England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE OWEN: On 13th May 1998 the applicant was en route to Gibraltar when at Luton Airport he was found to be in possession of United Kingdom cash to the extent of £23,960 and 240,000 pesetas. The Customs suspected that these monies either represented the proceeds of drug trafficking, or were intended for use in drug trafficking. I am not asked to decide whether in fact the monies were for that purpose, or even whether the suspicion was reasonable; I accept for the purposes of this judgment that it was.

2. The proceedings now are for judicial review of a series of decisions of the Luton Justices on 6th August and 5th November last year and 2nd January this year. The monies having been seized on 13th May, on 14th May an application was made by the Customs and Excise to Luton Justices and detention was ordered until 13th August; that was under powers given by Section 42(2) of the Drug Trafficking Act 1994.

3. Section 42 deals with seizure and detention. The seizure, as I have said, was made by the Customs officer. There then has to be an application for an order for detention, which must be made within 48 hours. That is, in fact, what happened and the history thereafter relates to the various monies. The proceedings were in respect of the various monies and they were not against the applicant, who continued his journey to Gibraltar. Of course, the applicant remained a concerned party and he had to understand what was going on.

4. On 6th August, the applicant being present and having instructed solicitors, who to this day represent him, the Justices at Luton considered an application by Customs and Excise for further detention of the cash. That application was made under Section 42(3) which gives power to order detention for a period not exceeding three months and thereafter there can be further periods of detention so that, however, the total period does not exceed two years.

5. Detention is designed to enable Customs and Excise to make enquiries about the monies and, presumably in due course, if they so decide, to ask for forfeiture. Forfeiture is dealt with by Section 43 of the Act. It is to be noted that the terms of Section 42(3) do not themselves require any particular procedure. It is, however, clear that the Magistrates' Courts (Detention and Forfeiture of Drug Trafficking Cash) Rules 1991 were applicable.

6. It is not necessary to refer to all those rules, but I shall at this stage refer to Rule 7, which provides that:

7. Sub-paragraph (3):

8. It goes on in sub-paragraph (4) to say:

9. It is to be noted that Form C is not to be sent by the Rules to the person whose cash has been taken. The procedure is, as I have indicated, that the Form C goes to the Justices whose clerk gives notice in the manner in which I have indicated.

10. Understandably, when the solicitor attended on 6th August he assumed that a Form C had been sent to and received by the Justices. At the same hearing the solicitor made an application for release of the monies. However, the order was for further detention of the money and an order that the applicant should pay £500 costs to Customs and Excise.

11. Some time later the solicitor discovered that there was no Form C on the court file. This is the basis of the applicant's first and, as it seems to me, main argument, which is that as there was no Form C, there was no originating process and accordingly the order on 6th August, and for that matter later orders also in like manner, was a nullity.

12. The first question which has to be considered is, was there a Form C at all? Andrew Wesson, who is and was the clerk to the Justices, has filed an affidavit. It does not reveal a complete answer. At paragraph 4 he says:

13. Wilson Barca are the solicitors who were concerned.

14. It is clear that there was a telephone call by Customs and Excise to the clerk. This telephone call was about the date for the hearing. Whether there was more than that, as is apparent from

15. Mr Wesson's affidavit, cannot be said.

16. Mr Wales has also filed an affidavit. He is the Customs officer who, certainly now, is most concerned with these monies and with what is to happen to them so far as Customs and Excise are concerned.

17. At paragraph 19 he states:

18. Seized Cash, Drug Trafficking Act 1994,

19. Section 42(3) to the Luton Magistrates'

20. This satisfies the actual wording of Rule 7(1), namely that an application in Form C shall be sent to the clerk, but it is argued that there must be more than that.

21. The applicant concedes that as a result of Section 122 of the Magistrates' Court Act 1980 the applicant was deemed not to be absent at the hearing, since his solicitor was present, and it has to be conceded that no prejudice has been caused to the applicant by there being no receipt of Form C by the clerk to the Justices, if that is in fact the case.

