England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Owen)

		Royal Courts of Justice Strand London WC2
		9th March 2000

1. LORD JUSTICE MAY: This is an appeal by permission of the judge from the decision of Owen J in the Crown Office on 29th June 1999, BAILII: [1999] EWHC Admin 613, when he dismissed the appellant's two applications for judicial review of decisions of the Luton justices in drug trafficking forfeiture proceedings.
2. On 13th May 1998 customs officers at Luton Airport seized cash from the appellant consisting of £23,960 sterling and the equivalent of about £900 or slightly less in pesetas. They did this under section 42(1) of the Drug Trafficking Act 1994, on the ground that there were reasonable grounds for suspecting that the money was the proceeds of or intended for drug trafficking. On 14th May 1998 (the following day), the Luton justices ordered detention of the cash until 13th August 1998. I believe that at some stage in the history that I am relating the small amount of pesetas fell out of account and the matter principally concerns the £23,960.
3. On 6th August 1998 the justices dismissed an application by the appellant for the return of the cash and granted an application by the Customs and Excise for the further detention of the cash until 5th November 1998. On 5th November 1998 they granted an application for the detention of the cash until 4th February 1999. On 2nd February 1999 they fixed a date for the hearing of an application for forfeiture of the cash. I understand that, because of the judicial review proceedings with which this appeal is concerned, the forfeiture proceedings have yet to be determined.
4. There were in fact two applications for judicial review. In substance they sought to establish, firstly, that the order on 6th August 1998 was a nullity, because the justices had not received Form C as required by the schedule to the Magistrates Courts (Detention and Forfeiture of Drug Trafficking Cash Rules) 1991. By rule 7(1) of those rules the form is required to be used and received in order to initiate the application for further detention of cash seized. The second substantial contention was that the hearing of 5th November 1998 was incompetent because the order for detention on 6th August 1998 was a nullity and the justices should have entertained a submission to that effect and so decided. The third substantial contention is that the application on 2nd February 1999 for a forfeiture hearing was not properly made because the Customs officer concerned, Mr Wales, was not duly authorised by statute or commission to make the application. The fourth substantial contention is that the application on 2nd February 1999 should be seen as an abuse, because it was not made in good faith since the Customs and Excise had on the previous day said that they had not yet decided to make an application for forfeiture. There was also a challenge to the costs order which the justices made or did not make on 2nd February 1999. Owen J rejected each of these contentions. The appellant says that he was wrong to do so.
5. Part 2 of the Drug Trafficking Act 1994 is concerned with what its title refers to as "Drug trafficking money imported or exported in cash". Section 42(1) provides as follows:

"A customs officer or constable may seize, and in accordance with this section detain, any cash which is being imported into or exported from the United Kingdom if. . .

(b) he has reasonable grounds for suspecting that it directly or indirectly represents any person's proceeds of drug trafficking or is intended by any person for use in drug trafficking."

6. This was the power under which the Customs officers seized the money on 13th May 1998. Sub-section (2) provides:

"Cash seized by virtue of this section shall not be detained for more than 48 hours unless its continued detention is authorised by an order made by a Justice of the Peace."

7. It was such an order that was made on 14th May 1998. Sub-section (3) provides:

"Any order under sub-section (2) above shall authorise the continued detention of the cash to which it relates for such period not exceeding three months beginning with the date of the order as may be specified in the order and a magistrates court.. . . may thereafter from time to time by order authorise the further detention of the cash but so that -

(a)no period of detention specified in such an order shall exceed three months beginning from the date of the order; and

(b)the total period of detention shall not exceed two years from the date of the order under sub-section (2) above."

8. The justices' order of 14th May 1998 was made under sub-section (2) and is not challenged. The orders for further detention, of 6th August and 5th November 1998, were made under sub-section (3).
9. Sub-section (5) provides:

"Any application for an order under sub-section (2) or (3) above shall be made -

(a)by the commissioners of Customs and Excise or a constable if made to a justice or magistrates court".

