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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cleary, R (on the application of) v HM Revenue & Customs [2008] EWHC 1987 (Admin) (24 July 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/1987.html Cite as: [2008] EWHC 1987 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		24th July 2008

1. MR JUSTICE BLAKE: This is an application for judicial review pursuant to the permission that was granted as long ago as 12th July 2005 by Beatson J, then sitting at the Newcastle upon Tyne District Registry.
2. It concerns a challenge that the claimant made to goods that were seized from him on 7th September 2002 at the Teeside airport. On that occasion the claimant had arrived on a flight from Majorca and his luggage revealed a large quantity of tobacco, namely, 13,800 Lambert and Butler cigarettes, 400 Superkings cigarettes and two kilos of Golden Virginia hand rolling tobacco.
3. That material was seized because the Customs were not satisfied that it was exempt from UK duty of some £2,492 on the basis that it was being imported simply for personal use. The officer's statement records that the claimant did not wish to answer questions that were designed to investigate whether it was for commercial purpose and declined to sign the notebook, as was his right, and said, "See you in court."
4. The next thing that happens is that proceedings to condemn the goods as imported in breach of the regulations were apparently commenced on 4th March 2003 when the Customs wrote to the Magistrates' Court seeking to lay an information. There was a substantial issue in this case both before the Magistrates and on appeal to the Crown Court, as to this issue whether the Customs had started the proceedings in time, that is to say, within the six-month time limit that they had to bring proceedings to condemn that tobacco as forfeit to the Crown. The substance of the claimant's original application for judicial review, lodged as long ago as 10th September 2004, was concerned with.
5. On the facts, when the matter was explained the Magistrates found in favour of Customs and against the claimant. So too, it appears, did the Crown Court. When the application for permission was heard before Beatson J on 12th July 2005, he was satisfied that there was no arguable point to suggest that the application to condemn these goods was out of time, so that issue disappeared from the proceedings and it is not a matter that is now before this court.
6. However, as will be apparent from that recital of events to this point, the appeal, the application to the Justices proceeded and the Justices upheld the Customs' decision in seizing these goods. The skeleton argument lodged by Her Majesty's Revenue and Customs, as the relevant service has now become, indicates that the nature of these proceedings are to be determined on the civil balance of probabilities and the burden is on the Customs to show it is more probable than not that the goods in question were not being imported for personal use. That was the issue, on the merits, as opposed to the time point, and the only substantial issue before the court.
7. It seems that there was substantial evidence called before the Crown Court and in particular, the Customs pointed out that this was not the first time that this claimant had imported large quantities of cigarettes. There were two previous occasions in the two months next before the arrival at Teeside airport on 7th September.
8. First, on 27th July 2002, the claimant had arrived, again from Spain, with 24,400 cigarettes and some tobacco and not much personal luggage. That material was initially detained on suspicion that it was being imported other than for personal use, since the material considerably exceeded the guidance figure that the Customs and Excise published as to what were the limits of personal use. However, the claimant returned on 29th July, pointed out how he had been able to afford acquiring that material, and it was returned to him, although he was then warned that if he imported similar quantities in the future they might well be seized, on the basis of non-personal use. That was the first relevant importation in connection with these proceedings, on 27th July.
9. On 26th August 2002 there was another occasion when the claimant brought tobacco into the country. On this occasion he had some 19,800 Lambert and Butler cigarettes, 800 Superkings and four kilograms of rolling tobacco. That material was seized and there were no proceedings that were challenging that seizure, and so nothing further falls from that case.
10. Then one returns to 7th September 2002 and the quantities that were imported on that occasion.
11. Before the Crown Court, it seems there were problems with recording of the evidence. Although the claimant's evidence-in-chief is recorded, where he denies that this was other than for personal use and he explained that he had the funds and was able to identify the funds in which he had to purchase this quantity of material, thereafter his cross-examination and the evidence of his supporting witness has not been recorded, through mechanical failure, and so there is simply no record of it.
12. At the end of the Crown Court proceedings it was apparent that the Crown Court, on reconsidering the matter in a full rehearing, as it was required to do, remained as unsatisfied as the Magistrates had been on the case that this was for personal use. Rather, it must have been satisfied, on the balance of probabilities, that this tobacco, on this occasion, particularly in the light of the previous history and the two importations, was not for personal use and that must have been its conclusion when it dismissed the appeal.
13. Unfortunately it is unknown whether the learned Recorder who sat with Justices when hearing this appeal gave any reasons for that conclusion, because, again, there is no recording made or available to us now of what happened on that last day.
14. The claimant appeared in person; Customs and Excise, as they then were, appeared through counsel, though not counsel presently before the court, and there is no record of whether counsel kept a note of any reasons. On that basis, Beatson J granted permission, limited to the question of whether sufficient or any reasons had been given for the conclusion as to why the Crown Court was satisfied that this was not for personal use.
15. It appears that there was some attempt before that hearing to get the Recorder to jog his memory, if he could, as to what had happened, but on the correspondence it seems that the matters petered out when he said he was asking for his notebook and he probably did not have any other independent memory.
