FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56054/00 by Norman WEBB against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 10 February 2004 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr J. Casadevall , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges , and Mrs F. E lens-Passos , Deputy Section Registrar ,

Having regard to the above application introduced on 24 February 2000 and registered on 29 March 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Norman Webb, is a United Kingdom national , born in 1957 and living in Leeds, England. He is represented before the Court by Harrison Bundey & Co, Solicitors, Leeds. The respondent Government were represented by Ms H. Upton and, subsequently, by Mr J. Grainger, Foreign and Commononweath Office, London.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 26 October 1994 the applicant was stopped at Dover Eastern Docks by a customs officer. He was asked, among other things, if he was carrying any large sums of money. He explained that he had GBP 27,000 or 28,000 in cash for investment. He corrected this to GBP 39,000 moments later and stated that the money was only partly his and that he was planning to buy furniture or an antique car abroad. He declined to name the other part-owner of the cash.

The money was seized under section 25 of the Criminal Justice (International Co-operation) Act 1990 (“the 1990 Act”).

On 27 October 1994 and 19 January 1995 Dover Magistrates’ Court, on applications by HM Customs and Excise, granted interim detention orders in respect of the money pursuant to section 25 of the 1990 Act.

On 3 February 1995 the Drug Trafficking Act 1994 (“the 1994 Act”) came into force. It repealed the relevant parts of the 1990 Act.

On 13 April 1995 HM Customs and Excise made an application for forfeiture of the money as well as any interest accrued on it under sections 26 and 27 of the 1990 Act, provisions which had been largely re-enacted in sections 42 and 43 of the 1994 Act. The reasons given for the forfeiture application were that the cash seized from the applicant directly or indirectly represented the proceeds of drug trafficking and/or was intended for use in drug trafficking.

It was the policy of HM Customs and Excise that where the seizure was made prior to 3 February 1995 application for forfeiture would be made under the 1990 Act.

No appeal to the Crown Court against forfeiture by way of re-hearing was provided for under the 1990 Act. However, section 44 of the 1994 Act provided for an appeal, which was to be exercised within thirty days from the date of the making of the forfeiture order.

The forfeiture proceedings took place over two separate days, 25 May 1996 and 16 September 1996, before Dover Magistrates’ Court. HM Customs and Excise stated, inter alia , that the seized bank notes had traces of illegal drugs on them, that the applicant had been evasive about the amount of cash he was carrying when stopped and that he had admitted during interview that he had been convicted of drugs-related offences in 1978 in the United Kingdom and in 1985 in Germany. The magistrates heard argument as to the admissibility of the evidence relating to the applicant’s previous convictions.

The applicant, represented by counsel, testified that the money was to be used to buy antique cars in Holland and that he had decided to take cash in order to take advantage of better currency exchange rates in Belgium. R.H. gave evidence that a substantial part of the money was his and confirmed the applicant’s account of the purpose for which the money was intended. The applicant did not produce any bank accounts or otherwise show the origins of the cash.

On 16 September 1996 Dover Magistrates’ Court ordered the forfeiture of the money and the interest accrued on it. The court register records that the orders were made under the 1990 Act. When later asked by the applicant’s solicitor for the reasons for the court’s decision, the Legal Adviser to the court replied by letter dated 14 October 1996 that “magistrates are not obliged to give reasons for a decision of this nature either in open court or subsequently in writing.”

The applicant sought judicial review of the forfeiture decision on the grounds that the magistrates had not given reasons for their decision. In the course of the judicial review application, HM Customs and Excise submitted that the applicant had a right of appeal to the Crown Court for a re-hearing. The applicant was then granted leave to amend the grounds of his application in order to contend that the proceedings before Dover Magistrates’ Court were a nullity. He maintained in this connection that HM Customs and Excise applied for forfeiture of the cash, and the Dover Magistrates’ Court made a forfeiture order, under the 1990 Act at a time when that Act had been repealed.

On 18 March 1998 the High Court dismissed the application on the grounds that the reference to the wrong statute was a mere formality. The Lord Chief Justice, Lord Bingham, considered that if reference should have been made to section 43 of the 1994 Act rather than section 26 of the 1990 Act, HM Customs and Excise throughout having the right to apply for forfeiture and Dover Magistrates’ Court the right to order it, the maxim falsa demonstratio non nocet would apply. In his view, which was shared by Mr Justice Dyson, this was a complete answer to the application.

Both judges, however, went on to consider HM Custom and Excise’s argument that references to section 26 of the 1990 Act were appropriate in the circumstances. As a matter of statutory construction, Lord Bingham agreed with their submission and relied on the transitional provisions contained in the 1994 Act. Mr Justice Dyson took a contrary view.