22. As I have indicated, and I will indicate again, the applicant's case is that receipt by the Magistrates' Court of Form C is an essential condition. There can be no process until the receipt of Form C. It is hard to understand why this should be so, but Mr Salter cites various cases which, he argues, support his case. He also dealt with Section 123 of the Magistrates' Court Act 1980 contending that that does not get the Customs and Excise out of the hole which they are in, he suggests by reason of the fact that it cannot be proved that the Form C was received by the Justices.

23. That section deals with defects in process and states:

24. His argument is that this is not such a case. Here there was no receipt of the form and, accordingly, there was no originating process and, therefore, any provision as to a defect in process is of no avail.

25. The first of the cases to which I was referred was New Southgate Metals Limited v London Borough of Islington [1996] CrimLR 334 , a decision of the Divisional Court which held:

26. Pausing there, that is the situation which Mr Salter says is the situation here, since the Form C was not received by the Justices.

27. The Customs and Excise will say that here there is a situation more akin to that last and certainly not the first.

28. Those three types of error are, broadly speaking, as it seems to me, recognised in all the literature which refers to this kind of situation.

29. In addition to that, Mr Salter argues that the procedure which is required by Rule 7 of the 1991 Rules is much more rigorous than the Magistrates' Court Rules Rule 4, which by the second paragraph provides that subject to provisions which are not relevant here:

30. So, he says, there must be compliance with Rule 7.

31. The next case to which I was referred was R-v-Uxbridge Magistrates' Court ex parte Henry , decided in February 1994, and I have been provided with a copy of the transcription of the judgments there. That concerned an original application for detention of money, seized in circumstances which were similar to the circumstances in this case. Section 42(2), as I have already indicated, states that monies shall not be detained for more than 48 hours under that original procedure. The Justices, when considering the matter, found that the monies were not detained for more than 48 hours. The Divisional Court held that they were detained for more than 48 hours and that, accordingly, the subsequent detentions could not be made validly.

32. In that case Mr Justice Scott Baker said:

33. Draconian in this way: the monies may be taken away from a person on a suspicion and may be retained upon a suspicion. True it is that there is the intervention of Justices along the line, but still the earlier proceedings, all the proceedings, are not on the basis of the proof, but they are on the basis of reasonable and proper suspicion.

34. There the facts were very different and clearly if there was detention for more than 48 hours, as the Divisional Court found, detention was unlawful.

35. The next of the authorities to which I was referred was R-v-Manchester Stipendiary Magistrates ex parte Hill [1983] I AC 328 . That concerned informations which were laid against the defendants in three separate cases within the time limit for the laying of informations but they were never personally considered by a Justice of the Peace or by the Clerk to the Justices before summonses, bearing only a facsimile signature of the Clerk to the Justices, were issued.

36. The decision was that in each case the informations was laid when it was received in the office of the Clerk to the Justices by a member of the staff expressly or impliedly authorised to receive it and, therefore, each was timeously laid.

37. Again there, there were very different facts. The importance, I assume, attached to this case by the applicant is to show that there are occasions when a document has to be received and without receipt by a duly qualified person there will be no originating process. Here there must have been at least the telephone call to the Justices, but it is said, and I understand the argument, that that is not sufficient.

38. The next of the cases is R-v-Hughes (1879) 4 QBD 614 . One Hughes, a police constable, procured a warrant to be illegally issued, without a written information or oath, for the arrest of one S on a charge of assaulting and obstructing him in the discharge of his duty. On that warrant S was arrested and was called before the Justices and was tried by them and was convicted. However, unfortunately for Mr Hughes, the police constable, he was afterwards indicted for perjury committed on the trial of S and he was convicted. In the circumstances he richly deserved it.

39. What was found as a matter of decision was that the Justices had jurisdiction to hear the charge, though the warrant on which the accused was brought before them was illegal. Again, it can be seen that they really were very different circumstances.