10. A point arises out of this sub-section. Sub-section (6) enables the person whose cash has been seized and is being detained to apply for its release. Sub-section (7) provides:

"If at a time when any cash is being detained by virtue of the preceding provisions of this section -

(a)an application for forfeiture is made under section 43 of this act.. . . the cash shall not be released until any proceedings pursuant to the application. . . have been concluded."

11. The 1994 Act has no specific requirement about how applications for further detention of cash seized should be made. The Magistrates Courts (Detention and Forfeiture of Drug Trafficking Cash Rules) 1991, which were drafted with reference to the statutory predecessor of the 1994 Act and apparently have not been amended, provide in paragraph 7 that an application for further detention:

". . . shall be in Form C and shall be sent to the Clerk to the Justices."

12. Paragraph 7(3) of these rules then provides that:

"The Clerk of the Magistrates Court who receives an application. . . shall fix a date for the hearing of the application, shall notify the applicant thereof and shall notify any persons to whom notice of the order for continued detention has been given of the application and of the date fixed for the hearing."

13. Form C, which appears in a schedule to these rules, is a simple little document occupying less than half a page of A4 paper in the form in which it appears in the statutory instrument. The statutory form, as I have said, apparently still refers to the statutory predecessor of the 1994 Act. The Customs and Excise have had a version of the form printed on a full A4 page with a lot of space between the not very numerous lines. In substance the form says no more than that the applicant wants a further order for detention of the cash seized and held under a previous identified order. The rules do not require Form C to be sent to the person whose cash has been seized. The form is simply, and no more than, a means of telling the justices that the applicant wants an order for continued detention; and, by inference, a request for a date to be fixed.
14. The rules require the Clerk to the Magistrates Court to notify everyone concerned, including the person whose cash has been seized, of the date of the hearing. The evidence was that the Customs sent a Form C to the Magistrates Court on 24th July 1998. Mr Salter, on behalf of the appellant, wants us to have Mr Wales cross-examined about this evidence, but I do not see the point of that. The case is that the form was not received, not that it was not sent; and the case would not be improved by showing that it was not sent. The evidence also was that it could not be positively established that the Magistrates' Court had received the form. On this flimsy basis is founded the grand submission that the order of 6th August 1998 was a nullity. The submission is that it is mandatory for an application in Form C to be received by the justices; that the form is a necessary part of an originating process; and that without it the process is irretrievably flawed.
15. There is in my view no merit whatever in this submission and, merit apart, I consider that it is wrong. We were referred to some cases about when documents in correct form may or may not be absolutely necessary to the integrity of proceedings of this general kind. In my view none of the cases bind us to decide that Form C is such an important necessity that the proceedings are irretrievably flawed if it cannot be proved that the form was received. True it is that these were proceedings which might lead to confiscation. Some might call the legislation draconian. True it is that they should be conducted in proper order and, I would add, fairly. But it is, in my judgment, over-dignifying this form to say that it is an originating process. It is no more than a simple request to continue an existing order. Granted that it starts a process, its substantial content is no more than that. It does not have to be sent to the person whose cash has been seized. It serves no purpose once it has been received. Its date is not material, since relevant time periods start from the date of orders and end with the making of subsequent orders. The person whose cash has been seized has to be notified of the date of the hearing and the appellant was so notified in this case. It is a little difficult to see that the form was not in fact received, since how else did the magistrates' clerk get on with fixing the hearing and notifying the appellant - as was done on 28th July 1998, four days after the form was said to have been sent? But I proceed on the basis that it cannot be established that it was received. The appellant having been notified, he attended the hearing and was represented. There is, in my judgment, no substance whatever in the contention that the proceedings are fatally flawed if it cannot be shown that the magistrates received the form. In substance, the rules were complied with. The Customs asked the court for a hearing. The appellant was notified of the hearing. The hearing took place without any consequence prejudicial to the appellant from the fact that it could not be positively established that the form had been received. I would therefore reject the appellant's first contention.
16. The second contention falls with it. If the justices had considered the submission, they would have properly concluded that the 6th August 1998 order was not a nullity. The contention that the 5th November order was bad because the 6th August order was bad also fails for want a necessary premise. The facts in February 1999 were that the hearing was originally to have been a yet further application for continued detention of the cash. But the Court had failed to notify the appellant. On the day before the hearing, the Customs had written to say that they were undecided whether to make an application for forfeiture. Faced with the fact that the application for further detention could not proceed for want of due notice, Mr Wales, the customs officer, signed and served a substantially pre-prepared application for forfeiture. The effect of this was that the further detention of the cash was permitted under section 42(7) of the 1994 Act. Mr Salter submits that Mr Wales was not duly authorised to make this forfeiture application. The statute says that it has to be done by the commissioners or a constable. The commissioners, it is submitted, have not authorised it, since they were undecided on the previous day and Mr Wales did it off his own bat without consulting anyone. Mr Salter draws attention to the difference between section 42(1) and 42(5). Section 42(1) refers to "a customs officer or a constable". Section 42(5) refers to "the commissioners of the Customs and Excise or a constable". But that is obviously because section 42(1) deals with what may be impromptu seizures of cash being imported into or exported from the United Kingdom. Mr Salter submits that Mr Wells was not a duty authorised constable, but section 63 of the 1994 Act defines constable as including "a person commissioned by the commissioners under section 6(3) of the Customs and Excise Management Act 1979". Mr Wales was so commissioned and he has produced a copy of his commission dated 3rd February 1986. Mr Salter says that this will not do, because it does not explicitly authorise Mr Wales to decide to make applications for forfeiture or this application for forfeiture in particular; but it does not need to since section 42(5) authorises him to make the application if he is, as he is by statutory definition, a constable. So I do not consider that to be a good point.
17. Mr Salter also submits that the Parliamentary draftsman of the 1994 Act got it wrong when he produced a statute which enables a person commissioned by the commissioners to make an application for forfeiture and to be a constable for that purpose. It was, he submits, a consolidating statute and was not intended to change the position under the legislation which was being consolidated unaltered in Part 2 of the 1994 Act. But section 63 applies to the whole Act, including Part 2, in which section 42 appears, and I am quite unpersuaded that we should do other than give effect to the perfectly clear language of the relevant provisions. There is no inconsistency between Part 2 and Part 3. It is simply that the definition of constable appears in Part 3. In addition, and critically, section 8(1) of the Customs and Excise Management Act 1979 provides that

