England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		9th July 2004

Friday, 9th July 2004
1. MR JUSTICE NEWMAN: This is an application for judicial review in connection with a judgment of the Crown Court at Newcastle upon Tyne which should have proceeded by way of case stated. Mitting J recognised this when granting permission, but in the circumstances of the case he granted permission for this application for judicial review.
2. The case arises out of the seizure of some 144 birds from the Cornhill Conservation Centre organised and run by the claimant, Mr Sissen. The birds were seized as to the majority on 2nd April 1998, and the balance making up the total of 144, on 6th May 1998. All the birds seized are birds of endangered species.
3. On 14th April 2000, Mr Sissen was convicted at Newcastle Crown Court on four counts of the fraudulent evasion of a prohibition on the importation of endangered species in connection with 9 birds. Those 9 birds being more particularly described as 3 Lear's Macaws and 6 Blue-Headed Macaws. His appeal against conviction was unsuccessful. In September 2001 he was ordered to pay the sum of £150,000 under a confiscation order. But I should also record that he was sentenced to imprisonment, his appeal against sentence was successful, and his sentence was reduced to 18 months, which he served.
4. The present application arises out of the condemnation proceedings which ensued after conviction, and which were heard at first instance in the Northallerton Magistrates' Court on 21st November 2002 when the District Judge ruled. In short he ruled that as to the 144 birds, only 44 of them should be subject to condemnation, and but for the subsequent appeal that would have meant that 100 birds would have been returned to the claimant.
5. The Customs and Excise appealed to the Crown Court in respect of that determination. They were successful in the Crown Court, and it is the judgment of the Crown Court which is under challenge so far as a number of birds are concerned. I say "a number" advisedly, because as I shall presently explain, it is no longer the 100 which represent the successful outcome of the proceedings before the District Judge, but a lesser number.
6. When Mitting J granted permission he did so on two grounds, but since then the claimant has abandoned one of them. The remaining ground is a point arising as to the true meaning and effect of section 141 of the Customs and Excise Management Act 1979, including the impact of proportionality on its proper application to the facts of this case.
7. At the commencement of the hearing, and at the instigation of the court, counsel for the claimant and the interested party were invited to make submissions as to the consequences of the judgment in the Crown Court, more particularly set out at pages 266 and 267 of the bundle. This preliminary exercise was required because in the absence of the illumination and certainty which a case stated would have provided, it was necessary to determine whether this application could legitimately relate to 100 birds or to a lesser number. The doubt arose from the interplay, to which effect must be given, between sections 49, 139, 154 and schedule 3 to the 1979 Act.
8. It is important to note that the claimant gave notice under paragraph 3, schedule 3, of the Act and the Customs and Excise, as a result, took proceedings under paragraphs 6 and 7. Paragraph 6 provides:

"Where notice of claim in respect of any thing is duly given in accordance with paragraphs 3 and 4 above, the Commissioners shall take proceedings for the condemnation of that thing by the court, and if the court finds that the thing was at the time of seizure liable to forfeiture the court shall condemn it as forfeited."

Therefore paragraph 7 came into operation, I need not recite it, for the purposes of those proceedings.

9. Section 154 is particularly material because it provides for proof in certain matters. In its material part, namely subsection (2), the Act provides:

"Where in any proceedings relating to customs or excise any question arises as to the place from which any goods have been brought or as to whether or not -

(a) any duty has been paid or secured in respect of any goods;

... the burden of proof shall lie upon the other party to the proceedings."

10. In addition, these proceedings were governed by, and indeed notice was given by, the Customs and Excise, that they were proceeding, in accordance with their powers, under the Control of Trade in Endangered Species (Enforcement) Regulations 1997, which regulations themselves provide, in Regulation 5, headed, "Proof of lawful import or export", reciting only the material parts of Regulation 5:

"Where any specimen is being imported... or has been imported... the Commissioners... may require any person possessing or having control of that specimen to furnish proof that its importation or exportation is or was not unlawful... 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."