Lord Bingham added in his judgment:

“It does seem possible that the references to section 26 in the application and the order misled the applicant and his advisers into believing that they had no right of appeal by way of re-hearing, and that judicial review was accordingly a suitable route by which to challenge the order. If the applicant seeks to appeal to the Crown Court out of time, and if the Crown Court has power to extend the time for appealing (on which issue I express no opinion), appropriate weight will no doubt be given to this aspect of the case when a decision is made on whether to extend time.”

On 6 April 1998 the applicant was granted leave to appeal out of time to the Crown Court against the forfeiture order made by Dover Magistrates’ Court. HM Customs and Excise objected on the ground that the Crown Court had no power to extend the time for lodging such an appeal. The matter was adjourned.

Following a hearing at Canterbury Crown Court, His Honour Judge Nash held on 27 November 1998 that the Crown Court had no jurisdiction to extend the time-limit beyond the thirty-day limit imposed by the 1994 Act. He noted that the extension of time-limits for appeals under the 1994 Act was not covered by the Crown Court Rules 1992 and that the Crown Court had no inherent jurisdiction to extend time-limits.

The applicant appealed to the Court of Appeal against the High Court decision of 18 March 1998. He submitted that the proceedings before Dover Magistrates’ Court were confiscatory in nature and therefore procedures, including the identification of the correct statute, should have been followed strictly. He further contended that the invocation by HM Customs and Excise of the 1990 Act prejudiced him by misleading him and his advisers into believing that a right of appeal to the Crown Court did not exist.

On 15 July 1999 the Court of Appeal dismissed the applicant’s appeal. Lord Justice Pill agreed with Lord Bingham’s statement in the High Court proceedings that:

“Had the point on section 26 been raised at the hearing [before Dover Magistrates’ Court], it seems clear that a reference to section 43 could and would have been substituted had HM Customs or the justices thought it necessary.”

Lord Justice Pill rejected the applicant’s argument that he had been disadvantaged by the reference to section 26 of the 1990 Act because it was not understood that there was a right of appeal to the Crown Court. Lord Justice Pill stated:

“If, as is not now disputed, there was such a right by virtue of the transitional provisions, the applicant cannot rely on an error of law, even if it was one shared by all parties, as amounting to such prejudice. The true basis of the complaint was clear and full particulars were given. I reject the submission that the proceedings before the justices were a nullity and, no point being taken upon the identity of the statute at the hearing, the order should stand.”

Lord Justice Pill continued:

“The application for judicial review was originally based on the refusal of the magistrates to give reasons. It was submitted that, in the absence of a right of appeal to the Crown Court, reasons were required. [Counsel for the applicant] realistically accepts that the foundation for this ground of application disappears with the finding that there was in the present case a right of appeal to the Crown Court. There is no general duty upon magistrates to give reasons for their decisions in circumstances such as the present.”

Lords Justices Thorpe and Stuart-Smith agreed with Lord Justice Pill’s reasons for dismissing the appeal.

The applicant’s application for legal aid to appeal to the House of Lords was refused on 18 October 1999 and his previous legal aid certificate discharged on 3 December 1999.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention of the absence of a reasoned judgment for the forfeiture order made by Dover Magistrates’ Court.

The applicant further maintains that there was no legal aid available for the proceedings before Dover Magistrates’ Court, and that those proceedings were criminal in nature. As a consequence, he complains that he was unable to obtain forensic evidence to challenge the case against him.

The applicant also complains that, although the proceedings were criminal in nature, the civil standard of proof applied.

Finally, the applicant states that the confiscation of his property on the basis of the civil standard of proof breached his right to the peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 to the Convention.

THE LAW

1. The applicant complains that he did not receive a fair hearing in the criminal proceedings which led to the forfeiture of his money. The applicant submits that, in the circumstances, there was a breach of Article 6 § 1 of the Convention, which provides as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government observe that Article 6 is not applicable to the forfeiture proceedings under its criminal head. Accordingly, it is not open to the applicant to complain that the proceedings were conducted according to the civil standard of proof.

The applicant maintains that the forfeiture proceedings had all the characteristics of the determination of a criminal charge against him. In support of this contention, he submits, among other things, that the proceedings were initiated by a body which brings criminal prosecutions and that the imposition by a magistrates’ court of a forfeiture penalty is a known criminal sanction. Furthermore, the process of confiscating property in circumstances such as those at issue had as its central aim the deterrence of criminal conduct. Confiscation was, moreover, designed to punish.

