Mudie & Anor, R (On the Application Of) v H M Customs & Excise [2003] EWCA Civ 237

[2003] EWCA Civ 237

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

ADMINISTRATIVE COURT LIST

(MR JUSTICE GRIGSON)

Venue Royal Courts of Justice

Date Tuesday, 4 February 2003

Strand

London, WC2

B E F O R E:

THE MASTER OF THE ROLLS

(Lord Phillips)

LORD JUSTICE BROOKE

LORD JUSTICE LAWS

T H E Q U E E N

(ON THE APPLICATION OF

(1) ADRIAN MUDIE

(2) CHRISTINA MUDIE)

Claimants/Appellants

-v-

KENT MAGISTRATES COURT

Defendant/Respondent

and

H M CUSTOMS & EXCISE

Interested Party

(Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR MATTHEW SHERRATT (instructed by Messrs Royds RDW, London, EC4 2L) appeared on behalf of the Appellants

MR DAVID BARNARD AND MR ANDREW BIRD (instructed by H M Customs & Excise, London, SE1 9PJ ) appeared on behalf of the Respondent

J U D G M E N T

(As approved by the Court)

Between

Mudie & Anor, R (On the Application Of)Appellant

H M Customs & ExciseRespondent

[1]LORD PHILLIPS, MR: I will ask Lord Justice Laws to give the first judgment.

LORD JUSTICE LAWS: This is an appeal against the judgment of Grigson J given in the Administrative Court on 21 March 2002 when he refused to grant permission to seek judicial review of the decision of the Kent Magistrates' Court made on 15 October 2001.

[3]The magistrates had declined to grant a representation order to the appellants in relation to condemnation proceedings brought by Her Majesty's Commissioners for Customs and Excise pursuant to section 139 and Schedule 3 to the Customs and Excise Management Act 1979. They so refused on the grounds that the proceedings were civil and not criminal proceedings. Permission to appeal against the decision of Grigson J was granted by Sir Murray Stuart-Smith on 19 July 2002. The classification of the condemnation proceedings as civil or criminal bears critically on the decision whether to grant a representation order because of the impact of

Article 6 of the European Convention on Human Rights

which provides, so far as material:

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."

[4]Provision is made by section 12 of the Access to Justice Act 1999 for the funding by the Legal Services Commission of representation in "criminal proceedings", defined in section 12(2)(a) as including:

"Proceedings before any court for dealing with an individual accused of an offence."

[5]The grant of representation in criminal proceedings falling within section 12 may be made by any court before which the criminal proceedings are to take place (see the Access to Justice Act 1999, Schedule 3, paragraph 2(1)).

[6]The regime in relation to representation in civil cases is different. By section 6 and paragraph 2 of Schedule 2 to the 1999 Act, funding may not be provided for advocacy in any civil proceedings in a Magistrates' Court except for those proceedings listed in paragraph 2(3) of the Schedule. They do not include condemnation proceedings under the Customs and Excise Management Act. It goes without saying, of course, that a person contesting condemnation proceedings may instruct an advocate at his or her own expense. Under section 58 of the Courts and Legal Services Act 1990, he or she may enter into a conditional fee agreement with a solicitor for the purposes of representation in court.

[7]As I shall show in due course, the Magistrates' Court in this case refused to grant representation orders on the ground that they had no jurisdiction to do so. But the appellants point to the fact that case law in Strasbourg establishes that the question whether particular proceedings are to be treated as criminal for the purposes of Article 6 is to be answered by reference to autonomous criteria which the European Court of Human Rights has elaborated for the purposes of applying the Convention. The appellants' case is that the proper application of those criteria must lead to the conclusion that condemnation proceedings, on facts such as those in this case, are criminal within the meaning of Article 6.

[8]I have entertained some doubt whether the appellants are "victims" within the meaning of section 7 of the Human Rights Act 1998. It must be shown that a claimant in proceedings of this kind is such a victim, since that is the test for standing in a case where complaint is made of a violation of a person's Convention rights. In this case evidence that the appellants could not afford representation in the Magistrates' Court is exiguous. It consists of a bare statement in a solicitor's letter. However, the Commissioners have not stood on that ground and I would not therefore regard it as an impediment to our addressing the substantial issues in the case.

[9]By way of preliminary, in answer to questions from the court, Mr Sherratt, for the appellants, submitted that section 12(2)(a) of the Access to Justice Act 1999 can and should be read as including condemnation proceedings.

(a) provides, as I have foreshadowed:

"In this Part 'criminal proceedings' means- (a) proceedings before any court for dealing with an individual accused of an offence."

