QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|Appeal by way of case stated from decision of Hillingdon Magistrates' Court|
|HM REVENUE & CUSTOMS||(CLAIMANT)|
|GARY ULLAH CHOTT|
Smith Bernal Wordwave Limited
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"A. The sum of £24,580 was found in the possession of Gary Ullah Chott at Heathrow Airport on 15th December 2002. Mr Chott was travelling from London to Jamaica. The cash was seized by a Customs officer.
B. £7,000 had been given to Mr Chott by Mr Ledford Edwards to enable Mr Chott to buy him a pick-up truck in the UK. The money had been given to Mr Chott by Mr Edwards' sister.
C. Mr Edwards, a farmer in Jamaica, had chosen to buy the truck via the respondent because the respondent purported to offer a better deal than that of the other suppliers.
D. Mr Kenneth Grant gave Mr Edwards £8,000 to give the respondent to buy a pick-up truck for Mr Grant. Mr Grant later wanted the money back because his business had suffered a downturn.
E. Mr Grant and Mr Edwards acted in good faith, but the respondent did not take the money in good faith. He admitted that his business interests in the UK were conducted on the 'black market'.
F. The banknotes seized were contaminated with higher levels of illegal drugs than notes in general circumstances.
G. Mr Edwards chose to buy the truck via the respondent because the respondent offered a better deal than that of other suppliers.
H. The money was more likely than not in the hands of the respondent to have been intended for use in drug trafficking."
"3. It was contended by the appellant that because of the greater level of drug contamination of the seized cash than one would expect on the average banknote in general circulation, that on the balance of probabilities the money directly or indirectly represented any person's proceeds of drug trafficking or was intended by any person for use in drug trafficking.
It was also contended by the appellant that the accounts given by the respondent were inconsistent and implausible. There was no paper trail for any of the cash and no written evidence to support that Mr Edwards had been paid out on an insurance claim for his allegedly written-off vehicle.
It was further accepted by the appellant that section 43(1) of the Drug Trafficking Act confers a discretion and not an obligation to forfeit.
4. It was contended by the respondent that the cash was for use for legitimate purposes as outlined in the evidence."
"We were of the opinion that although we found that the money had been intended to be used in drug trafficking, we had a discretion whether to order the forfeiture of any cash seized under section 42. Accordingly we ordered the £7,000 and the £8,000 respectively belonging to Mr Edwards and Mr Grant to be returned to them and the £10,000 claimed by the respondent to be his to be forfeited."
"Given the magistrates' finding that the money had been used for drug trafficking, were the magistrates entitled to conclude that some of the money should be returned?"
"Were the magistrates correct to take into account that the evidence of Mr Grant given in a statement and admitted under section 2 of the Civil Evidence Act 1995 was unchallenged?"
"Heroin contamination has been shown on the money seized at the airport. On average, of the money in circulation, 3% could be expected to be contaminated. This money was divided into five packages and the contamination was on average 27%. This indicates that these bundles of money have been subject to a much higher degree of contamination than notes in general circulation. We feel that the money has been used for drug trafficking." [my emphasis]
"A customs officer or constable may seize and, in accordance with this section, detain any cash which is being imported into or exported from the United Kingdom if—-
(a) its amount is not less than the prescribed sum; and
(b) he has reasonable grounds for suspecting that it directly or indirectly represents any person's proceeds of drug trafficking, or is intended by any person for use in drug trafficking."
Section 42(6) states:
"At any time while cash is detained by virtue of the preceding provisions of this section—-
(a) a magistrates' court ... may direct its release if satisfied--
(ii) on an application made by any other person, that detention of the cash is not for that or any other reason justified ..."
By section 43(1):
"A magistrates' court ... may order the forfeiture of any cash which has been seized under section 42 of this Act if satisfied, on an application made while the cash is detained under that section, that the cash directly or indirectly represents any person's proceeds of drug trafficking, or is intended by any person for use in drug trafficking."
By subsection (3):
"The standard of proof in proceedings on an application under this section shall be that applicable to civil proceedings; and an order may be made under this section whether or not proceedings are brought against any person for an offence with which the cash in question is connected."
"It may be thought unjust that if a man advances money to another for what the first man believes to be a normal business venture but the intention of the second man is that the money should be used for drug trafficking, the money becomes liable for forfeiture under section 26 [as it then was] but, in my judgment, that is what the plain words of the statute provide."
"The appeal court has power to affirm, set aside or vary any order or judgment made or given by the lower court" --
"In relation to an appeal" --