Mudie & Anor, R (On the Application Of) v H M Customs & Excise

Condemnation proceedings under Schedule 3 to the Customs and Excise Management Act 1979 are civil, rather than criminal, for the purposes of article 6 of the Convention. The statutory regime must be classified as an entity. Its classification does not vary according to whether the particular traveller’s conduct appears blameworthy.

The proceedings determine whether property was liable to forfeiture. They contain no necessary element of blameworthiness, impose no penalty and involve neither a criminal charge nor a finding of guilt. Although the Convention meaning of “criminal charge” is autonomous and domestic classification is only a starting point, the nature of the proceedings and their consequences confirm their civil character.

The appellants contested the seizure of tobacco, alcohol and their vehicle by Customs officers. The Commissioners consequently instituted condemnation proceedings in Kent Magistrates’ Court under section 139 and Schedule 3 to the Customs and Excise Management Act 1979. The magistrates refused representation orders because paragraph 8 expressly classifies condemnation proceedings as civil.

Grigson J refused permission to seek judicial review on 21 March 2002. He followed Goldsmith v HM Commissioners of Customs & Excise [2001] 1 WLR 1673, which held that such proceedings were civil for article 6 purposes. The appellants appealed with permission.

The central issue was whether the autonomous Convention criteria nevertheless classified condemnation proceedings as determining a criminal charge, thereby engaging the criminal legal-assistance guarantee in article 6(3)(c).

1. Appeal dismissed unanimously. Laws LJ delivered the leading judgment. Brooke LJ and Lord Phillips MR agreed.

2. The three criteria derived from Engel v The Netherlands were the domestic classification, the nature of the offence or liability, and the nature and severity of the potential penalty. Domestic classification is only a starting point because “criminal charge” has an autonomous Convention meaning. The ultimate inquiry is whether the proceedings are substantively an exercise of state power to condemn or punish an individual for wrongdoing.

3. Condemnation proceedings under Schedule 3 to the Customs and Excise Management Act 1979 must be considered as a single statutory regime. Their Convention classification cannot change from case to case according to whether the traveller’s apparent conduct is blameworthy. Under paragraph 6, the court decides only whether the property was liable to forfeiture. Liability can arise in circumstances involving no blameworthy conduct.

4. The nature and consequences of the proceedings confirmed their civil character. They are proceedings in rem concerning property. No criminal charge, conviction or finding of guilt results, and the court imposes no penalty. It merely declares whether the goods were liable to forfeiture. The separate statutory offences of fraudulent evasion and improper importation did not convert condemnation proceedings into criminal proceedings.

5. The revocation of the Excise Duties (Personal Reliefs) Order 1992 following Hoverspeed did not alter that conclusion. Although intention and commercial purpose may be factually important in an individual case, blameworthiness is not a defining element of the Schedule 3 regime. Goldsmith remained correct, consistently with AGOSI, Air Canada, Butler and McCann.

6. There were also serious procedural obstacles to effective relief. Section 3 of the Human Rights Act 1998 could not plausibly be used to read the word “civil” in paragraph 8 as “criminal”, particularly if the proposed classification varied between individual cases. No declaration of incompatibility had been sought.

1. Court of Appeal (Civil Division): The court unanimously dismissed the appeal and upheld the refusal of permission to seek judicial review. [2003] EWCA Civ 237
2. High Court, Administrative Court: Grigson J refused permission to seek judicial review on 21 March 2002, holding that Goldsmith remained good law. No citation is stated.
3. Kent Magistrates’ Court: On 15 October 2001 the court declined to grant representation orders because condemnation proceedings were statutorily classified as civil.