O' Leary International Ltd v North Wales Police [2012] EWHC 1516 (Admin)

[2012] EWHC 1516 (Admin)

Case No CO/7479/2011

Case No 2012-635

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Date 31/05/2012

Mold Crown Court

Before

PRESIDENT OF THE QUEEN'S BENCH DIVISION

MR JUSTICE BEATSON

Between

O’Leary International LimitedAppellant

The Chief Constable of North Wales PoliceRespondent

Crown Prosecution ServiceInterested Party

Timothy Nesbitt (instructed by Marshall Glover) for Appellant

Matthew Curtis (instructed by Solicitor North Wales Police) for Respondent

Simon Ray (instructed by the CPS) for Interested Party

Hearing Hearing date: 17 January 2012

Further submissions: 6 February 2012, 20 February 2012 and 5 March 2012

Judgment

[1]The issue in this appeal from the Magistrates’ Court in proceedings under s.1 of the Police (Property) Act 1897 (the 1897 Act) and conjoined civil proceedings is whether the appellant, a firm of road hauliers, can recover four lorries seized by the police and in respect of which an order of deprivation was made under s.143 of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act). The issues are related to an issue in another case before this court, differently constituted, Chief Constable of Merseyside v Owens

[2012] EWHC 1515 (Admin)

where the judgment is handed down at the same time.

[2]It is convenient first to set out the facts as appear from the case stated by District Judge Clancy sitting at Dolgellau on 28 March 2011.

The facts

[3]The appellant is a company incorporated in the Republic of Ireland. It has a fleet of lorries and employs drivers who carry loads from the continent of Europe to Ireland through North Wales. On four occasions drivers employed by the appellant were stopped by the North Wales Police. i) The first who was stopped was Anton Bosch who was texting whilst driving. He was asked to produce his tachograph records. He could only produce five. However, he also produced a letter of attestation stating he had been on leave from 2 March 2010 to 17 May 2010. Such a letter is the accepted method of covering a driver under EC Regulation 561/2006. It was established that the letter of attestation was untrue, as he had in fact driven the same lorry on nine occasions in the UK when, according to the letter of attestation, he was meant to have been on holiday. Bosch admitted he had produced a false letter, stating that this was something the appellant regularly provided. He often drove with little or no rest, knowing of the possible danger. The appellant was well aware of this and helped facilitate the deception. He had been instructed to dispose of the records of illegal hours. He was sentenced to 16 weeks imprisonment for producing a false attestation with intent to deceive. An order was made for the forfeiture of the lorry and trailer under s.143 of the 2000 Act. ii) The second driver, Agnis Gocs, a Latvian, was stopped on 11 June 2010. He also produced a false letter of attestation. He gave a similar explanation to that given by Anton Bosch. A similar forfeiture order was made. iii) The third driver Stanislas Kadisevskis, a Latvian, was stopped on 29 September 2010. He also provided a false letter of attestation and gave a similar account to that of Anton Bosch. A similar forfeiture order was made. iv) The fourth, Constantin Cojocaru was stopped on 5 January 2011. He was using a duplicate tachograph card. On 6 January 2011 he pleaded guilty to offences of fraud and failing to keep tachograph records. He was sent to prison for 12 weeks. A similar forfeiture order was made. Mr Cojocaru stated it was not the fault of the appellant as he had acquired and used the fraudulent card without the appellant’s knowledge. v) The appellant wrote to the Magistrates asking about the deprivation Orders. The Magistrates stated that they could not accept that the appellant did not know about the activities of the drivers. Nor did they accept Mr Cojocaru’s explanation that he accepted full responsibility in respect of the false tachograph cards. vi) An appeal was brought in respect of the last offence to the Crown Court, but the judge did not allow the appellant to make representations as it was not a party. The sentence and the order of deprivation was upheld.

The application to District Judge Clancy under s.1(1) of the Police Property Act 1897

[4]On 11 October 2010 an application was made by the appellant against the Chief Constable of North Wales for the delivery of the lorries to the appellant. That application was heard by District Judge Clancy in March 2011. The statutory provision under which the claim for the return of the property was made was s.1(1) of the 1897 Act. It provided:

“Where any property has come into the possession of the police in connexion with their investigation of a suspected offence a court of summary jurisdiction may, on application, either by an officer of police or by a claimant of the property, make an order for the delivery of the property to the person appearing to the magistrate or court to be the owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as to the magistrate or court may seem meet.”

