Bartholomew, R (on the application of) v HM Revenue & Customs

In forfeiture proceedings, a court must address whether seizure is compatible with Convention rights where that issue is properly raised or necessarily engaged by the proposed order. An express proportionality finding is not always required. The conclusion may be implicit in the court’s findings and stated awareness of the governing legal principles. Where goods are partly liable to primary forfeiture and the remainder may attract secondary liability, the court need not invent an exact allocation if its factual findings sufficiently establish liability and the proportionality of forfeiting all the goods. An appeal cannot ordinarily introduce a new proportionality argument not advanced below.

The claimant appealed by way of case stated from the Crown Court at Maidstone, which had upheld a magistrates’ order condemning tobacco, cigarettes, cigars and wine to forfeiture. The Crown Court found that at least part of the tobacco and cigarettes was held for a commercial purpose, engaging primary liability under the Customs and Excise Management Act 1979, section 49. It held that the remaining goods were liable to secondary forfeiture under section 141(1)(b), without identifying the precise proportions.

The appeal concerned whether the Crown Court had erred by failing to identify the proportions liable under each provision and by failing expressly to find that secondary forfeiture was compatible with the claimant’s Convention rights.

1. Appeal dismissed. Both questions in the stated case were answered in the negative.
2. The proportionality argument was not advanced before the Crown Court in the form later relied upon. The claimant argued that no goods were liable to primary forfeiture under section 49, but did not put forward the alternative case that, if primary liability were established, secondary forfeiture under section 141 would be disproportionate. That was a formidable and effectively fatal objection to raising the point on appeal.
3. In any event, the Crown Court had expressly recorded that it was aware of Newbury [2003] 2 AER 964, Article 1 of the First Protocol and the requirement under section 7 of the Human Rights Act 1998 not to make an order incompatible with a Convention right. In the context of the case stated, that was sufficient. An express statement that forfeiture was proportionate was unnecessary. The finding that all the goods, including the wine and cigars accepted not to be liable under section 49, were liable under section 141 necessarily carried an implicit conclusion that the order was not disproportionate.
4. The Crown Court was not required to identify an exact or approximate fraction of the goods attributable to primary and secondary liability. Its finding that the quantity of tobacco and cigarettes greatly exceeded what the claimant’s explanations could justify was sufficient. It also supported the conclusion that forfeiting all the goods was not disproportionate.
5. The appeal was dismissed, and costs were summarily assessed at £3,475.

• Crown Court at Maidstone: On 10 September 2004, upheld the magistrates’ condemnation order and dismissed the appeal from the magistrates’ order.
• High Court (Administrative Court): Dismissed the appeal by way of case stated and answered both questions in the negative.