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

The Court of Appeal dismissed the appeal and held that condemnation proceedings under Schedule 3 to the Customs and Excise Management Act 1979 are civil proceedings for the purposes of Article 6 of the European Convention on Human Rights. The court applied the Engel criteria as developed in Strasbourg case‑law and domestic authority, in particular affirming the decision in Goldsmith v HM Commissioners of Customs & Excise [2001] 1 WLR 1673.

The court considered the interaction of the Access to Justice Act 1999 (section 12 and related provisions governing legal aid for "criminal proceedings") and paragraph 8 of Schedule 3 to the 1979 Act and concluded that paragraph 8 plainly characterises condemnation proceedings as civil; section 3 of the Human Rights Act 1998 could not be used to read the statutory label as if it were "criminal" in the sense required by Article 6. The court also rejected the argument that the revocation of the Excise Duties (Personal Reliefs) Order 1992 or the presence of issues of alleged blameworthiness transformed condemnation proceedings into criminal proceedings.

Background and nature of the application:

• The appellants sought permission to apply for judicial review of the Kent Magistrates' Court decision (15 October 2001) refusing to grant representation orders for condemnation proceedings brought by HM Customs & Excise under section 139 and Schedule 3 of the Customs and Excise Management Act 1979. The magistrates had treated the condemnation proceedings as civil and declined to make representation orders available under the criminal legal aid funding regime.
• The case came to the Court of Appeal by way of appeal from the Administration Court (Grigson J), which had refused permission for judicial review on 21 March 2002; permission to appeal to the Court of Appeal was granted on 19 July 2002.

Issues framed by the court:

• Whether condemnation proceedings under Schedule 3 to the 1979 Act are "criminal" or "civil" for the purposes of Article 6 ECHR, applying the autonomous Engel criteria developed by the European Court of Human Rights.
• Whether, in consequence, the appellants were entitled to representation orders or criminal legal aid under the Access to Justice Act 1999 (section 12 and Schedule 3 of that Act) or whether paragraph 8 of Schedule 3 to the 1979 Act must be read as if it labelled such proceedings "criminal" by virtue of section 3 of the Human Rights Act 1998.

Facts: On 21 March 2001 Customs officers seized tobacco, alcohol and the vehicle used by the appellants returning from France. The appellants gave notices of claim under Schedule 3 and the Commissioners issued summonses under the 1979 Act. The magistrates’ court clerk refused representation orders on the ground the proceedings were civil.

Court’s reasoning and subsidiary findings:

• The court reviewed Strasbourg authorities (including AGOSI v United Kingdom, Air Canada v United Kingdom and Butler) and domestic authorities (notably Goldsmith and McCann) and applied the three Engel criteria (domestic classification, nature of the "offence" and character of the penalty).
• Although issues of the traveller's intention and knowledge (and the Council Directive 92/12/EEC and the now‑revoked Excise Duties (Personal Reliefs) Order 1992) might raise questions of blameworthiness on particular facts, condemnation proceedings under Schedule 3 are not in substance proceedings to determine a criminal charge: they are in rem civil proceedings concerned with whether goods are liable to forfeiture.
• The third Engel criterion pointed against criminal classification because condemnation does not impose a criminal penalty or conviction; the statutory label of "civil proceedings" in paragraph 8 of Schedule 3 is significant and section 3 of the Human Rights Act 1998 could not be used to read the provision as if it meant "criminal" in the relevant Convention sense.
• The court therefore concluded that Goldsmith remained good law and that the magistrates had no jurisdiction to grant representation orders under the criminal legal aid regime for these proceedings.

Remedy and procedural observations: The court dismissed the appeal and awarded costs, noting procedural difficulties in obtaining effective relief by way of section 3 or section 4 Human Rights Act remedies had not been pursued in these proceedings.

Appeal dismissed. The Court of Appeal held that condemnation proceedings under Schedule 3 to the Customs and Excise Management Act 1979 are civil proceedings for the purposes of Article 6 ECHR; the Engel criteria, Strasbourg authorities (AGOSI, Air Canada, Butler) and domestic precedent (Goldsmith) support that classification. Consequently magistrates had no power to grant representation orders under the criminal legal aid regime and paragraph 8 of Schedule 3 must be read as civil; section 3 of the Human Rights Act 1998 could not be used to treat those proceedings as criminal.

Appeal from the Administrative Court (Grigson J), judgment refusing permission for judicial review dated 21 March 2002. Permission to appeal to the Court of Appeal granted by Sir Murray Stuart‑Smith on 19 July 2002. This Court of Appeal determination: [2003] EWCA Civ 237.