Lappin, R (on the application of) v HM Customs & Excise

J U D G M E N T

1. MR JUSTICE GOLDRING: This is a case stated by the Crown Court sitting at Caernarfon which dismissed the appellant's appeal from the Justices for the Petty Sessional Division of Anglesey.

2. The background can be summarised very shortly. On 21st October 2001, Customs and Excise seized £39,990 from the appellant. On 22nd October 2001, they applied for forfeiture of the money under section 42 of the Drug Trafficking Act 1994. The Justices authorised the continued detention of the money.

3. On 12th December 2001, there was a report prepared on behalf of the Customs and Excise. Its analysis suggested contamination of the bag containing the money, and an analysis of 828 of the notes revealed the presence of cocaine greater than found typically on banknotes.

4. On 1st October 2002 the Justices heard the application. As I understand it, the appellant was not present and the application was not, in effect, contested. They ordered that the money be forfeited. The appellant appealed.

5. The proceedings before the Crown Court did not go smoothly.

6. On 10th January 2003, the appeal was listed to begin at 10.30 in the morning. The appellant was not there on time and the appeal was dismissed. He appeared at 10.50 am. The lay justices had by then left. The court revoked the order dismissing the appeal. The defendant undertook to be represented at the next hearing. The case was adjourned to 28th February 2003.

7. On 28th February 2003, the appeal was listed again to begin at 10.30 in the morning. Again, the appellant appeared at 10.50 am. According to what prosecution counsel, Mr Roberts, told the Judge on 7th July 2003, the appellant at that hearing suggested he wanted to take issue with the prosecution's forensic analysis of the banknotes seized: see the transcript at page 13 of the bundle.

8. A series of orders was made.

"(1) The Respondent [the Customs and Excise] to serve its case upon the Appellant by the 31st March 2003.

(2) The Appellant to serve any experts report by the 12th May 2003.

(3) The respondent to serve any reply to the Appellant's expert by the 9th June 2003.

(4) The experts to meet and attempt to agree a joint report by the 30th June 2003.

(5) The hearing to be listed for two days at Caernarfon Crown Court on the 7th and 8th July 2003."

9. On 1st July 2003, some six days before the due hearing date on 7th July 2003, the appellant applied in writing for an adjournment. The basis of that application was that an expert had just been instructed: see page 13 of the transcript. The Customs and Excise, it appears, agreed to the adjournment. The court did not.

10. On 7th July 2003, counsel for the appellant applied for an adjournment of the whole hearing, or alternatively for an adjournment after the evidence from the Customs and Excise had been heard. The basis of that application was that the appellant be given sufficient time to obtain an expert's report. Mr Hellman, who has represented the appellant before me, said this in submissions to the Judge:

"I am of course here on the basis that the hearing is expected to proceed and I am prepared to deal with it on that basis but of course, your Honour will appreciate that to some extent I do so with my hands tied behind my back because for reasons which are entirely at the door of the defence and in no way at the door of the court or the prosecution it has not been possible for the defence to instruct an expert in time to look at the data on which the prosecution report is based or to conduct any independent tests on the money and so with hesitation but having hesitated nevertheless I propose to your Honour a compromise course which would be this, that all the evidence in the case, both prosecution and defence other than the expert evidence is dealt with on this occasion, the case goes part heard and the expert evidence is dealt with on a subsequent occasion which would mean that the time here today is not wasted but would give the defence the opportunity for their own expert to carry out investigations which might in the long run lead to less rather than more court time being taken up. Well, that is my application. I am in your Honour's hands."

11. The Judge, HHJ Rogers QC, said this:

"It suffices to say that more than four months ago on the 28th February of this year His Honour Judge Elystan Morgan set out a number of directions in order to ensure that this matter could be tried today and tomorrow. Unfortunately, your client ... has totally ignored those directions and he now asks that the matter be adjourned in order for him to do what he ought to have been doing back in March, that is to say instructing an expert. This court has set aside two days for this hearing. It would be quite wrong now for those two days to be wasted or for this matter to be further adjourned. Procedures are set out by the court in order to ensure speedy trials. If a party ignores the steps set out by the court then he or she cannot expect the matter to be adjourned, so we will proceed."

12. It is worth observing that some two and a half years had now elapsed since this money was seized.

13. The hearing proceeded. The following facts were found by the Crown Court. They are set out in paragraph 8 of the case:

"(a) At 2.25 am on Sunday 21st October 2001 at Holyhead Port, Anglesey, police officers stopped and searched a Mazda motorcar pursuant to the provisions of the Prevention of Terrorism Act 2000. The appellant was the driver of the said motor car and the front seat passenger was Bruno Di Ruzza.

(b) Prior to the search the Appellant was asked by the police officer whether there was a large amount of money in the motor car. The Appellant replied, 'Yes, £40,000 under the driver's seat'. The Appellant admitted that it was his money and stated he had it with him 'to buy stuff for Christmas but I didn't find anything'. A plastic bag containing £39,990.00 in used bank notes was found under the seat.

(c) The bag and a sample of 828 bank notes were examined by a scientist.