The Court agrees with the Government on this point. It recalls that in recently in Butler v. the United Kingdom ((dec.), no. 41661/98, 27 June 2002) it found that a forfeiture order made under section 42(2) of the Drug Trafficking Act 1994 was a preventive measure and cannot be compared to a criminal sanction, since it was designed to take out of circulation money which was presumed to be bound up with the international trade in illicit drugs. It follows that the proceedings which led to the making of the order in the instant case, regardless of whether the order was made under the 1990 Act or the 1994 Act, did not involve “the determination ... of a criminal charge” (see also Raimondi v. Italy, judgment of 22 February 1994, Series A no. 281-A, p. 20, § 43; Arcuri and Others v. Italy (dec.), no. 54024/99, 5 July 2001; Riela v. Italy (dec.), no.52439/99, 4 September 2001).

It follows that these complaints, in so far as they are based on the view that the forfeiture proceedings involved the determination of a criminal charge against the applicant, are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

To the extent that the applicant impugns the fairness of the proceedings from the standpoint of the civil limb of Article 6, the Court considers that that matter should be addressed in the context of his complaint under Article 1 of Protocol No. 1.

2. The applicant considers that the manner in which the forfeiture proceedings were conducted amounted to an interference with his right to the peaceful enjoyment of his possessions and thereby breached Article 1 of Protocol No. 1 to the Convention, which states:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government accept that the forfeiture of the applicant’s money constituted an interference with his property rights. However, the seizure, detention and ultimately the forfeiture of the money were provided for by law and pursued the aim of combating the international trade in illicit drugs. As to compliance with the fair balance requirement, and in particular the presence of adequate procedural safeguards, the Government note the following: the applicant had the benefit of an adversarial hearing during the forfeiture proceedings before Dover Magistrates’ Court; the authorities were required to prove their case against the applicant; the magistrates had to be satisfied that the money at issue represented the proceeds of drug trafficking or was intended for use in drug trafficking; the applicant had the right to a re-hearing before the Crown Court and, in the event, sought judicial review of the decision of Dover Magistrates’ Court before the High Court and on appeal before the Court of Appeal.

The Government further submit that the fact that the forfeiture proceedings were conducted according to the civil standard of proof did not undermine the fair balance test. Nor can the applicant improve his case by asserting that the forfeiture should have been ordered under the 1994 Act rather than under the 1990 Act. In the first place, the applicant was not misled or placed at a disadvantage as to the substance of the case against him and the legal rules to be applied to his case were identical under both Acts. Secondly, the applicant’s counsel should have argued before Dover Magistrates’ Court that the 1994 Act should be applied or contended, within the time-limit, on appeal to the Crown Court that he had a right to a re-hearing notwithstanding the fact that the forfeiture had been ordered under the 1990 Act.

As to the lack of reasons for the forfeiture decision, the Government consider that it was clear that in ordering the forfeiture of the applicant’s money the magistrates were satisfied that the authorities had made out their case. In any event, had the applicant exercised his right to appeal to the Crown Court within the prescribed time-limit, he would have received a full re-hearing and a reasoned decision at the conclusion of the proceedings. Alternatively, he could have obtained a full account of the facts and law found by the magistrates if he had chosen to appeal by way of case stated to the High Court by virtue of section 111 of the Magistrates’ Court Act 1980.

The applicant maintains in reply that he never obtained a reasoned decision as to why his evidence before Dover Magistrates’ Court was not accepted. In consequence, he was not in a position to determine whether the magistrates had made an error of law. It was precisely for that reason that he sought judicial review of the magistrates’ decision. His application for judicial review was subsequently amended to challenge the validity of the statutory basis for the forfeiture application when he was informed by HM Customs and Excise that the magistrates were not obliged to give reasons for their decision and that he had a right of appeal. In the applicant’s submission, even if he had lodged an appeal with the Crown Court immediately following the decision HM Customs and Excise would have argued that no such appeal was available. For these reasons, the applicant contends that the forfeiture proceedings disrespected his procedural rights under Article 1 of Protocol No. 1.

The Court notes that the essence of the applicant’s argument is that he was deprived of his property in the absence of procedural safeguards. It observes, in the first place, that notwithstanding his challenge before the domestic courts to the statutory basis for forfeiting his money, the applicant has not relied on that issue in the Convention proceedings in order to contest the quality of the law underpinning the forfeiture. In any event, it finds that the authorities had the power to apply for, and the magistrates to order, forfeiture in application of either the 1990 Act or the 1994 Act. The dispute over the correct statutory basis for ordering the forfeiture is of relevance only to the question of whether a fair balance was struck between the applicant’s property right, it being noted that the legitimacy of the aim served by the forfeiture order has not been contested by the applicant (see, on this last point, the above-cited Butler decision).

As to compliance with the fair balance requirement, it is to be noted that the applicant had an adversarial procedure before Dover Magistrates’ Court. It was for HM Customs and Excise to satisfy the court that on a balance of probabilities the applicant’s money directly or indirectly represented the proceeds of drug trafficking and/or was intended for use in drug trafficking. The applicant, who was legally represented, could and did contest the factual basis of that argument. The fact that the proceedings before the magistrates were conducted according to the civil standard of proof does not vitiate the fairness of the procedure or support an argument that the forfeiture measure ordered was disproportionate in the circumstances (see the above-cited Butler decision and the case-law referred to therein).

