Law reports

CRIMINAL

Confiscation proceedings - non-compliance with procedural requirements precluding exercise of statutory power to postpone - postponement valid at common law

R v October: CA (Lord Justice Scott Baker, Mr Justice Pitchford and Sir Edwin Jowitt):27 February 2003

The defendant pleaded guilty in the Crown Court to offences of producing a class B drug, possession of a class B drug with intent to supply, and abstracting electricity, for which custodial sentences were imposed.

Confiscation proceedings were purportedly postponed at a hearing for mention subsequent to conviction at which the defendant was not present but was represented by counsel.

A confiscation order was made more than six months after conviction.

The defendant appealed against the confiscation order on the ground that any apparent postponement was unlawful since there had not been compliance with section 2(1) and 3(1) of the Drug Trafficking Act 1994 because the defendant had not 'appeared before the court for sentencing' for the purposes of section 2(1).

Henry Blaxland QC (assigned by the Registrar of Criminal Appeals) for the defendant; Brendan Morris (instructed by the Crown Prosecution Service, Wood Green) for the Crown.

Held, dismissing the appeal, that, in order to exercise the statutory power to postpone under section 3(1), the requirement of section 2(1) that the defendant should have appeared before the Crown Court had to be satisfied; that that requirement had not been met since neither appearance in person at plea nor by counsel at a mention was sufficient, and the statutory power to postpone had therefore not been validly exercised; but that the court retained common law powers to manage its own procedures, which included a power to postpone so as to avoid falling foul of the rules that, save in exceptional circumstances, a confiscation enquiry had to take place within six months of conviction and that an order for postponement could not be made after the lapse of six months from conviction; and that, although the judge might have thought that he was making a section 3 order for postponement, he had validly postponed the confiscation proceedings in exercise of his common law powers.

EVIDENCE

Judicial review proceedings - claimant seeking to adduce evidence not before decision taker to substantiate allegation that it had made inadequate inquiry - evidence not admitted

R (Dwr Cymru Cyf) v Environment Agency Wales: QBD (Mr Justice Harrison): 28 February 2003

The claimant sewerage undertaker sought judicial review of the defendant's order to provide a public sewer to certain premises, on the ground that, among other things, the defendant had failed to carry out adequate inquiries prior to making the decision.

The claimant sought to adduce fresh evidence to substantiate its allegation that the defendant had failed in its duty to acquaint itself with relevant information by demonstrating that there was material which had not been before the defendant when it had made its decision.

The defendant objected to the admission of the fresh evidence, maintaining that the evidence should be limited to that which had been before the defendant when it had made its decision.

Beverley Lang QC (instructed by Hugh James, Cardiff) for the claimant; Stephen Hockman QC and Geoffrey Stephenson (instructed by the Legal Services Manager, Environment Agency Wales, Cardiff) for the defendant.

Held, dismissing the claim, that, although judicial review was a developing area of law, the principles governing the admissibility of fresh evidence should only be departed from in exceptional circumstances where it could be justified in order to achieve justice and fairness; that one of the dangers of admitting fresh evidence in judicial review proceedings was that the court might thereby find itself put in the position of being asked to decide the merits of the case rather than acting as a court of review; that that was particularly relevant in view of the conflicting evidence; and that, having considered the fresh evidence de bene esse, the case should be decided on the evidence which had been before the defendant when it had reached its decision.

LICENSING

Hackney carriage - application for licence - council entitled to charge separately for inspection

Kelly v Liverpool City Council : CA (Lords Justices Schiemann, Rix and Keene): 20 February 2003

On an application for a vehicle licence for a hackney carriage or private hire vehicle, Liverpool City Council made charges of 30 to be paid in respect of a first inspection, 25 if the vehicle failed that test requiring a further test, and a further sum of 120 for the licence when issued.

The judge declared that the council could only charge those to whom they granted licences and the council had no power under the Local Government (Miscellaneous Provisions) Act 1976, section 70(1) to charge for inspection of vehicles separately.

The council appealed.

Vincent Fraser QC (instructed by the City Solicitor, Liverpool) for the council; the claimant did not appear.

Held, allowing the appeal, that although it might be arguable that the wording of section 70(2) of the 1976 Act envisaged a single cash maximum payable by those who received licences, there was no policy reason against establishing the council's regime, and the wording of section 70(2), in particular the use of the word 'sums' in the plural showed that the council was entitled to charge separately for inspections and for the issue of a licence.

REVENUE

Customs seizing vehicle used for commercial smuggling - owner appealing against refusal to restore - restoration policy and appeals procedure lawful

Gascoyne v Customs and Excise Comrs: ChD (Mr Justice Neuberger): 21 February 2003

G was stopped by customs officials on his return from a trip to mainland Europe.

His vehicle was searched and found to contain a large quantity of tobacco products.

Customs seized the goods and the vehicle on the ground that they were not satisfied that the tobacco was for his personal use.

G requested the restoration of the vehicle under section 152 of the Customs and Excise Management Act 1979.

The commissioners held that there were 'no exceptional circumstances' to justify departing from their normal policy, which was to refuse to restore seized assets.

That decision was affirmed both on a review under section 15 of the Finance Act 1994 and an appeal to the VAT and duties tribunal under section 16 of the 1994 Act.

G appealed.

Jessica Simor (instructed by Nelsons, Nottingham) for G; James Puzey (instructed by the Solicitor, Customs and Excise) for the commissioners.

Held, dismissing the appeal, that when applied to people who used their vehicle for commercial smuggling, the commissioners' restricted restoration policy complied with article 1 of the First Protocol to the European Convention on Human Rights and the doctrine of proportionality in EC law; that, since the policy reduced but did not remove the commissioners' discretion whether to restore, it was also lawful under domestic law; that the review and appeals procedures complied with the convention and EC law notwithstanding that they were limited to a consideration of whether the commissioners could reasonably have reached their decision; and that, accordingly, there were no grounds for allowing the appeal.

(WLR)