependent upon the exercise of any power to stop and search provided in other sections, such as sections 163 and 163A. The object of undertaking a search will be to look for unlawfully held goods, but that does not mean that the validity of any seizure of such goods is conditional upon the legitimacy of the search. The power to seize is exercisable, even where no search is necessary -- to take an obvious example, if a person carrying goods liable to forfeiture puts them on the ground, discards them, or leaves or hides them in some other place to which Customs have access. The power is not exercisable under any warrant or by reference to any criterion, save that the goods are 'liable to forfeiture'. Further, if the power is exercised, and its exercise is challenged in condemnation proceedings, the condemnation court must condemn the goods if it finds that they were liable to forfeiture, (paragraph 6 of Schedule 3 to CEMA)".

13. It is to be noted, so far as the last sentence of that citation is concerned, that in Commissioners of Customs & Excise v Helman [2002] EWHC 2254 Admin, transcript dated 18th October 2002, Davis J reached a similar conclusion.

14. The Court of Appeal in the Hoverspeed case went on to summarise its conclusion on this aspect at paragraph 49 in these terms:

"i. The seizure of the cigarettes, tobacco and alcohol from the three individuals in this case cannot be regarded as axiomatically invalid, merely because it occurred as a result of a check which was invalid.

ii. The Divisional Court was in our judgment wrong to conclude that, if the check was invalid, then so, necessarily, was the ensuing seizure".

15. The court, in consequence, as is apparent from paragraph 59 of the judgment, went on to quash the Divisional Court's decision in relation to this aspect of the case.

16. It is to be noted that the Court of Appeal did not quash the Divisional Court's conclusions in relation to the way in which the stop and search had been carried out, and the justification for it.

17. In my judgment, it follows that this appeal must be allowed, and the decision of the Justices quashed.

18. The questions which were posed by the case stated were these:

"(a) Whether, in condemnation proceedings under Schedule 3 to the Customs & Excise Management Act 1979, questions of the reasons for the initial interception of the passengers, and/or the legal basis for that interception, have any relevance to the issue the court has to determine.

(b) Whether in such condemnation proceedings there is an onus on the Commissioners to adduce evidence of the reasons for the interception, and/or that any interception was lawful.

(c) Whether in such condemnation proceedings a finding that the interception was unlawful necessarily means that any subsequent seizure is unlawful.

(d) Whether in any event such a finding is a bar to an order for condemnation being made in the case where goods were in fact liable to forfeiture at the time of seizure".

19. All of those questions, in my judgment, should be answered in the negative.

20. That being so, if my Lord agrees, the case will be remitted to the Justices for them to determine the issue of whether or not the goods seized and the car in which they were carried were, in the terms of the Act "liable to forfeiture".

21. MR JUSTICE HENRIQUES: I agree.

22. MR BIRD: My Lord, may I just take instructions on costs?

(Pause).

23. It was not these respondents' fault.

24. LORD JUSTICE ROSE: It certainly was not, no. So we make no order as to costs. Thank you very much, and thank you for your skeleton.