Mr Sherratt revised this submission so as to apply it to Schedule 3, paragraph 2(1) of the Access to

Justice Act, which provides:

"A court before which any criminal proceedings take place, or are to take place, has power to grant a right to representation in respect of those proceedings except in such circumstances as may be prescribed."

[10]It seems to me, however, that the real question is whether paragraph 8 of Schedule 3 to the Customs and Excise Management Act 1979 could be construed, having regard to section 3 of the Human Rights Act 1998, as if the word "civil" read "criminal". I will turn to the Act of 1979 shortly but for convenience I set out at this stage paragraph 8:

"Proceedings for condemnation shall be civil proceedings."

The question whether paragraph 8 of that Schedule could, by force of section 3 of the Human Rights Act, be so read has not previously been raised in these proceedings. I have the greatest possible doubt whether the section would authorise or empower paragraph 8 to be read as if "civil" meant "criminal". It does not seem to me that it could. If, as Mr Sherratt's substantive argument suggests, there will be some instances of paragraph 8 which are criminal and others which are civil, then I cannot see how section 3 could possibly be prayed in aid in the way contended for.

[11]I do not understand, therefore, how in these proceedings the appellants could obtain effective relief against the Magistrates' Court. There has never been any suggestion in the course of these proceedings that a declaration of incompatibility should be made under the terms of section 4 of the Human Rights Act. It seems to me therefore that there are considerable procedural difficulties facing Mr Sherratt even if he were to carry the day in establishing that, for the purposes of

Article 6 of the Convention

, condemnation proceedings are to be treated as criminal.

[12]However out of respect for the arguments we have heard and in light of the undoubted importance of the case, I propose to deal with the substantive issue as it has been formulated. It is convenient at this stage to go to the statutory regime under which condemnation proceedings are established. I turn first then, to the provisions dealing with goods liable to forfeiture. By force of section 49(1) of the Customs and Excise Management Act any goods chargeable with customs or excise duty which are imported without payment of that duty are liable to forfeiture, and under section 139(1) may be seized by a Customs officer. Under section 141(1) any vehicle used for the carriage of such goods is also liable to forfeiture. It is well known that tobacco and alcohol products have historically been subject to excise duty.

[13]At the time of events material to this case, the Excise Duties (Personal Reliefs) Order 1992 ("the PRO") was in force. By paragraph 3 of the PRO it was provided that a person travelling from another Member State of the European Union to the United Kingdom shall be relieved from payment of duty on excise goods, thus including tobacco and alcohol, if he has obtained them exclusively for his own use. By paragraph 5 this relief was made subject to the condition that the goods are not to be held for a commercial purpose, otherwise they would be liable to forfeiture. Paragraph 3A provided that the Commissioners might require a person having in his possession a quantity of excise goods in excess of the quantity listed in the Schedule to the PRO to satisfy them, the Commissioners, that the goods were not in fact being held for a commercial purpose. By way of example, the quantity of cigarettes listed in the Schedule was 800.

[14]On 31 July 2002, after the relevant events had occurred in this case, the Divisional Court (Brooke LJ and Bell J) gave judgment in Hoverspeed v Commissioners of Customs & Excise

[2002] 3 WLR 1219

. The court held that the PRO was incompatible with Council Directive 92/12/EEC and Article 28 of the EC Treaty on two linked grounds, one of which was that the PRO placed a persuasive burden of proof on the traveller to prove that he did not hold the goods in question for a commercial purpose in a case where the quantity of goods held exceeded the quantity listed in the schedule for goods of the type in question. The decision in Hoverspeed was appealed to this court (neutral citation

[2002] EWCA Civil 1804

); but that the Divisional Court's distinct conclusion, to which I have just referred, was not sought to be overturned. In the light of that conclusion, the PRO was revoked with effect from 1 December 2002. Amended criteria to be applied in addressing the question in any given case whether goods are held for a commercial purpose were brought into effect by fresh regulations.

[15]Mr Sherratt has submitted, and this was at the forefront of his argument, that the revocation of the PRO reveals the importance of the Council Directive; and on examination of the Directive, it can be seen that in cases such as this the knowledge and intention of the traveller (is he bringing in the goods for his own use or bringing them in for commercial purposes?) is at the centre of the issue. It is apparent, says Mr Sherratt, that the Commissioners and later the court in condemnation proceedings will be concerned with whether the traveller has a guilty mind. That is highly relevant to the classification of the proceedings for the purposes of Article 6. I will return to this argument.