11. I shall need to come back to those regulations, but at the moment I am concerned to explain the outcome of the preliminary discussion. I should add, for completeness, that there is no challenge in these proceedings to the compatibility of the reverse burden of proof, to which I have referred, with the European Convention on Human Rights.
12. In the Crown Court judgment under challenge, which of course in the usual way was presided over by a circuit judge sitting with two justices, in its material part stated:

"Mr Sissen's evidence, given before us on the 8th, 9th and I think 10th of April of this year, consisted of the assertion that he was not a smuggler and a file of notes and letters from suppliers, photographs and a video. This evidence, which we accepted, showed that he was a highly successful breeder of parrots and had engaged for many years in the sale, swapping and loaning of parrots to breed or to advance his bloodlines, and clearly, on many occasions, had legitimately acquired birds of the type sought to be confiscate, but his evidence also showed that no proper records were kept either of the breeding programmes or of the many, many cash transactions which took place. We did not accept that he was "no good at paperwork", as he asserted, and that that was of itself sufficient explanation for his failure to keep what he clearly saw as petty regulations. We found, on the evidence, that it was more likely than not that Mr Sissen smuggled into this country parrots of the type found in his aviaries apart from the birds that he undoubtedly smuggled in in 1997 and 1998 already confiscate. It is, we find, more probable than not that in the following instances, buffons, red-vented cockatoos, scarlet macaws, red-fronted macaws, blue-throated macaws, thick billed parrots and all the Australian birds, that one or more were so illegally imported. That being so, the burden of proof shifts to Mr Sissen to prove that all the birds of that class or subspecies were lawfully acquired or bred, and although, for reasons later set out, we consider that the effect of this finding is more far-reaching we accept in particular but not exclusively in the case of the buffons and the red-fronted macaws that Mr Sissen is able to show that it is more likely than not that he bred some at least, if not the majority of those seized, but he cannot prove that he has bred or acquired all of those sought to be confiscate. Furthermore, as perhaps is clear, we found that Mr Sissen was not a satisfactory witness as to truth."

13. It will now be apparent why the court has expressed the view with such firmness that this was a case which should have proceeded by way of case stated. The difficulties of interpreting this passage of the judgment in the Crown Court has, with the assistance of counsel, been overcome. It leads to this approach: to the first finding that it was more probable than not, that that list, beginning with buffons and ending in all the Australian birds, were illegally imported. One must then look as to what other birds there were, or having regard to his conclusion that in the case of buffons and red-fronted macaws one or more were, but he is able to show that he bred some at least, to work out the mathematics.
14. I was informed that outside the category, which is the first category, there were other birds which were listed: 2 Triton macaws, 1 Queen of Bavaria Conure, 1 Kea, 2 Illiger macaws and 2 Hawk Headed parrots. Thus, doing the best one can, therefore, so far as the buffons and red-fronted macaws are concerned, one extracts from the 20 of the total number of buffons, 1 only, leaving 19. The same exercise to the 13 red-fronted macaws, so as to reduce to 12. One then counts the 8 which are made up in the categories I have just listed, so that in the end this case is concerned with 39 birds and not 100. The fate of those 39 birds depends upon the outcome of the argument which has been advanced in connection with section 141; namely, the one ground of appeal which now remains.
15. The reason why, so that it is clear on the record, we are in that position, is that I am satisfied, on a proper interpretation of the judgment that the court below concluded that in respect of the 61, namely the difference between 39 and 100, Mr Sissen had not discharged the burden which was on him to show that they had been lawfully imported, or, putting it the other way, since this is what his argument was, been bred here.
16. So, with that narrowing down of the issue, let me turn to what I regard as the particularly relevant factual findings to the ground of appeal we have. The factual findings can be stated as follows. Mr Sissen could be regarded as a serial smuggler of endangered species, because he has been convicted on no less than three separate occasions. More importantly, the 100 specimens, or for that now read 39, in issue, are all birds included in annex A or annex B to the Council Regulations, that is the European Council Regulation, 338/97, and were thus recognised within the European Union as being members of species whose survival in the wild was critically endangered (that is annex A) or endangered, which is annex B.
17. It is, in my judgment, at the forefront of this case to have in mind that the Council Regulation to which I have referred is the European Union's implementation of an international convention; namely, the Convention on International Trade in Endangered Species.
18. The importance of that is that this case involves consideration as to the extent and nature of the United Kingdom's obligations through the relevant authority, namely the Customs and Excise, in the discharge of its international obligations according to the Convention, as well as in the enforcement of the Control of Trade in Endangered Species (Enforcement) Regulations 1997, which themselves were brought in to effect under subsection (2) of section 2 of the European Communities Act 1972, because the minister was the one:

"... designated for the purposes of that subsection in relation to the regulation and control, in the interests of conservation, of the import, export, landing, keeping, transportation and commercial display of, and trade in and disposal of, fauna and flora... and in relation to anything supplemental or incidental to those matters, and of all other powers enabling him in that behalf, hereby [exercises his power to make those regulations]."

