R (Greenpeace Ltd) v Secretary of State for the Environment, Food and Rural Affairs

For specimens listed in Annex C to the Regulation, an export permit is issued in accordance with the Convention if it satisfies the Convention’s formal documentary requirements. The importing authority is not required to investigate whether the exporting authority was substantively satisfied that the specimen was lawfully obtained. An authentic permit valid on its face may be accepted even where the importing authority knows that the exporting authority was not so satisfied, unless the permit has been revoked, cancelled or set aside. The majority treated the scheme as documentary and directed primarily to commercial certainty. A foreign court order concerning domestic constitutional rights does not determine compliance with the Regulation.

Greenpeace challenged the proposed importation of Brazilian mahogany into the United Kingdom. Scott Baker J refused permission to seek judicial review on 5 March 2002. Laws LJ granted permission on the papers and directed that the substantive judicial review proceed in the Court of Appeal.

The shipment was supported by Brazilian export permits issued after provisional orders of a Brazilian court, although IBAMA had not initially been satisfied that the timber complied with Brazilian conservation laws. Further evidence later indicated that the timber had in fact been lawfully harvested. The central issue was whether the United Kingdom authorities had to reject authentic permits in those circumstances under Council Regulation (EC) No 338/97.

1. Majority disposition. Dyson LJ and Mummery LJ dismissed the application for judicial review. They held that the importing authorities acted lawfully in accepting the authentic Brazilian export permits and refusing to detain the shipment.
2. Construction of the documentary scheme. For Annex C specimens, the phrase issued in accordance with the Convention in Article 4(3)(a) referred to compliance with the formal requirements of Article VI. The substantive condition in Article V(2)(a) was for the management authority of the exporting State to determine. The importing authority’s function was to conduct documentary checks and not to investigate the underlying legality of the harvest.
3. Effect of knowledge and foreign proceedings. An authentic permit valid on its face could be treated as valid and subsisting even where the importing authority knew that the exporting authority had not been satisfied under Article V(2)(a). Mummery LJ stated that this remained so unless the permit was revoked or cancelled by the issuing authority, or set aside by agreement or court order. Orders of the Brazilian court concerning domestic constitutional and economic rights did not determine the permit’s status under the Regulation and had no legal force on that issue. All three Lords Justices agreed on that point.
4. Dissent. Laws LJ construed Article 4(3)(a) as requiring substantive compliance with Article V(2)(a) as well as the formal requirements of Article VI. In his view, where the importing authorities knew that the exporting authority had not been satisfied as required, they should reject the permit. He accepted that there was no general duty to investigate from the outset. His first postscript provisionally treated a challenge based only on reason to doubt the permit as a Wednesbury challenge, normally requiring perversity in failing to use Regulation 5 of the Control of Trade in Endangered Species (Enforcement) Regulations 1997.
5. Order. The appeal was dismissed with costs. Greenpeace’s appeal on costs was dismissed, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): The substantive judicial review was dismissed by Dyson LJ and Mummery LJ; Laws LJ dissented on the principal issue. [2002] EWCA Civ 1036
• Queen’s Bench Division, Administrative Court: Scott Baker J refused permission to seek judicial review on 5 March 2002.