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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Customs & Excise v Dickinson [2003] EWHC 2358 (Ch) (15 October 2003) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2003/2358.html Cite as: [2004] 1 WLR 1160, [2003] EWHC 2358 (Ch), [2004] WLR 1160 |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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The Commissioners of Customs & Excise |
Appellants |
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- and - |
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Darren Lee Dickinson |
Respondent |
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Howard Smith (instructed by Balsara & Co.) for the Respondent
Hearing dates : 7th October 2003
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Crown Copyright ©
Mr Justice Peter Smith :
Introduction
APPLICATION TO AMEND APPEAL NOTICE
"The recent case of Gora –v- CCE [2003] EWCA 525 has opened up a new Ground of Appeal"
"5 If on the expiration of the relevant period under paragraph 3 above for the giving of the notice of claim in respect of any thing no such notice has been given to the Commissioners, or if, in the case of any such notice given, any requirement of paragraph 4 is not complied with, the thing in question shall be deemed to have been duly condemned as forfeited"
"6 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."
THE SEIZURE
"In the light of this (the lack of witnesses available to C & E) we discussed with Miss Shaw, and Mr and Mrs Dickinson [they acting in person] how the hearing would proceed. We decided that we would hear evidence as to the circumstances in which Mr Dickinson's vehicle was stopped and its contents seized"
"24. As to the goods themselves, we do not consider it inherently improbable that the tobacco belonging to Mr Dickinson had been purchased by him for his own use and to give as a gift to a member or members of his family. Certainly the quantity is large (9 times larger than the guide level or Minimum Indicative Level…) however, we are prepared to accept Mr Dickinson's explanation having regard to his clear evidence to this effect and in particular to the manner in which he gave it "
SUBSEQUENT CHALLENGES
"It is not clear whether or not you wish to lodge a formal appeal against the legality of the seizure under Schedule 3 of the Customs and Excise Management Act 97.A claim against forfeiture must be received by us within 1 month of the date of the seizure. If a valid claim is received, the Commissioners are then obliged to institute proceedings for the condemnation of the seized goods. This will involve Court proceedings, normally at Dover Magistrates Court, for which you will receive a summons, this may take as long as six months before the matter is placed before the Courts.
Alternatively, you have the option of requesting the restoration of the seized goods and/or vehicle, a decision in writing will be made whether or not to restore the goods and/or vehicle to you.
Although you may formally appeal against the seizure AND request restoration of the goods and/or vehicle, please be aware that the restoration request will not be considered by Customs and Excise until such time as the Court proceedings have concluded or been withdrawn".
"This is my second letter to you, the first you say being unclear, as it was misunderstood if we wanted to deal with this through court or ask for restoration.So this is to confirm that we do wish to request restoration of our car and goods. I understand that my husband travelled with a friend, and obviously we are not requesting the return of HIS goods (as apparently he was buying for a friend) but just to claim back our own".
"54 What is described as a cross-appeal arises by reason of a finding of the tribunal in the Gora cases that in certain circumstances the tribunal has a jurisdiction in relation to forfeiture. These appeals are in relation to findings on preliminary points upon which this issue did not arise. That being so, the court cannot pass judgment upon it but it is, in my view, appropriate that the court should express a view on what is a fundamental point for the guidance of the tribunal. For the applicants, Mr Cordara sought to uphold the finding of the tribunal on the basis that it must be able to find facts on the question whether duty on the goods has been paid.55 Section 139(6) of the 1979 Act provides that Schedule 3 shall have effect "for the purpose of forfeitures, and of proceedings for the condemnation of any thing as being forfeited" under the Acts. Paragraph 3 of the Schedule provides that any person claiming that any thing seized or liable to forfeiture is not so liable may give notice, within the period specified in the paragraph, of his claim in writing to the respondents. Paragraph 6 provides that, where such notice of claim is duly given, 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 the seizure liable to forfeiture the court shall condemn it as forfeit. Paragraph 5 provides that, in the absence of a notice under paragraphs 3 and 4, "the thing in question shall be deemed to have been duly condemned as forfeited". The proceedings for condemnation may be instituted in the High Court or in a magistrates court.
56 The Tribunal accepted that where liability to forfeiture has been determined by a court in condemnation proceedings, "there is no further room for fact finding by the Tribunal" and it has no jurisdiction. However, the Tribunal went on to hold that Mr Gora did not give a notice under paragraph 3 "and as a result the law took its course and the goods were treated as properly seized and so liable to forfeiture. No finding of fact resulted. A deemed fact is not a real fact. It cannot consequently rank as a consideration relevant to the subsequent decision on restoration until determined by the Tribunal or conceded to exist". It was held to be open to the Tribunal to determine the question of fact whether the goods were seized.
57 I do not agree with that conclusion. Jurisdiction to decide whether any thing forfeited is to be restored under section 152(b) is with the Tribunal. The jurisdiction in condemnation proceedings is, by virtue of Schedule 3, with the courts. If the deeming provision in paragraph 5 of the Schedule operates, the thing in question shall be deemed to have been duly condemned as forfeited. The effect of this deeming provision is to provide that the thing is to be treated as forfeited. The purpose of the provision is to treat the deemed fact as a fact and I cannot accept that it can be treated as "not a real fact".
58 While the division of jurisdiction between the courts and the Tribunal may arguably be curious, and is probably retained because of the long standing jurisdiction of the courts in proceedings for condemnation, the division is clear and it is not intended that the Tribunal should have jurisdiction to reconsider the condemnation of goods as forfeited. Mr Cordara's submission that the Tribunal should have jurisdiction to consider whether duty has been paid is no more than another way of claiming that the court's findings should be re-opened. The Tribunal's view would produce the surprising result that the person whose goods had been seized could make a choice of fact-finding tribunal. If he wanted the court to determine the issue he would serve a notice under paragraphs 3 and 4; if he wanted the Tribunal he would do nothing. In my judgment, the statutory scheme does not produce that result. The application to the Tribunal is for restoration under section 152. There is no breach of Article 6 because the owner has recourse to the courts in the condemnation proceedings".
"119 In the present case, if balancing is appropriate, it seems to me appropriate that the tribunal's function is limited on the issue of restoration to that of a review based on Wednesbury principles. The applicant will have been found to be a smuggler, the policy of the commissioners, as approved in Lindsay's case, is very restrictive, the commissioners are best able to apply it, and to apply it consistently, bearing in mind their day-to-day involvement. The purpose of forfeiture of a vehicle is to prevent its use for subsequent smuggling, not to punish the smuggler "
THE DECISION OF TRIBUNAL
GROUND 1 OF THE APPEAL
GROUND 2 OF THE APPEAL
GROUND 3 OF THE APPEAL
GROUND 4 OF THE APPEAL
GROUND 5 OF THE APPEAL
GROUND 6 OF THE APPEAL
"(a) to direct that the decision so far as it remains in force is to cease to have effect from such time as the tribunal may direct,(b) to require the Commissioners to conduct in accordance with the directions of the tribunal a further review of the original decision, and
(c) in the case of a decision which has already been acted on or take in effect and cannot be remedied by further review to declare the decision to be unreasonable and give directions to the Commissioners …"
GROUND 7 OF THE APPEAL
ADDITIONAL GROUND OF APPEAL
CONCLUSIONS
NOTICE TO CHALLENGE FORFEITURE OR NOT