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
		7 July 2005

1. MR JUSTICE GOLDRING: This is an application for judicial review. The claimant seeks to quash the decision of the Uxbridge Magistrates' Court in which they ordered forfeiture of €46,320 which had been seized by Customs & Excise from the claimant.
2. The facts are a little unusual. Although he has a London address, the claimant normally lives in Spain. He was stopped at Heathrow Airport on 10 February 2004. He was on his way to Amsterdam with the euros. In interview, and in later correspondence and telephone calls, the claimant said he was a ticket agent. He was going to Amsterdam to buy tickets for the European Cup shortly to take place in Portugal. The claimant's case was set out in some detail in his solicitors' letter of 15 March 2004. It is not necessary to refer to it. The solicitors acting for him then asked for any evidence of illegality relied on.
3. By a notice dated 4 May 2004 the Customs applied for forfeiture of the money under Section 298 (1) of the Proceeds of Crime Act 2002. The application subsequently served was in these terms. As to grounds, it said:

"Leigh admitted to being a 'ticket tout' which is contrary to Section 166 of the Criminal Justice and Public Order Act 1994."

It is not necessary to set out the provisions. It transpires that there are also material provisions in subsequent legislation. Suffice it to say that there may be an issue as to whether, given the anticipated football matches were to take place in Portugal, they, or all of them, fell within the legislation referred to by the Customs.

4. On 4 June 2004 a directions hearing took place. Counsel attended to represent the claimant. He made it plain that the forfeiture proceedings were contested. The justices made a series of orders. There was to be mutual exchange of evidence by 16 July 2004; the pre-trial review was to take place on 30 July 2004; the hearing was to take place on 10 September 2004, with no less than a full day set aside for it.
5. On 15 July 2004 the claimant's solicitors wrote to the Customs & Excise. They said the claimant could not put them in funds. They said the evidence should be served on him at his London address. The next day, on 16 July, the case was listed in error before the justices. That was the date on which exchange of documents was to take place. The claimant did not attend. As a matter of courtesy counsel did on his behalf. He did not exchange documents. It was clear that as at 16 July the claimant was contesting the application by the Customs. It was also clear, if it had not been by the 15th, that he was acting in person.
6. On 16 July the Customs & Excise wrote directly to the claimant in Spain. I am told he received this letter. They enclosed a copy of the evidence upon which they proposed to rely at the hearing on 10 September. They anticipated receiving the evidence upon which he proposed to rely. They sent a further copy of the forfeiture application. They said:

"The court has listed a further directions hearing to give instructions to both sides in relation to the date of the forfeiture hearing and time estimate, service of evidence and any other matters dealing with the management of the proceedings. The directions hearing will be held on 30 July 2004 at Uxbridge Magistrates' Court. Rule 7 (6) of the Rules ..... "

I interpolate, that is a reference to the Magistrates' Court Detention and Forfeiture of Cash Rules 2002, to which reference had been made earlier in the letter.

" ..... allows the Magistrates' Court to decide the forfeiture application on the day of the directions hearing if you do not attend. Should you fail to attend on that date the Commissioners of Customs & Excise will invite the Court to proceed with the forfeiture application and the directions hearing in your absence on the basis that you be not intending to contest the matter."

There was no response from the claimant.

7. Two weeks after the 16 July hearing, namely on 30 July, the pre-trial hearing took place. The description of that hearing as a pre-trial hearing (as opposed to a directions hearing) is not said by either side to be material. On that occasion, the claimant having failed to appear and having failed to provide any explanation as to his absence, the court made an order for forfeiture. The only documentation before me regarding the hearing is a document headed "order for forfeiture of detained cash". It says:

"On the application of Robert Ainsley of HM Customs & Excise after hearing oral evidence from [ ..... ] and representations from [ ..... ] it is ordered that the whole/part sum of the above-mentioned cash be forfeited."

The whole of the cash was forfeited.

8. There is nothing to indicate on any of the documents what the magistrates were told; whether the fact that he was representing himself was spelled out; whether it was spelled out that two weeks before he had indicated he was contesting the application. Neither is it clear if the justices were ever invited to consider the question of jurisdiction giving rise to their power to order forfeiture of the cash. The magistrates having made that order for forfeiture, the relevant documentation was sent not to the claimant's address in Spain but to his address in London. He remained unaware of the order.
9. The claimant returned to this country on 8 September 2004. His intention was to attend the hearing on 10 September. He learned then the order had been made. By then it was too late to appeal to the Crown Court.
10. The issues can be stated very shortly.
11. Mr Bodnar, on behalf of the claimant, submits this. Having regard (and I use my language, not his) to the draconian nature of Regulation 7 (6), the court is required to be satisfied that there was no contest as at the date of the forfeiture hearing. That Regulation states:

"If neither the person from whom the cash was seized nor any other person who was affected by the detention of the cash seeks to contest the application the court may decide the application at the directions hearing."

His central submission is that the justices had to be positively satisfied that there was no contest.

12. Mr Connelly disagreed. The magistrates were entitled to conclude that there was no contest. The claimant had been told of the possibility of an order for forfeiture being made if he failed to appear. He did not produce the evidence he intended to rely upon as the magistrates had ordered. He had been provided by the Customs with the evidence upon which they proposed to rely.
13. I start by emphasising that I am deciding this case very much on its own particular and unusual facts. The material ones seem to me to be these. The sum seized was substantial. On the face of it there was an issue as to the applicability or the extent of applicability, of the Criminal Justice and Public Order Act 1994 as amended. The claimant had made it quite clear, first through his solicitors, and, second, through counsel, that he was contesting the application. The claimant ceased to be represented. Because there is no record of what exactly transpired before the magistrates there is nothing before me to suggest that all these factors were specifically drawn to the magistrates' attention.
14. Finally, although not material to my decision, it is unfortunate that the claimant was not provided at the address in Spain with any copy of the order that was made.
15. In my view, on the limited facts which have been placed before me, it is not possible to say the magistrates were entitled to make the order they did. It is not possible to say they were entitled to be satified that Rule 7 (6) applied.
16. In those circumstances I shall quash the order that the magistrates have made. I repeat, and emphasise; in doing so I express no principle. It is simply the application in this case to very particular facts.
17. MR BODNAR: There are two further issues which arise. The first is whether this is a matter which should be remitted to the justices to continue with the forfeiture application. I would ask for such an order.
18. MR JUSTICE GOLDRING: I see no reason why it should not.
19. MR CONNELLY: No.
20. MR BODNAR: The second matter is costs. It has been served.
21. MR JUSTICE GOLDRING: Whatever the detail of the costs is, I would need a lot of persuasion, Mr Bodnar, that in the circumstances of this case your client should be entitled to the costs. He has brought this upon himself.
22. MR BODNAR: I would certainly press for at least a proportion of the costs.
23. MR JUSTICE GOLDRING: No.
24. MR BODNAR: The Customs have resisted this application.
25. MR JUSTICE GOLDRING: No. I daresay you do not want to argue that, Mr Connelly.
26. MR CONNELLY: No.
27. MR JUSTICE GOLDRING: A long time has passed since this cash was seized. I cannot make any binding order so far as the magistrates are concerned. But I do make an order that your client, within 28 days, provide the Customs & Excise with any evidence upon which he seeks to rely, within the same period that he serves a skeleton argument setting out the basis upon which he takes issue with the Customs application.
---