England and Wales Court of Appeal (Civil Division) Decisions

		Neutral Citation Number: [2002] EWCA Civ 1036
		Case No: C/2002/0505

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(The Honourable Mr Justice Scott Baker)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 July 2002

B e f o r e :

LORD JUSTICE MUMMERY
LORD JUSTICE LAWS
and
LORD JUSTICE DYSON
____________________

Between:


	THE QUEEN ON THE APPLICATION OF GREENPEACE LTD	Appellant
	- v -
	THE SECRETARY OF STATE FOR THE ENVIRONMENT, FOOD AND RURAL AFFAIRS - and - HER MAJESTY’S COMMISSIONERS OF CUSTOMS AND EXCISE	1 st Respondent 2nd Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Official Shorthand Writers to the Court)

____________________

Jon Turner and Rebecca Haynes (instructed by Greenpeace) for the appellant
Clive Lewis (instructed by the Treasury Solicitor) for the first respondent
Philippa Whipple (instructed by the Solicitor to HM Customs and Excise) for the second respondent
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Crown Copyright ©

Lord Justice Laws:

INTRODUCTORY

1. On 5 March 2002 Scott Baker J refused permission to the appellant, Greenpeace Ltd, to seek by way of judicial review certain declarations against the Secretary of State for the Environment, Food and Rural Affairs, and Her Majesty’s Commissioners of Customs and Excise. On Greenpeace’s application for permission to appeal on the papers, on 26 March 2002 I granted permission to seek judicial review and (given that there had been a full hearing below with all parties represented) directed that the substantive judicial review proceed in the Court of Appeal.
2. The case concerns the regulation of international trade in endangered species of flora and fauna: specifically, mahogany from Brazil. On 27 December 2001 a cargo of 584 cubic feet of mahogany was shipped from Brazil by a Brazilian company called SEMASA bound for the United Kingdom. It was to be imported by SEMASA’s sales agent in the United Kingdom, Alan Thomas Craig Ltd (“ATC”), who are the interested party in these proceedings. When Scott Baker J gave judgment on 5 March 2002 this shipment was lying at Birkenhead docks awaiting customs clearance.
3. Greenpeace’s case in the judicial review application was that the importation of this cargo was or would be unlawful, as constituting a contravention of the regulatory regime prevailing in the European Union, which I shall describe shortly. They sought declarations in various forms, and also an injunction to prohibit the Commissioners from clearing the shipment through customs. That latter application is not now persisted in, because the shipment was cleared through customs control the day after Scott Baker J gave judgment. Moreover, since the hearing in this court further evidence has been placed before us which, it is contended, must have a critical effect on the outcome of the proceedings and the question what relief, if any, should be granted. To any suggestion that the litigation has become moot or academic Greenpeace would reply that a further shipment or shipments are or will be on their way as regards which the same legal issues potentially arise; and the case is in any event of some general importance, whether or not there remains today, or will arise tomorrow, a live dispute on concrete facts. It is not as I understand it suggested by Mr Lewis for the Secretary of State or Miss Whipple for the Commissioners that the court should not decide the legal merits of the application.

THE LEGISLATION

4. The trail of legal materials starts with the Convention on Trade in Endangered Species of Wild Fauna and Flora, known by the acronym “CITES”; I shall refer to it as “the Convention”. There are 156 States Parties to the Convention, including all the members of the European Union except Eire. In 1975 it was ratified by Brazil, where it has been in force since 4 November 1975. I must set out extracts as follows. The fourth recital is in these terms:

“Recognising, in addition, that international co-operation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade”.

Then Article II indicates the contents of the three Appendices to the Convention. By Article II(1), Appendix I is to include “all species threatened with extinction which are or may be affected by trade”. By Article II(2), Appendix II is to include (essentially) species which may become threatened with extinction “unless trade in specimens of such species is subject to strict regulation…”. Article II(3) provides:

“Appendix III shall include all species which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the co-operation of other Parties in the control of trade.”

Brazil has listed Brazilian mahogany under Appendix III since 1998.

Article III establishes very strict controls on the export/import of specimens of species included in Appendix I. One of the requirements is the grant and presentation of an import permit, which will only be done subject to certain conditions, including (Article III(3)(a)) advice having been given by a scientific authority of the importing State “that the import will be for purposes which are not detrimental to the survival of the species involved”. Article IV deals with Appendix II species. The conditions are less rigorous than for Appendix I, there being no requirement of an import permit. Article V is concerned with Appendix III species and provides:

“1. All trade in specimens of species included in Appendix III shall be in accordance with the provisions of this Article.

2. The export of any specimen of a species included in Appendix III from any State which has included that species in Appendix III shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met:

a) a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora;

b) a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimise the risk of injury, damage to health or cruel treatment.

3. The import of any specimen of a species included in Appendix III shall require, except in circumstances to which paragraph 4 of this Article applies, the prior presentation of a certificate of origin and, where the import is from a State which has included that species in Appendix III, an export permit.

4. In the case of re-export, a certificate granted by the Management Authority of the State of re-export that the specimen was processed in that State or is being re-exported shall be accepted by the State of import as evidence that the provisions that the present Convention have been complied with in respect of the specimen concerned.”

Article VI:

“1. Permits and certificates granted under the provisions of Articles III, IV, and V shall be in accordance with the provisions of this Article.

2. An export permit shall contain the information specified in the model set forth in Appendix IV, and may only be used for export within a period of six months from the date on which it was granted.

3. Each permit or certificate shall contain the title of the present Convention, the name and any identifying stamp of the Management Authority granting it and a control number issued by the Management Authority.

4. Any copies of a permit or certificate issued by a Management Authority shall be clearly marked as copies only and no such copy may be used in place of the original, except to the extent endorsed thereon.

5. A separate permit or certificate shall be required for each consignment of specimens.

6. A Management Authority of the State of import of any specimen shall cancel and retain the export permit or re-export certificate and any corresponding import permit presented in respect of the import of that specimen.

7. Where appropriate and feasible a Management Authority may affix a mark upon any specimen to assist in identifying the specimen. For these purposes ‘mark’ means any indelible imprint, lead seal or other suitable means of identifying a specimen, designed in such a way as to render its imitation by unauthorised persons as difficult as possible.”

Article VIII:

“1. The Parties shall take appropriate measures to enforce the provisions of the present Convention and prohibit trade in specimens in violation thereof. These shall include measures:

a) to penalize trade in, or possession of, such specimens, or both; and

b) to provide for the confiscation or return to the State of export of such specimens.

2. In addition to the measures taken under paragraph 1 of this Article, a Party may, when it deems it necessary, provide for any method of internal reimbursement for expenses incurred as a result of the confiscation of a specimen traded in violation of the measures taken in the application of the provisions of the present Convention.

3. As far as possible, the Parties shall ensure that specimens shall pass through any formalities required for trade with a minimum of delay. To facilitate such passage, a Party may designate ports of exit and ports of entry at which specimens must be presented for clearance. The Parties shall ensure further that all living specimens, during any period of transit, holding or shipment, are properly cared for so as to minimise the risk of injury, damage to health or cruel treatment…”

Article XI:

1. The Secretariat shall call a meeting of the Conference of the Parties not later than two years after the entry into force of the present Convention.

2. Thereafter the Secretariat shall convene regular meetings at least once every two years, unless the Conference decides otherwise, and extraordinary meetings at any time on the written request of at least one-third of the Parties.

3. At meetings, whether regular or extraordinary, the Parties shall review the implementation of the present Convention and may:

…

(e) where appropriate, make recommendations for improving the effectiveness of the present Convention...”

