England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		19th November 2004

1. LORD JUSTICE ROSE: This is an appeal by way of Case Stated by the Chief Constable of Merseyside Police. He challenges a decision of the Liverpool Justices on 11th May 2004.
2. The circumstances, as they are set out in the case were these. On 10th February 2004 officers in the Merseyside police seized £14,980 in sterling and $6,500 (US) from the home address of Mr Reynolds, the respondent. As it ultimately emerged, the United States dollars were in fact forged and there have, subsequent to the proceedings before the Magistrates, been charges levelled against the respondent in relation to that. But that aspect of the matter is immaterial for present purposes.
3. The seizure was made under section 294 of the Proceeds of Crime Act 2002, which enables a constable to seize cash if he has reasonable grounds for suspecting it is recoverable property or intended for use in unlawful conduct.
4. On the following day, 11th February, application was made to the Liverpool Justices, under section 295(2)(a) of the Act. Section 295 provides:

"(1) While the... constable continues to have reasonable grounds for his suspicion, cash seized under section 294 may be detained initially for a period of 48 hours.

(2) The period for which the cash or any part of it may be detained may be extended by an order made by a magistrates' court... but the order may not authorise the detention of any of the cash-

(a) beyond the end of the period of three months beginning with the date of the order..."

The Justices granted that application and authorised the continued detention of the cash for a further period of 90 days. The Form B, which the Justices signed in relation to that order, was timed at 10.00 am.

5. On 10th May 2004 there was faxed to the court and to the respondent's solicitors an application in Form A, for continued detention of the seized cash. According to the Case Stated "the order of 11th February 2004 expired on the 11th May 2004, the only contention being the time it expired."
6. The contention advanced before the Justices, on behalf of the appellant, was that the order of detention of 11th February did not expire until midnight on 11th May. The proceedings in relation to Form A took place on the morning of 11th May. There was a further matter for consideration by the Justices arising from Rule 5 of the Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002, Statutory Instrument 2002, No 2998. That rule, so far as it is presently material, is in these terms:

"(1) An application under section 295(4) of the Act for a further order under section 295(2) of the Act for the continued detention of cash shall be made in Form A and shall be sent to the justices' chief executive to whom the first application under section 295(4) of the Act was sent.

(2) The applicant shall send a copy of the application to every person to whom notice of previous related orders made under section 295(2) of the Act has been given.

(3) The justices' clerk shall fix a date for the hearing of the application, which, unless he directs otherwise, shall not be earlier than seven days from the date on which it is fixed, and the justices' chief executive shall notify that date to the applicant and every person to whom notice of the previous orders has been given."

It is in relation to that rule that further submissions were made on behalf of the appellant to the justices, namely, that although Form A was not served 7 days prior to the date of the hearing, (it being apparent from what I have already said that it was served on the day before the hearing on 11th May,) and although no application had been made for the 7 day period to be waived, that was merely a procedural irregularity, which did not irretrievably flaw the proceedings.

7. On behalf of the respondent, it was contended that the order of detention, dated 11th February 2004 had extended the permitted detention of the cash until 10.00 am on 11th May. If the appellant had made arrangements for the court to be convened and to make its decision before 10.00 am, the justices' clerk might have given permission for obtaining waiver of the 7 day notice period.
8. It was further contended, on behalf of the respondent, that because there had not been 7 days between the notice of application and the hearing, the proceedings were irretrievably flawed, because no direction had been sought from the justices' clerk to reduce the 7 day period of notice prescribed in Rule 5(3).
9. The Justices expressed this opinion, as appears from page 3 of the Case Stated:

"Strict compliance with the time limits for seized cash is necessary and therefore the application should have been processed sooner by the Appellant, and should not have been left until the date of expiration of the order of the 11th February 2004 to apply. In our opinion the earlier order expired at 10.00 am on the 11th May 2004 and not midnight as contended by the Appellant. Such orders are dated and timed and we believe that this is also indicative of the fact that the order ceases at the same time on the expiration date. Otherwise, if the order merely ceased at midnight, as contended, there would be no need to time the order at all, merely date it.