[16]Condemnation proceedings fall to be brought when the traveller gives notice contesting the seizure of his goods by the Commissioners as liable to forfeiture. The regime which provides for such proceedings is established by Schedule 3 to the Customs and Excise Management Act 1979. That has not been altered, nor has there been any need to alter it, in light of the decision in Hoverspeed. The relevant paragraphs read:

"1(1) The Commissioners shall, except as provided in sub-paragraph (2) below give notice of the seizure of any thing as liable to forfeiture and of the grounds therefor to any person who to their knowledge was at the time of the seizure the owner or one of the owners thereof. ... 3. Any person claiming that any thing 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 the seizure, give notice of his claim in writing to the Commissioners at any office of customs and excise. ... 6. where notice of claim in respect of any thing 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. ... 8. Proceedings for condemnation shall be civil proceedings and may be instituted -- (a) in England or Wales either in the High Court or in a magistrates' court. ... 13. In any proceedings arising out of the seizure of any thing, the fact, form and manner of the seizure shall be taken to have been as set forth in the process without any further evidence thereof, unless the contrary is proved. 14. In any proceedings, the condemnation of a court of any thing as forfeited may be proved by the production either of the order or certificate of condemnation or of a certified copy thereof purporting to be signed by an officer of the court by which the order or certificate was made or granted."

[17]There is a wholly separate provision contained in section 170 of the Act of 1979 which criminalises the fraudulent evasion of duty. As one would expect in relation to that offence, the burden lies squarely on the Crown to prove the necessary fraudulent intent. Mr Sherratt also referred to section 50. That criminalises the improper importation of goods. The Facts

[18]On 21 March 2001 the appellants, together with another couple, were stopped by Customs officers at the Dover Eastern docks upon their return from France. They were interviewed. A quantity of tobacco and alcohol was seized by officers as was the car in which they had brought in the goods. On the same day at Dover the Commissioners issued written notices to the appellants in identical terms. The notices were headed "Warning" and stated:

"The attached schedule of goods have been seized under Section 139 of the Customs and Excise Management Act 1979 together with vehicle Index No 92 HKH under Section 14(1)(a) of the aforementioned Act. This is without prejudice to any further action that the Commissioners of Customs and Excise may take against you in connection with this importation. You should also be aware that any further attempt by you to smuggle Excise goods into the UK may render you liable to prosecution under the provisions of Section 170 of the Customs and Excise Management Act 1979. A person found guilty of an offence under this Section is liable to an unlimited fine and/or up to seven years imprisonment."

[19]Thereafter the appellants wrote claiming that the goods were not liable to forfeiture. That was a notice of claim under Schedule 3, paragraph 3. It triggered the requirement under paragraph 6 that the Commissioners should take proceedings for the condemnation of the goods. This they did by summonses issued on 4 September 2001. Paragraphs 1 and 2 of the summonses, which were identical, read as follows:

"1. On or about the 21st March 2001 at Eastern Docks, Dover, certain goods, namely 20 kilogrammes of tobacco, 6172 cigarettes, 100 cigarillos, 40.95 litres of spirits, 4.5 litres of still wine and 13 litres of beer were imported into the United Kingdom. 2. The Community traveller who imported the excise goods, on being required to do so, had failed to satisfy the Commissioners that the goods had not been held or used for a commercial purpose. The goods were therefore seized as liable to forfeiture by force of article 5 of the Excuse Duties (Personal Reliefs) Order 1992 SI No 3155 ('the Order')."

[20]A month later, solicitors instructed by the appellants wrote to the Chief Clerk of the Magistrates' Court seeking legal aid for them to be represented. They referred to Article 6 and advanced detailed arguments as to why the proceedings should be regarded as criminal. The Justices' Clerk replied clearly and tersely on 15 October 2001:

"I refer to your letter dated 4 October 2001 which acknowledges from the outset that the proceedings in the above case are defined as 'civil proceedings'. In accordance with this definition, the court has no authority, statute or otherwise, to grant representation orders in respect of Mr and Mrs Mudie."

There followed the application for permission to seek judicial review. As I understand it, the condemnation proceedings issued in the Magistrates' Court have been stayed meantime.

[21]The status of condemnation proceedings for the purposes of Article 6 was specifically addressed by the Divisional Court in Goldsmith v HM Commissioners of Customs & Excise

[2001] 1 WLR, 1673

(Lord Woolf CJ and Poole J) in which the court held that such proceedings are civil for the purposes of Article 6. In the present case, Grigson J followed that decision, holding in terms (see his judgment paragraph 27) that nothing in the Strasbourg jurisprudence required reconsideration of Goldsmith, which remained good law.