19. The court found that as a fact Mr Sissen had fraudulently obtained what are called CITES (being the acronym for the Convention on International Trade and Endangered Species) certificates. The evidence extended to reveal that all the specimens in issue were of a species which had been mentioned in correspondence and documentation at Mr Sissen's house, namely, evidence which was in the proceedings, and which was sufficient to disclose an international smuggling organisation with links in particular to Brazil (and it was from Brazil that the macaws could be captured) and thus it was that it was concluded he was a large scale dealer in the wholly illegal trade of smuggling endangered species.
20. Those are the facts with which this court is bound to be concerned. They conclude that Mr Sissen smuggled into this country parrots of the type found in his aviaries, apart from the birds that he undoubtedly smuggled in 1997 and 1998, which are already confiscate.
21. The court also found as a fact that in the case of 6 species, plus all the Australian birds, one or more specimens had been illegal imported and thus were liable to primary forfeiture. It was also found that Mr Sissen had also deliberately mixed them in flocks in his large aviaries, he had not had them microchipped, nor did he keep proper breeding records that would enable them to be identified. He admitted that his breeding technique was one in which it was possible to conceal birds illegally smuggled in.
22. Those are the facts upon which this case falls to be determined, and in particular when I come to the issue of proportionality, also are particularly relevant. But that said, so that it is not felt that I have simply seen only the facts so far as it might be said they fall in favour of the Customs and Excise, I should also draw attention to the fact that I have not ignored in my consideration the judgment of the District Judge which sets out in a little detail the background in relation to Mr Sissen; that he took up breeding attractive birds as a hobby, that he would probably agree it was an obsession with the breeding of the rarer species of parrot, that the judge recognised that he probably had talent for breeding birds in captivity which was above the ordinary, that he had a real interest in the breeding of birds, and that he had a gift for replicating the sort of breeding conditions that birds found in the wild enjoyed. It was as a result of those gifts and those talents that as a consequence he became successful and became well known both nationally and internationally. He had been helped in his business by his wife, and he was known not only to figures abroad in the breeding world, but zoos either lent him or borrowed stock from him on breeding terms, and he bought or purchased birds from other breeders and sold to them.
23. The judge was prepared to recognise that but for that which he identified as perhaps the flaw in his personality, he could be regarded as an expert and an innovator. The flaw to which I refer, which I will not make a great deal of, was, in essence, that he regarded Mr Sissen as suffering from excessive arrogance, in effect, which led him to conclude that he was someone who, for all his talents, was better able to preserve endangered species than bureaucrats in Brussels or Customs and Excise in England.
24. As to ground 1, section 141 of the 1979 Act provides, in its material part:

"(1) Without prejudice to any other provision of the Customs and Excise Acts 1979, where any thing has become liable to forfeiture under the customs and excise Acts -

(a) ...

(b) any other thing mixed, packed or found with the thing so liable, shall also be liable to forfeiture."

25. The expression "mixed, packed or found" has received judicial consideration on some number of occasions. I take first of all R v Uxbridge Justices ex parte Webb [1993] 162 JP 198. This concerned condemnation proceedings in the Magistrates' Court, the claimant being a campaigner for the reform of the law relating to obscene publications. Six video tapes were seized by Customs when he passed through London Heathrow from Holland. The Justices found that the tapes were obscene within the meaning of the Obscene Publications Act 1959, and in truth they had only looked at two of the tapes. But Glidewell LJ, who gave the judgment of the Divisional Court, said in relation to the words "mixed, packed or found" the following at page 206 letter D:

"Mr Webb argues that that cannot have been intended to cover this sort of situation. [That is this section]. He argues that it would be absurd if, for instance, the customs had sought to forfeit not merely the video films but his electric shaver. The answer to that is that the statutory provision must be read subject to the common principle of interpretation; that a provision in the statute is, broadly speaking, to be interpreted as including things of a like kind, but not things not of a like kind. The rule, translated into Latin, is called the ejusdem generis rule. I have no doubt at all that that provision in that section is to be read as meaning that neither Mr Webb's electric shaver, nor his socks, nor any other articles of ordinary wear or use would fall to be forfeited because two of the video films were obscene. It seems to me to be quite clear from s.141 that the Customs and Excise were entitled to forfeit six video films which were admitted to be, in general, of the same nature as the two which the court found to be obscene. Accordingly, on that I see no arguable issue of law."