5. In light of one aspect of the argument advanced by Mr Turner for Greenpeace, it is convenient at this stage also to set out part of the terms of a Conference Resolution (“Resolution Conf. 10.2”) adopted, as I understand it, in June 1997 pursuant to Article XI(3)(e) of the Convention:

“[The Conference] [II] AGREES that…

if the case arises:

…

(h) Parties not authorise the import of any specimen if they have reason to believe that it was not legally acquired in the country of origin…”

6. The Convention is implemented in the European Union by Council Regulation (EC) No 338/97 (“the Regulation”). The Regulation is the primary European measure; it is supplemented by Reg. 1808/2001 containing certain detailed rules to which it is unnecessary to refer. The material provisions of the Regulation start with the tenth numbered recital:

“Whereas there is a need, in order to ensure the broadest possible protection for species covered by this Regulation, to lay down provisions for controlling trade and movement of specimens within the Community, and the conditions for housing specimens; whereas the certificates issued under this Regulation, which contribute to controlling these activities, must be governed by common rules on their issue, validity and use”.

Then Article 1:

“The object of this Regulation is to protect species of wild fauna and flora and to guarantee their conservation by regulating trade therein in accordance with the following Articles.

This Regulation shall apply in compliance with the objectives, principles and provisions of the Convention defined in Article 2.”

By Article 13 each Member State must designate a management authority with primary responsibility for the implementation of the Regulation. In the United Kingdom the management authority is the Wildlife Trade Licensing Branch within the Global Wildlife Division of the Department of the first respondent Secretary of State. Annex C to the Regulation corresponds for all practical purposes with Appendix III to the Convention; thus Brazilian mahogany is listed in Annex C. Article 4 of the Regulation in part tracks or reflects Article V of the Convention:

“3. The introduction into the Community of specimens of the species listed in Annex C shall be subject to completion of the necessary checks and the prior presentation, at the border customs office at the point of introduction, of an import notification and:

(a) in the case of export from a country mentioned in relation to the species concerned in Annex C, the applicant shall provide documentary evidence, by means of an export permit issued in accordance with the Convention by an authority of that country competent for the purpose, that the specimens have been obtained in accordance with the national legislation on the conservation of the species concerned...”

Article 14:

“1.(a) The competent authorities of the Member States shall monitor compliance with the provisions of this Regulation.

(b) If, at any time, the competent authorities have reason to believe that these provisions are being infringed, they shall take the appropriate steps to ensure compliance or to instigate legal action.

(c) Member States shall inform the Commission and, in the case of species listed in the Appendices to the Convention, the Convention Secretariat of any steps taken by the competent authorities in relation to significant infringements of this Regulation, including seizures and confiscations...”

Article 16:

“1. Member States shall take appropriate measures to ensure the imposition of sanctions for at least the following infringements of this Regulation:

…

(i) shipment of specimens into or out of or in transit through the territory of the Community without the appropriate permit or certificate issued in accordance with this Regulation and, in the case of export or re-export from a third country party to the Convention, in accordance therewith, or without satisfactory proof of the existence of such permit or certificate;

…

2. The measures referred to in paragraph 1 shall be appropriate to the nature and gravity of the infringement and shall include provisions relating to the seizure and, where appropriate, confiscation of specimens....”

7. There is supplementary domestic legislation contained in the Control of Trade in Endangered Species (Enforcement) Regulations 1997, which enacts criminal sanctions for breach of the Regulation and makes provision for powers of entry and seizure. I need only set out Regulation 5:

“Where any specimen is being imported or exported or has been imported or brought to any place for the purpose of being exported, a person commissioned by the Commissioners of Customs and Excise, or a person authorised by them, may require any person possessing or having control of that specimen to furnish proof that its importation or exportation is or was not unlawful by virtue of the Principal Regulation [viz. the Regulation]… and, until such proof is furnished, the specimen shall be liable to detention under the Customs and Excise Management Act 1979 and, if such proof is not furnished to the satisfaction of the Commissioners, the specimen shall be liable to forfeiture under that Act.”

THE FACTS

8. The exploitation of mahogany in Brazil is forbidden by the Brazilian constitution (Article 231) unless, in the case of trees grown on public lands, the exploitation has been authorised by a body called “the Brazilian Institute of Environment and Renewable Resources”, to which I will refer by the acronym by which it is known, IBAMA. In such a case an authorisation may be given by IBAMA under a “Forest Management Plan” (FMP”).
9. In October 2001 IBAMA, being concerned that there was widespread illegal logging of mahogany, issued a decree – “IN 17” – suspending the “transportation, processing and commercialisation” of mahogany (strictly, the relevant species of mahogany) for an indefinite period. On 9 November 2001 IBAMA produced a technical report following an examination of FMPs which had earlier been issued for forests where mahogany grows. In relation to two projects of the company SEMASA, this was said:

“... they must be withdrawn from the Mahogany category as they are established in an area where this species does not grow. The entire volume of Mahogany used and concealed with the said Projects must be reversed, [payment for] forest replacement collected and the company fined for exploiting Mahogany in an irregular area. We also suggest that a denunciation is forwarded to the Department of Justice and Federal Police in order that measures be taken within their competence...”

10. After this IBAMA issued a second decree, “IN 22”. By Article 1 of IN 22 all FMPs (relating to mahogany) previously approved by IBAMA in respect of certain areas were suspended save those which were “in the course of certification or in conclusive phase of certification”. The suspended FMPs included those issued to SEMASA. There followed applications to what I assume to be the appropriate national court by a number of timber companies, including SEMASA, made without notice to IBAMA, seeking orders to require IBAMA to issue export permits for mahogany taken under the relevant FMPs despite the terms of IN 17 and IN 22. On 12 December 2001, having conducted what it itself described as “a perfunctory examination” (it was not suggested that we should do other than assume the accuracy of the translation before us), the court concluded that the prohibitions contained in decree IN 17 “flagrantly contravened” SEMASA’s constitutional right to carry on economic activity. Still no notice had been given to IBAMA. To our eyes, if I may say so, the procedure appears to have been somewhat robust. The judge said that he was

“... deferring the request for the imposing of an injunction in order that the authority petitioned – the legal representative of IBAMA in this State – may refrain from taking the action determined by Regulatory Instruction No 17/2001 against… SEMASA, in connection with the vegetable products already removed with prior permission.

The party petitioned is hereby notified that this decision shall be complied with immediately…”

11. From this it appears that the judge did not actually make an order against IBAMA (though I think peremptory orders may have been made in cases other than that brought by SEMASA). However I understand it to be common ground that it was under pressure of this court ruling that IBAMA issued export permits in relation to mahogany which was plainly subject to decrees IN 17 and 22; and so it was that SEMASA’s shipment left Brazil on 27 December 2001, bound for England. Now, the Secretary of State (presumably with knowledge of IBAMA’s decrees) had meantime issued a notice suggesting that the importation of mahogany from Brazil had been banned. Understandably this prompted SEMASA’s UK agents, ATC, to make enquiry; they contacted the Department; the Department contacted IBAMA. IBAMA responded by an e-mail of 28 January 2002 as follows:

“We hereby confirm the authenticity of the CITES issued to [SEMASA], in respect of which the Security Stamps are BR9130404 AND BR913175.

Despite the fact that the export of mahogany (Swielenia macrophylla) is prohibited, the CITES in question were authorised by a decision of the courts in favour of the company.”

The “CITES” there referred to are the two export permits, issued by IBAMA, which covered SEMASA’s shipment to the UK.