40. The next case I was asked to consider was In re Pritchard [1963] CH 502 . Here there were circumstances which clearly caused great concern for the then Master of the Rolls who dissented from the majority decision. It was in 1961 that proceedings asking for reasonable provision to be made for a widow were in fact begun by the preparation of an originating summons. The day before the expiration of the six month period of limitation this summons was accepted as sealed in the local district registry. Eventually it was discovered that that should not have happened. It was too late to start other proceedings and the question became, was it possible, nevertheless, to treat this as a mere irregularity? Lord Denning argued that it could be so treated. However, the majority decision of the Court was to the contrary.

41. Lord Justice Upjohn, who gave the leading majority judgment, having praised the admirable arguments which had been heard from counsel on both sides -- which reminds me that I should say something similar and do now, lest I should forget it at the end -- dealt with those arguments. He dealt with the equivalent order in the Rules of Supreme Court Order 70 and said:

42. He quoted from Fry v Moore 23 QBD 395 , where Lord Justices Lindley and Lopes pointed out the difficulty of attempting to draw an exact line between an irregularity and a nullity -- a difficulty which is no doubt always there.

43. As to a nullity he said, and he was entitled to use the Latin tag:

44. In due course he decided that in that case there was a nullity:

45. He quoted also from Lord Denning in MacFoy [1962] AC 152 , where the Master of the Rolls had said:

46. Lord Justice Upjohn said:

47. So it must be. The question is, was there a nullity here?

48. Against the arguments which are put forward, based on these and, for that matter, other cases which I do not intend to refer to specifically, Customs and Excise argued, firstly, Section 43 makes no provision for the procedure to be followed; secondly, Rule 7 says that Form C shall be sent, and on that which is before me it was. There is no way in which I can go behind what Mr Wales has said and I do not intend to do so. Thirdly, the clerk is required to notify the applicant of the date and time of the hearing and that, in fact, was done. There is no requirement to serve a copy of Form C.

49. In the various cases to which reference has been made the document is used as a document showing the various parties what is contended, but not here. That fact alone distinguishes this from those other cases cited.

50. What difference, say Customs and Excise, would have occurred if this Form C had been received? The answer they suggest is for practical purposes none. It will be seen that my approach to whether Form C was received or not is such that I cannot decide whether it was. All I can say, as I do say, is that it was sent. It would be in some circumstances possible to say if it were sent and there were proceedings, then undoubtedly it must have been received. In view of that which was said by Mr Wesson in his affidavit, I cannot go that far.

51. The next argument put forward by Customs and Excise is to say that the object of the Rules is to ensure that the person from whom the money has been taken, and for that matter also the applicant, knows of the date and place of hearing so that they may go to the hearing and put forward that which they wish to put forward to the Justices.

52. In those circumstances, which I accept, I cannot see that the scheme of the Act, or the intention of Parliament, can have been that if that which was required to be sent was never received, or may never have been received, by this fact alone there was no sufficient originating process. There was a process, that it is clear, but

53. Mr Salter would say that may merely have been the magistrates treating the next hearing as a mere adjournment of the original hearing, which they were not entitled to do.

54. I accept that argument, but I take the view that it is correct to look at Acts of Parliament and also at rules to give them a meaning which may accord with what most people would regard as common sense. In saying that, of course I bear in mind that there have been many people who have said over the centuries that what most regard as common sense is often discovered to be common nonsense, but here I take the view that the word "shall" must in the circumstances be considered to be directory and not mandatory and I do not accept that the argument which is put forward, that when the 13th May order expired detention of the cash became illegal. I would accept that if there was a nullity, then that was not waived and, indeed, it could not have been waived, but I am not prepared to find that there is no sufficient originating process.

55. On 5th November there were more proceedings before the Justices. The applicant sought to argue to the Justices that the extant order of 6th August was a nullity and that, therefore, as a result, the court had no jurisdiction then, or on 5th November 1998. The Court would not allow him to do so. What it did was to make a detention order pursuant to Section 42 and order the applicant to pay £500 costs.

