Boxall, R (on the application of) v Portsmouth Crown Court & Ors

Where a court has decided forfeiture proceedings on an erroneous burden of proof, the decision should ordinarily be quashed. A reviewing court may uphold the result only where a clear, plain and compelling factual scenario establishes that the outcome must necessarily have been the same under the correct law. The volume of excise goods alone may not satisfy that test, particularly where the claimant has not given evidence explaining possession of them. The correct burden was a civil burden on the Commissioners to establish that the goods were not for the claimant’s own use or were held for a commercial purpose.

The claimant challenged the Portsmouth Crown Court’s dismissal of his appeal against the forfeiture of cigarettes and tobacco ordered by Portsmouth Magistrates’ Court. The goods had been seized under Excise Duties (Personal Reliefs) Order 1992. Permission to seek judicial review was initially refused, but was granted by Laws LJ after the Divisional Court’s decision in Hoverspeed [2002] EWHC 1630 (Admin), [2002] 3 WLR 1219. The permission was limited to whether the Crown Court had proceeded on an erroneous burden of proof. The central issue was whether the Crown Court’s decision would necessarily have been the same if the correct burden had been applied.

1. The Crown Court proceedings had proceeded on the wrong legal basis. The persuasive burden had been placed on the claimant to rebut a presumption that goods exceeding the indicative levels were held for commercial purposes. Under Hoverspeed [2002] EWHC 1630 (Admin), the Commissioners bore the civil burden of proving that the goods were not for the claimant’s own use or were held for a commercial purpose.

2. The fact that proceedings were conducted contrary to law did not make remission automatic if the result must necessarily have been the same. That conclusion required a clear, plain and compelling factual scenario. The reviewing court had to consider whether a court applying the correct burden could reach a different decision.

3. This was a borderline case for that purpose. The quantity of cigarettes was substantial, but sheer volume alone did not establish that the Commissioners would necessarily succeed. The claimant had consistently maintained that the goods were for personal consumption, and his explanation had not been heard and tested on oath. A ten-month personal supply was not, in itself, incompatible with personal use.

4. Judicial review protects the right to have a public decision reached according to law. The court therefore granted judicial review, quashed the Portsmouth Crown Court’s decision in relation to the claimant, and remitted the condemnation proceedings to Portsmouth Justices for retrial according to law. The claimant’s costs were subject to legal aid assessment, with no other order as to costs.

• High Court (Administrative Court) — The court granted permission on the limited issue of the erroneous burden of proof, quashed the Portsmouth Crown Court’s decision, and remitted the matter to Portsmouth Justices for retrial.
• Earlier procedural history — Permission had been refused on paper and at a renewed oral hearing before Pitchers J on 19 July 2002. Laws LJ later granted permission following the Divisional Court’s decision in Hoverspeed [2002] EWHC 1630 (Admin), [2002] 3 WLR 1219.