12. At this stage IBAMA sought re-consideration of the court’s decision of 12 December 2001. It seems that on 4 February 2002 the earlier decision was upheld. The English language text is somewhat obscure. My best impression, which was not, I think, controverted in argument, is that the Brazilian court had not earlier decided and did not on 4 February decide the ultimate merits of SEMASA’s application to it; rather it sought to hold the ring pending any future ruling, by requiring IBAMA meantime to authorise exports which on the face of it were covered by FMPs issued before IN 17 and IN 22 to go ahead.
13. It is important to see how this state of affairs was communicated to the British government. I will first refer to a press release issued by IBAMA on 7 February 2002 which I understand was known to the Secretary of State at an early stage, and was shown to Scott Baker J. It contains these passages:

“In order to demolish the defence of the exporters, the attorneys [sc. for IBAMA] are explaining to the judges that all the stocks of mahogany awaiting internal and external marketing are illegal – even those harvested prior to the logging, transport and trading ban (IN 17…) – since the Management Plans [that is, the FMPs] were confiscated and/or invalidated owing to a number of irregularities, including harvesting in indigenous areas, on public land and in conservation areas.

…

The attorneys have begun with ‘Requests for Reconsideration’ of the decisions of the federal judges who granted preliminary injunctions to eight loggers in Para and one in Parana for the illegal export of mahogany. The logging companies [include SEMASA].”

Next, a fax letter of 27 February 2002 from IBAMA to the British Embassy in Brazil refers to the two export permits for the SEMASA shipment, and continues:

“4. In that respect, one has to consider that judicial decisions, though preliminary, are to be accomplished (fulfilled) and not administratively discussed. The due judicial resources, however, were exercised by IBAMA, which appealed in time, but the merit of none of these appeals on the injunctions were as yet analyzed by the second instance judges. Exception exists only for the Process nr. 2002.39.00.000093-8 (Para State, Federal Justice), in which the second instance judge did not accept the IBAMA’s appeal due to a procedural error. Thus, the merit of the injunctions yet remains without being decided by a second instance judge.

5. One also has to consider that of a total 19 judicial processes, eight had injunctions provided by first instance judges, and all of these injunctions were provided without hearing the other part (IBAMA). The other eleven processes did not get the injunction since those first instance judges did hear IBAMA previously. One of those first instance judges who had provided the injunction, after analyzing its merits with all the information given by IBAMA in its appeal, applying the ‘reviewing right’, reversed his own previous decision as regards those injunctions (Process no 2002.39.00.000036-2, Para State, Federal Justice). The shipment related to this particular Process was still at the Brazilian port, so it could be halted.

6. We are confident that after analyzing all arguments provided in the appeals, the second instance judges will likely follow the same guide, since the injunctions were being provided ‘inaudita altera parte’ (latin term to express ‘without hearing the other part’) and also because all of them are/were being conceived under the same mistaken/misleading arguments provided by the interested companies. Thus, in order to expedite the second instance judges’ judicial analysis of the IBAMA’s appeals, a copy of this message is also being given in person to every magistrate involved in this matter. This might stress our point of view as regards the consequences that certainly will come as a result of the delay in provision of the jurisdictional service.

7. It is important to reaffirm that due to the IBAMA’s [decrees IN 17 and IN 22], any Brazilian bigleaf mahogany trade, be internally or externally, has been ceased as from that date, with formal exception only for the certified timber. The main reason being that all the Sustainable Forest Management Plan regarding that tree species were not considered acceptable after a multi-institutional survey carried out by the end of last year. Moreover, it has been realized that bigleaf mahogany were illegally being logged off.

8. Having said all that, we conclude answering your question by saying that indeed the two above mentioned permits were issued by our own office in Belem/Para, but serious actions are being taken to reverse these matters, as it has been shown above.

Thanks again, for the cooperation that is being clearly shown by the UK government as regards helping us to implementing the establishment of a sustainable development of the Brazilian forestry.”

Thirdly, there is a letter of 1 March 2002 from the Brazilian Embassy in London to the Timber Trade Federation here, written in response to a request for clarification:

“1. The halt of logging, transportation and trading of mahogany imposed by IBAMA [IN 17] on 19 October 2001 is in force.

2. Some exporters were granted first instance judicial provisional authorization… to export mahogany but IBAMA has appealed against the decisions, which were taken without a hearing of IBAMA.

3. Since 19 October there were 19 appeals filed by mahogany exporters against [IN 17]; 11 appeals resulted in provisional judicial authorizations… for export. IBAMA is appealing against all such first instance judicial authorizations.

4. The origin of the mahogany shipped after the issuing of [IN 17] cannot be certified by IBAMA.

5. IBAMA is envisaging stamping the words ‘provisional decision’ on the CITES certificates of swietenia macrophylla it is constrained to issue while [IN 17] is in force.

6. Updated information about the monitoring of illegal mahogany logging can be found in the website of IBAMA www.ibama.gov.br. According to the latest news, the monitoring has so far resulted in the seizure of 20,000 m2 (twenty thousand cubic metres) of illegally logged mahogany, and IBAMA is trying to locate a further 21,000 m2 which are allegedly hidden in indigenous population’s land.”

14. Making full allowance for the possibility of inaccuracies and misunderstandings in the translation of documents, and one’s own – I should rather say my own – ignorance of Brazilian legal procedures, all of these materials, which were canvassed before us at the hearing, seem to me to demonstrate the following facts. (1) The export permits provided to SEMASA relating to the relevant shipment of mahogany were authentic or genuine in the sense that they were issued advisedly by IBAMA, and in no way procured by fraud or mistake. (2) But the permits were issued by order of the court; or at least by force of IBAMA’s plain understanding that the court’s conclusion of 12 December 2001, albeit provisional and arrived at without any notice to IBAMA, had to be respected. (3) The Brazilian court has not held, provisionally or otherwise, that the timber which went to form the SEMASA shipment had been logged in compliance with “the laws of [Brazil] for the protection of fauna and flora” (Article V(2)(a) of the Convention). At most it had formed a view, after a “perfunctory examination”, that the constitutional rights of SEMASA (and no doubt other traders) had been infringed by the effects of IN 17 which would retrospectively undercut the validity of FMPs made earlier, upon which the traders relied as justifying the issue of export certificates in due course. (One would have thought that the court’s view of the traders’ constitutional rights could have been no more than provisional, but for the use of the adverb “flagrantly”: in the original text “flagrante”, which I think must possess the same flavour.) (4) For its part IBAMA was most certainly not “satisfied that the [mahogany shipped by SEMASA] was not obtained in contravention of the laws of [Brazil] for the protection of fauna and flora” (again, Article V(2)(a) of the Convention). (5) All the foregoing facts were known to or at the least should have been deduced by the Secretary of State before the SEMASA shipment was cleared through customs at Birkenhead, and no point is taken as to any different state of mind entertained by the Commissioners.
15. But the factual story does not end there. At the outset of this judgment (paragraph 3) I referred in passing to further evidence which had been placed before the court since the hearing. The principal item is a letter from IBAMA dated 3 June 2002 to the Senior Enforcement Officer of the CITES Secretariat at Geneva. Under a heading “THE ORIGIN OF THE WOOD EXPORTED UNDER INJUNCTION ORDERS” it is stated:

“3. … recent survey carried out has disclosed to us some very important information…

4. The conclusions, which are also going to be sent via the diplomatic channels, show clearly, in terms of volume and for each exporting company, what is officially considered by this Institute as obtained from known and legal origin, which is from Sustainable Forest Management Plans – FMPS.

5. The following tables present data that enables one to recognize the legality or not of the volume of timber exported per exporting company and under injunction orders.”

