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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Butt v Customs & Excise [2002] EWCA Civ 568 (22 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/568.html Cite as: [2002] EWCA Civ 568

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CANTERBURY CROWN COURT
(Her Honour Judge Williams)

		Royal Courts of Justice Strand London WC2 Friday, 22nd March 2002

Friday, 22nd March 2002

1. LORD JUSTICE MANTELL: I will invite my Lord, Sir Swinton Thomas, to give the first judgment.
2. SIR SWINTON THOMAS: This is a second tier appeal for permission to appeal from a decision of the Divisional Court of 12th December 2001, when that court dismissed the appeal to them by way of case stated from an order of the Crown Court at Canterbury dated 5th December 2000. That court dismissed the applicant's appeal from the Dover Magistrates' Court. The magistrates had made an order on 18th May 2000, ordering the forfeiture of approximately £410,000 under Section 43 of the Drug Trafficking Act 1994.
3. On 3rd December 1997, a Mr Ayub, who is a nephew of the appellant, was travelling from London to Amsterdam on a coach. He was stopped at Dover by officers of H.M. Customs & Excise and was found to be carrying $695,000, about £410,000 sterling, wrapped in brown paper packages in a locked bag. Mr Ayub told the Customs officers a number of lies in relation to that money, but on 19th January 1998, solicitors acting for Mr Ayub informed Customs & Excise that the money belonged to the present claimant, Mr Butt. He put forward an entirely different story from that given by his nephew.
4. On 18th May 2000, the Dover Magistrates ordered that the money should be forfeited under Section 43 of the Drug Trafficking Act. Mr Butt appealed to the Crown Court in Canterbury. That court, consisting of Her Honour Judge Williams and two Magistrates, was invited to rule on certain preliminary matters. Amongst the points that the court was asked to resolve was whether the proceedings for forfeiture under Section 43 are criminal or civil and, if civil, the appropriate standard of proof that was required. The court found that the proceedings were civil proceedings, not criminal proceedings, and, in the light of the wording of the relevant part of the Act, that, in my judgment, was plainly correct. Mr Tim Owen QC, on behalf of the claimant does not now challenge that finding, but he does challenge the manner in which both the Crown Court and the Divisional Court approached the standard of proof.
5. In relation to that issue, Her Honour Judge Williams on page six of her judgment said this. Having found that the proceedings were civil and not criminal proceedings, she continued:

"Of course Mr Whittaker goes on to submit that we must look at the standard of proof. Because in the case to which I have already referred, Chief Constable of Avon & Somerset, Lord Bingham had cause to consider what the standard of proof was in civil cases. He said this at paragraph 30: `It should however be clearly recognised, as the justices did expressly recognise, that the civil standard of proof does not invariably mean a bare balance of probability and does not so mean in the present case. The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters"; Bater & Bater 1951 probate, Hornell v Newberger Products Limited and Coager v Secretary of State for the Home Department are cited. He goes on: `In a serious case such as the present the difference between the two standards is in truth largely illusory. I have no doubt that in deciding whether the condition in section 2(1)(a) the Magistrates court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in section 2(1)(b) is fulfilled the Magistrates court should apply the civil standard with the strictness appropriate to the seriousness of the matter to be proved and the implications of proving them.'

Here in our judgment, having concluded that these proceedings are civil proceedings and that therefore the civil standard applies, we consider that any court before it was satisfied that approximately £400,000 was to be forfeit because it concluded that it was cash directly or indirectly the proceeds of drugs trafficking, or was intended by any person for use in drug trafficking would want to exercise great care in determining whether or not the evidence and the inferences which could [properly] be drawn from that evidence justified such a conclusion; in considering that matter we consider the consequences of the order if the order was found to be made."

6. Mr Owen criticises the use by the judge, which was adopted in the Divisional Court, of the phraseology that a court "would want to exercise great care in determining whether or not the evidence and the inferences could properly be drawn from that evidence justified such a conclusion; in considering that matter we consider that the consequences of the order if the order was found to be made".
7. The sentence used by Her Honour Judge Williams was quite clearly, in my judgment, to be read in the context of the Judge's reference to the test set out immediately before that statement in the judgment of Lord Bingham in B v Chief Constable of Avon & Somerset. The Judge's phraseology in relation to the standard of proof was quite clearly intended to be read in the context of Lord Bingham's test.
8. In the Divisional Court Mrs Justice Hallett gave the judgment. At paragraph 25 she said:

"Turning firstly to the standard of proof and its application to proceedings of this kind, it is obviously important to note, as Mr Bird argued, that Parliament specifically provided that the civil standard of proof should apply to proceedings under section 43. It would, in my view, defeat Parliament's clearly expressed and enacted intention if the courts were to find that every case of forfeiture under section 43 involves a finding of criminal activity and, therefore, the standard to be applied is the criminal standard of proof."