[22]In Goldsmith the Lord Chief Justice adopted the same approach to the civil/criminal dichotomy as had been set forth by this court in McCann

[2001] 1 WLR 1084

. That case was not about condemnation proceedings; it concerned the classification of anti-social behaviour orders created by the Crime and Disorder Act 1998. In McCann, Lord Phillips MR referred in particular to the Strasbourg decision in Engel and Ors v The Netherlands

(1976) 1 EHRR 647

. McCann was subsequently appealed to their Lordships' House. I shall refer briefly to their Lordships' decision in due course.

[23]Before Grigson J and in this Court by way of his skeleton, one of Mr Sherratt's arguments has been that the Strasbourg jurisprudence has moved on since Goldsmith was decided. It is convenient, first, to look at the context of Goldsmith by reference to the then extant authorities.

[24]The starting point is Engel but I may, with respect, go straight to the summary of that case in McCann. McCann concerned an application by a Chief Constable for the issue by a Magistrates' Court of anti-social behaviour orders provided for by the Crime and Disorder Act 1998. An Article 6 point was taken in relation to the nature of the orders. Having concluded at paragraph 47 of his judgment that the application proceedings were civil proceedings in the eye of English domestic law in isolation from the Convention, the Master of the Rolls turned to Article 6. He referred to Engel at paragraph 51 of his judgment and at paragraph 52 said:

"This decision identified three principal criteria which it has become the European Court's practice to consider when deciding whether proceedings have a criminal character: (1) the manner in which the domestic state classifies the proceedings; (2) the nature of the offence; and (3) the character of the penalty to which the proceedings may give rise."

The Master of the Rolls proceeded to observe that the first criteria normally carries little weight; indeed it has been said to be no more than a starting point. He referred to Oztürk v Germany

(1984) 6 EHRR 409

. At paragraph 54 he continued:

"When one examines the cases that followed Oztürk, it become apparent that neither the offence nor the penalty has to be particularly serious for the European Court to classify the proceedings as criminal."

At paragraph 62 and following The Master of the Rolls gave reasons for holding that anti-social behaviour orders should not be classified as criminal for the purposes of Article 6.

[25]I turn to Goldsmith in which, as I have said, McCann and thus Engel were applied. The appellants say that Goldsmith was wrongly decided. Lord Woolf CJ said at paragraphs 21-22 of his judgment:

"21. The issue of fact which is at the centre of condemnation proceedings is whether or not the goods are to be used for private or commercial purposes. No one is in a better position to know whether they are to be used for private or commercial purposes than someone in the appellant's position. Accordingly, if his evidence is not accepted by the magistrates or the Crown Court, there is a reflection upon his character. The reflection arises out of the fact that he has not satisfied the magistrates or the Crown Court on the balance of probabilities as to the truth of his account as to why the goods were brought into this country. However, in my judgment, that does not mean that the proceedings are criminal. Nor does it mean, in my judgment, that there is anything wrong with the form of the legislation which resulted in the condemnation proceedings. The form of the Order enables members of the public, under article 5, to bring in quantities of goods specified in the Schedule without being under any risk of being proceeded against by Customs and Excise in reliance on article 5(3) of the Order. If members of the public choose to bring in greater quantities than that, then the onus is placed upon them to satisfy the Commissioners for Customs and Excise that the goods are required for private, and not commercial, purposes. The Order indicates the quantities of goods which the Commissioners have concluded can reasonably be regarded in general as being the sort of quantities that an individual would import for private purposes. If quantities in excess of those are brought into the country, they are not necessarily for commercial purposes. However, in such circumstances there is a presumption that the goods are being brought in for commercial purposes and the onus is placed upon someone in the appellant's position to rebut that presumption. The presumption is rebuttal by giving evidence which, on the balance of probabilities, satisfies the courts that they are required for private purposes. 22. . I turn to the question of whether forfeiture proceedings are criminal. Full weight must be given to the consequence of goods being forfeited and condemned as forfeited. However, reference must also be made to the fact that the legislation categorises the proceedings as civil. Reference is also to be made to the fact that none of the usual consequences of a criminal conviction follow from condemnation and forfeiture proceedings. There is no conviction or finding of guilt. Under domestic law the person concerned is not treated as having a conviction. The person concerned is not subject to any other penalty, apart from the consequences of the forfeiture and loss of the goods."

