Bartholomew, R (on the application of) v HM Revenue & Customs [2005] EWHC 1666 (Admin)

Case No CO/1880/2005[2005] EWHC 1666 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 29th June 2005
Strand
London WC2
B E F O R E:
MR JUSTICE DAVIS
Between
THE QUEEN ON THE APPLICATION OF BARTHOLOMEWClaimant-v-
Between
HER MAJESTY'S REVENUE AND CUSTOMSDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J HALL (instructed by Gullands Solicitors) appeared for CLAIMANTMR BIRD (instructed by HM Revenue & Customs) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE DAVIS: This is an appeal by way of case stated brought by Mr Stephen Bartholomew against a decision of the Crown Court at Maidstone (His Honour Judge Simpson and two Justices) given on Friday 10th September 2004, whereby an order for condemnation made by the Magistrates on 8th April 2004 was upheld and the appeal from the Magistrates' order was dismissed.[2]The background facts are conveniently set out in the case stated and are these. On 8th February 2003 at around 4.15 in the afternoon, the appellant was stopped by an officer of Customs and Excise at Dover Eastern docks. He was travelling with a Miss Natalie Woods in a Ford Galaxy vehicle. When questioned, the appellant stated that he had travelled to Luxembourg that morning. In the vehicle were found 6 kg of hand-rolling tobacco, 21,400 cigarettes, 95 cigars and 4.5 litres of wine. The goods were not concealed. The appellant told the officer that the goods belonged to himself and Miss Woods but that most of the goods were his. He stated that he intended to give away some of the cigarettes and most of the hand-rolling tobacco. He said that he had spent just over £2,200. He said that he had received an insurance cash pay out of £1,150 and was due a further cheque for £400. He said that he worked as a van driver with take home pay of £500 to £600 per week. The officer was not satisfied that the goods were for the appellant's own use and both the goods and the vehicle were seized by the officer. The vehicle was, however, later restored.[3]The dispute between the parties was as to whether the goods were liable to forfeiture. In this regard the relevant provisions were section 49 of the Customs and Excise Management Act 1979 which, summarising it shortly as the parties have in their skeleton arguments before me, relates to primary liability: that is to say, in effect, again summarising shortly, where the goods were being introduced into the country for a commercial purpose. As is also common ground there is then provision contained in section 141 of the Act, what the parties before me have called secondary liability, whereby the remainder of goods which are "mixed, packed or found" with the goods which may be the subject of primary liability can also be held to be liable for seizure.[4]The essential issue between the parties was, as I have indicated, whether the goods found in the Ford Galaxy vehicle were liable to forfeiture. The court made the following findings of fact as recorded in the case stated:
"(1) The appellant was a heavy smoker of cigarettes. (2) The quantity of tobacco was 'far far more' than could be justified by the explanations given by the appellant to the officer and to the court. (3) The purchase was financed in part by a sum of £1,150 which the appellant had received by way of compensation. (4) The appellant was using the Ford Galaxy which belonged to Miss Muldoon in exchange for her using his van to move some furniture. (5) The court was satisfied that the goods were not in fact just for the appellant, Miss Woods and Miss Woods' mother. (6) The amount of tobacco and cigarettes was very large and the sum of money, £2,200, was very substantial. (7) The goods were 'at least in part' not for own use within the extended meaning of that phrase and so the purpose for which they were held was not 'non-commercial'."
Pausing there, it can be seen from the wording of those findings that some element, at least, of the cigarettes and tobacco were accepted as being for non-commercial purposes. Likewise, it is clear that the 4.5 litres of wine and the 95 cigars were similarly so treated. It therefore also follows that with regard to those items, if they were to be liable to forfeiture at all that could only be by way of secondary liability under the provisions of section 141 of the Act and not by way of primary liability under the provisions of section 49.[5]Having made those findings the court went on to say this as recorded in the case stated:
"We found that all the goods were liable to forfeiture by reason of a combination of primary liability (part of the goods being not for own use and so being held for a commercial purpose) and of secondary liability (the remainder of the goods being 'mixed, packed or found' under section 141(1)(b) of the Act). (8) We did not make a finding as to which part or proportion of the goods were not for 'own use'. We were not asked to make such a finding and found no need to do so."
The case stated then went on to record a summary of the submissions advanced to it, including the submissions of the respondent. That included reference to the wording of section 141(1) and also included, as the case stated records, express reference to the decision of the Divisional Court in the case of Newbury [2003] 2 AER 964, the Crown Court recording the proposition that a thing was not liable to forfeiture under section 141 if forfeiture would be so disproportionate as to be a breach of the individual's human rights. There was also reference to Article 1 of the First Protocol.[6]The case stated then went on to say this:
"The appellant did not dissent from these propositions of law. His counsel did address the court in relation to proportionality and Newbury but these submissions were confined to the question of the car which ultimately we found unnecessary to decide. (11) It was not submitted to us that there was any disproportionality in applying section 141(1)(b) of the Act. It was not submitted to us that any of the appellant's Convention rights would be or were infringed."
The case stated then went on to summarise the decision of the Crown Court in this way at paragraph 12:
"Having concluded that part of the goods were liable to primary forfeiture, we concluded by section 141(1)(b) of the Act the remainder of the goods found in the car should be liable to secondary forfeiture. (13) We were aware of the Newbury decision and proceeded upon the basis that the law was correctly stated in the respondent's skeleton argument. We were also aware of the requirement that we should not make an order if it was incompatible with a Convention right (section 7 Human Rights Act 1998). (14) Accordingly, the entirety of the goods were liable to forfeiture and the appeal was dismissed. (15) We were not asked by either party to specify the proportion or quantity which we considered was liable to primary forfeiture and the proportion which we considered was liable to secondary forfeiture. We did not consider that we needed to do so of our own motion."
The court then went on to pose the following questions for the consideration of the High Court and they were these:
"(1) Was the decision to forfeit all the appellant's goods wrong in law by reason of our failure to identify which part or proportion was liable to primary forfeiture under section 49 of the Act and which part or proportion was liable to secondary forfeiture under section 141(1)(b) of the Act? (2) Was the decision to forfeit all the appellant's goods wrong in law by reason of our failure to make an express finding that in relation to the secondary liability the forfeiture did not amount to a breach of the appellant's Convention rights?"
[7]The essential submissions of Mr Hall appearing on behalf of the appellant before me, as he did before the Crown Court, comes to this. He submits that it was incumbent upon the Crown Court to consider the question of what may be called, by way of shorthand, proportionality, given that goods belonging to Mr Bartholomew were potentially being declared liable to seizure. Secondly, although this is the minor part of his argument, and to some extent reflecting his main argument, the court should have expressed exactly, or at least approximately, what proportion of goods it was finding were liable to primary forfeiture and what goods were potentially liable to secondary forfeiture, if I can put it in that way.[8]The essential submissions of Mr Bird, counsel appearing on behalf of the Commissioners for Customs and Excise, comes to this. First, he submits that this point is not open to the appellant since he did not raise the issue of proportionality, as such, before the Crown Court at all. Second, he submits that in any event it is implicit in the reasoning of the Crown Court that the court had been satisfied that no Convention right was infringed. Third, he submits that really the challenge here is being mounted as to the reasoning or lack of it: but what should be the challenge, if at all, should be a challenge to the decision itself and, as Mr Hall submits, that decision was plainly justified.[9]To put a little bit of flesh on the submissions of Mr Hall, reference may be made to the decision of the Court of Appeal in the case of Lindsay v Customs and Excise Commissioners [2002] 1 WLR 1766 where, at paragraph 64 of his judgment, Lord Phillips of Worth Matravers MR indicated a number of factors which the court should take into account in considering whether or not a vehicle should be forfeited under the provisions being considered of the Act. It may be noted that the court in that case was considering a question arising under restoration proceedings, that is to say not arising under section 141. Furthermore, the court was dealing with the issue of a vehicle: which does, it is true, come within the ambit of secondary liability under the legislation in appropriate circumstances. But Mr Hall's point is that the kind of factors identified in paragraph 64 in Lindsay should, in the ordinary case at least and certainly in this case, have been the kind of factors requiring consideration by the Crown Court here.[10]Mr Hall further referred me to the decision of the Divisional Court in the case of Newbury [2003] 2 AER 964 which, as I have already said, had been mentioned by the Crown Court. Mr Hall in particular referred me to the comments of Hale LJ in paragraph 21 of her judgment, and to the penultimate paragraph of the judgment which says this:
"It follows that the answer to question 2 in the stated case is "