There follow some ten tables. Table 9 concerns the relevant SEMASA exports. The numbers in the second column correspond with the numbers allocated to the two export permits in question. Columns 4 and 7 show that the volume of mahogany exported under these permits is identical with the volume of mahogany stated to be of legal origin.

16. This letter was provided to the court on 7 June 2002 by Mr Lewis (to whose clients it had been communicated), who also, of course, sent a copy to Mr Turner for Greenpeace. Upon the invitation of my Lord Mummery LJ counsel for all parties have now provided written submissions as to the import of the letter, and certain related materials. For his part Mr Turner accepts, as I understand it, that Table 9 confirms IBAMA’s present view – “with effect from 3 June 2002”, as Mr Turner puts it – that the mahogany which went to Birkenhead was not obtained in contravention of the relevant Brazilian conservation laws. As a matter of interpretation of the document, I think that is plainly right. A further factual conclusion therefore falls to be added to those which I have set out in paragraph 14, as follows: (6) the mahogany shipped by SEMASA was, in fact, not obtained in contravention of the laws of Brazil for the protection of fauna and flora.
17. However Mr Turner says that this is far from the end of the story. He submits that this new development is perfectly consistent with his substantive case to the effect that the export permits were unlawful and should have been treated as such by the British authorities; and with that I will deal in due course. He submits also that the letter of 3 June 2002 discloses or confirms what are at least anomalous states of affairs in relation to other shipments. I do not judge it necessary to go into the details of those matters; Mr Turner’s overall case as to the interpretation of the Convention and the Regulation can be confronted and resolved without them. I should make it clear that, despite what I think is a submission to the contrary from Miss Whipple for the Commissioners at paragraph 4 of her further written argument, the letter of 3 June 2002 and the facts appearing from it do not in my judgment absolve the court from its task of deciding the substantive legal issue in the appeal as to the correct interpretation of the Regulation; and to that I shall come shortly.
18. It is necessary at this stage (in light of Mr Turner’s argument) to refer to another document, a letter from the Senior Enforcement Officer of the CITES Secretariat of 6 June to the USA management authority appointed under the Convention, which responds to IBAMA’s letter of 3 June. This letter states:

“It is clear from the information provided in the fax [viz. the letter of 3 June] that the Management Authority of Brazil had not made a finding regarding the legal origin of the specimens prior to granting export permits. Consequently, all the export permits in question were issued contrary to the provisions of Article V, paragraph 2(a), of the Convention.

However, it appears that IBAMA has subsequently been able to make such a finding in respect of some of the shipments; particularly those referred to in tables 5, 6 and 9. That being the case, the Secretariat believes the opportunity now exists for the Management Authority of Brazil and countries of destination to discuss bilaterally the issuance of retrospective permits, following the guidance in section VII of Resolution Conf. 10.2 (Permits and certificates), so as to enable the trade to take place.

Such discussions would also provide an opportunity for Brazil and other relevant Parties to discuss whether any of the shipments referred to in tables 1, 2, 3, 4, 7, 8 and 10 are capable of being designated as being of legal origin and, thereafter, the trade authorized by the issuance and acceptance of retrospective permits.”

I will postpone comment on this material until I have deal with one further dimension in the case, which is of some importance in light of the arguments put forward for Greenpeace.

THE COMMISSION AND OTHER MEMBER STATES

19. Greenpeace has placed considerable emphasis on certain materials emanating from some other Member States of the European Union, and the Commission. There is first a paper from the Environment Directorate-General of the Commission, dated 26 March 2002 and headed “NOTE TO THE MANAGEMENT AUTHORITIES OF MEMBER STATES”. It records that shipments of Brazilian mahogany had arrived in several Member States “accompanied by export permits whose legality has become a matter of dispute”. The document continues:

“The shipments in question here have arrived in several Member States accompanied by export permits from the Brazilian Management Authority. Following consultations, the Management Authority has indicated that they were issued on foot of instructions from courts of first instance which are appealed. In a number of other cases the earlier court decision was reversed on review.

In the light of this correspondence, the CITES Secretariat has concluded that there appear to be reasonable grounds for doubt as to whether the Management Authority of Brazil was satisfied that the specimens had not been obtained in contravention of national conservation legislation. Accordingly, in the absence of a clear statement from Brazil that they were legally acquired, the Secretariat is of the opinion that the export permits were issued contrary to the provisions of the Convention and should not be accepted.

Based on this opinion and on the requirements of Council Regulation 338/97, the European Commission advises Member States not to accept export permits for specimens of Swietenia macrophylla from Brazil until further notice without first obtaining from the Brazilian authorities a statement that those specimens were legally acquired.

The matter will be discussed at the Committee meeting on 17 May.”

20. In a statement dated 27 May 2002 (three days before the hearing in this court) Kate Harrison of Greenpeace provided an update of the Commission’s position. She stated (paragraph 3) that she had on 24 May 2002 spoken on the telephone to an appropriate official of the Commission, Mrs Majel, in order to ascertain what had happened at the meeting of 17 May; and

“[Mrs Majel] told me that it had been decided to write for more information from Brazil and that the advice in the Notice of 26 March 2002 remains in force. She said that that was all she could tell me for the moment.”

Mr Turner’s point on this documentation is plain enough, so far as it goes: the Commission was taking the position (following an opinion of the CITES Secretariat) that there were reasonable grounds to doubt that IBAMA was satisfied that the specimens under consideration had not been obtained in contravention of national conservation legislation; and in that event “the export permits were issued contrary to the provisions of the Convention and should not be accepted”. This is grist to Mr Turner’s mill on the proper interpretation of the Convention and the Regulation.

21. Mr Turner points also to correspondence relating to other shipments of Brazilian mahogany bound for Europe and the position adopted by the management authorities in Germany, Belgium, Denmark and Holland. This material shows, at the least, that these authorities have held their hand pending further enquiry before accepting export permits issued by IBAMA, in the knowledge that the permits were issued effectively by force of court decisions and there was doubt as to IBAMA’s own satisfaction as to the legality of the timber’s origin.