26. The next case to which reference should be made is another decision of the Divisional Court in the case of Travell v Commissioners of Customs and Excise [1997] 162 JP 181. In this case Customs had raided a flat and seized 16 books from the hallway area and a large number of other items which they had found stored all over T's flat. The issue which had to be resolved in condemnation proceedings, and indeed was resolved below, was that 16 books found in T's hallway were indecent and therefore liable to forfeiture. On appeal to the Divisional Court, T argued that 364 other books, which it was conceded had been mixed or packed with the 16 offending items, were not indecent and not therefore liable to forfeiture.
27. In connection with that issue Brooke LJ observed, firstly, that it was accepted, as indeed was plain, that section 141(1) was to be read disjunctively and not conjunctively. He observed this:

"Once this is understood, and it becomes clear that s.141 of the 1979 Act is not concerned only with Customs and Excise's power to seize goods being illicitly imported into this country, it is, in our judgment, obvious that the draftsman could not have intended the two parts of s.141(1) to be read conjunctively. If a gaming machine is seized, the money found with it may also be seized under subs.(1)(b) without any need to find something else which is liable to forfeiture which may fall within the language of subs(1)(a)."

28. Then he goes on to observe, more pertinently to the question I have before me:

"We were troubled during the hearing with the idea that if Customs and Excise officers found one or two indecent books, which were liable to forfeiture, in someone's library, all the rest of the books in the library might be liable to seizure under s.141(1)(b). Mr Lithman [that is counsel for Customs and Excise] suggested that this was no real problem because Customs and Excise, as representatives of the executive, can be trusted to use its discretionary powers fairly, and if they were not willing to restore any such seized items under s.152(6) of the 1979 Act, the exercise of their powers was always subject to judicial review (see Customs and Excise Commissioners v Air Canada [1991] 2 QB 446... ). We do not regard that as a very satisfactory answer. We believe a better answer might be that in the circumstances posited it would be a misuse of language to say that the rest of the books in the library were "found" with the indecent book within the meaning of s.141(1)(b). This issue does not, however, arise for decision in this case because it was conceded in the Crown Court that the 364 other books in Mr Travell's one-bedroomed flat were indeed found with the 10 books condemned as indecent, and the appeal in that court proceeded on that factual basis. We should add that in the unreported case of R v Uxbridge Justices ex parte Webb... Glidewell LJ, in a judgment with which Cresswell J agreed, applied the ejusdem generis rule to the construction of s.141(1)(b) [and then he cites from that]."

29. The decision, therefore, in Travell does not advance the issue of law to a great degree. It confirms support for, where it is appropriate, the application for what could be said to be the "like kind test" to the phrase "mixed, packed or found." It follows that in this court the issue is whether there was any material upon which the Crown Court could conclude that the birds were of a like kind and were found or mixed within the meaning of section 141.
30. In my judgment the issue can be tested or put, by reference to the facts in this case, in a number of ways: (1) Is the relevant kind or classification by type to be done by reference to the fact that all the birds were of an endangered species falling within the Control of Trade in Endangered Species Regulations, and within the appendices of the European Convention (CITES)? (2) Are all the birds capable of being classified of a type, namely exotic birds being here in England and Wales, outside their natural habitat, and therefore, in general, unless bred here, or hatched here from eggs that have been imported, the birds themselves must have been the subject of importation? Or (3), could they all appropriately simply be described as parrots? The complaint against the Crown Court judgment is at its core a complaint that the Crown Court simply said, "Parrots are parrots". Or (4), and this is that which the claimant maintains is the appropriate question, are they to be distinguished by their particular species? For example, within the 144 parrots to which the Crown Court referred there were, as I understand it, 29 different species of bird.
31. The court has been informed that there are some 326 species of parrot and, contrary to what might be the thought most people would know about parrots, I am told that they are not all capable of reproducing human speech. The word parrot, it is said, is an umbrella term, which is in truth used to describe the 326 species of birds which combine to make up the population of parrots. The Illustrated Encyclopedia of Birds Hanzak and Formanek in its 1992 select edition at chapter 17, page 189, says this:

"Parrots and their allies are [a] uniform group of birds with a down-curved, hooked bill, the upper mandible joined to the skull by a grooved joint, and strong, grasping feet with the first and the fourth toe pointing backwards. When climbing they use their beaks to help pull them up. Their feet are used to manipulate food and carry it to the beak. Inside the beak is a strong fleshy tongue which aids them in their ability to mimic words. Parrots generally nest in tree holes, in semi cavities and in [some] instances on the ground. They inhabit the tropical and sub tropical zone in Australia, America, Africa and Indo-Malvasia."