Yes, they are liable to forfeiture" but the answer to question 3 is that the issue of whether property is liable to forfeiture includes whether forfeiture would be so disproportionate as to be a breach of the particular claimant's rights under Article 1 of the First Protocol to the Convention and both can be resolved by the court. This is not strictly a question of discretion but a matter upon which the court is entitled to reach its own independent judgment."[11]Mr Hall's submission was that the court was not simply entitled to reach its own independent judgment on the question of proportionality but was positively bound to do so. He further made the point that the position is not analogous to, for example, the position arising perhaps in the case of forfeiture of leases where, in the ordinary way, it is for a tenant to seek to persuade the court to grant relief and raise the relevant issues. Here, he submitted, it was for the Crown to establish, if it could, that secondary liability should follow under section 141 with regard to all the goods found in Mr Bartholomew's car.[12]I have no hesitation in concluding that this appeal must fail. The first point, as I see it, is that the point now sought to be argued was never in fact raised in this way at all before the Crown Court. I have been taken to the transcript and it is quite plain that the whole argument, and understandably so for forensic purposes, was addressed to the issue as to whether any goods at all were to be liable to be seized under the provisions of section 49. As Mr Bird pointed out, there could be forensic deterrence from seeking to mount an alternative case and at all events it is quite plain that that was what Mr Bartholomew was arguing; that is to say, there should be, on the facts, no primary liability at all. Nowhere was it submitted to the Crown Court that if the Crown Court was against Mr Bartholomew on the primary issue then some secondary alternative issue raised as to whether it would be disproportionate to order seizure under the provisions of section 141.[13]In my view that is indeed a formidable and, I rather think, fatal objection to this appeal. But that is in truth not the only reason this appeal must be dismissed. It must be dismissed because it is plain from what the case stated says that the Crown Court did indeed have in mind the provisions of Article 1 of the First Protocol and did indeed have in mind the decision of the Divisional Court in Newbury. They say so in terms in the case stated; and indeed Newbury had been mentioned in, for example, the skeleton argument of the Customs and Excise before the Crown Court. It seems to me that one can see that the court had those provisions well in mind: because the court says so in terms in paragraph 13 of the case stated: where they say that they were aware of the Newbury decision and proceeded upon the basis that the law was correctly stated in the Customs and Excise skeleton argument and were also aware of the requirement that they should not make an order if it was incompatible with a Convention right.[14]It seems to me that that, taken in the context of the case stated as a whole, in any event conclusively disposes of the point now raised. Mr Hall complains that nowhere expressly does the decision -- whether in the case stated or in the transcript of the ruling as given at the time -- state in terms that the Crown Court had found that there was no disproportionality in making the order under section 141. I find it completely unsurprising that in this particular case the Crown Court did not think it necessary to be more explicit than it was, given that this point had never sought to be argued in this particular way before the Crown Court. In any event, I entirely agree with Mr Bird that such a finding is implicit in what the Crown Court find, as is self-evident from the wording of the case stated itself. Indeed, that must also be so because on any view the Crown Court was considering, and indeed ruling as liable to seizure under section 141, the cigars and the wine: which clearly the Crown Court had accepted were not liable to seizure under section 49.[15]As to the complaint that the Crown Court should have expressed what proportion of the goods were liable to seizure under section 49 and what proportion of goods were liable to seizure on a secondary basis under section 141, in my view there is nothing in that point at all. It is difficult to see how the Crown Court could properly have plucked some fraction out of the air. What the Crown Court had found was perfectly sufficient for the purposes of their decision, both under section 49 and section 141; namely, that the quantity of the tobacco and the cigarettes was, in effect, far, far more than could be justified by the explanations put forward. That, in my view, in the circumstances of this case, was a sufficient finding. Furthermore, that finding which carries with it the necessary finding that the amount of tobacco and cigarettes which were liable to seizure under section 141 were relatively small reinforces the conclusion which the Crown Court plainly had reached; namely, that it was not disproportionate to order that all the goods were to be liable to seizure by reference not only to section 49 but also to section 141.[16]In those circumstances it seems to me that this appeal is devoid of any substance, both in law and on the factual merits. I dismiss the appeal and answer both questions in the negative.[17]MR BIRD: My Lord, there is an application for costs. May I hand up a schedule. (Handed). My learned friend has a copy. My Lord, the figures are broadly consistent with my learned friend's figures.