THE ISSUE IN THE CASE IDENTIFIED

22. To my mind, apart from issues of relief, there is only one question in the appeal, and it is a very narrow one. I would express it thus. Where an export permit to which the Regulation applies, being valid on its face, is presented to the competent authorities of a Member State to support the importation into that State of flora or fauna covered by Annex C to the Regulation (Appendix III to the Convention), are the authorities obliged to accept the permit, and allow the import, even though they know that the management authority which issued the permit in the exporting State was not “satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora” within Article V(2)(a) of the Convention? The argument which would yield a negative answer, in Greenpeace’s favour, may be articulated as follows. (1) Article 4(3)(a) of the Regulation requires the provision of “documentary evidence, by means of an export permit issued in accordance with the Convention by an authority of that country competent for the purpose, that the specimens have been obtained in accordance with the national legislation on the conservation of the species concerned...”. (2) An “export permit issued in accordance with the Convention” must be one which fulfils the conditions expressly required to be fulfilled by Article V(2) of the Convention, including therefore the condition that “a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora”. (3) If the management authority of the exporting State issues an export permit without being so satisfied, then the permit is not issued “in accordance with the Convention” within Article 4(3)(a) of the Regulation. (4) If the competent authorities of the importing State know that that is so, then far from being obliged to accept the permit and allow the importation, their duty would be to reject it.
23. This was not how the case for Greenpeace was originally put. Passages in the skeleton arguments submitted below and in this court, and indeed some parts of the text of Scott Baker J’s judgment, suggest that Greenpeace was inviting the court to hold that, at least if there were circumstances which put them on enquiry, the authorities of the importing State were obliged to satisfy themselves that the specimens in question had not been obtained in contravention of the local conservation laws; or even to hold that on the facts here the relevant mahogany had not been so obtained. So far as contentions of that kind were advanced I would reject them without hesitation. Whatever else may be said, it is plain that the scheme of the Convention, and the Regulation, does not contemplate circumstances in which the importing State is to ascertain for itself whether the relevant conservation laws of the exporting State have been complied with. The impracticality of such a regime speaks for itself. I would accept that the scheme is essentially “document-based”; that is, the importing State looks for an export permit compliant with the formalities specified in Article VI of the Convention (to which I must refer further in due course); and if that is what is presented, then in the ordinary way, and assuming compliance with any other necessary procedures, the authorities in the importing State are entitled without more to treat the export permit as good, and allow the importation.
24. However that is not the end of the matter. In the exceptional case where the authorities of the importing State know that the management authority of the exporting State is not satisfied as Article V(2)(a) of the Convention requires, there is at least a question whether they are any more obliged to accept the permit than they would be if they knew it was a forgery; and in the latter instance, the respondents and Scott Baker J accepted (plainly rightly) that the permit, or supposed permit, would not be valid and effective.
25. The respondents’ primary case is that absent some defect on the face of the permit, or evidence of fraud or forgery, the authorities of the importing State are entitled to rely on the permit as evidence of compliance with the relevant national conservation laws and are not required to go behind it. But they advanced, more particularly Mr Lewis for the Secretary of State advanced, an alternative argument to the effect that in any event the permits in this case must be accepted as good because they were issued pursuant to an order or judgment of a competent Brazilian court. The permits are valid under the law of Brazil and the English courts (Mr Lewis put it more delicately) have no business to question that position.
26. It is convenient to deal with this alternative argument at this stage. It appealed to Scott Baker J, who said:

“38. But they [the respondents] further submit that even if it is necessary to look behind the permit or certificate, it was issued in accordance with the Convention by an authority in Brazil competent for the purpose, and it is documentary evidence that the specimens were obtained in accordance with the national legislation on the conservation. These have the imprimatur of the Brazilian court, not once but twice.

39. In my judgment that argument is sound, and I am unpersuaded by Mr Owen Davies’ argument that the court’s decision should be disregarded because it was based on a constitutional reason… I cannot see that it would be right for this court to go behind the decision of the Brazilian court, especially where one is dealing with an Appendix 3 species, and the legislation is designed to assist the exporting state in the control of trade. The fact that there is a disagreement between IBAMA and existing judicial decisions in Brazil is a matter to be resolved in the Brazilian courts. Greenpeace should be looking to ventilate their concerns in Brazil, rather than, in this instance, in the United Kingdom.”

27. I have to say with respect that I consider this reasoning to be misconceived. On no view of the matter did the Brazilian court purport to determine any question touching the validity of the export permits vis-à-vis the Regulation; and I do not see how it could have done so. So far as it is possible to ascertain the true position, the Brazilian court has based its finding upon an application of provisions in the constitution of Brazil concerned with economic or trading rights. Such considerations can have nothing to do with the correct interpretation of the Regulation. The question whether the permits issued to SEMASA should or should not be treated as falling within the terms of Article 4(3)(a) of the Regulation was not and could not be for the judge in Brazil to decide; yet it was the very question which the authorities of the United Kingdom as the importing State had to confront. It follows that the decisions of the Brazilian court, though they are a crucial element in the factual history giving rise to the issue of these export permits, exert no legal force whatever upon the issues of law arising on this appeal. And because the court in Brazil and our courts have in this case been concerned with wholly different issues which do not touch each other at any point, there could be no offence to judicial or international comity were we to hold that the permits were bad under the Regulation.

THE ISSUE IN THE CASE RESOLVED

28. I return then to the real issue, which I sought to articulate in paragraph 22. As I have indicated, the respondents’ case is that short of fraud, forgery, or some defect patent on the permit’s face, an export permit issued by the management authority in the exporting State falls to be accepted as good for the purposes of the Regulation, and there is no duty to go behind it. Whether that is right, or whether on the unusual facts of the present case the importing State ought not to accept the permit, depends on the correct interpretation of the Regulation, and in particular the words “an export permit issued in accordance with the Convention by an authority of that country competent for the purpose” in Article 4(3)(a). Miss Whipple for the Commissioners submitted in terms that the crucial words “in accordance with the Convention” do not require substantive compliance with Article V(2)(a) of the Convention, or at least that it is none of the importing State’s business to address the question whether the management authority in the exporting State is satisfied as Article V(2)(a) contemplates.
29. Although it was not adverted to in the course of argument, it seems to me that Article VI of the Convention is of some importance here. That sets out the formal or procedural requirements which have to be fulfilled in the case of any export permit. I repeat for convenience Article VI(1): “Permits and certificates granted under the provisions of Articles III, IV, and V shall be in accordance with the provisions of this Article”. As I have shown, the Article goes on to prescribe the form and content of the permit, and provides (Article VI(7)) for the possible affixing of a “mark” to “any specimen to assist in identifying the specimen…” The respondents’ case must be that the words in Article 4(3)(a) “export permit issued in accordance with the Convention” mean only that compliance with the Convention’s formalities – thus, essentially, the content of Article VI – must be demonstrated to the satisfaction of the importing State’s authorities; they do not at all engage the substantive question whether the management authority in the exporting State was satisfied as Article V(2)(a) requires. The submission for Greenpeace is that the words “in accordance with the Convention” mean what they say, and exact compliance with the Convention’s requirement that a permit has to fulfil both the condition stipulated at Article V(2)(a) and the formal requirements of Article VI.
30. I do not see how it can be denied that either approach might be correct as a matter of language. The court is therefore faced with a choice. The principal consideration advanced in favour of the narrower interpretation espoused by the respondents is that the wider interpretation urged by Greenpeace would introduce wholly unacceptable levels of uncertainty and delay in the conduct of international trade. At least as regards Appendix III species, the scheme is intended to operate (short of fraud) on the faith only of the relevant documents, and any wider approach will put importers, and further purchasers down the line, in an impossible position. Case by case, they may have to make enquiry, if not as to the legality of the specimens’ harvest, at least as to the state of mind of the management authority in the exporting State. Shipments will be liable to be held up indefinitely at the port of entry. Nothing could be more detrimental to the proper interests of commercial men and their customers.
31. It is also submitted for the respondents that the contrast between the rigour of the rules for the export/import of Appendix I species and to a lesser extent Appendix II species, and on the other hand the provisions made in relation to Appendix III species, tells in favour of an effectively wholly “documents-based” approach to Article 4(3)(a).
32. Mr Turner submits that his case, requiring the authorities in the importing State to go behind the face of the export permit at least when they know that the exporting management authority is not satisfied within Article V(2)(a) of the Convention, is supported by other materials in the Convention and in the Regulation. He relies on the fourth recital to the Regulation, the very object of the Regulation stated in Article I, and the duties provided for in Articles 14 and 16. I think he derives particular assistance from the words of Article 14(1)(b), “If, at any time, the competent authorities have reason to believe that these provisions are being infringed” (my emphasis): this is a formula that sits uneasily in the middle of a scheme based on the use of documents which may be relied on without any further enquiry. As for the Convention, Mr Turner points to the words of Article V(2)(a) itself, Article VIII, and Section II(h) of Resolution Conf. 10(2). I have set out all of these materials.
33. The interpretation of statutes is hardly ever entirely value-free. It is neither surprising nor regrettable that in confronting their task of interpretation, the judges have to a greater or lesser degree been moved by the aspirations of their time. Such a process does no more than bring to life the plain fact that the law – perhaps especially the common law – will reflect contemporary influences, even though it is not a creature of them; it must do so, or it would ossify. In the century before last, the sanctity of contract, with all that said for trade across the British Empire and beyond, was a powerful engine of statutory construction. Now, the world is a more fragile place. Considerations of ecology and the protection of the environment are interests of high importance. The delicate balances of the natural order are continuously liable to be disturbed by human activity, which in particular threatens the survival of many flora and fauna. These concerns are today well known and well accepted. Within the proper limits of the courts’ role, and in appropriate contexts, I think we should now be ready to give them special weight.
34. The Convention, though certainly it seeks to support viable international trade, is first and foremost intended as a legal antidote to some of the damage done by man’s exploitation of nature’s resources. That purpose must, in my judgment, serve as the most influential factor in the interpretation of the Regulation, given Article 1 of the latter, which I have set out. For these reasons I prefer the construction advanced in Greenpeace’s modified argument, as I have described it in paragraphs 22 and 32. Thus I consider that the words in Article 4(3)(a) “in accordance with the Convention” exact compliance with the Convention’s requirement that a permit has to fulfil both the condition stipulated at Article V(2)(a) and the formal requirements of Article VI. My Lord Dyson LJ put what I regard as a telling instance to Mr Lewis in the course of argument. Suppose that IBAMA stated on the face of the permit that it was issued out of obedience to the Brazilian court, but IBAMA was not in fact satisfied as required by Article V(2)(a) of the Convention. I cannot think that the im,porting State would be obliged to regard such a statement as if it had not been written.
35. Where therefore, as here, the authorities in the importing State knew (at the time the export permit was presented) that the management authority of the exporting State was not satisfied as required by Article V(2)(a) when it issued the permit, they should have rejected the permit for failure to comply with Article 4(3)(a) of the Regulation. The permits in this case were accordingly unlawful. This conclusion is consistent with, though by no means driven by, the European materials on which Mr Turner relied and which I have set out at paragraphs 19 – 21; it is consistent also with the views of the CITES Secretariat.

