England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(BURTON J)

		Royal Courts of Justice Strand London WC2 3rd October 2001

3rd October 2001
1. LADY JUSTICE ARDEN: This is a renewed application for permission to appeal from the order of Burton J of 6th July 2000 whereby Burton J refused to order certiorari against decisions of the West London Magistrates and of the Blackfriars County Court on the ground that the time for appealing the decision of the magistrates complained of, which I will describe in a moment, was out of time. Burton J extended the time for appealing to this court to 31st August 2000, but his order refusing permission to appeal, which was made on paper, is dated 15th November 2000, that is after the date to which he had extended time for appeal.
2. This case arises out of an order dated 22nd February 1999 made by the West London Magistrates for forfeiture of 470,000 Swiss francs and £245 in sterling. I am told that this sum amounts to about £200,000 in sterling as at today's date. The money was found on the applicant as he was about to fly to Amsterdam.
3. The relevant statute provides a 30 day appeal limit. The appeal application was filed approximately five days late, but if the limit is an absolute one it was out of time and of no effect. Since it was only five days late it can be seen that this is potentially a hard case. But as against that I am told that the applicant himself was present, either in person or by solicitors, when the forfeiture order was made. It is clear that he had solicitors acting for him and it was they who lodged the notice of appeal which was later lodged but out of time. Therefore, in this particular case, no grounds have been advanced for saying that it was not reasonably possible for the applicant to comply with the 30 day limit. However that is subject to one point, namely that because all the money had been seized the applicant also wanted the magistrates to release funds for legal representation which they refused to do, but all the statute required was the filing of an application in time and in my judgment that is not of itself a matter which could not have been done in the circumstances.
4. The application to this court was filed on 18th December, that is some five months after the decision of Burton J and over a month after the date of his order to refuse permission to appeal which, as I have said, was 15th November 2000.
5. This matter came before Buxton LJ on paper. He refused to extend time for appealing. He said that the applicant's advisers should have realised that time had only been extended to 31st October. In any event, in his judgment the appeal stood no prospect of success, and accordingly an appeal on the issue whether funds should be released for the purposes of an appeal was academic.
6. It is from that ruling that the applicant now appeals. Today he is represented before me by Mr Riza QC and Mr Kaihiva. I would say that Mr Riza has provided me with a most helpful skeleton argument and made helpful and economical submissions. I am indebted to him.
7. I return to Burton J's judgment. Burton J held that the only issue was whether there could be an extension of the 30 day limit for appealing allowed by section 44(2) of the Drug Trafficking Act 1994. I need not read that subsection, or indeed the Crown Court rule which deals with appeals, because Mr Riza accepts the judge's construction, subject of course to the Human Rights Act 1998.
8. There was a considerable amount of argument below, with which I am not concerned, concerning the position in Northern Ireland. I would observe that his Lordship did not apply section 3 of the Human Rights Act because at the time when he heard this matter that Act was not then in force. He rejected an argument based on inherent jurisdiction because the statute had fixed a period without power to extend and he held that Crown Court rule 7(5) could not be rewritten so as to permit extension in the case of appeals under section 44(4). Indeed he thought there might have been policy reasons why the period for appeals against forfeiture orders should be non-extendable as it was a 30 day period rather than the 21 day period for other appeals, but be that as it may.
9. Mr Riza, as I have said, does not challenge the judge's construction, subject always to the Human Rights Act, but he makes a number of submissions based on the Human Rights Act.
10. Firstly he submits that the applicant can rely on the Human Rights Act even though the order of the magistrates was made before the Human Rights Act came into force. He relies particularly on section 22(4) and section 7(1)(b). He wishes to argue on appeal that the forfeiture order was in violation of the applicant's rights given by Article 1 of the First Protocol of the European Convention on Human Rights.
11. I am not going to go into the latter point in detail, as Mr Riza did not fairly enlarge on it in oral submissions, because there is no real prospect of success on that point on appeal unless the applicant can show that he has a right of appeal against that order and for that purpose he needs to show that the 30 day time limit is one that can be extended. I should point out that under the Human Rights Act where an order of the court is said to be in breach of Convention rights (and here, as I have just said, Mr Riza submits on behalf of the applicant that the forfeiture order was potentially in breach of the property rights given by Article 1 of the First Protocol) his avenue of complaint under the Human Rights Act is by way of appeal: see section 9(1)(a).
12. That leads me however to the real submission on which Mr Riza relies. He submits that if section 44(4) and rule 7(5) of the Crown Court Rules are read compatibly with the Convention the court would have power to extend time. He puts the point on the basis of Strasbourg jurisprudence as may be seen from the case of Stubbings v The United Kingdom, a decision of the European Human Rights Court [1996] 23 EHRR 213 at paragraph 48. I will now read that paragraph:

"The Court recalls that article 6(1) embodies the 'right to a court', of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect.

However, this right is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."

13. Taking that in stages, I do not understand Mr Riza to submit that the very essence of the right was destroyed. Indeed I do not think it would be possible to run such an argument because there was 30 days in which to appeal. The way he puts the point is that an absolute time limit (here 30 days) is not Convention-compatible as a matter of principle, or in this type of case, having regard to the amount of money at stake. Going back to the Stubbings case, it is clear that the test to be applied is whether or not the restriction pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
14. As regards legitimate aim, Mr Riza accepted that in matters like drug trafficking there could be said to be a legitimate aim in terms of finality. In other words, that it is important for the public authorities to know when monies have been effectively forfeited from a person subject to an order. The thrust of his argument is really on the basis of lack of proportionality. Here, as I have indicated, it could be said that the 30 day time limit is very hard in a case where a defendant has no means of knowing of the order that has been made against him. In order to have a realistic prospect of success on appeal in running that argument on appeal, in my judgment the applicant would have to show that he came within a category of persons in respect of whom it could be said that there was no reasonable relationship of proportionality between the 30 day time limit and the aim sought to be achieved. Mr Riza has not identified the cases in which he says the 30 days time limit is disproportionate. However I see no prospect of success in arguing that this case was one such case because, although the time by which the limit was exceeded was very small and although the sum of money is very large, there is no real reason why the applicant could not have complied with the 30 day limit, and why it must be said that it is unreasonable in this type of case. Accordingly, as I see it, there is no real prospect of success on appeal on the argument which the applicant seeks to make.
15. Mr Riza fairly accepts that if there is no prospect of showing that the time for appealing could and should have been extended, there is no prospect on appeal on the further arguments that are set out in the skeleton argument, namely the court should have released cash or provided legal aid (see Article 6(3)(c) of the Convention), or that the magistrates were not an independent tribunal for the purpose of Article 6 when they came to consider the release application or the question of extension of time.
16. Accordingly, for all these reasons, despite the helpful submissions I have had, in my judgment permission should be refused.
ORDER: Application dismissed. Community Service Funding assessment of the applicant's costs.