[26]The Lord Chief Justice's discussion of the PRO is out of date because it has been revoked. That, in Mr Sherratt's submission, is a highly material circumstance. The respondent Commissioners for their part would attach particular emphasis to two decisions of the European Court of Human Rights which specifically address the nature of forfeiture proceedings under the Customs legislation. AGOSI (an acronym) v United Kingdom

(1987) 9 EHRR 1

and Air Canada v United Kingdom

(1995) 20 EHRR 150

were both decided before the incorporation of the Convention into United Kingdom law on 2 October 2000. In AGOSI the Strasbourg court held that forfeiture under the legislation fell within the scope of Article 1 of the first Protocol, but held further that there was on the facts of the case no violation of that Article. The court also considered Article 6. It dealt with it shortly at paragraphs 65-66 of its judgment:

"65. The forfeiture of the Krügerrands by the courts and the subsequent refusal of the Commissioners of Customs and Excise to subsequent refusal of the Commissioners of Customs and Excise to restore them were measures consequential upon the act of smuggling committed by X and Y." (they were not the appellants in the litigation): "

Criminal charges under domestic law were brought against the smugglers but not against AGOSI in respect of that act. The fact that measures consequential upon an act for which third parties were prosecuted affected in an adverse manner the property rights of AGOSI cannot of itself lead to the conclusion that, during the course of the procedures complained of, any 'criminal charge' for the purposes of Article 6, could be considered as having been brought against the applicant company. 66. The compatibility of the consequential measures with the applicant's Convention rights has been examined in the present judgment on the basis of Article 1 of Protocol No 1. None of the proceedings complained of can be considered to have been concerned with 'the determination of [a] criminal charge' against the applicant company; accordingly,

Article 6 of the Convention

did not apply in this respect." On its own this short reasoning goes little distance, save that it shows that the court did not regard condemnation proceedings as criminal per se. If not criminal per se, it is difficult to see how they could be criminal at all. Their classification cannot, and I will return to this, depend upon the extent to which the Commissioners' policies or actions under the legislation are or are not draconian, or the extent to which there may be ancillary or consequential proceedings which are truly criminal in their nature.

[27]Air Canada concerned the seizure of an aircraft upon which a consignment of illicit drugs had been discovered. At paragraphs 50 to 55 of the judgment the court said:

"50. Air Canada considered that it had been, in effect, fined by the Commissioners and that neither the condemnation proceedings nor the theoretical possibility of judicial review satisfied the requirements of Article 6(1). 51. The Government, on the other hand, with whom the Commission agreed, pointed out that under domestic law no criminal charges had been brought and that the criminal courts had not been involved in the matter. 52. The Court agrees with the Government's observation. It is also noteworthy that the Court of Appeal specifically rejected the argument made by counsel for Air Canada that section 141 of the 1979 Act was tantamount to a criminal provision. In this connection, the Court of Appeal pointed out that the description of the relevant provisions as being 'civil' did not preclude it from finding that a provision was, in effect, 'criminal' in nature. However, the matter was resolved with reference to earlier cases which deduced that section 141 provided a process in rem against inter alia any vehicle used in smuggling. The Court is, for the same reasons, similarly persuaded. Moreover, the factors referred to above -- the absence of a criminal charge or a provision which is 'criminal' in nature and the lack of involvement of the criminal courts -- taken together with the fact that there was no threat of any criminal proceedings in the event of non-compliance, are sufficient to distinguish the present case from that of DEWEER v BELGIUM where the applicant was obliged to pay a sum of money under constraint of the provisional closure of his business in order to avoid criminal proceedings from being brought against him. 53. It is further recalled that a similar argument had been made by the applicant in the AGOSI case. On that occasion the Court held that the forfeiture of the goods in question by the national court were measures consequential upon the act of smuggling committed by another party and that criminal charges had not been brought against AGOSI in respect of that act. The fact that the property rights of AGOSI were adversely affected could not of itself lead to the conclusion that a 'criminal charge' for the purposes of Article 6, could be considered as having been brought against the applicant company. 54. Bearing in mind that, unlike the AGOSI case, the applicant company had been required to pay a sum of money and that its property had not been confiscated, the Court proposes to follow the same approach. 55. Accordingly the matters complained of did not involve 'the determination of [a] criminal charge'."

The decision in that case was taken by a majority of five to four of the judges.