32. The first point to make about the approach or question which the claimant urges is material in this regard, is that however imprecise the Crown Court may have been in saying "parrots are parrots", it is not suggested, as I understand it, that in imprecise, very broad generic terms, to describe all the birds with which this court is concerned, it would be completely wrong to describe them as parrots, simply that in doing so one is being imprecise and not making or drawing sufficient distinction between them according to their species.
33. Having regard to the purpose of the legislation, to which I have referred, and the express purpose of the action which the Customs and Excise took on this occasion, which by express notice they gave, that they intended to enforce the 1997 Regulations, it seems to me that if this court was to accede to the argument which has been advanced, it would be, in effect, undermining the very purpose of the enforcement provisions which Customs and Excise, on this occasion, were putting into effect.
34. It would seem to me to be a completely unnecessary narrowing down of that which the Convention required the United Kingdom government to do, and its relevant agencies to enforce; namely its international obligations in accordance with the Convention, and in accordance with the Council Regulation to takes steps in connection with endangered species within appendix A and/or appendix B.
35. Thus I make it plain that if I had had to choose from among the four different questions in connection with classification which was the appropriate one to apply, I would have gone for the first. I would have considered, for present purposes, that it could be limited to birds only, and not to everything which is in appendix A and appendix B which extends, not only to creatures, but to flora as well.
36. But it is not, ultimately, in this application for judicial review, my view as to what the correct approach would have been. What I am concerned with on this occasion is to ask the question, since this is, as I see it, although it has not been put as such, essentially a rationality challenge as to whether the Crown Court judge was entitled, upon the material that he had before him, to reach the conclusion that these birds were of a like kind.
37. His conclusion, which, in my judgment, has not been undermined by any of the submissions which have been advanced, was that they were of a like kind, because they are all parrots. In that, in the broadest sense, he cannot be faulted (and nobody has suggested that he has got it completely wrong), but the essence of the argument is that in truth, although the claimant is accepting as part of the argument that one classification, namely that they are parrots, is one which could be applied, it is submitted that that is not the one that should be applied when section 141 comes into play and the court is looking to determine whether something is of a like kind.
38. But the extreme to which, in my judgment, the claimant's argument goes, cannot possibly mean that for the successful enforcement of this legislation, the meaning of section 141 has to be interpreted as requiring, in this case, reference to the exact scientific definition of the species of a bird in order for a bird to be of a like kind.
39. It is a deployment of perfectly correct scientific material in connection with birds and species of these birds, but it is a wholly self-serving argument which is put forward in order to exclude from the operation of this section the particular birds here in question. I can see no legitimate basis for adopting that as the only test, and therefore concluding that the judge, with the justices on this occasion adopted a wholly irrational test in approaching the issue.
40. Next, therefore, I must turn to the other ingredients of the challenge. Namely, were these birds "found or mixed" with birds in respect of which it had been established had been illegally imported?
41. The birds were found at the claimant's farm. At the claimant's farm I am told that there are some five winter flights, which I take to be a technical term denoting an area where birds are kept in the winter, and, in addition, there are 160 separate aviaries.
42. The argument which has been advanced is that not only must it be established, for the purposes of section 141, that it is only birds of precisely the same species which are in question, but the submission has been, as a matter of fact and law, that in order for them to be "found or mixed" they must be found in the same aviary.
43. Again, one can see the reason why that submission is advanced. As it happens, it is not in dispute that of the birds with which the court is concerned there is no evidence that they were all found in the same aviary. The evidence that the court has is that they were all birds which were selected because they were all birds of an endangered species. The Customs and Excise case is that they were all "found or mixed" because they came from the same premises, namely the premises which are operated by the claimant, from his farm, or what may be previously his farm, but from the buildings which form the unit from which he carried on this business enterprise and hobby.