The claim by the owner of property in respect of which a deprivation order had been made under s.143 of the 2000 Act (which we set out at paragraph 12 below) is expressly provided for in s.144 of the 2000 Act in the following terms: “Property which is in possession of police by virtue of section 143” (1) The Police (Property) Act 1897 shall apply, with the following modifications, to property which is in the possession of the police by virtue of section 143 above— (a) no application shall be made under section 1(1) of that Act by any claimant of the property after the end of six months from the date on which the order in respect of the property was made under section 143 above; and (b) no such application shall succeed unless the claimant satisfies the court either— (i) that he had not consented to the offender having possession of the property; or (ii) where an order is made under subsection (1) of section 143 above, that he did not know, and had no reason to suspect, that the property was likely to be used for the purpose mentioned in that subsection. S.144(2)-(4) provides for power to make additional regulations under the 1897 Act. There is, however, nothing material in the Police (Property) Regulations 1997. (i) that he had not consented to the offender having possession of the property; or (ii) where an order is made under subsection (1) of section 143 above, that he did not know, and had no reason to suspect, that the property was likely to be used for the purpose mentioned in that subsection.

[5]In the hearing before the District Judge it was the contention of the appellant that it was entitled to have the property returned as it did not know and had no reason to suspect the property was likely to be used for the purpose of committing or facilitating the commission of any offence.

[6]The judge heard evidence from Mr O’Leary, the Sales Director of the appellant, Mr O’Sullivan, the Accounts Manager of the appellant, and Mr Dermot McMurnagh, the Export Manager of the appellant. The case stated sets out the evidence and the contentions at some length. It is sufficient to state that the judge found that the evidence called by the appellant was not to be relied on; that it was an inescapable conclusion that the appellant knew what was going on. The District Judge stated that he did not believe the explanations put forward by the appellant and concluded that the appellant had every reason to know what was going on.

[7]The appellant contended before the District Judge that in those circumstances it would have been disproportionate to refuse the return of the trailers. S.143(5) provides:

“(5) In considering whether to make an order under this section in respect of any property, a court shall have regard – (a) to the value of the property; and (b) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making).”

It was submitted on behalf of the appellant that as the Magistrates had to take into account the effect on the offender when the order was originally made, the court must do the same in respect of the actual owner of the property. As the appellant was not a party to the original proceedings, it was the obligation of the court, when the appellant sought the return of the lorries to have regard to the effect upon it. It was also contended that the powers under s.144 should be interpreted under the Human Rights Act so as to read into the section a requirement of proportionality. (b) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making).”

[8]The District Judge accepted that the loss of the vehicles was a very substantial loss to the appellant. Three questions were therefore stated for the opinion of the court:

“(1) Whether as a result of the principle of proportionality arising under Article 1 of the First Protocol to the European Convention on Human Rights, and the obligation to interpret legislation consistently with the European Convention on Human Rights, section 144 of the Powers of Criminal Courts (Sentencing) Act 2000 should be interpreted as providing the Court with a discretion to allow the return of property in possession of the police where it would be disproportionate not to so order. (2) If the answer to (1) is “yes”, whether it was disproportionate on the facts here to deprive the Applicant of the four vehicles and trailers which were the subject of the application. (3) If the answer to (1) is “no”, whether in the absence of discretion under section 144 of the Powers of Criminal Courts (Sentencing) Act 2000 to order the return of property to its owner where it is disproportionate to deprive him of it makes the section incompatible with Article 1 of the First Protocol of the European Convention on Human Rights.”

The directions on the appeal

[9]Directions were made for the hearing of the case stated at Mold, North Wales; a direction was also made that the CPS should be invited to become an interested party. From the skeleton arguments served by the appellant and the respondent (the police), it appeared that the issue in the appeal was the important, but short, point as to whether s.144 should be read down so that a court was entitled to take into account the circumstances of the appellant in deciding whether to order the return of the lorries. The CPS accepted the invitation to become an interested party; in a skeleton argument served by the CPS very shortly before the hearing, the CPS advanced a submission that raised a different issue. In summary it was contended that an order under s.143 operated only to deprive the offender of his rights in the property and not any other person. It was therefore not necessary to read s.144 down in the way suggested by the appellant, as the appellant would be entitled to bring a claim in the civil court to which the police would not have a defence, as the appellant had not been deprived of its rights of ownership. The CPS made clear that they had raised this issue pursuant to its duty to the court to draw to the court’s attention the case law on s.143 of the 2000 Act and s.1 of the 1897 Act; read properly the reference to the statutory scheme did not require any reading down of s.144.