"Any Act authorised under any enactment to be done by the commissioners may be done by an officer or other person under their authority."

18. Mr Wales was so acting, by virtue of his commission.
19. Mr Salter then says that the application for forfeiture was not made in good faith because on the previous day Customs and Excise had not made up their mind whether they had a proper case to make the application. The factual basis for this comes from letters dated 28th January and 1st February 1999, in the second of which it is said that no decision as to whether to proceed for forfeiture had been made. The forfeiture application was just a device, says Mr Salter, to secure further detention of the cash when the originally intended means of achieving this had failed for want of notice. Even if there were narrative merit in this contention, I am quite unpersuaded that what Mr Wales did was an abuse. The strength or otherwise of substantive grounds for applying for forfeiture would be tested at the forfeiture hearing. Those conducting these matters on behalf of the Customs are entitled to change their minds quickly or, more specifically, to take the decision which had not been made on the previous day; and they were entitled, I think, generally to take any legitimate steps in the public interest to preserve the proper possibility of a forfeiture order if they got into procedural difficulties. On assumptions of fact favourable to the appellant, that is what Mr Wales did. It is not, in my judgment, an abuse, nor should it be stigmatised as having been done in bad faith.
20. It is then said - but Mr Salter did not support this by oral submissions - that the magistrates should have awarded the appellant his costs of the 2nd February 1999 hearing. The difficulties were caused by the court's failure to give the appellant due notice. That did not make much of a case that the Customs should pay the costs. I think it was within the magistrates' discretion to make the costs order which they did.
21. In my judgment there is no force or merit whatsoever in the grounds of appeal, and no proper basis for challenge Owen J's judgment. For these reasons I would dismiss these appeals.
22. LORD JUSTICE CHADWICK: I agree.
23. LORD JUSTICE KENNEDY: I also agree.

ORDER: Appeals dismissed with costs