[28]It is now convenient to turn to the recent case of Butler (2002) Application 41661/98. The European Court of Human Rights heard argument on 27 June 2002. It was not concerned with condemnation proceedings; rather the court had to consider the regime established under the Drug Trafficking Act 1984, under section 43 of which a Magistrates' Court is empowered to order the forfeiture of cash seized previously under section 42 if satisfied that the cash represents the proceeds of drug trafficking. Such forfeiture proceedings, like condemnation proceedings under the Customs and Excise Management Act, are classified as civil by the statute. At pages 9-10 of the judgment the court said:

"The applicant also disputes the Government's view that a forfeiture order is a preventive and not a punitive measure. He recalls in this connection that the Court in Phillips v The United Kingdom (no 41078/1998, 5 July 2001 (unreported)) found that the confiscation order in that case was part of the sentencing process and therefore punitive in nature. The Court notes that criminal charges have never been brought against the applicant, nor against any other party. It is the applicant's contention that the forfeiture of his money in reality represented a severe criminal sanction, handed down in the absence of the procedural guarantees afforded to him under Article 6 of the Convention, in particular his right to be presumed innocence. The Court does not accept that view. In its opinion, the forfeiture order was a preventive measure and cannot be compared to a criminal sanction, since it was designed to take out of circulation money which was presumed to be bound up with the international trade in illicit drugs. It follows that the proceedings which led to the making of the order did not involve 'the determination ... of a criminal charge (see Raimondi v Italy judgment of 22 February 1994, Series A no. 281-A, p.20 at 43; and more recently, Arcuri and Others v Italy (no 54029/99, inadmissibility decision of 5 July 2001 (unreported)); Reila v Italy (no 52439/99, inadmissibility decision of 4 September 2001 (unreported)). It further observes that the applicant's reliance on the above-mentioned Phillips judgment does not improve his argument on the applicability of Article 6 under its criminal head to the forfeiture proceedings. The confiscation order impugned in that case followed on from the applicant's prosecution, trial and ultimate conviction on charges of importing an illegal drug. It did not give rise to the determination of a separate or new charge against the applicant. The confiscation order was found by the Court in the Phillips case to be analogous to a sentencing procedure (ibid at 34 and 39), and, to that extent, attracted the applicability of Article 6. As previously noted, the circumstances of the instant case are different. It also notes that in its Phillips judgment the Court attached weight to the facts that the purpose of the confiscation order in that case was not the conviction or acquittal of the applicant and that the making of the confiscation order had no implications for his criminal record (ibid. at 34). For the Court, these are also relevant considerations for concluding that Article 6 under its criminal head does not apply to the forfeiture proceedings in the instant case. The Court finds further support for this conclusion in the above-mentioned Air Canada and AGOSI judgments. It does not consider it decisive for the outcome of the applicability issue in this case that in the Air Canada case the applicant company had by its negligence exposed itself to the threat of seizure of one of its aircraft of that an offence of drug smuggling had been committed through the use of its aircraft or that, as in the AGOSI case, third parties had been prosecuted and convicted of the criminal offences associated with the property forfeited. The Court in its Air Canada judgment did not attach importance to these considerations, preferring to lay stress on the fact that no criminal charge was ever brought against the applicant company and that the domestic legal provision under which its aircraft was seized provided a process in rem against any vehicle used in smuggling (ibid. pp. 19-20 at 52). Similarly, in its AGOSI judgment, the Court considered that the fact that measures consequential upon an act for which third parties were prosecuted affected in an adverse manner the property rights of AGOSI 'cannot of itself lead to the conclusion that, during the course of the proceedings complained of, any 'criminal charge', for the purposes of Article 6, could be considered as having been brought against the applicant company' (ibid. p.22 at 65)."

[29]Both parties have relied on International Transport Roth GmbH and others v Secretary of State for the Home Department

[2002] EWCA Civ 158

which concerned the regime under the Immigration and Asylum Act 1999 by which drivers and others bringing clandestine entrants into the United Kingdom in a vehicle were liable to a fixed penalty of £2,000 for each person thus transported. The statutory scheme was categorised as criminal for Convention purposes by the majority of the court, Simon Brown and Jonathan Parker LJJ. For my part I dissented. Simon Brown LJ said at paragraphs 38 to 42 of his judgment:38. The three criteria long established by the case-law and applied by the judge below for determining whether the scheme is criminal or civil are: first, the domestic classification of the proceedings (effectively determinative if the classification is criminal but no more than a starting point if, as here, it is civil); second, the essential nature of the "offence" (I would prefer the more neutral term "liability", which can be either criminal or civil); third, the nature and degree of severity of the potential penalty. Rather, however, than follow the conventional route I propose instead to consider classification from a broader standpoint, recognising that the second and third criteria, albeit in theory to be applied alternatively, can apply cumulatively and in any event raise substantially overlapping considerations. Generally under the second criterion one considers whether the liability is punitive and deterrent, whilst under the third regard is had to its nature and severity. All these considerations, however, necessarily raise the question whether liability involves blameworthiness. If it does, then by its very nature it may be thought to include a punitive (in the sense of retributive) element.