POSTSCRIPTS

36. There are two postscripts. First, I recognise that my conclusion in paragraph 35 leaves unanswered questions that may well arise hereafter, perhaps in relation to shipments already on the high seas or awaiting clearance elsewhere in Europe. What if, though it cannot be said that the importing State’s authorities know that Article V(2)(a) is not fulfilled, they have reason to believe it may not be? I have already indicated (paragraph 23) my acceptance that the scheme is essentially “document-based” in the sense that where the importing State finds an export permit compliant with the formalities specified in Article VI, then in the ordinary way, and assuming compliance with any other necessary procedures, that State’s authorities are entitled without more to treat the export permit as good, and allow the importation. In such a case there is nothing to put the authorities on warning that the permit may not have been “issued in accordance with the Convention”. And there is no more a general duty on the shoulders of the importing State to enquire, as it were from cold, whether the exporting management authority was satisfied in accordance with Article V(2)(a) of the Convention than there is to enquire whether the conservation laws of the exporting State have been complied with.
37. So the difficulty would arise only where there is something in the facts of the case to suggest to the importing State that the permit was not issued in accordance with the Convention. While I would not seek to lay down any general rule, I think it may be useful to recall the true nature of the judicial review challenge that might be brought if there were reason to suppose that the permit was not issued in accordance with the Convention, yet the goods had been allowed in. If my approach to the interpretation of the Regulation were to be accepted as correct and the importing State had proceeded on that basis (and had, let it be supposed, decided that there were no sufficient grounds to hold up the import and make further enquiry), such a challenge would not be based on any point as to the construction of the Convention or the Regulation; rather it would be said that the authorities of the importing State should on the facts have held up the importation and instituted further enquiry, or rejected the permit on the facts they had. But a challenge of that kind would do no more than call in question, essentially on Wednesbury ([1948] I KB 223) grounds, the quality of the authorities’ decision-making process. Nothing in my understanding of the Regulation is intended to suggest that the importing authorities must jump into the fire engine at every warning bell. If the export permit is good on its face it should take a great deal to move them. It is useful to recall the terms of the domestic legislation, contained in Regulation 5 of the Control of Trade in Endangered Species (Enforcement) Regulations 1997:

“… a person commissioned by the Commissioners of Customs and Excise, or a person authorised by them, may require any person possessing or having control of that specimen to furnish proof that its importation or exportation is or was not unlawful by virtue of [the Regulation]…

We have not heard argument on the point, but provisionally I would take the view that a claimant seeking a judicial review of a decision to accept an importation, in circumstances where there was no more than some reason to doubt the legal propriety of the permit, would usually need to show that it was on the facts perverse not to have exercised this Regulation 5 power. I accept it is conceivable that there might be other instances, perhaps where it is suggested that the importing authorities should have raised queries with the exporting authorities. Lawyers’ ingenuity will naturally multiply examples.

38. I greatly doubt whether in the real world these possible scenarios are likely to offer serious disruption to international trade, given the relatively narrow basis upon which (as I see the matter) the courts might uphold a legal challenge. But in the end I have to say that I regard it as an incident of trade in flora or fauna of the kind in question here that the tradespeople take the risk of inconveniences and disruptions to their legitimate business, so far as they are a necessary incident of a robust environmental law.
39. The second postscript concerns the letter of 3 June 2002 from IBAMA, which I have described at paragraph 15. I would accept Mr Lewis’ submission for the Secretary of State, made in writing on 24 June 2002, that no relief should be granted distinctly in relation to the Birkenhead shipment notwithstanding my conclusion that the export permits which supported it were unlawful under the Convention and the British authorities should have rejected them under the Regulation. The fact is that the mahogany in question was lawfully harvested. Any other relief must await argument, and of course would only arise if my Lords were to be in agreement with my conclusions.

Lord Justice Dyson:

40. In my opinion, this application for judicial review should be dismissed. I agree with Laws LJ, that for the reasons he gives at paras 25-27 of his judgment, which I have read in draft, the alternative argument advanced by Mr Lewis should be rejected. But like Mummery LJ, I do not feel able to accept the “modified” Greenpeace argument.
41. Laws LJ has set out all the relevant material in full, but I find it convenient to repeat the centrally important provisions. Article V of the Convention regulates trade in specimens of the species listed in Appendix III (which include mahogany from Brazil). Paragraph 1 provides that all trade in these specimens “shall be in accordance with the provisions of this Article”. Paragraph 2 provides:

“The export of any specimen of a species included in Appendix III from any State which has included that species in Appendix III shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met:

(a) a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora: and

(b)…..”

Paragraph 3 provides:

“The import of any specimen of a species included in Appendix III shall require…..the prior presentation of a certificate of origin and, where the import is from a State which has included that species in Appendix III, an export permit.”

Article VI is headed “Permits and Certificates”. It provides:

“1. Permits and certificates granted under the provisions of Articles III, IV and V shall be in accordance with the provisions of this Article.

2. An export permit shall contain the information specified in the model set forth in Appendix IV….”

It goes on to set out a number of other detailed requirements as to the form of a permit or certificate.

Article 4 of the Regulation deals with the introduction of specimens into the European Community. Article 4.3 provides:

“The introduction into the Community of specimens of the species listed in Annex C [which corresponds with Appendix III of the Convention] shall be subject to completion of the necessary checks and the prior presentation, at the border customs office at the point of introduction, of an import notification and:

(a) in the case of export from a country mentioned in relation to the species concerned in Annex C, the applicant shall provide documentary evidence, by means of an export permit issued in accordance with the Convention by an authority of that country competent for that purpose, that the specimens have been obtained in accordance with the national legislation on the conservation of the species concerned…”

Article 2 of the Regulation contains definitions. It provides that “checks at the time of introduction……shall mean documentary checks on the certificates, permits and notifications”.