[10]As this submission was only advanced very shortly prior to the hearing, we took the view that the best course was for us to hear the argument on the issue as originally presented and to make directions for written submissions, and if necessary further oral submissions, on the issues raised by the CPS.

Issue 1: The owner’s civil claim

[11]The appellant in its written submissions adopted and developed the initial argument of the CPS. It contended that it had, as owner of the lorries which were in the possession of the police in consequence of the Orders made under s.143 of the 2000 Act, the right to bring a claim in a civil court for conversion as an alternative to the claim under s.143 and s.144 of the 2000 Act and s.1 of the 1897 Act. It therefore issued proceedings in the High Court for conversion on 4 May 2012. We agreed that if the claim was issued (as it has been) we would try this claim as an action in the Queen’s Bench Division at the same time as resolving the issue raised by the case stated. (a). The powers under s.143 in respect of property not owned by the offender

[12]The first question that arises is the extent of the power under s.143:(1) Where a person is convicted of an offence and the court by or before which he is convicted is satisfied that any property which has been lawfully seized from him, or which was in his possession or under his control at the time when he was apprehended for the offence or when a summons in respect of it was issued— (a) has been used for the purpose of committing, or facilitating the commission of, any offence, or (b) was intended by him to be used for that purpose, the court may (subject to subsection (5) below) make an order under this section in respect of that property.

(2) Where a person is convicted of an offence and the offence, or an offence which the court has taken into consideration in determining his sentence, consists of unlawful possession of property which— (a) has been lawfully seized from him, or (b) was in his possession or under his control at the time when he was apprehended for the offence of which he has been convicted or when a summons in respect of that offence was issued, the court may (subject to subsection (5) below) make an order under this section in respect of that property.

(3) An order under this section shall operate to deprive the offender of his rights, if any, in the property to which it relates, and the property shall (if not already in their possession) be taken into the possession of the police.

[13]It was common ground that the effect of s.143 was not to deprive the owner of property who was not an offender of his ownership rights; s143(3) only deprived the offender of his rights (if any). This has been emphasised in many of the decisions at paragraph 14 below to which it is necessary to refer. (ii). The case law

[14]There are a number of cases where the extent of the power to make a deprivation order under s.143 and the exercise of the powers under s.1 of the 1897 Act to make an order for the disposition of goods in the hands of the police have arisen. It is unfortunate that in some of the cases the decisions in other cases have not been cited. It may therefore be helpful to review them: i) In Raymond Lyons & Co v Commissioner of the Police for the Metropolis

[1975] QB 321

, a youth took a ring to the claimant jeweller for a valuation: when the jeweller saw it was worth a considerable sum, he was asked to leave it, as the jeweller thought it was stolen. It was handed to the police. The youth never claimed it. The jeweller brought proceedings under s.1 of the 1897 Act asserting it was the owner for the purposes of s.1 as it had better title than anyone but the true owner. The Magistrates held that it was not the owner; the Divisional Court agreed. Lord Widgery CJ, giving the only judgment, observed that the 1897 Act should only be used in simple cases where there was no difficulty in law and the matter was clear. Where there was a real issue of law or any real difficulty in determining whether a particular person was or was not the owner, a claim should be brought in the civil courts. ii) In R v Chester Justices ex p Kenneth Smith

(1978) 67 Cr App R 133

, the wife of an offender applied for an order of mandamus requiring Magistrates to determine an application under s.1 of the 1897 Act for delivery to her of a car which the Crown Court had held was used in an offence and then had made an order under the predecessor section to s.143 (s.43 of the Powers of the Criminal Courts Act 1973). This court held that the Magistrates had been wrong to conclude that the issue of ownership had been determined in the Crown Court; it granted an order of manadamus. Lyons was not cited. iii) There is a brief report of a decision of Judge McCreery QC in [1979] CLY 3024 in which the judge held that where justices had declined jurisdiction under s.1 of the 1897 Act, the owner was free to pursue a remedy at common law. iv) In R v Troth

(1979) 1 Cr App R (S) 131

, the offender, a partner in a business, used a lorry which was partnership property to steal coal. The other partner was unaware of that use. An order was made in the Crown Court under the predecessor section to s.143 depriving the offender of his rights in the lorry. The Court of Appeal Criminal Division quashed the order, reaching the same conclusion as Lyons which was not cited. After referring to the application made to the Magistrates under s.1 of the 1897 Act, where the Magistrates had declined jurisdiction, the court said:

“We do not say it is impossible for the Court to make an Order in a case such as this nor do we say it is impossible for the police to take proper steps under [the 1897 Act]. But clearly in the case of a partnership, it leads to difficulties which may be so onerous as to make it not worth while making the order in the first instance.”

