Karia v The Secretary of State for the Home Department

The amended statutory scheme does not require customs officers to establish an individual necessity before stopping and searching baggage. The relevant necessity may be the necessity for a lawful customs-control process or system applied at the border. Parliament’s removal of the former reasonable-grounds requirement broadened the power rather than narrowed it. Common-law requirements developed under the former wording, including requirements to provide individual reasons, were displaced by the amendment. Once no individual necessity is required, there is no freestanding duty to give individual reasons. A separate duty to record reasons does not arise on that basis.

The appellant arrived at Southampton airport from Amsterdam and was stopped while leaving the airport. His baggage was examined under section 78 of the Customs and Excise Management Act 1979, but nothing improper was found. He asked why he had been selected and was told that no reason would be given.

On judicial review, the Deputy High Court Judge held that the necessity requirement in section 4 of the Finance (No 2) Act 1992 could be satisfied by the necessity of a general search process, and that no individual reasons were required. The appeal, limited by the grant of permission, concerned whether there was a duty to give reasons and a duty to keep records of the exercise of the power. The lower court decision was reported at [2014] EWHC 4674 (Admin).

Lord Justice Irwin delivered the judgment of the court, with Lady Justice Arden agreeing. The appeal was dismissed.

1. Section 78 of the Customs and Excise Management Act 1979 confers the relevant power to question persons entering or leaving the United Kingdom and require production of baggage. Its exercise is subject to section 4 of the Finance (No 2) Act 1992.
2. The 2009 amendment removed the former requirement for reasonable grounds relating to the individual. The amended wording left a broader necessity requirement. The court held that this requirement could be satisfied by the necessity of a process or system of customs checks applied at border posts. It was unnecessary to establish a separate necessity for searching the particular individual.
3. The approach in Hoverspeed Ltd and Others v Commissioners of Customs and Excise [2002] EWCA Civ 1804 had been developed under the previous statutory wording. The clear legislative intention of the amendment abrogated the common-law requirements analysed under that earlier framework.
4. Since individual necessity was not required, there was no freestanding duty to give individual reasons for selection. The separate argument concerning a duty to record reasons did not arise on that basis and was not independently determined.

• Court of Appeal (Civil Division): Appeal dismissed on 18 July 2018. The court upheld the interpretation that system-level necessity was sufficient and rejected the claimed duty to provide individual reasons.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Deputy High Court Judge Mark Ockelton rejected the challenge, holding that necessity could relate to the customs search process rather than the individual search. Decision reported at [2014] EWHC 4674 (Admin).