42. Both the Regulation and the Convention draw a distinction between (a) the form of, and formalities relating to, a permit and (b) the substantive requirements imposed by the Convention as a condition for the issue of a permit by the management authority of the exporting state. In my view, an export permit is “issued in accordance with the Convention” if it is issued in accordance with the requirements of Article VI of the Convention. If it is issued in accordance with Article VI, but the substantive conditions stipulated by Article V for the grant of a permit are absent at the time of issue, the permit is nevertheless issued in accordance with the Convention.
43. It seems to me that this is the most natural interpretation of the language of Article 4.3(a) of the Regulation, when read in conjunction with Articles V and VI of the Convention. The phrase “issued in accordance with the Convention” in Article 4.3(a) of the Regulation mirrors the language of paragraph 1 of Article VI of the Convention “permits….shall be in accordance with the provisions of this Article”.
44. This interpretation also accords better with the opening words of Article 4.3 of the Regulation: the introduction of specimens of the species in Annex C shall be subject to the completion of “documentary checks” and the prior presentation of the permit. The obligation on the importing authority is to check the documents, and not to check to see whether the management authority of the exporting state was in fact satisfied as Article V(2)(a) of the Convention requires. It is significant that the requirements in relation to the importation of specimens of species which are listed in Annex C are less stringent than those applicable in relation to those which are listed in Annex A and B. In relation to these, both the Convention and the Regulation provide that the introduction of the specimens is subject not only to completion of the necessary documentary checks, but also the prior presentation at the border customs office at the point of introduction of an import permit issued by the management authority of the Member State. An import permit may not be issued unless certain substantive conditions have been met. Thus, for example, the Convention requires as a condition of the import of any specimen of a species included in Appendix I the prior grant of an import permit, and an import permit may only be granted when “(a) a Scientific Authority of the State of import has advised that the import will be for purposes which are not detrimental to the survival of the species involved” (there is a corresponding provision in the Regulation in relation to Annex A). But, although the Convention imposes more stringent requirements in relation to the species listed in Appendices I and II than in relation to those listed in Appendix III, the additional requirements are entirely documentary.
45. Thus, based simply on an analysis of the words of the Regulation and the Convention, I would hold that “in accordance with the Convention” in Article 4.3(a) of the Regulation means “in accordance with the requirements of Article VI of the Convention”. The correctness of this analysis seems to me to be accepted once it is acknowledged that the scheme is essentially “document-based”: see para 23 of Laws LJ’s judgment. If the scheme is “document-based”, this must mean that the introduction into the Community of specimens of the species listed in Annex C is subject only to documentary checks, and the prior presentation at the border customs office at the point of introduction of an export permit which satisfies the formalities of Article VI. The modified Greenpeace argument accepts, and I agree, that the Convention and Regulation do not require the authorities of the importing state to satisfy themselves that the specimens in question were not obtained in contravention of the local conservation laws. As Laws LJ points out, such an obligation would be impractical. In my view it would also be inconsistent with the scheme of the Convention and Regulation which is “document-based”.
46. But it is said that if, exceptionally, the authorities of the importing State happen to know that the management authority of the exporting State was not satisfied as Article V(2)(a) of the Convention requires, then they are obliged to reject the importation on the grounds that the permit is not “in accordance with the Convention” within the meaning of Article 4.3(a) of the Regulation. It is worth repeating steps 3 and 4 of the modified argument as they have been helpfully set out by Laws LJ at para 22 of his judgment. “(3) If the management authority of the exporting State issues an export permit without being satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora, then the permit is not issued “in accordance with the Convention” within Article 4(3)(a) of the Regulation. (4) If the competent authorities of the importing State know that this is so, then far from being obliged to accept the permit and allow the importation, their duty would be to reject it”.
47. Step (3) raises the question that lies at the heart of this appeal. At first sight, step (4) may seem to provide an attractive solution to the problem that has arisen in this case. But I cannot accept it. If the phrase “in accordance with the Convention” in Article 4.3(a) of the Regulation includes a reference to Article V(2)(a) (as well as Article VI) of the Convention, then it is clear that the knowledge of the importing authorities that the management authority of the exporting State was not satisfied cannot be relevant to whether the permit is or is not in accordance with Article V(2)(a). The condition for the grant of the permit is that the management authority “is satisfied etc”. Either the authority is satisfied or it is not. Where it is not satisfied, then if the modified Greenpeace argument is correct, the permit is not in accordance with the Convention regardless of the knowledge of the authorities of the importing state. The language of both Article 4.3(a) of the Regulation and Article V(2)(a) of the Convention is expressed in objective terms. The state of mind of the authorities of the importing state as to the underlying facts is irrelevant to whether a permit issued for the export of specimens of species listed in Appendix III is in accordance with the Convention.
48. All this seems plain enough. It seems to me, therefore, that the argument must be as follows: (a) a permit is not issued in accordance with the Convention unless it is issued in accordance with Article V(2)(a); but (b) a permit issued where the Article V(2)(a) conditions are not met, if otherwise valid, may nevertheless be treated by the authorities of the importing State as having been properly issued in accordance with Article V(2) unless they know that it was not so issued. I can find no warrant for (b). In my view, it amounts to a substantial and unjustified gloss on the words of the Convention. It would have been possible, in theory at least, for the Convention and the Regulation to have required, as a condition of the introduction of specimens into a Member State, that the importing authorities of that State should know or believe that the conditions for the issue of a permit by the management authority of the exporting state have been satisfied. It is hardly surprising that they do not do so.
49. In my judgment, therefore, the language of the Convention and the Regulation militate against the fourth step in the modified Greenpeace argument. In any event, once one leaves the terra firma of export permits which satisfy the objective requirements of Article VI, then one moves into a land of uncertainty. There are many shades of mental state between certain knowledge that an event has happened and certain knowledge that an event has not happened. Why should knowledge by the authorities of the importing state that the management authority of the exporting state was not satisfied as required by Article V(2)(a) of the Convention be singled out for exceptional treatment? Suppose the importing authorities shut their eyes to the obvious: would that be sufficient to trigger the obligation to reject the importation? What would the position be if they had strong reason to suspect, and perhaps believed, that the management authority of the exporting State was not satisfied when it issued the permit? These are all difficult questions which require an answer if the Greenpeace argument is correct. Moreover, whatever answer is given, the Greenpeace interpretation would generate uncertainty, which is inimical to trade. It should also not be overlooked that the decision whether to accept or reject an importation has to be made by officials “at the border customs office at the point of introduction”. I do not think that it was intended by those who drafted the Convention and the Regulation that such officials would be faced with issues of this kind.
50. I accept that the principal purpose of the Convention is to promote the conservation of threatened fauna and flora. It achieves this by regulating trade in this area. The scheme of the Convention as regards species which fall into Appendix III, which are the least endangered of the three classes of species, is to impose on the authorities of the exporting State the obligation to satisfy themselves that the conditions for the issue of an export permit have been met; and to impose on the authorities of the importing State the obligation of not allowing an importation unless it is supported by an export permit which satisfies the requirements of Article VI. This is a rational and coherent scheme. It enables the exporting State to ensure that its laws for the protection of fauna and flora are not contravened. But it does this by a system of permits, whose validity is prima facie immediately and objectively ascertainable by the authorities of the importing State. In this way, legitimate trade in specimens of species which are listed in the appendices to the Convention can take place in a climate of certainty.
51. For these reasons, as well as those given by Mummery LJ, I would dismiss this application for judicial review.