MR JUSTICE DAVIS: What is your schedule, Mr Hall?

[19]MR HALL: Mine came to £2,881.

MR JUSTICE DAVIS: All in?

[21]MR HALL: No, plus £400 VAT. So about £3,200.

MR JUSTICE DAVIS: Have you seen the schedule?

[23]MR HALL: I have. I have no complaints. I only make this point as to the third item. £600 for attendance at £200 an hour. I am not attended today, so with that caveat --

MR JUSTICE DAVIS: You do not think Mr Bird should have had a solicitor attending?

[25]MR HALL: No.

MR JUSTICE DAVIS: These Customs cases have to be kept an eye on do they not?

[27]MR HALL: Indeed, but I am representing a privately funded applicant. In my submission if attendance was necessary the figure of £200 per hour to attend appears to be perhaps disproportionate. If attendance was necessary, which I do not accept, perhaps a lesser fee earner would have been appropriate. I am sure that my learned friend is capable of taking notes of the ruling.[28]MR JUSTICE DAVIS: You do not take any issue with the form of the schedule of costs which is not in accordance with the rules of court?[29]MR HALL: I only found out about the recent case yesterday. It shows the breakdown of time and --[30]MR JUSTICE DAVIS: But it does not have the usual endorsement about no better sum than can be recoverable. You do not take any point on that?[31]MR HALL: No.

MR JUSTICE DAVIS: You say that sum is too much.

[33]MR HALL: I say that particular item is too much.

MR JUSTICE DAVIS: Anything you want to say, Mr Bird?

[35]MR BIRD: My Lord, this is the High Court. In my submission it is entirely proper that(a) there should be a representative from HM Revenue and Customs here, and(b) it should be the solicitor with the conduct of the case. As far as the form is concerned, my learned friend's document was not in the right form either and we are a Government department which is different.[36]MR JUSTICE DAVIS: Could you make sure next time that it is done in proper form. I make a summary assessment of costs and I think it fair that Customs should have their costs as per their schedule in the total sum of £3,475. How long do you want to pay, Mr Hall?[37]MR HALL: May I just turn to my lay client?

MR JUSTICE DAVIS: Yes, of course.

[39]MR HALL: My Lord, I am going to ask for a long time to pay. Twelve months.

MR JUSTICE DAVIS: You are not going to have 12 months.

[41]MR HALL: He makes £400 a week.[42]MR JUSTICE DAVIS: Well, he chose to bring these proceedings. What do you say, Mr Bird?[43]MR BIRD: My Lord, this appellant spent £2,200 on a cigarette trip. If he is doing that in one trip he can pay this in three months at the outset.[44]MR JUSTICE DAVIS: Four months, Mr Hall. It has been an expensive outing for your client. Maybe he will not go to Luxembourg again. Thank you very much.