44. Having regard to, again, the purpose of this legislation and the purpose of its enforcement, I can see no possible justification for concluding that if what the legislation is directed towards achieving is the control and protection of endangered species, that if there are endangered species they have all got to be in the same aviary, even though they are on the same site, even though they may be in one of the other aviaries on the same site. It seems to me to be a suggested fettering and shackling of the powers of enforcement in a wholly unnecessary way.
45. The critical surrounding context, in my judgment, which falls for consideration, is that the activities of the claimant all took place upon his premises at the site in question. They were all activities in connection with what may be broadly described as exotic birds. Not all of them, as I understand it, parrots, but, nevertheless, that is the context in which the birds were found.
46. I see nothing irrational in the court concluding that these birds were found with the other birds. They may too - but the facts do not go to that extent - have been mixed, in the sense that they were actually together in the same aviary, or even if they were not, it does not seem to me to stretch the English language to suggest that they were, in effect, mixed with the other birds, even though not in the same aviary, having regard to the other findings of fact to which I have referred. The element of concealment was established in the evidence below, and accepted by the court, not only in relation to the physical positioning of the birds, but also established so far as the inability to provide documentation, the failure underlying that inability being one which the court concluded had been deliberate so as to be able to conceal which birds had been imported illegally, and those which may have been bred in Yorkshire.
47. The approach which Mr Farrell has advanced for the claimant might be said to be capable of having some momentum because of the way in which the matter had originally been presented to the District Judge by the Customs and Excise who had adopted, for the purposes of argument, the species by species approach to the issues. I have already said enough to indicate that, having regard to what was their function in carrying out this exercise, it may well have been that that was not a particularly helpful way of demonstrating to the court what the true purpose of this action was by Customs and Excise, which was to control trade in endangered species and, in particular, endangered species of birds, which it had reason to believe the claimant was engaged in.
48. All that said, in my judgment, whilst the judgment of the Crown Court could have been clearer, it, nevertheless, came to a conclusion on this one aspect which is before me, which I am satisfied is not open to successful challenge on judicial review. It was a rational conclusion on the facts, and was not one which was taken under any misapprehension or error of law as to the meaning of the section itself.
49. That being so, I turn, therefore, to the last aspect which I have had before me; namely, proportionality. The wrinkle in connection with proportionality, is only that these events occurred (namely, the seizure) prior to the coming into force of the Human Rights Act 1998. That being so, having regard to the terms of the schedule to the 1979 Act which require attention to be paid to the liability to forfeiture, as shown by the position at the date of seizure, unless retrospective application is given to the Convention, the principle of proportionality has no bearing on this case.
50. In this instance, Mr Bird, who has appeared for Customs and Excise, is prepared to accept what might be regarded as a pragmatic approach to the issue, simply in this case, holding fast to the principle that the date of seizure is the relevant time for consideration of liability for forfeiture. He would not accept, certainly without argument, which I have not invited, that this court should say anything which would undermine the integrity of the operation of that provision, by this court applying the principle of proportionality to the claimant's position.
51. It seems to me, as I indicated to both counsel, that the sensible course for this court to take is to look at the position on the facts on this issue upon the basis that this court should consider the question of proportionality. It seems to me right for this court to grapple at least with the arguments one way or the other on proportionality and to come to a conclusion. It can be done without giving rise to any concession on the part of Mr Bird and the Customs and Excise that it applies in this case. It simply avoids getting into the details of retroactivity.
52. The line up of points, on what one might say comprises the balance sheet in connection with proportionality, must be dealt with, but I remind myself of the encapsulation of the matter as it appears in the judgment of the Master of the Rolls in Lindsay v Customs and Excise Commissioners [2002] 1 WLR 1766 in these terms at paragraph 52:

"The action taken must, however, strike a fair balance between the rights of the individual and the public interest. There must be a reasonable relationship of proportionality between the means employed and the aim pursued... I would accept Mr Baker's submission that one must consider the individual case to ensure that the penalty imposed is fair. However strong the public interest, it cannot justify subjecting an individual to an interference with his fundamental rights that is unconscionable."

53. Then a little later the Master of the Rolls said in the context of that case, which was the smuggling of alcohol:

"The commissioners' policy does not, however, draw a distinction between the commercial smuggler and the driver importing goods for social distribution to family or friends in circumstances where there is no attempt to make a profit. Of course even in such a case the scale of importation, or other circumstances, may be such as to justify forfeiture of the car. But where the importation is not for the purpose of making a profit, I consider that the principle of proportionality requires that each case should be considered on its particular facts, which will include the scale of importation, whether it is a "first offence", whether there was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship that will be caused by forfeiture."

54. In essence, Mr Farrell has submitted to the court that so far as this claimant is concerned, enough is enough. He has served 18 months' imprisonment. He is subject to a confiscation order of £150,000, which he has not yet paid, but I am told he has marshalled himself in such a way as to pay it in the near future. He is a man, as I have endeavoured to say at the outset, in respect of whom positive things can be said, namely, his skill and expertise; but that in effect he has been carried away by an overweening sense of knowing best in relation to these matters. Finally, there is the value of these particular birds. They are undoubtedly valuable.
55. Against that must be weighed, first of all, the public interest, as described by Lord Phillips. In this respect it is that which I have already emphasised; namely, the protection of endangered species and the fulfilment and enforcement of our legal obligations under the Convention. Further, it has to be noted that this was not the first occasion upon which the claimant engaged in such illegal importation. It was the third occasion on which he had come before the court. There is some evidence that he had not been an honest witness, that he had concealed his activities to some extent by the absence of documentation and the general way in which he had organised it. And there is the fact that this was not an isolated occasion but part of, what is described below as, "a professional operation". All those matters are to be put on the other side.
56. Striking a fair balance in connection with all those activities, in my judgment, the balance falls fairly and squarely upon the condemnation order prevailing in respect of the 39 birds. For, in my judgment, the personal matters found by the court below, which are not capable of challenge here, tilt the scales well against this particular claimant being able to enjoy the fruits of his activities as represented by these 39 birds.
57. Had it been but the balance of the public interest, upon which I place great weight, against a catalogue of circumstances which did not involve the pejorative findings which are also included in the proceedings below, the situation may have been different. But having balanced them in the way I have endeavoured to explain, I am in no doubt that the challenge to this condemnation order in respect of these birds is unsuccessful. Therefore this application for judicial review is dismissed.
58. Yes, Mr Bird, do you have any applications?
59. MR BIRD: My Lord, there is an application for costs. May I hand up a schedule?
60. MR JUSTICE NEWMAN: Yes. Have you seen this, Mr Farrell?
61. MR FARRELL: Yes I have.
62. MR BIRD: My Lord, if it assists with cutting to the quick, the total is almost exactly the same as my learned friend's total. We are, I think, about £400 between us. So we would rely on that as supporting the correctness of the figures. This case has involved both sides attending at the leave application, the permission application. Those are the fees for Mr Payne. Mr Draycott QC has advised in conference and put his signature on the skeleton argument, but it was not thought necessary for him to attend today. So that has reduced leading counsel's fees a little. The £2,000 for the transcript is what it cost because we had to pay for the full transcript, and indeed that resulted in ground 3 being abandoned. So that was worth it. What remains are my fees and the Solicitors Office fees, and in my submission those fit in with the complexity of the case and the time needed to present it to the court, so that it could be dealt with within 4 hours today.
63. MR JUSTICE NEWMAN: Mr Farrell, what do you say?
64. MR FARRELL: This is our schedule of costs, so you can see how it has been compiled. I am just noting our counsel's fees. I do not know what is appropriate in these circumstances, but they seem to be less than the other side. I do not know whether that is appropriate or not, but there it is. I do not know what is appropriate in these circumstances, whether it is right and proper in open court to enter into a --
65. MR JUSTICE NEWMAN: Well, we do, I am afraid. I am equally old fashioned about it, but we have to do it.
66. MR FARRELL: My client will obviously be ordered to pay this amount.
67. MR JUSTICE NEWMAN: If I can help you: what you say is that here you are as leading counsel, but with a junior, where your combined fees are £7,500, whereas you have the fees of Mr Bird here, on his own, which are really not much less than that.
68. MR FARRELL: In fact, my Lord, our fees for today are £5,500 for two counsel attending today, and £2,700 for Miss Lewis attending on the leave hearing.
69. MR JUSTICE NEWMAN: I see.
70. MR FARRELL: But the point I was making was that our fees for today, £5,500 for two counsel are still nearly £2,000 less than one junior counsel for Customs and Excise, and I say that without any disrespect to Mr Bird. I know that he is an expert in his field, but there it is. But certainly our fees appear to be lower in that regard. I would also make the point that Mr Draycott, of course, may have had a conference and put his name to the skeleton argument, but I wonder how much time he really spent on it. It is again, may be because of Mr Bird's expertise in these cases, that Mr Bird was really carrying the work and the argument as in fact has happened today.