9. The learned Judge then went on to quote passages from B v Chief Constable of Avon & Somerset, and from the speech of Lord Nicholls in Re H (minors). Then, in paragraph 29, Mrs Justice Hallett continued:

"In B v Chief Constable of Avon & Somerset the court was plainly dealing with very different provisions from those under consideration here."

10. She then sets out her reasoning for coming to that conclusion. At paragraph 30 is the passage which is the subject of Mr Owen's criticism. She said:

"30.I reject Mr Owen's submission, therefore, that the court should have applied a standard of proof akin to the criminal standard. I am not persuaded that proceedings which relate solely to the forfeiture of even a sum of money as large as this require HM Customs & Excise to prove the drugs connection to the criminal standard or, as Mr Owen put it, something very close. Nor am I persuaded that forfeiture proceedings of this kind fall into the category of case envisaged by Lord Nicholls where the allegation made is so inherently improbable that more cogent evidence is required than may normally be the case. I am satisfied that the test properly applied to these proceedings was whether or not the court was satisfied that it was more probable than not that the money represented the direct or indirect proceeds of drugs trafficking or was intended for use in drugs trafficking.

31. I am satisfied that the approach adopted by Judge Adele Williams in this case to the standard of proof was an eminently sensible and fair one. As she put it, the court would apply the civil standard but with great care. If any gloss was needed on the words of the statute -- and I, for my part, am not persuaded that on the facts of this case it was -- that gloss must have operated to the benefit of Mr Butt. The court was plainly conscious of the consequences of a forfeiture order when such a considerable sum of money was at stake."

11. It seems to me again clear that in using the phraseology which she took from Judge Williams' judgment, Mrs Justice Hallett, like Judge Williams, was using that phraseology in the context of the test laid down by Lord Bingham in B v Chief Constable of Avon & Somerset.
12. In his skeleton argument, Mr Owen referred to the judgment of May LJ in Webb v Chief Constable of Merseyside Police [2000] QB 427 in which he pointed out that the seizure and forfeiture power contained in the Drug Trafficking Act 1994, is the only situation in which a public authority may confiscate or forfeit money without proof of the commission of a drug trafficking offence or some other indictable offence. Mr Owen submits that in cases of this nature the order almost certainly will imply that the money confiscated is directly related to serious criminal activity.
13. Mr Owen invited our attention to the provisions of the intended Proceeds of Crime Act 2002. He says that this issue as to the standard of proof required in such proceedings will at some stage have to be dealt with by the Court of Appeal, because inevitably there will be a substantial number of cases which will require such a decision. Accordingly, he says that this is an appropriate time for this court to consider that matter. Whether that is right or not, the fact is that the Proceeds of Crime Act 2002 is not as yet on the statute book.
14. As I understand it, Mr Owen's primary submission is directed at the finding of the Divisional Court that the court was not required to apply a standard of proof akin to the criminal standard. The question, so it seems to me, is whether the approach of Judge Williams in the Magistrates Court, which was adopted by the Divisional Court, was the correct standard in this case. Both Judge Williams and the Divisional Court quoted Lord Bingham's dicta that, in a case such as the present, the civil standard is a flexible standard which has to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications involved in proving those matters. Of course, it is correct that Mr Owen submitted that a forfeiture order involving the sum in excess of £400,000 is serious and does have, to an extent, criminal connotations. But those, so it seems to me, were plainly matters which the court took into account when coming to the conclusion that the evidence in the instant case was sufficient to prove guilt, bearing in mind the seriousness of the allegations that were made.
15. In those circumstances, in my view both Judge Williams and the Divisional Court applied the correct test, and there is no prospect that a further appeal would be successful.
16. Accordingly, for those reasons, I would refuse permission to appeal.
17. LORD JUSTICE MANTELL: So would I.
Order: Application refused.