The Court notes that the applicant was not given any reasons for the magistrates’ decision, and it would appear that the magistrates were under no general obligation to do so at the time. It is prepared to assume for the purposes of the applicant’s case that the absence of a reasoned decision at the conclusion of the proceedings impaired the fairness of the procedure, notwithstanding the fact that no criminal sanction was imposed on the applicant. It recalls in this connection that the giving of reasons for decisions reached in civil proceedings also is part of the fairness requirement contained in Article 6 § 1 ( Helle v. Finland , judgment of 19 December 1997 , Reports of Judgments and Decisions 1997-VIII, § 55).

However, the Court notes that the applicant had available to him two possible remedies – namely a statutory right of appeal to the Crown Court which would have guaranteed him a full re-hearing of the forfeiture application covering all matters of fact and law and proceedings by way of judicial review of the magistrates’ decision, whereby he could have challenged the failure to give reasons.

As to the former remedy, the applicant failed to lodge an appeal to the Crown Court within the required time-limit, which time-limit it was subsequently held could not be extended. The applicant complains that the references to the 1990 Act in the application and the order misled him and his advisers into believing that they had no right of appeal by way of re-hearing. However, the Court considers that the applicant and his legal representatives must be taken to have been at fault in failing to appreciate that they did in fact have a statutory right of appeal against the magistrates’ decision, notwithstanding any confusion over the correct legislative basis for seeking and making the forfeiture order. It is precisely the role of a legal representative to be alert to defects in proceedings which might prejudice his client’s interests and to bring these to the attention of the court.  However, the applicant’s legal representatives did not raise any objection to the statutory basis relied on by HM Customs and Excise for the forfeiture of the applicant’s money and were content to allow the magistrates to deal with the application under the 1990 Act. The failure of the applicant’s lawyers to appreciate the importance of this point in time meant that they surrendered an opportunity to have a full re-hearing of the forfeiture application before the Crown Court and, in consequence, to secure redress for their complaint about the lack of reasons given by Dover Magistrates’ Court.  The applicant has argued that even if he had sought a re-hearing within the thirty-day time- limit, the result would have been that HM Customs and Excise would only have mounted a challenge to his reliance on the 1994 Act and thwarted his chances of success. For the Court, that argument is speculative and in the circumstances unavailing.

As to the latter remedy, the Court observes that the applicant’s original application for judicial review was directed at the failure of Dover Magistrates’ Court to motivate its decision. However, rather than pursuing that complaint he chose to base himself on the argument that the forfeiture order should be quashed since it had been made under the wrong Act. According to the applicant, he decided to abandon his original ground of challenge when he was informed by HM Customs and Excise (belatedly it would seem) that he had a right of appeal by way of a re-hearing of his case.

It is still the applicant’s main contention in the Convention proceedings that the forfeiture proceedings were unfair for lack of reasons. However, and bearing in mind the above considerations relating to the applicant’s failure to make a timely request for a re-hearing under the 1994 Act, that irregularity could have been remedied had he pursued his original ground of challenge to the forfeiture order. In that event, the High Court could have required the magistrates to provide a statement of the facts they had found and their opinion thereon, with a view to ascertaining whether an error of law had been made. The Court has already had occasion to conclude that the scope of judicial review under English law is sufficient to satisfy the requirements of the second paragraph of Article 1 of Protocol No. 1 (see AGOSI v . the United Kingdom , judgment of 24 October 1986, Series A no. 108, § 60). It is true that in the Butler case the Court considered that the applicant could not be required to seek judicial review of the decision of the Crown Court on a re-hearing from the decision of magistrates to forfeit his money. However, Mr Butler was not complaining about a failure to give reasons for the decision taken in his case. The applicant in the instant case is, and by abandoning his reliance on the lack of reasons argument he deprived himself of an opportunity to obtain those reasons and a ruling on whether the magistrates’ decision was correct in law.

What is important for the Court is that the applicant was able to state his case before the magistrates in an adversarial procedure and had the possibility to remedy the only defect which he has identified in that procedure and to have the legality of the impugned decision reviewed and that, in any event, he had a statutory right of appeal by way of a full re-hearing of the forfeiture application. He did not duly avail himself of either opportunity.

Having regard to the above considerations, the Court concludes that, in so far as the applicant impugns the absence of reasons for the decision ordering forfeiture of his money and to the extent that he maintains that the lack of reasons disrespected the “fair balance” requirement in Article 1 of Protocol No. 1, the applicant has failed to exhaust domestic remedies.

It follows that this part of the application is inadmissible under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4 thereof.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Matti Pellonpää D eputy Registrar President