The fact the Form A was not served on the Court and the Respondent in accordance with the Rules did irretrievably flaw the proceedings/application and we distinguished this case from other cases referred to by the Appellant on the basis that these cases referred to applications made in accordance with earlier legislation and more importantly involved post and not pre-conviction orders. We accepted that the point being made was similar to that of the case before us but felt the application/proceedings were irretrievably flawed for the reasons mentioned above.

The fact that a direction was not sought in accordance with Rule 5(3) of the Rules did irretrievably flaw the proceedings/application."

The case proceeds to pose four questions for the consideration of this Court.

10. On behalf of the appellant, Mr Unsworth submits that the 90th day of the period permitted by the order of 11th February expired at midnight on 11th May. Although, no doubt, it is helpful that Form B should contain the time of 10.00 am on which the Justices made their order on 11th February, that cannot be determinative of the proper construction of the statute in accordance with authority. Put another way, 11th February should be excluded when calculating when the 90th day was and, on that basis, the 90th day was 11th May.
11. There is abundant authority in support of that proposition, which it is unnecessary to analyse, but convenient to identify. There is the decision of Havers J, in Marren v Dawson Bentley & Co Ltd [1961] 3 All ER 270, [1961] 2 QB 135. Havers J applied the principles established by Radcliffe and Bartholomew [1892] 1 QB 161, that is to say that the day a cause of action arises or an offence is committed is to be excluded in computing a limitation period and that that principle applied whether the statute in question was dealing with civil or criminal cases. The relevant part of the judgment, which it is unnecessary to read, is to be found starting at page 274H. This is a citation from Channell J in another case, which Havers J distinguished in the passage starting at letter I on page 274.
12. At a more exalted level, there is Dodds v Walker [1981] 1 WLR 1027, [1981] 2 All ER 609, in which Lord Diplock referred to the general rule in calculating the period of a month or a specified number of months that have elapsed after the occurrence of a specified event, such as the giving of notice that the period ends on the corresponding date in the appropriate subsequent month, irrespective whether some months are longer than others.
13. In response to that formidable submission, Mr Ackerley, who accepts that his propositions are not supported by authority, submits that the period of 90 days must have started at 10 o'clock on 11th February when the order was made, and must therefore have finished at midnight on the 10th, not the 11th May - days, he points out, consist of 24 hour hours, and therefore 90 days must consist of 90 24 hour periods. For my part, I am unable to accept Mr Ackerley's submission. It seems to me to be plain that the fact that Form B bore a time upon it, helpful in many circumstances though that may be, cannot assist in the statutory construction necessary in the present case.
14. As to the want of a 7 day period, or any order about bridging that period by the Justices' executive, it seems to me to be clear beyond argument, in principle and on authority, that that requirement in Rule 5 is merely directory not mandatory. Faced by the judgment of Potts J in R v (On the application of Halford) v Colchester Magistrates' Court (Divisional Court, 25th October 2000), Mr Ackerley was not minded to pursue any contention that the want of a seven day period, or its abridgment, deprived the justices of jurisdiction. In the Halford case the court dealt with the Magistrates' Court (Detention and Forfeiture of Drug Trafficking and Cash) Rules 1991 Statutory Instrument 1991 No 1923, which were an obvious precursor of the rules presently in point. Rule 7 of those rules, in many though not all respects, is in similar terms to Rule 5 of the rule which we are considering. Potts J referred to the unreported judgment of May LJ in the Court of Appeal on 9th March 2000, in the case of Crown v Luton Justices ex parte Abecasis reported at first instance at [1999] JP 828. In relation to Rule 7 May LJ, referred to the submission made that it was mandatory for an application in Form C under those rules to be received by the Justices, and that the form was a necessary part of an originating process, and that without it, the process was irretrievably flawed. May LJ said:

"There is in my view no merit whatever in this submission and I consider it is wrong."

He went on to say this, by reference to facts of that case:

"The appellant having been notified, he attended the hearing and was represented. There is, in my judgment, no substance whatever in the contention that the proceedings are fatally flawed if it cannot be shown that the magistrates received the form. In substance the rules were complied with. The customs asked the court for hearing, the appellant was notified of the hearing. The hearing took place without any consequence prejudicial to the appellant, from the fact that it could not be positively established that the form had been received."