56. Mr Salter argues that the Justices had jurisdiction to entertain the applicant's submission as to nullity, and they ought at least to have allowed the submission to be made. Indeed, he goes further and says they should have allowed that submission. He refers, again, to various cases as far back as Rex-v-Marsham Justices ex parte Pethwick Lawrence [1912] KB 362 . I hope you will forgive me for saying that that is a long way away from this case.

57. There there was a conviction upon evidence which by error had not been sworn. The magistrate on being told that this was the case treated the conviction which he had made as a nullity and reheard the case, again convicting Emely Pethwick Lawrence.

58. Clearly there was a nullity there and accordingly the Court had power to treat the conviction as a nullity, but that does not mean that Justices have to enquire into whether there was a nullity or not.

59. I was also referred to R-v-Norfolk Justices and Another ex parte Director of Public Prosecutions [1950] 2 KB 558 . There a defendant had been committed to quarter sessions for sentence, but the case was not one to which the sub-section applied so that the committal was a nullity. The Justices were not prepared to treat it as a nullity, but in due course the Divisional Court told them that they had to. It does not seem to me that that helps a great deal. Clearly there was an obvious nullity and it does not equate with the situation here.

60. I accept that Justices may on appropriate evidence find a nullity and then treat that nullity as a nullity, but that does not mean that they have to entertain such arguments and certainly it does not mean that when a different bench is concerned. I find no error by the Justices in their refusal to allow argument as to nullity, nor, for the reasons already explained, do I find an error in the further detention order.

61. Next it is necessary to go on to the second set of proceedings, which relate to applications made on 2nd February. On that occasion Mr Wales, to whom reference has already been made, made application for forfeiture of the monies pursuant to Section 43(1). As has been indicated, Section 42 relates to seizure and detention; Section 43 relates to forfeiture. Forfeiture is one stage further on and Mr Salter says this is a more important proceeding than either of the other two -- seizure and detention.

62. Section 43(1) is in these terms:

63. Here there is quite clearly a factual decision to be made by the Justices.

64. By (2) it is provided that:

65. The applicant's general case is that Mr Wales was not a Commissioner, what he did was not the act of the Commissioner and that the whole process was, in effect, a ploy to enable the Customs and Excise to overcome the difficulties which there were on that day.

66. Firstly, it is pointed out by Mr Salter that over the previous day Customs and Excise had written to solicitors for the applicant -- the letter is copied at page 157. It was not in fact received, apparently, by Mr Barca until 3rd February. It indicates that Customs and Excise were not prepared to reveal various documents "at a stage when no decision as to whether to proceed to forfeiture or to return the cash has been made".

67. So it is said that is the background to what happened on that day.

68. Mr Barca raised two matters before the Justices. He also raised at paragraph 7, page 119, two matters with the Customs and Excise, not with the Court. One was "the service of the notice of hearing on the applicant" and the second was "the grounds on which the application for the detention was being made". He indicates by paragraph 8 that he felt he was:

69. He raised that with the clerk. It was then that he discovered that no notice of any of the hearings had been sent to the applicant.

70. The application to which reference is made is at page 136. What has been completed is the date, 2nd February. All the other details were pre-typed. It is said in those circumstances what was being done here was almost a spiteful but in any event an illegal act to get around the difficulties which were to be found because no proper notice had been given.

71. The applicant when dealing with forfeiture contrasts 42(1), which empowers a Customs officer to seize cash, and 46(6), which permits a Customs officer to return the cash, with 42(5), which provides:

72. Also with section 43(2), which uses similar terminology.

73. He says that the reason why the Commissioners have to be involved is because this is the more important part of the legislation. It is not enough for the action to be taken by a Customs official off his own bat. There was, in other words, no actual or ostensible authority.