The court considered that an increased financial penalty could have been imposed in lieu of making the order. v) In R v Colville-Smith

[1990] 1 WLR 958

, the court made clear that the only forfeiture which could be ordered under the predecessor section was the defendant’s right in the property. vi) In Jackson v Chief Constable of West Midlands Police (unreported, 22 October 1993) this court held, following Chief Constable of West Midlands Police v White (unreported, 13 March 1992) that a Magistrates’ Court would be entitled to decline to make an order to return property under the 1897 Act where it was clear it would be contrary to public policy to do so. Laws J (as he then was) referred to the fact that the claimant’s counsel had accepted that if a claim was brought in a civil court, the defence of public policy could be relied on. vii) In Webb v Chief Constable of Merseyside

[2000] QB 427

, the defendant police in the lawful exercise of their powers seized from the claimant, Webb, money which they suspected was the proceeds of drug trafficking. Webb brought proceedings under s.1 of the 1897 Act, but did not appear. The claim was dismissed. As May LJ recorded at page 433, the parties were agreed that this did not prevent him bringing the claim he brought in the County Court for the return of the money. The judge found on the balance of probabilities that the money was the proceeds of drug trafficking; he refused to order the return on the basis that the property had been illegally obtained by Webb. The Court of Appeal held that Webb was entitled to the return of the money. After first holding that the police’s statutory power to retain the money was exhausted, May LJ said in relation to s.1 of the 1897 Act at page 439 that it:

“was agreed that these provisions do not prevent civil court proceedings of the kind taken in these cases. The section does not give the police any permanent entitlement to retain the property.”

He went on to hold that in the light of the decision in Tinsley v Milligan

[1994] AC 340

, there was no public policy defence which debarred Webb’s right to the money, concluding at 448:

“… if goods are in the possession of a person, on the face of it he has the right to that possession. His right to possession may be suspended or temporarily divested if the goods are seized by the police under lawful authority. If the police right to retain the goods comes to an end, the right to possession of the person from whom they are seized revives. In the absence of any evidence that anybody else is the true owner, once the police right of retention comes to an end, the person from whom they were compulsorily taken is entitled to possession.”

The other members of the court agreed, but neither specifically referred to s.1 of the 1897 Act. viii) In R v Brookes

[2003] EWCA Crim 307

, an offender used, for facilitating the commission of a drugs offence, a car of which a third person claimed to be the hirer under a hire purchase agreement. The judge made an order under s.143 refusing to hear evidence about the hiring of the car. The Court of Appeal Criminal Division quashed the order on the basis that there was no evidence that the conditions for making the order were satisfied. As to the judge’s failure to hear evidence from the hirer, the court concluded:

“The judge was not obliged to entertain [the hirer’s] claim. The procedure for her to recover her property is laid down under s.1 of the [1897 Act] and is subject to the important proviso introduced by s.144(1)(b) that she must satisfy the court that she had not consented to the appellant having the car or she did not know and had no reason to suspect that the car was likely to be used for the purposes of crime. The statutory scheme envisages that these questions must be determined not by the Crown Court which imposes the order but by the magistrates court, to which her application would, in the ordinary course, have been made.”