(d) The amount of cocaine contamination found on the bank notes was higher than contamination typically found on bank notes taken at random from general circulation in the UK.

(e) Giving an address in Armagh, Northern Ireland, the Appellant had registered with the Value Added Tax Central Unit with effect from the 11th May 1994. Return forms for each quarter from 31st July 1996 until 30th April 2002 were issued to him but had not been returned by him.

(f) The Appellant gave evidence on oath. He testified that the money had been taken by him from Armagh to London in order to purchase confectionery.

(g) We did not believe the Appellant's explanation for being in possession of the money.

(h) There was no oral or documentary evidence to support the Appellant's explanation for his possession of the money.

(i) There was no evidence from Bruno Di Ruzza.

9. We were sure that the money represented the Appellant's proceeds of drug trafficking and dismissed the appeal."

14. In paragraph 10, the case states:

"The opinion of the High Court is sought as to whether the Court breached the Appellant's right to a fair trial under Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms by refusing his application for an adjournment so that he could instruct an expert to analyse the seized bank notes and review the report of the Respondent's expert."

15. Mr Hellman, in his skeleton argument, only very shortly and realistically expanded by him today, submits that the refusal of the application to adjourn amounted to a breach of the appellant's right to a fair trial under Article 6. He should, he submits, have been given the opportunity to instruct an expert to analyse the bank notes and review what the prosecution expert said. He takes a number of points, none of which was taken before the Crown Court Judge:

"1. A fair hearing meant there should be equality of arms. That meant the defence should have had a reasonable opportunity to present his case. The court should not permit one party to rely on an expert and not the other ...

2. A fair hearing meant that the appellant should have had the right to participate effectively in a criminal trial. By parity of reasoning that applies to [what is agreed to be] a civil trial such as the present.

3. Where a fair trial makes expert evidence indispensable, the court, he submits, should call such evidence or allow legal aid to do so."

16. That is established, submits Mr Hellman, by the authorities.

17. Mr Hellman accepts that a party seeking to avail himself of his Convention rights should exercise diligence in the preparation of his case. He agrees that whether or not the refusal of an adjournment was reasonable depends upon all the circumstances.

18. Mr Hellman makes the following specific submissions.

19. It was, he submits, of great importance to the appellant's case that an expert be instructed to analyse the bank notes and review the prosecution expert's report. The refusal of the court to adjourn put the appellant at a substantial disadvantage. It made it more difficult for him to challenge the evidence of contamination produced by the Customs and Excise. It meant he had no opportunity to present a positive case on that issue. That amounted to an inequality of arms which amounted to an unfairness in breach of Article 6.

20. As to the conduct of the parties, Mr Hellman concedes that the appellant was at fault in failing to take advantage of the previous opportunity given to him by the court to instruct an expert. He was also, Mr Hellman concedes, in breach of the timetable set down by the court for that purpose. To that extent, he was the author of his own misfortune. However, he now had a legal team which had taken grip of the situation. It would, submits Mr Hellman, be disproportionate to hold that he should be deemed in effect to have waived his rights to equality of arms to participate effectively in the proceedings. In terms, Mr Hellman makes no criticism of the Customs and Excise.

21. Mr Hellman submits that the court could have marked its displeasure with the appellant's conduct by following the suggestion he made in submissions to the Judge. It could have awarded costs incurred in respect of any adjournment to the Customs and Excise in any event. Inconvenience would have been minimised, he suggested, had that course been followed. A short adjournment of 21 days would have not caused undue prejudice to the speedy administration of justice, he submits. As to the appellant's position, he submits that the sum at stake was considerable. He also submits that I should not speculate, and I shall not do so, as to what the expert report might have revealed.

22. Mr Hellman accepts that in assessing whether or not there was a breach of the appellant's Article 6 rights, a balancing exercise has to be carried out.

23. I of course accept that the appellant was entitled to a fair trial in the determination of his civil rights and obligations. Whether he received one depends upon all the circumstances of the case. In assessing those circumstances, a court is entitled to take into account not only the desirability of the appellant having an expert's report on contamination, but the reason for his failure to do so at the time of the trial. If the reality is that he did not have such a report because of his persistent failure to obtain one over a period of time, it cannot be said that the resulting trial was unfair and in breach of his Article 6 rights.

24. In my view, the reason for the absence of the report was the appellant's persistent failure to obtain one. It cannot be said, in the light of that failure, that the action of the Crown Court in insisting in the hearing going ahead was in any sense disproportionate or unfair. There was, although it was not expressed to be in terms of Article 6, a balancing exercise carried out by the court. It reached a decision. In my view, it was a decision it was entitled to reach.

25. In the circumstances therefore I have concluded, in response to paragraph 10 of the case, that there was no breach of the appellant's Article 6 rights in insisting that this case proceed.

26. This appeal is therefore dismissed.

27. Anything else?

28. MR PUZEY: Nothing else. Thank you, my Lord.

29. MR JUSTICE GOLDRING: Thank you, Mr Hellman, for your very helpful skeleton argument and for the succinctness of your submissions.

30. MR HELLMAN: I am grateful, my Lord.