74. To this, the Customs and Excise say that 43(2) provides that if the application is made to the Magistrates' Court it may be made by a constable and, they say, it is clear that Mr Wales was a constable for this effect. Section 63, which is a general interpretation section, provides that:

75. At page 169 of the bundle, the first affidavit of

76. Mr Wales deals with that matter at paragraph 2 and states that he has been so commissioned and, accordingly, for the purposes of the Justices he was a constable. It is said in answer to that by Mr Salter, "But this was a mistake made by the draftsman". The Act, he says, was a consolidating act and the draftsman did not realise what he was doing. In the earlier acts there had been no such provision and, he says, that I should treat this as a mistake by the draftsman to be ignored by me, so that I should treat the section as if it did not have the words "or constable" within it.

77. I do not accept that that would be an appropriate course for me to take. I believe I have to accept the section as given and the definition which is given as the will of Parliament and, accordingly, I do not accept the first part of the argument which is that Mr Wales had no authority.

78. The next part of the argument is an abuse of process argument. In part it is based upon the fact that there was no authority, but only in a minimal way, and certainly the fact I reject that argument does not mean that this does not stand of its own accord.

79. The main argument is that the application was made in bad faith and for the sole purpose of bringing into play Section 42(7). Section 42(7) provides:

80. The argument put forward is it is only permissible to seek an order for further detention of cash if such detention is justified. It follows that when and if the Customs has sufficient grounds to make an application for forfeiture this application should be made without delay. Since the day before they were saying that they had not then made up their minds, they cannot, that is the Customs and Excise, have believed that it was then proper to make application for forfeiture. It turned out that no explanation was given for this change of strategy.

81. Again, I am referred to a number of authorities. It is not necessary for me to refer to those specifically. The burden of them is that the Court has and may exercise a supervisory jurisdiction over the executive and will intervene in a case of impropriety irrespective of whether the subject can demonstrate any prejudice in the actual trial of the issue. As a general statement I would accept that that is so. I have to consider, however, what the situation was here.

82. It is said that Mr Wales's purpose can only have been to secure detention of the cash pursuant to Section 42(7) but without sufficient cause. That seems to me to be a conclusion which somebody could make, but it is not a conclusion which was made and it is certainly not one for me to make. The allegation is understandably made, but I am certainly not prepared to say there is sufficient for me to act upon it. Accordingly, I do not find that there was an abuse of process which should lead to the relief which the applicant seeks.

83. The next matter to consider, and the last, is the costs of the hearing on 2nd February 1999. As I have related, what happened was that the proceedings originally fixed for that day were discovered to be such that the proceedings could not continue as they were at that time. It was at that time that the forfeiture application was made. What is said is that it was wrong for the court to leave the applicant to bear his own costs because the court itself had contributed to those costs being incurred by failure to serve the applicant and to reply to the correspondence.

84. It was not in dispute that there was a failure by the court. The question was, however, who should bear the costs? Mr Wesson has said in paragraphs 11 and 12 together on the matter:

85. Paragraph 12 he says:

86. As to the contention that it would be unjust to award costs against HM Customs and Excise, that is clearly a matter which the court was entitled to take into account. On the facts of this case, I see no grounds whatsoever for saying that costs should have been awarded against the Customs and Excise. So far as the court itself was concerned, it was the fault of the court but there was no proper procedure for saying that the court should pay costs and, of course, it was true that the forfeiture proceedings were considered on that occasion.

87. I accept that the Clerk to the Justices was saying in the course of the two paragraphs which I have read out that the forfeiture followed as a result of what Mr Barca had done. It is not for the court in this manner to make judgments as to cause and effect and I would not and do not accept what he says there.

88. There is also, I think, occasion for making a very gentle reprimand, if reprimand it properly is. The phrase that Mr Barca "had adopted a very adversarial approach and sought to take a variety of points which had no merit" does not, I think, assist in this case. There were points to be taken. Nobody should blame a lawyer for taking those points. Of course if he takes them in a rude and aggressive manner, then his manner can be criticised, but that he takes the points cannot, in my judgment, be criticised at all and I hope that Mr Barca will not be put off in the future by those apparent complaints about his conduct. I certainly see nothing wrong in any way in what he did.

