Sissen, R (on the application of) v Newcastle Upon Tyne Crown Court & Anor

Forfeiture under section 141 of the Customs and Excise Management Act 1979 is not confined to goods of precisely identical species. The question is whether the goods are of a sufficiently like kind and were found or mixed with goods liable to forfeiture. A broad classification may be rational where it advances the statutory purpose of controlling trade in endangered species. Goods kept on the same premises may be found or mixed even if they were not in the same aviary. Where proportionality is relevant, the court must strike a fair balance between individual rights and the public interest, considering the particular facts, including concealment, previous offending, scale, value and hardship. The judicial review challenge failed because the Crown Court’s conclusion was rational and the forfeiture was proportionate on the assumed basis that proportionality applied.

The claimant challenged a Crown Court decision concerning the condemnation of 39 endangered birds seized from premises where he bred and traded parrots. He had previously been convicted of fraudulent evasion relating to the importation of endangered species. The Crown Court concluded that one or more birds in relevant classes had been illegally imported and that the burden shifted to the claimant to establish lawful acquisition or domestic breeding.

The challenge concerned the meaning and application of section 141 of the Customs and Excise Management Act 1979, particularly whether the birds were of a like kind and had been found or mixed with birds liable to forfeiture. The claimant also relied on proportionality, although the seizures pre-dated the Human Rights Act 1998. The central questions were whether the Crown Court’s approach was irrational or legally erroneous, and whether the condemnation order should stand.

1. The application was dismissed. The Crown Court’s decision was difficult to decipher and should have proceeded by case stated, but its conclusion could nevertheless be understood and was not open to successful judicial review.
2. Section 141(1)(b) had to be construed in light of its statutory purpose. The relevant inquiry was whether the birds were of a like kind and were found or mixed with birds already liable to forfeiture. The Crown Court was entitled to treat the birds as parrots for this purpose. Requiring classification by exact scientific species would impose an unjustified restriction on enforcement of the legislation protecting endangered species.
3. The phrase “found or mixed” did not require every bird to have been kept in the same aviary. The birds were held on the same premises, within the claimant’s breeding and trading operation, and the evidence of concealment, inadequate records and deliberate mixing supported the conclusion that they were found or mixed with the illegally imported birds.
4. The court considered proportionality on the pragmatic assumption that it applied, without deciding the effect of the pre-Human Rights Act 1998 seizures. The assessment required a fair balance between individual rights and the public interest. Relevant matters included the protection of endangered species, the claimant’s repeated offending, concealment, the professional nature of the operation, the value of the birds, his imprisonment and confiscation order, and the personal hardship relied upon. The balance favoured condemnation of all 39 birds.
5. The claimant was ordered to pay the interested party’s costs, reduced from £21,118.25 to £13,000 because of excessive counsel’s fees and confusion caused by the manner in which the proceedings had been conducted.

• Northallerton Magistrates’ Court: ruled that only 44 of the 144 seized birds should be condemned.
• Newcastle upon Tyne Crown Court: allowed Customs and Excise’s appeal and made a determination adverse to the claimant concerning the birds later reduced to 39 in issue.
• High Court (Administrative Court): dismissed the judicial review challenge to the Crown Court’s decision.