IMMIGRATION'Clandestine entrants' found in lorries - statutory penalties imposed on lorry drivers and haulage companies - penalty regime contrary to community law and incompatible with convention rights R (International Transport Roth GmbH & others) v Secretary of State for the Home Department: QBD (Mr Justice Sullivan): 5 December 2001The secretary of state imposed penalties on the claimant lorry drivers and haulage companies, as persons responsible for 'clandestine entrants' under the Immigration & Asylum Act 1999, the Carriers' Liability (Clandestine Entrants and Sale of Transporters) Regulations 2000 (SI 2000/ 684) and the Carriers' Liability (Clandestine Entrants) (Code of Practice) Order 2000 (SI 2000/685).

The claimants sought judicial review of the decisions to impose the penalties on the basis that the penalty regime was unlawful and incompatible with convention rights.Sir Nicholas Lyell QC, Dr Michael Peglow and Rhodri Thompson (instructed by Zimmers).

Richard Gordon QC and Nicholas Bowen (instructed by Davies Lavery) and Timothy Nesbitt (instructed by Rothera Dowson, Nottingham) for the claimants.

Gerald Barling QC, Mark Shaw and Jane Mulcahy (instructed by the Treasury Solicitor) for the secretary of state.Held, granting the application, that the penalty regime was to be classified as determining a criminal charge for the purposes of article 6 of the European Convention on Human Rights; that the Act imposed not merely an evidential burden upon the driver/owner/hirer but a persuasive burden to establish facts which were essential to the determination of guilt; that, if a driver were not accorded additional protection conferred by article 6(3) of the convention from the earliest possible stage, his position would have been compromised to the extent that a fair trial at the debt recovery stage would not be able to remedy the earlier unfairness; that it was not possible to read and give effect to the Act in a way which was compatible with article 6 of the convention; that a declaration of incompatibility would, therefore, be made; that the penalty of 2,000 per clandestine entrant, imposed by the regulations, was not disproportionate; that the power of detention of vehicles under the Act was incompatible with article 1 of the first protocol to the convention; and that the penalty regime had a restrictive effect on the free movement of goods and the provision of services and accordingly was contrary to articles 28 and 49 of the EC treaty.