Potts J commented that, in that passage, May LJ was concentrating on the sending and receiving of Form C, whereas the court in Halford was concentrating on the failure of Justices to notify the applicant of the date of the hearing in accordance with the requirements of Rule 7(3). Potts J said, in paragraph 30 of the judgment:

"...it seems to me that if the procedure laid down to be followed by HM Customs in relation to notifying justices was directory rather than mandatory, then equally the requirement that the Justices should inform the applicant of the hearing was directory also."

With that judgment Pill LJ, who presided, agreed.

15. To my mind a precisely similar approach is appropriate in relation to the construction of Rule 5(3) of the rules presently under consideration, that is to say, those provisions are directory not mandatory.
16. That being so, and the respondent having been present and represented before the Justices on 11th May and submissions having been made on his behalf, it cannot be said that he suffered prejudice of any kind, by the want of a seven day period between the making of the application and the hearing which followed upon it.
17. It follows that, for my part, so far as the first question posed by the case is concerned, namely:

"When did the order of detention, dated 11th February 2004, which extended the permitted detention of the cash for a period of 90 days expire?"

I would give the answer "midnight on 11th May".

18. So far as the second, third and fourth questions are concerned, which relate to the Justices finding of a want of jurisdiction, it is apparent, from what I have already said, what the answers to those questions are. The Justices did have jurisdiction. The lack of a 7 day period was one which did not fundamentally flaw the application. It is also to be pointed out that the Justices were not correct in referring to Form A as not having been served appropriately. Form A clearly was served appropriately. The only question, and the question in relation to which, for reasons I have given the Justices gave the wrong answer, was whether the lack of a 7 day period between the service of notice and the hearing deprived the Justices of jurisdiction. For my part, therefore, I would allow this appeal. The justices did have jurisdiction.
19. MR JUSTICE LEVESON: I agree. Although this application was in fact in time, for the reasons given by my Lord, it is undeniable that the circumstances in which it was made have given rise to substantial argument, both before the justices and in this Court. Such arguments are entirely avoidable if the application is not made at the last moment. In the circumstances, it is only sensible that procedures should be devised to ensure that if an extension is to be sought, application is initiated and heard in good time prior to the expiry of existing authority to detain.
20. THE VICE PRESIDENT: Accordingly, the appeal is allowed. Is there any other order you would like us to make, Mr Unsworth?
21. MR UNSWORTH: We are grateful for the comments and observations, and I personally will ensure that the proper procedure in future are initiated. In the circumstances it would be inappropriate to apply for an order for costs.
22. THE VICE PRESIDENT: Well, I am not sure whether the respondent is or is about to become subject of a representation order but he may not be worth pursuing in any event. You are not asking for one.
23. MR UNSWORTH: I think it would be inappropriate. I simply invite the Court, as the court to return it to the Magistrates' Court.
24. THE VICE PRESIDENT: Yes, it better be a different Bench, I suppose had it? A direction that the hearing continue?
25. MR UNSWORTH: The case be remitted back to the Magistrates' Court.
26. THE VICE PRESIDENT: Where have we got to? The dollars are forged and they are subject of separate criminal proceedings.
27. MR UNSWORTH: The sterling has been detained pending the outcome of this appeal and there was provision within the Act for that to happen.
28. THE VICE PRESIDENT: The appeal freezes the position.
29. MR UNSWORTH: The Chief Constable is still in possession.
30. THE VICE PRESIDENT: He requires an order justifying continued detention from the Justices.
31. MR UNSWORTH: Yes.
32. THE VICE PRESIDENT: In that case, the appropriate order is that the matter be remitted to a different Bench of Justices, with an assurance that they have jurisdiction, in order for them to consider granting an extension.
33. MR UNSWORTH: I am grateful.
34. THE VICE PRESIDENT: Mr Ackerley, do you want anything?
35. MR ACKERLEY: I am grateful.