16. Meanwhile, for reasons which are not wholly explicable, time seems to have been elapsing at some alarming rate. The decision of the Justices was given on 13th November 2003, the Crown Court decision was given on 11th June 2004, this application for judicial review was lodged just within the three months, on 10th September 2004, and permission to proceed was only granted on renewal on 12th July 2005, as indicated, limited to this issue of reasons.
17. Subsequent to the grant of permission, I understand that the claimant has been unsuccessfully seeking to obtain public funding to be represented before these proceedings but has not obtained any such funding and so is unrepresented before the hearing today. He has had the assistance of his friend, who appeared as a McKenzie advisor, the court permitted him to address me, that is Mr Vauxhall, who apparently also had been a witness. It is somewhat unusual to hear a witness talking about the case but Mr Vauxhall has been helpfully able to give me some update upon the sequence of events since the grant of permission. He simply submits that for the reasons given by Beatson J for granting permission, the decision of the Crown Court should be set aside and having regard to the delay, there should be no remitted for further consideration.
18. I cannot pretend but that the sequence of events just described is deeply unhappy and unsatisfactory. Quite clearly there should have been some, even brief, reasons given by the Recorder for the decision that he and his Justices reached in dismissing this appeal and if he had given no reasons, he should have been prompted by counsel appearing for the Revenue to do so, in order for the matter fairly to be disposed of. If it became relevant to try and work out what the reasons were afterwards, it would have been appropriate for the Recorder to have been invited to give brief reasons, promptly, before the matter lapsed from his memory. None of that appears to have happened in this case and so we are in the unsatisfactory position that we are in.
19. What one can indicate from the correspondence, however, is that the Recorder thought that there was no issue of law arising in this case, either under the time limit point or any other aspect of the merits of the condemnation proceedings themselves, and so from that one can infer that the decision of the Recorder was based upon the satisfaction of the Revenue's case on the facts.
20. Looking at the sequence of events just described, in my judgment it was manifestly open to the Crown Court to conclude that the third importation of this very large quantity of cigarettes was not for personal use, particularly having regard to the two previous importations and the warning given in July.
21. I accept, of course, that the fact that the quantity of tobacco imported was larger than the limit in the guidelines issued by the Revenue is not itself a sufficient response to this question of what the use was: people might have particularly unusual large needs and use a particular journey to acquire a very, very large amount of tobacco, although the larger the amount, perhaps the more difficult it will be to substantiate that particular proposition if the whole Excise regime is not to be flouted with impunity. However, bearing in mind the case is just for the personal use of Mr Cleary and his wife and this was the third importation within two months, the evidence would appear to be very strongly pointing against purely personal use, in the absence of some wholly exceptional factor. This does not appear to have arisen in this case, on the evidence, either in the response made on the day in question, 7th September, or in the evidence given in the Crown Court.
22. In those circumstances, where the evidence was strongly pointing away from personal use, however unsatisfactory the failure of the Crown Court to give reasons is, it does not in my judgment amount to a reason to set aside its decision and to grant the relief that the claimant seeks in these proceedings. It is possible to reach a firm conclusion by inference as to what the reasons were and I have so reached that conclusion, for reasons I have sought to explain.
23. This judgment, however, recognises that it is the duty these days of courts hearing such appeals to give conclusions and it is the duty of the parties or their advocates to remind the court of its duty if it appears to have forgotten it or failed to achieve it. I rather suspect that if matters had been promptly directed to the Recorder to give some brief reasons, much of the present problem and the present uncertainty and confusion in this case would have been avoided but that, sadly, does not appear to have been the course that was followed, with the consequential fact that, some four years after the Crown Court hearing, the court is having to reach such conclusions as it can on the evidential material that is before it as to what must have been the reasons of the Crown Court.
24. However, in the light of that evidence, I have reached the conclusion that this is not a case in which I would set aside the decision of the Crown Court. This application is therefore dismissed.
25. MR MANDALIA: My Lord, there is an application for costs, I understand it is some £1700 in relation to this claim.
26. MR JUSTICE BLAKE: Yes. Of course, if the Revenue had done what it was its duty to do, we would not have been here, would we?
27. MR MANDALIA: My Lord, of course the grounds initially were far beyond the issue of the --
28. MR JUSTICE BLAKE: Beatson J, did he make an order for costs on the point that you won on?
29. MR MANDALIA: No, my Lord.
30. MR JUSTICE BLAKE: I am not going to revisit that.
31. Mr Cleary, I do not need to hear you on costs. I am not going to award the Revenue its costs in this matter, in the light of this rather unfortunate event. Thank you for your assistance.
32. Thank you very much.
33. MR VAUXHALL: Excuse me, my Lord. Mr Cleary would like to ask for permission to appeal.
34. MR JUSTICE BLAKE: Yes. I am going to refuse permission, there are no reasonable prospects of success and no point of principle.
35. Thank you.
36. MR VAUXHALL: Thank you, my Lord.