The court was only referred to Troth. ix) In Gough v West Midlands Police

[2004] EWCA Civ 206

, the Court of Appeal considered whether the police had to return, when sued in the civil courts, vehicle parts which the police suspected had been stolen. The police relied on the powers to retain seized property under s.22 of the Police and Criminal Evidence Act 1978, but the court concluded that they were not entitled to do so on the facts of that case. After referring to Lyons, Park J, giving the first judgment, observed:

“First, I assume that in practice the regular use of the 1897 Act is for the straightforward and simple cases which Lord Widgery had in mind, and that it is rare for the ways in which the magistrates deal with applications under the Act to give rise to appeals. … I think [it], obvious that the police must use the Act frequently to deal with matters where they find themselves in possession of items of property which they do not want to keep but do not know whether they can legitimately destroy them or what else they can do with them. In such cases the police will understandably wish to have the protection of a court order before destroying or otherwise disposing of the goods. Second, although the magistrates' powers do extend to making orders which can affect possessory or ownership rights, I do not think that it is a main purpose of the Act that it should be used in order definitively to resolve issues of that nature. It is noteworthy that s.1(2) provides that an order under s.1(1) does not affect the right of any person to take (within six months) legal proceedings against any person in possession of property delivered by virtue of the s1(1) order. Such proceedings would, I take it, be brought in the civil courts, not in the Magistrates Court which made the order.”

At paragraph 23 of his judgment, Park J expressed the following view:

“… in my opinion, despite the use of the word ‘may’ in the Police (Property) Act and despite the feature that the Act refers to ownership rather than to possession, it would not be a proper exercise of discretion by the magistrates to refuse to order a return of property to the only known person who is admittedly entitled to possession of it at common law.”

Carnwath LJ and Potter LJ agreed, but for the purpose of this appeal it is not necessary to refer to their judgments. x) In R v Kearney

[2011] 2 Cr App R(S) 106

, the offender stole petrol for use in a car hired under a hire purchase agreement. The Crown Court judge made an order under s.143 that the car be taken into the possession of the police and sold and the proceeds paid to those from whom the offender had stolen petrol. The Court of Appeal Criminal Division quashed the order, as subsequent to the making of the order the offender had sold the car (which had not been taken into the possession of the police) with the consent of the hire purchase company. The court stated that it would not therefore examine whether the order had been properly made. However it again observed that the power under s.143 only affected the rights of the offender, that the finance company that had provided the hire purchase would have been bound to succeed under s.1 of the 1897 Act and the guidance in Troth should be followed. (iii). The contentions of the parties

[15]In the written submissions provided by the CPS subsequent to the oral hearing, the CPS submitted that s.143 did not preclude the making of an order where the owner was not the offender; it pointed out that s.143(3) contemplated that the offender might not have any rights in the property. A distinction might be drawn between a case where the property was in multiple ownership or encumbered (where the courts had said that an order should not be made) and a case where the property was in the sole ownership of a third party.

[16]The police contended that the Orders were rightly made by the Magistrates under s.143 and the mechanism for the return of the lorries was that specified in s.144. They accepted that: i) the 1897 Act did not prevent the bringing of civil proceedings; ii) The order under s.143 (as we have set out at paragraph 13 above) did not deprive the appellants of title to the lorries. They contended, however, that the appellants did not have a cause of action against them either in conversion or any other claim. As the lorries have been made the subject of deprivation orders under s.143, they were lawfully in the possession of the police and the appellants had no immediate right to possession. They could not therefore bring proceedings for conversion. Their remedy was to apply in the Magistrates’ Court under s.144. The position of the police was that such a scheme gave a very important means of dealing with the owners of foreign lorries over whom it was difficult to obtain jurisdiction and created such danger to the people of North Wales. We have every sympathy with the position taken and the need for effective powers over the owners of foreign lorries, such as the appellant.

[17]The appellants contended, on the basis of the cases to which we have referred, that they were entitled in the civil action to the return of the lorries. They had made another formal demand on 18 January 2012. As the police had refused, they had converted it: they relied upon the definition of conversion in Clerk v Lindsell (20th edit) at paragraph 17-07 approved in Kuwait Airways v Iraqi Airways

[2002] UKHL 19

at paragraph 425. (iii). The scope of proceedings under s.1 of the 1897 Act

[18]As the editors of Palmer on Bailment (third edition) observe at paragraphs 35-059 to 35-60, s.1 of the 1897 Act is helpful in protecting the police where they hold goods at the conclusion of an investigation, as if the procedure is followed they are not liable in conversion: see the observations of Lord Denning MR and Sir Stanley Rees in R v Uxbridge Justices ex p Commissioner of Metropolitan Police

[1981] QB 829

at 834 and 846-7. S.1(2) of the 1897 Act provides that where an order is made under s.1(1), that

[19]However, the decisions of the Court of Appeal Civil Division to which we have referred have made clear that a claimant does not have to proceed under the Act where property is in the possession of the police pursuant to their powers of seizure.

