DISSENTING OPINION OF MR. B. MARXER

      I disagree with the majority both as to Article 1 of Protocol

No. 1 and to Article 6 of the Convention.

      As to Article 1 of Protocol No. 1

      The present case concerns the circumstance that an airline

operator has been found to be operating an aircraft on which prohibited

substances have been found.  It is therefore different from Agosi,

where the confiscated goods were the very goods whose importation was

prohibited.  The existence of prohibited substances on board was

sufficient to render the entire aircraft liable to forfeiture, and in

the present case the aircraft was so forfeited.  In these

circumstances, there can be no link between the forfeiture and, for

example, the control of harmful drugs or indeed the control of

aircraft.  Whilst provision for some form of regulation of the

operation of aircraft is undoubtedly necessary in supervising

international air traffic, the relevant legislation as applied in the

present case goes so far beyond this legitimate aim that it can no

longer be seen as a control of use of aircraft or dangerous substances,

but must be considered as a deprivation of possessions.  It is true

that the effects of the seizure were mitigated in the present case in

that the aircraft was returned on payment of £50,000, but the

lawfulness of the forfeiture was not affected, so that one must regard

the applicant company as deprived, not of its aircraft, but of £50,000

on the  basis of the decisions in the forfeiture proceedings.

      Thus it is the second sentence of the first paragraph of

Article 1 which is applicable.  It prohibits deprivation of possessions

save in the public interest and subject to the conditions provided for

by law.  The general principles of international law are not at issue

in the present case.  I accept that the "conditions provided for by

law" were met in the present case, although the laws in question were

very strictly construed.  It must therefore be determined whether the

deprivation of possession in the present case was "in the public

interest".

      I note from the decision of the Court of Appeal in the present

case that the Court of Appeal looked at the wording of the statutory

powers granted in the case, found that they covered he facts of the

case, and concluded that it was not able to consider the case any

further.  Indeed, the Court of Appeal was not required to consider any

public interest at all, and it did not do so.  The mere fact that the

Court of Appeal did not come to any conclusion as to public interest

does  not, however, necessarily lead to the conclusion that there was

no public interest.  In particular, the Government have submitted that

there is an interest in deterring slack security procedures by

airlines.

      I accept that there is a considerable and possibly increasing

need for appropriate security at points of entry to countries, and also

that it may well be apposite to require transport operators to bear

some of the burden of such security arrangements.  It remains, however,

very difficult to forge a link between the interest in appropriate

security arrangements and the facts of the present case.  In

particular, given the findings of the Court of Appeal that there was

no need to establish fault on the part of the operator, and given the

apparent absence of any reference by the Commissioners in seizing the

aircraft to any "misbehaviour" on the part of the applicant company,

I fail to see how the public interest in airport security can be

furthered by a seizure which makes no reference to such matters.

      Thus it has not been shown that the deprivation of possessions

was "in the public interest".

      As to Article 6 of the Convention:

      Here I agree with Mr. Trechsel's approach.

                                                           (Or. Eng.)