89. To return to the argument about costs, what is said by the applicant is that the applicant had been wholly successful in his opposition to the application for further detention, which, of course, was true, in the sense that those proceedings died a death at that time.

90. The issue of the service of the application for forfeiture is set out in these Acts. Likewise, the fixing of the date for the hearing does not involve the Justices. It goes on in the written argument:

91. That is an argument which I am not prepared to accept. It is an argument which may have to be considered on other occasions, but I reject it. The question of costs was very much within the discretion of the Justices. It would only be in circumstances where a decision could be seen as perverse that this court would intervene and interfere with such a point. I am quite sure that it would not be right for me so to do. In those circumstances the applications must be dismissed, but with my thanks to each of you. If there is error, it is my fault and not yours.

92. MR RICHARDS: My Lord, there was one matter of fact in the judgment in which you were in error, but I do not think it makes any difference, which we seek to correct.

93. MR JUSTICE OWEN: Let me know what it is.

94. MR RICHARDS: It is Mr Abecasis was present at the hearing on 6th August and he gave evidence.

95. MR JUSTICE OWEN: Then I will, if I get the chance, put that in. I had not appreciated that he was there and I do not think it makes any difference.

96. MR RICHARDS: It does not, my Lord, no.

97. MR JUSTICE OWEN: He was not there for the argument?

98. MR RICHARDS: That is right. I also have an application for costs in both applications.

99. MR SALTER: Costs are very much in the discretion of the Court. Clearly the argument has been lost and ordinarily costs will follow the event, but the circumstances in which this case arose are, to say the least, unusual in that

100. Mr Abecasis has been on the receiving end of a catalogue of errors by various persons and, as your Lordship kindly says, he was right to expose those to the light of day. You may think that in the circumstances some of the Customs' costs should be mitigated in part or in whole.

101. MR JUSTICE OWEN: I think not, but it is very prettily argued, if I may say so. I shall make an order for costs and I shall also ask that I see the transcript and I will make a note in my book so that when it comes I can say on 6th August the applicant was present.

102. MR SALTER: My Lord, I apply for leave to appeal against your Lordship. It is compulsory of course in all matters of judicial review. It is always difficult in this situation because one does not want to look behind the judgment that has just been given.

103. MR JUSTICE OWEN: You should not feel like that at all. It is a properly argued point.

104. MR SALTER: I must admit that I had not thought that the receipt point, if I can put it that way, was seriously contested. Your Lordship was directed also to Regulation 7(3) in the course of arguments, which indicates that the court can fix a date and notify the applicant and notify other persons when the application is received in accordance with paragraph 7(1) and I certainly referred the court to it, but I say that it is clearly an arguable point.

105. MR JUSTICE OWEN: You may well have done, but this is one that I have not marked.

106. MR SALTER: The point I am making is that these are all ingredients in the judgment the court has to form in whether the judgments are mandatory or directory. I would say, with respect, there is a very serious argument here as to whether they are mandatory and the other consequences flow.

107. MR JUSTICE OWEN: What do you say about that?

108. MR RICHARDS: It is a matter for your Lordship but we say it is quite clear and does not need clarification.

109. MR JUSTICE OWEN: I shall give leave. It is a matter of some importance, I think.

110. MR SALTER: Thank you very much indeed, my Lord. The other matter is, I do not know whether the grant of permission, as I now should say, will be taken up or not and there is obviously some concern about the hearing of the application for forfeiture going back to this Magistrates' Court. Your Lordship has seen there is a degree of animus between the clerk to the Justices and my client's solicitor and, in my submission, it should go to a different Magistrates' Court for the question of forfeiture. Clearly fairly robust advice has been given --

111. MR JUSTICE OWEN: I think it is sufficient that it goes before a different clerk, different Justices that should be sufficient.

112. MR SALTER: I am very much obliged.

113. MR JUSTICE OWEN: I would think it unwise if the same clerk assists, although I know many occasions when that has been done when I have been involved as counsel. However, I think it would be unwise.