Gorgievski v Customs and Excise & Anor

An application for forfeiture of cash under section 43 of the Drug Trafficking Act 1994 is made in Form E and addressed to the justices’ chief executive. Procedural requirements concerning the fixing of a hearing date and notification to interested persons must be considered in the context of the case. The consequences of non-compliance are not determined solely by classifying a requirement as mandatory or directory. The court must decide what is just in all the circumstances. Late or inadequate notice may raise issues if a hearing proceeds, but it does not necessarily invalidate the forfeiture proceedings or make them a nullity. Where the documents show that a hearing date was fixed and notice was in fact given, the procedural requirements may be treated as satisfied.

The claimant sought judicial review of a district judge’s decision ordering forfeiture of approximately £87,000 in cash seized under the Drug Trafficking Act 1994. The cash had been detained under section 42, and Customs and Excise later submitted Form E seeking forfeiture under section 43. The claimant argued that no valid forfeiture application had been made because the procedural requirements in rule 9 of the Magistrates’ Courts (Detention and Forfeiture of Drug Trafficking Cash) Rules 1991 had not been complied with. The central issue was whether the application and subsequent proceedings were invalid because of alleged defects in fixing and notifying the hearing date.

1. The application for judicial review was dismissed. The court found no error of law in the district judge’s decision.
2. Form E was submitted to the court on 10 April 2002. The documents showed that the magistrates had fixed a hearing for 29 April 2002, although the claimant was given late and probably inadequate notice. The claimant’s solicitors nevertheless received notice that the matter concerned an application by Customs and Excise for forfeiture.
3. The later hearing date of 3 May 2002 was also a hearing of the section 43 forfeiture application. It was not necessary for the court to determine the precise effect of the earlier notice defect because the subsequent date did not create the alleged invalidity.
4. Rule 9 required the application to be in Form E and required the clerk to fix a hearing date and the justices’ chief executive to notify relevant persons. The rule contained no timetable for fixing the hearing or minimum period of notice. On the facts, the procedural requirements had been complied with.
5. In any event, the consequences of procedural non-compliance are not resolved by the simple mandatory-directory distinction. Applying the approach discussed in R v Luton Justices ex parte Abecasis and Secretary of State for the Home Department v Ravichandran, the court must determine what consequence is just in the circumstances. Even if the alleged breaches had occurred, they would not necessarily have rendered the proceedings a nullity.

The application was dismissed. The first defendant was awarded costs, to be assessed in detail if not agreed.

First-instance judicial review proceedings. The claimant challenged the district judge’s decision of 5 March 2003, following an earlier ruling on 27 February 2003 that was adverse to the claimant. The High Court dismissed the application and found no error of law.