71. Could I also say this. So far as costs are concerned I would ask you, exceptionally, to say that costs should not follow the event, for this reason: this, of course -- well, it may not be the end of the line in this particular litigation, but, of course, my client did win in the lower court, and Customs and Excise, in their case summaries, as I drew to your attention earlier, they did put up an approach which effectively caused the Magistrate to make the ruling he did. Customs then, in the middle court, the Crown Court, said that they had never said that, and here we are. Mr Sissen, of course, a man who will go to the very end of the line, as I am sure you will appreciate, in terms of any legal remedies open to him, has come to the Divisional Court. There was also, in addition, with respect to the learned Crown Court judge, a slightly confusing judgment in the sense that he did, perhaps, not put matters in some ways as clearly as he could have done.
72. MR JUSTICE NEWMAN: Why did he not go by way of case stated? It would have been so easy.
73. MR FARRELL: I was not involved in the case until after the judicial review was launched. I do not know.
74. MR JUSTICE NEWMAN: He was appearing for himself in the Crown Court, was he not?
75. MR FARRELL: He certainly was in the Crown Court.
76. MR JUSTICE NEWMAN: With the benefit of a skeleton?
77. MR FARRELL: A very basic skeleton, again, that Miss Lewis drafted, and my name appears on it as well.
78. MR JUSTICE NEWMAN: So much would have been saved in time and costs if he had gone by way of case stated. The work would have been done by the court. That is the whole point of having a quick and easy procedure.
79. MR FARRELL: My Lord, I can only apologise for that. But so far as costs are concerned, at the end of the day I wonder whether proportionality comes into that --
80. MR JUSTICE NEWMAN: Well, it does.
81. MR FARRELL: He is someone -- and we are dealing with a public body. They have, as I have said, taken him, to use the vernacular, in a sense, to the cleaners anyway, and whether he should now be lumbered with a further £21,000 on top, I really rhetorically ask whether it is frankly proportionate and fair and reasonable in all the circumstances, particularly given the history of this litigation.
82. MR JUSTICE NEWMAN: Thank you very much. Do you want to say anything, Mr Bird?
83. MR BIRD: My Lord, according to the chronology with which we were served, I think my learned friend did at least advise prior to launching the judicial review, but perhaps that is a separate matter. Put simply there are complicated issues of law involved in this, and it took a lot of time to put together arguments --
84. MR JUSTICE NEWMAN: There are, but one point before this argument emerged, but to which I have made reference in my judgment, is the fact that this species by species approach -- I do not think it really helped things below you know.
85. MR FARRELL: With hindsight it certainly did not. On the other hand, as a matter of presenting the evidence in a complicated case like this, one can see that looking at evidence on a species by species basis was probably going to be a better way of marshalling the facts in order to reach a judgment at the end of the day.
86. MR JUSTICE NEWMAN: I am bound to say that if either of the courts below had had advanced to them that what they were concerned with was the enforcement by United Kingdom obligations under the Convention in relation to endangered species, and that was really what this exercise was about, I wonder whether it would have given rise to any confusion at all.
87. MR BIRD: Well, with respect, it probably would. But the confusion is, more than anything else, I suspect, as a result of a reverse burden and on proving importation, yes or no, legal importation, yes or no.
88. MR JUSTICE NEWMAN: Well, that was one thing, but what about on this like kind, this argument on "mixed or found"? We would not have been into it.
89. MR BIRD: One is going to have to be into it once one gets to the stage that you cannot prove that every single one has been imported illegally. You are going to have to argue something, and it does not take a huge amount of time to argue ejusdem generis. The species by species, I accept, did not help, although it is quite a reasonable illustration, as my Lord accepted --
90. MR JUSTICE NEWMAN: Well, there we are, I will just do the best I can.
91. MR FARRELL: My Lord, could I make one other point that I should have made, and that is, of course, my client has already had to bear the costs of the Crown Court hearing, and effectively the lower court as well, which is some many thousands of pounds. I am just trying to find out the exact figure.
92. MR BIRD: Whatever it is, it has not been paid, I know that.
93. MR FARRELL: Yes, but no doubt it will be pursued, but there it is. But I am sure it is at least £18,000. It is £18,000.
94. MR JUSTICE NEWMAN: I have before me an application for costs. The Customs and Excise having succeeded in this application for judicial review. I have a schedule and I am invited to award costs of £21,118.25 to Customs and Excise.
95. There are two reasons why the total of that amount, in my judgment, should not be payable. The first is that the total is made up of costs of something just short of £4,000 for Mr Draycott QC, who had appeared below in the Crown Court, but these are not his Crown Court fees, they are covered by the Crown Court order, and a figure of £7,180 for Mr Bird's fees. He has appeared today and he did not appear below. But as has been said, Mr Bird, and it is apparent from the reported cases, is someone who specialises in this area of law. His fees are of the order of £7,000, a little more, for his preparation for and attendance today. Those figures exceed the total of the fees for counsel and junior in respect of today's hearing by some £2,000.
96. Additionally, in my judgment, it can, and Mr Bird candidly accepts the criticism, but not with the full effect, perhaps, which I have echoed it, that the way in which the matters have proceeded were at least apt to give rise to confusion. That is insofar as the initial approach to these matters was taken, on a species by species basis. One can see the advantages of that, but the truth is that, as I indicated in my judgment, it might have led to a confusion.
97. I say now, and I have said it so many times now, and it needs to be on the record again in connection with costs, what is so regrettable is that this matter did not proceed by way of case stated, when so much of the time and expense applying for transcripts and everything else could have been avoided. There could have been a short statement from the Crown Court in connection with the case stated, the facts would have been a short argument, and most of these costs would not have been necessary.
98. As a result, in a way in which it is fair to say, but is obviously said with some respect to the Crown Court, the Crown Court judgment is a difficult judgment to decipher. I have to give effect to all those factors, and doing the best I can I do so.
99. I think it is right to reduce the Customs and Excise bill of costs by something of the order of £6,000 just simply in connection with what can be seen as a pruning down of counsel's fees. But I think too, there should be a further reduction for the confusion to which I have referred. On balance, it seems to me that the total figure of costs should come down. I am doing this so as to round the figures down. It should come down by £8,000. I therefore reduce the costs which the claimant should pay to £13,000.
100. Thank you both very much.