[20]We accept that neither Webb nor Gough deals with circumstances where the property was in the possession of the police pursuant to an order under s.143; both were cases where the police had acquired the property in the course of an investigation. In Kearney, where the property was forfeited under s.143,the court nonetheless assumed that the police would have no defence to a claim from the finance company, but the issue raised by the police in this case was not argued.

[21]The question therefore arises whether the assumption made in Kearney was correct. If an order is made under s.143 in respect of property in the ownership of another person, are the police correct in contending that the other person can only recover it under the procedure provided for in s.1 of the 1897 Act on the basis it provides a statutory scheme and the owner has no right to bring a claim in conversion? (iii). The right to bring court proceedings

[22]As the appellant pointed out, it had no right to appear at proceedings where the Orders made by the Magistrates under s.143 were made. It could not appeal against the making of those orders; it could not therefore contend that the Orders had not been made properly.

[23]It is common ground as we have set out that the Orders operated only to deprive the drivers as the offenders of their rights to ownership of the lorries. There was no issue before the Magistrates that the lorries were not owned by the drivers. This court and the Court of Appeal Criminal Division have given strong guidance in Troth and Kearney to the effect that a sentencing court should not make orders under s.143. It is therefore right to observe the Magistrates would probably not have made the orders if that case law which the CPS drew to our attention had been drawn to their attention or to the attention of the Crown Court on appeal. However, we must proceed on the basis that the orders under s.143 are extant and we have no power to set them aside in these proceedings.

[24]Although the police accept that the title of the owner was not affected by the orders by reason of s.143(3), they contend that the appellant’s right to possession and to bring an action in the civil courts was affected. Although there is nothing in s.143 which suggests that the power under s.143 can affect any of the rights of the owner, it was contended that s.144 provided the exclusive statutory machinery for the owner to recover goods in respect of which an order under s.143 had been made and thus the appellants could not assert any right in a civil court sufficient to found an action for conversion.

[25]We do not agree. S.1 of the 1897 Act as enacted gave the Magistrates’ Courts jurisdiction only to deal with property in the possession of the police in connection with the investigation of an offence. It was passed in substitution for s.29 of an earlier Act, the Metropolitan Police Courts Act 1839. As Holroyd Pearce LJ explained in Irving v National Provincial Bank

[1962] QB 73

at 78, it provided practical machinery to deal with a practical situation:

“The Act is not providing a final and scientific decision between conflicting claims, since it allows any person to take civil proceedings within 6 months. There is no suggestion in the Act that the former possessor when taking such proceedings is in any more favourable position than any other plaintiff. The machinery has worked well in practice… ”

[26]The possession of property by the police under s.143 was by virtue of court Orders. If the Magistrates’ Court was to have jurisdiction, then it was necessary to give that court power to deal with such a case. That in our view was the purpose of the amendment effected by the predecessor section to s.144. There is no reason to read it as providing an exclusive remedy. It merely conferred an additional jurisdiction so that simple cases could be dealt with simply. If it had been intended to be the exclusive remedy and thus deprive an owner whose goods had been ordered by the court to be placed in the possession of the police without him being heard, it would have no doubt contained provisions corresponding to those in s.143(5) (which we have set out at paragraph 7 above) entitling the court to take into account matters such as the effect on the offender and the value of the property. It would also, no doubt, have been necessary to repeal s.1(2) of the 1897 Act (which we have set out at paragraph 18).

[27]It would in any event plainly be contrary to fundamental principles for an owner to be deprived of any of his rights in proceedings to which he was not a party; the appellants were not party to the proceedings. The Crown Court judge rightly rejected their right to be heard. As the rights of the appellant were not affected by the Orders, it is difficult to see how its right to possession can have been affected, even though the effect of the court Order was to transfer possession to the police.

[28]Thus, in our judgment, the appellant has the full rights of the true owner including a right to possession. The Orders under s.143 made by the Magistrates’ Court provide no defence to the police to that right, unless possibly there was a public policy defence, the continued availability of which this court has considered in Chief Constable of Merseyside v Owens

[2012] EWHC 1515 (Admin)

. No public policy defence of that kind would have been advanced by the police in this case. We therefore order the delivery of the lorries to the appellant and reserve all other issues.

Issue 2: Reading down s.144

[29]Our conclusion on the first issue renders consideration of the second unnecessary. If our view is correct, it is not, as the CPS submitted, necessary to read down s.144.