39. The decided cases state the applicable principles. Few, however, seem to me helpful with regard to their individual facts. Han is perhaps the closest in point, and tends to support the view that the scheme is criminal. There, however, criminality was more obviously involved in that the statutory liability only arose when the "… conduct involves dishonesty …" which, as Potter LJ pointed out "… would otherwise be treated, or generally regarded, as criminal in nature". And there, indeed, the Commissioners were required to prove the dishonesty, albeit only to a civil standard. The case is thus distinguishable.

40. So too, however, is the decision of the Divisional Court (Lord Woolf CJ and Poole J) in Goldsmith -v- Customs & Excise Commissioners

[2001] 1 WLR 1673

- not referred to either in Han or by Sullivan J below - upon which the appellants seek to rely. There it was decided that condemnation and forfeiture proceedings under section 139 of the Customs & Excise Management Act, 1979, following the applicant's failure to prove that the 26kg of tobacco he imported were for his personal (rather than commercial) use, were civil. As Lord Woolf CJ stated:

"… none of the usual consequences of a criminal conviction follow from condemnation and forfeiture proceedings. There is no conviction or finding of guilt. Under domestic law the person concerned is not treated as having a conviction. The person concerned is not subject to any other penalty, apart from the consequences of the forfeiture and loss of the goods."

But it is surely one thing to be unable to justify importing goods which are then confiscated; quite another to be penalised £2,000 for each clandestine entrant dishonestly or negligently brought in. 41. The only other authority I should mention in this connection is Air Canada -v- United Kingdom

(1995) EHRR 150

, again not referred to in Han and again relied upon by the appellants, in which the ECHR declined to classify, as criminal, proceedings (again under the Customs & Excise Management Act, 1979) by which Air Canada were required to pay a £50,000 penalty to redeem their forfeited aircraft. A number of features of this case, however, distinguish it from the present, essentially: a) the Court's acceptance that the process was in rem; b) the discretion there as to the amount of the penalty payable in lieu of forfeiture; c) liability was not dependent on culpability although in fact the penalty was imposed for the latest in a long series of security lapses by the airline; and d) the amount was not large in relation to the value of the aircraft or the drugs which had been smuggled in. These considerations apart, the decision was by a majority of 5:4, the dissenting judgments being perhaps the more powerfully reasoned, and the Strasbourg jurisprudence having since then moved yet further towards the respondents' position - see particularly AP, MP and TP -v- Switzerland

(1997) 26 EHRR 541

and Lauko -v- Slovakia

(2001) 33 EHRR 40

(both considered in Han). 42. Having, as stated, formed the view that liability under this scheme is indeed targeted at those truly regarded as in some degree culpable, it follows that I incline to the judge's view that, for Article 6 purposes, the scheme is properly to be regarded as criminal."

[30]I have gained little assistance, with respect, from some of the jurisprudence relied on in Mr Sherratt's skeleton, such as Bendenoun v France

(1994) 18 EHRR 54

, a decision on a very different sort of regime. I accept that even a minor financial penalty may be consistent with the scheme being treated as criminal if in truth its purpose is deterrent and punitive; see Lauko v Slovakia 4/1998/907/1119 and AP,MP and TP

(1997) 26 EHRR 541

which concerned fines for tax evasion levied against the heirs of the tax evader. With respect I think that it is little surprise that those proceedings were classified as criminal.

[31]I have referred in passing to the decision of their Lordships' House in the case of McCann

[2002] 3 WLR 1313

. I desire only to cite a paragraph from the speech of Lord Steyn at paragraph 20, where Lord Steyn is dealing with a classification question arising under domestic law. He said:

"In a classic passage in Proprietary Articles Trade Association v Attorney General for Canada [1931] AC 310, 324 Lord Atkin observed: 'Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the state. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?' in Customs and Excise Commrs v City of London Magistrates' Court [2000] 1 WLR 2020,2025 Lord Bingham of Cornhill CJ, expressed himself in similar vein: 'It is in my judgment the general understanding that criminal proceedings involve a formal accusation made on behalf of the state or by a private prosecutor that a defendant has committed a breach of the criminal law, and the state or the private prosecutor has instituted proceedings which may culminate in the conviction and condemnation of the defendant'."

[32]I need not refer further to the authorities. The emphasis of Mr Sherratt's oral argument was directed to the second Engel criterion, the nature of the "offence" in the case. He placed heavy reliance on Council Directive 92/12/EEC, and in particular Articles 8 and 9. Article 8:

"As regards products required by private individuals for their own use and transported by them, the principle governing the internal market lays down that excise duty shall be chargeable in the Member State in which they are acquired."

