QUEEN'S BENCH DIVISION
B e f o r e :
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE HENRIQUES
|HM CUSTOMS & EXCISE||(APPELLANTS)|
|MARK ANTHONY DORE|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The RESPONDENTS did not appear and were not represented
Crown Copyright ©
14th, Friday February 2003
"The officer who stopped the respondents did not have reasonable ground to suspect that they had goods liable to forfeiture. Accordingly, the respondents should not have been stopped in the absence of reasonable grounds and 'without a lawful interception, there could not be a lawful seizure of goods and there could not be a finding that the goods were in fact liable to forfeiture'".
". . . the powers of seizure conferred by sections 49(1)(a), 141(1), 139(1) and Schedule 3 of the Customs & Excise Management Act are not made dependent upon the exercise of any power to stop and search provided in other sections, such as sections 163 and 163A. The object of undertaking a search will be to look for unlawfully held goods, but that does not mean that the validity of any seizure of such goods is conditional upon the legitimacy of the search. The power to seize is exercisable, even where no search is necessary -- to take an obvious example, if a person carrying goods liable to forfeiture puts them on the ground, discards them, or leaves or hides them in some other place to which Customs have access. The power is not exercisable under any warrant or by reference to any criterion, save that the goods are 'liable to forfeiture'. Further, if the power is exercised, and its exercise is challenged in condemnation proceedings, the condemnation court must condemn the goods if it finds that they were liable to forfeiture, (paragraph 6 of Schedule 3 to CEMA)".
"i. The seizure of the cigarettes, tobacco and alcohol from the three individuals in this case cannot be regarded as axiomatically invalid, merely because it occurred as a result of a check which was invalid.
ii. The Divisional Court was in our judgment wrong to conclude that, if the check was invalid, then so, necessarily, was the ensuing seizure".
"(a) Whether, in condemnation proceedings under Schedule 3 to the Customs & Excise Management Act 1979, questions of the reasons for the initial interception of the passengers, and/or the legal basis for that interception, have any relevance to the issue the court has to determine.
(b) Whether in such condemnation proceedings there is an onus on the Commissioners to adduce evidence of the reasons for the interception, and/or that any interception was lawful.
(c) Whether in such condemnation proceedings a finding that the interception was unlawful necessarily means that any subsequent seizure is unlawful.
(d) Whether in any event such a finding is a bar to an order for condemnation being made in the case where goods were in fact liable to forfeiture at the time of seizure".