[30]We will, however express very briefly our conclusion on that issue, but only on the assumption that our view on the first issue is not correct.

[31]The alternative contention of the appellant company was that the words “or (iii) deprivation would be disproportionate” should be read into s.144(1)(b). That submission was founded upon the following argument. In Air Canada v The UK [1995] ECHR 18465/91, the Strasbourg Court had to consider whether the forfeiture by HM Commissioners of Customs and Excise of an aircraft on which cannabis worth £800,000 had been found violated its rights under Article 1 of Protocol No. 1 of the Convention. The court concluded at paragraph 36 that interference with the rights of property must “achieve a fair balance between the demands of the general interests of the community and the requirements of the protection of individuals’ fundamental rights”.

[32]In Lindsay v The Commissioners of Customs and Excise

[2002] EWCA Civ 267

, the Court of Appeal had to consider the challenge by the owner of a car to its seizure and forfeiture by HM Customs and Excise in circumstances where the owner had carried a substantial quantity of cigarettes and tobacco. The owner contended the seizure was disproportionate and would cause him undue hardship. The court, after referring to the First Protocol and to the decision in Air Canada held that the policy of HM Customs and Excise in applying a blanket policy of forfeiture was not lawful. Lord Phillips MR said at paragraph 64:

“The Commissioners’ policy does not, however, draw a distinction between the commercial smuggler and the driver importing goods for social distribution to family or friends in circumstances where there is no attempt to make a profit. Of course even in such a case the scale of importation, or other circumstances, may be such as to justify forfeiture of the car. But where the importation is not for the purpose of making a profit, I consider that the principle of proportionality requires that each case should be considered on its particular facts, which will include the scale of importation, whether it is a ‘first offence’, whether there was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship that will be caused by forfeiture. There is open to the Commissioners a wide range of lesser sanctions that will enable them to impose a sanction that is proportionate where forfeiture of the vehicle is not justified.”

[33]The appellants also relied on the decision of this court in Commissioners of Customs and Excise v Newbury [2003] EWHC and drew our attention to Commissioners of Customs and Excise v Berriman

[2007] EWHC 1183

, but it is not in the circumstances necessary to lengthen this part of the judgment by referring to these decisions.

[34]On the basis of these authorities, it was contended on behalf of the appellant company that a court must be entitled to consider whether deprivation under s.143 was proportionate. There could, for example, be cases where the value of the goods was very substantial and the fault of the owner slight. Moreover, Parliament itself had recognised that the court was entitled to take into account under s.143 in the case of the offender owner the value of the property and the likely financial effects on the offender. It would be wholly disproportionate if a court was prevented from taking those matters into account when dealing with the entitlement of the owner to have the goods returned.

[35]It was the contention of the police that Parliament had made an express decision as was evident from the terms of the statutory provisions. It was a justifiable distinction as the owner of property was bound to take especial care to see that his property was not used for criminal purposes.

[36]In our view the position is clear. On the assumptions we have made, s.144 would have provided for a situation where goods might not be returned, even if the owner were merely negligent. In the light of the decisions in Air Canada and Lindsay, we do not see how it would be proportionate for a court to have no power to consider the value of the property, the degree of culpability of the owner and the financial effect on the owner of the deprivation of his goods. If, as is clear from s.143(5), in considering whether an order for deprivation should be made against an offender, a court is entitled to take into account the value of the goods and the financial effect on the offender it would, on the assumption we have made, not have been logical where the owner was not the offender, that the court could not take those matters into account but could do so if he was the owner. In our judgment, on the assumption that we have made in relation to this issue, unless s.144 were read down in the manner suggested, the rights of the owner of the goods would be violated.

[37]In the circumstances of this case, there is no evidence before us of the value of the goods or of the effect of their deprivation upon the appellants. We would therefore have remitted the issue for determination by the District Judge on the basis that s.144 contains the words, “or (iii) deprivation would be disproportionate”.

Conclusion

[38]We therefore order delivery up of the lorries by the police to the appellant. We answer the questions posed by the District Judge by saying that the court should have declined jurisdiction.

order

“shall not affect the right of any person [claiming to be the owner] to take within six months from the date of the order legal proceedings for the recovery of the property, but on the expiration of those six months the right shall cease. This makes clear the right to bring civil proceedings, but if none are brought the police are protected.