Article 9(1):

"Without prejudice to Article 6,7 and 8 excise duty shall become chargeable where products for consumption in a Member State are held for commercial purposes in another Member State. In this case, the duty shall be due in the Member State in whose territory the products are and shall become chargeable to the holder of the products. To establish that the products referred to in Article 8 are intended for commercial purposes, Member States must take account, inter alia, of the following...."

There are five indents:

"(a) the commercial status of a holder of the products and his reasons for holding them, (b) the place where the products are located or, if appropriate, the mode of transport used, (c) any document relating to the products, (d) the nature of the products, (e) the quantity of the products."

These provisions are reflected in the revised subordinate legislation which has been made in substitution of the revoked PRO. I need not go to the new domestic measures.

[33]Mr Sherratt's argument is that these provisions in the Directive demonstrate that the Commissioners, and the court in condemnation proceedings, must evaluate the statement which inevitably would have been put forward by the person bringing in the goods to the effect that they were for his or someone else's own use. If then it is concluded that that statement was false and the goods were in truth being imported for commercial purposes, that is a conclusion of reprehensible or blameworthy conduct on the part of the person in question. That in turn, says Mr Sherratt, is a very powerful indicator to the effect that the condemnation proceedings must be regarded as criminal within the second criterion in Engel.

[34]This argument is misconceived. The revocation of the PRO seems to me of itself to go nowhere. Issues of the owner's or the traveller's conduct were surely engaged before the correction in Hoverspeed of the misplaced burden of proof in the PRO. The owner's blameworthiness or otherwise, while no doubt engaged on facts such as the present (may arise, in many similar cases under the Directive) is not of itself an element in what has to be proved or not proved in condemnation proceedings. Under paragraph 6 of Schedule 3 to the Customs and Excise Management Act, the court is only concerned to decide whether the goods were liable to seizure. Liability to seizure may arise in a whole series of circumstances, many of which will not involve blameworthy conduct at all. That was the case in AGOSI and Air Canada. The scope of Schedule 3 is by no means co-terminous with that of the Council Directive. Even in a case to which the directive applies, the driver of the car in which the goods have been placed may on particular facts himself be innocent of any intention to bring in goods for commercial purposes. It is critical to concentrate on the condemnation proceedings as opposed to the other powers of the Commissioners.

[35]This appeal is concerned only with such proceedings. For my part, I cannot accept that condemnation proceedings travel between the criminal and civil categories for purposes of the Convention according to whether liability for seizure involves or does not involve seeming or actual blameworthiness on the part of the traveller, owner or person in question. We have surely to consider the regime of Schedule 3 to the 1979 Act as an entity; and as much it involves no necessary or defining element of blameworthiness. In any event, turning to the third of the Engel criteria, no penalty is imposed in condemnation proceedings. The court only declares what it finds to be the position. There is a power in the Commissioners to restore condemned goods (see section 152 of the Act of 1979). If that power is not exercised, recourse may be had to a review under section 15 of the Finance Act 1994 from whose adverse decision there is a right of appeal to the Value Added Tax and Duties Tribunal. That arises under section 16 of the Finance Act 1994. It has been held by the tribunal itself (see B S Gora & Ors v The Commissioners of Customs and Excise, 2002) that its jurisdiction upon such an appeal is drawn widely. In the result, I see no more reason than did Grigson J to suppose that the decision in Goldsmith was erroneous.

[36]I would just add these observations. Lord Steyn's remarks in McCann, although made in the domestic context, show that some care needs to be taken in the application of the Engel test. It is certainly beyond contest that the concept of "criminal charge" possesses an autonomous meaning in the Strasbourg jurisprudence. It is also true that the first of the three criteria, that is the domestic classification of the proceedings, is treated as no more than a starting point. But that proposition should not distract the court from the question whether, given the three criteria, the proceedings in issue are in substance in the nature of a criminal charge. Are they an instance of the use of state power to condemn or punish individuals for wrongdoing? The Strasbourg court and our own courts have held that condemnation proceedings are not in any such category. The emphasis on the in rem nature of such proceedings in Air Canada, Lord Woolf's judgment in Goldsmith, Lord Steyn's observations in McCann, and the Strasbourg court's own discussion in Butler combine, in my judgment, to underline the force of that conclusion.

[37]For all these reasons I would dismiss this appeal.

LORD JUSTICE BROOKE: I agree.

[39]LORD PHILLIPS, MR: I also agree.

Order

Appeal dismissed with costs to be subject to detailed assessment if not agreed.