Lord Justice Mummery:

Introduction

52. I would dismiss this substantive application for judicial review. It proceeded expeditiously in this court at the end of last term, as directed by Laws LJ on 26 March 2002 on the application by Greenpeace for permission to appeal against Scott-Baker J’s refusal on 5 March 2002 to grant permission to seek judicial review. In my judgment, nothing unlawful on the part of the respondents, the Secretary of State for the Environment, Food and Rural Affairs and the Commissioners of Customs and Excise, has been established, either on the particular facts of this case, as clarified by the further materials supplied by the parties during the course of June after the close of oral argument, or on the general point of principle affecting future shipments arriving in the United Kingdom. The general point was fully argued on all sides at the hearing, save by the UK sales agent, Alan Thomas Craig Limited, who took no part in the appeal, though joined as an interested party.

The Issue

53. It is unnecessary repeat the relevant facts and the legal materials fully set out by Laws LJ in his judgment, which I have read in draft. As he says, the issue is a narrow one turning on the construction of Article 4.3 (a) of the implementing EC Regulation 338/97. The choice is between the rival arguments summarised by him. I respectfully differ from Laws LJ. I conclude that the respondents’ arguments are more persuasive as a matter of the ordinary meaning of the text when read in context and that the legal and practical consequences of the respondents’ arguments are more consistent with the evident policy of the documentary evidence provisions of the Regulation and of the Convention.

The Regulation

54. Article 4.3(a) is concerned with the provision of documentary evidence at the point of import into the Community in the case of export from a specified country in relation to specimens of the species concerned (in this case Brazil where the mahogany comes from). The documentary evidence must be provided to the import authority by the specified means (i.e. “ by means of an export permit issued in accordance with the Convention by an authority of that country competent for the purpose”) and it must have the stated effect (i.e. “that the specimens have been obtained in accordance with the national legislation on the conservation of the species concerned…”). There is a cross-reference to Appendix IV, which sets forth a model form of export permit specifying the information it must contain.

The Convention

55. The references to the form and to the stated effect of the documentary evidence reflect the language of Article VI of the Convention, which provides that permits granted “shall be in accordance with the provisions of this Article”, rather than the language of Article V (2), which operates at the logically earlier stage of a decision by a management authority of the State of export (IBAMA in the case of Brazil) that it is satisfied that the required conditions have been met.

The Scheme

56. The structure of the export permit scheme is pragmatically designed and clearly expressed. It is for a management authority of the state of export to decide whether it is satisfied that the required conditions have been met for the grant of an export permit. Like Laws LJ (paragraph 23 of his judgment) I would not hesitate to reject the submission of Greenpeace that the authorities of the importing state are obliged to satisfy themselves that the specimens in question had not been obtained in contravention of the local conservation laws of the state of export. No such obligation is expressly or impliedly imposed by the export permit scheme in the Convention or in the Regulation. It would neither be practical nor convenient to require the authorities of the importing state to carry out the necessary investigations on the ground, quite possibly on the other side of the world.
57. It is the responsibility of the management authority of the state of export to decide whether to issue an export permit in the prescribed form and having the stated effect. That involves being satisfied about the required conditions.
58. The responsibility of the import authority in the Convention is to see that it is provided with the required documentary evidence by the prescribed means of an export permit having the stated effect. I am unable to discern in the scheme an additional obligation on the part of the import authority to disregard an authentic export permit, which is valid on its face, or to refuse to accept such a permit as documentary evidence, if it in fact happens to learn that the stated effect of export permit is incorrect because the management authority of the state of export was not in fact satisfied that the required conditions had been met.
59. In my judgment, unless and until an authentic export permit is unilaterally revoked or cancelled by the authority which issued it or is set aside by agreement or by a court order, the importing authorities are entitled to treat it as a valid and subsisting permit. I can see nothing unlawful in the import authority accepting it as documentary evidence having the effect that it purports to have and in acting upon it. It is not required to check the correctness or validity of the decision of the management authority of the state of export that the stipulated conditions have been met for the grant of an export permit. Its only concern is to see that the permit complies with the provisions for documentary evidence in Article VI of the Convention. It follows that it is lawful for the Commissioners of Customs and Excise to refuse to detain the specimens pending the outcome of the litigation involving IBAMA in Brazil. They would not be justified in detaining them on the ground that, notwithstanding the presentation to them of an authentic export permit, they know that the management authority was not in fact satisfied that the conditions have been met.

The Courts in Brazil

60. The fact that the permit has been issued under the pressure, or even compulsion, of a court order or with the authority of the courts in Brazil has no bearing on the question whether an authentic export permit, valid on its face, was issued “in accordance with the Convention” within the meaning of Article 4.3(a) of the Regulation. On this point I agree with Laws LJ (paragraph 27 of his judgment).

Commercial Certainty

61. There is nothing surprising in this result as a matter of legal policy. The specimens of a species for which an export permit has been issued are intended to be traded in the international market. Contracts will be made between exporters and importers. Arrangements will made for the transportation of the specimens to another country thousands of miles away. In situations of this kind legal and commercial certainty are paramount considerations. Certainty is supplied by the mechanism for issuing documentary evidence in the form of an export permit “in accordance with the Convention”. If the authority in the state of export issues an export permit in accordance with Article VI it must be taken to have known and intended that it would be acted upon by third parties in entering into and performing obligations in commercial transactions and by the competent authorities of the importing state. I see no objection to the import authority being entitled to act upon a subsisting authentic export permit presented to it, even if it is told that the issuing authority was not satisfied that the required conditions had been met. The need for commercial certainty is as great in the case where the permit has been, for whatever reason, incorrectly or unwillingly issued, as in the case where it has been correctly and willingly issued.
62. This construction of the Regulation does not detract from the importance of measures to ensure the observance of the provisions of the Regulation and the Convention for the protection and conservation of the species covered by the Regulation and for the prohibition of trade in specimens in violation of the Convention. It is a matter of who is bound to do what. The importing authorities must insist on observance of the requirements for the presentation of documentary evidence and act only on a permit issued in accordance with the Convention as set out in Article VI. Points on the non-existence of the pre-permit conditions should be addressed to and by the issuing authority, who may decide not to issue a permit or, if it is legally possible to do so, to revoke a permit already issued. The consequences of accepting Greenpeace’s submissions would be confusion in the different functions of the authorities and erosion of the certainty recognised by the Convention. Doubts would be introduced about the validity and effect of authentic evidentiary documents reasonably relied on by businessmen when they entered into transactions and by other state authorities when required to make decisions affecting the performance of commercial obligations.

Result

63. It is no doubt unfortunate that mistakes may be made by the issuing authority which cannot be put right and that the enforcement of the Regulation and the Convention is less than perfect, but in an imperfect world I would accept the construction which the language of the Regulation naturally bears and which is consistent with the legitimate needs of certainty in commerce, as embodied in the documentary evidence provisions. Since writing this judgment I have read the judgment of Dyson LJ and I agree with it.
Order: Appeal dismissed with costs in favour of the Secretary of state and HM Customs and Excise, to be the subject of a detailed assessment if not agreed; no order for costs in relation to the Interested Party, save that the Appellant’s should pay half of their costs of attendance today; Greenpeace’s appeal against the order of Scott Baker J on costs dismissed; permission to appeal to the House of Lords refused. (Order does not form part of the approved judgment)