Amos, R (On the Application Of) v Maidstone Crown Court & Anor

For Article 6 purposes, condemnation and forfeiture proceedings must be classified as civil or criminal by applying the Engel criteria. The domestic classification is relevant, but the nature of the proceedings and the penalty remain important. Proceedings under the Customs and Excise Management Act 1979 were civil because they concerned the status of goods, required no blameworthy conduct, involved no conviction or finding of guilt, and imposed no separate penalty. The loss of goods alone did not make the process criminal. Later Strasbourg decisions concerning punitive or deterrent surcharges did not alter that analysis. The Court of Appeal was bound by Mudie and found no exceptional basis for departing from it.

Goods including hand-rolling tobacco were seized at Dover on the basis that they had been imported for commercial purposes without payment of duty. The Dover Magistrates’ Court condemned the goods as forfeited, and the Maidstone Crown Court dismissed a de novo appeal after finding, on the balance of probabilities, that the tobacco was intended for commercial use.

The claimant sought judicial review on the ground that the condemnation proceedings attracted the criminal procedural protections in Article 6. Permission was refused by Beatson J and HHJ Jarman QC. Lewison LJ granted permission on the Article 6 issue and directed that the substantive claim proceed in the Court of Appeal. The central issue was whether the statutory condemnation and forfeiture process was civil or criminal in nature.

Appeal dismissed. Lord Justice Richards delivered the leading judgment, and Lord Justice Elias agreed.

1. Article 6 classification is determined by the three Engel criteria: domestic legal classification, the nature of the offence, and the severity of the penalty. The second and third criteria are alternative, although a cumulative approach may be used where separate analysis is inconclusive.
2. Condemnation proceedings under section 139 and Schedule 3 of the Customs and Excise Management Act 1979 were civil. Paragraph 8 of Schedule 3 expressly described them as civil proceedings. The proceedings concerned only whether the goods were liable to forfeiture. They required no proof of blameworthiness and involved no conviction, finding of guilt or separate penalty. The existence of a power to restore condemned goods and the in rem character of the process reinforced that conclusion.
3. The Court followed R (on the application of Mudie) v Dover Magistrates’ Court [2003] QB 1238, which had considered the same statutory regime and held that such proceedings were not criminal for Article 6 purposes. Goldsmith [2001] 1 WLR 1673 had reached the same conclusion.
4. Jussila [2007] 45 EHRR 39 and Ruotsalainen [2013] 56 EHRR 10 applied established principles to punitive or deterrent financial charges. They did not materially develop the principles or cast doubt on Mudie. The suggested flexibility or sliding scale in International Transport Roth [2003] QB 728 did not alter the need to decide whether the proceedings were civil or criminal.
5. Under the ordinary precedent rules confirmed in Kay [2006] 2 AC 465, the Court was bound by Mudie. The appeal was therefore dismissed.

1. Court of Appeal (Civil Division): Lewison LJ granted permission on the Article 6 issue and directed that the substantive judicial review proceed in that court. Richards LJ, with Elias LJ agreeing, dismissed the appeal on 6 November 2013: [2013] EWCA Civ 1643.
2. High Court, Queen’s Bench Division: Beatson J refused permission to apply for judicial review on the papers. HHJ Jarman QC, sitting as a Deputy High Court Judge, refused permission on oral renewal.
3. Maidstone Crown Court: On 16 September 2011 the Crown Court heard the forfeiture appeal de novo, found on the balance of probabilities that the tobacco was imported for commercial purposes, and dismissed the appeal.
4. Dover Magistrates’ Court: On 30 September 2010 the court condemned the seized tobacco as forfeited.