Condemnation proceedings commenced pursuant to s.139 and Sch.3 Customs and Excise Management Act 1979 did not amount to criminal proceedings for the purposes of s.12 Access to Justice Act 1999.Appeal by the claimants from the order of Grigson J dated 21 March 2002, dismissing their application for judicial review of the decision of the Kent Magistrates' Court which refused to grant a representation order in respect of condemnation proceedings commenced pursuant to s.139 and Sch.3 Customs and Excise Management Act 1979 ('CEMA'). On 21 March 2001, the appellants' goods were seized by customs officers as liable to forfeiture. On 4 September 2001 the Channel Magistrates issued a summons for condemnation requiring the appellants to satisfy the court that the goods seized were not held or used for a commercial purpose. The appellants applied for legal aid, but that was refused by the Kent Magistrates on the grounds that condemnation proceedings under s.139 CEMA did not amount to "criminal proceedings" for the purposes of s.12 Access to Justice Act 1999. The judge refused to grant permission for the appellants to judicially review that decision on the grounds that the decision of Goldsmith v Customs and Excise Commissioners (2001) 1 WLR 1673 applied. On this appeal from the judge's decision the appellants argued that condemnation proceedings were proceedings falling within Art.6(3) European Convention on Human Rights and Fundamental Freedoms and that in reality they had been charged with a criminal offence and accordingly entitled to legal aid. The appellants argued that the European Court had moved since the decision of Goldsmith and that the revocation of the Excise Duty (Personal Reliefs) Order 1992 SI 1992/3155 ('PRO') in the light of the decision of R v Customs and Excise Commissioners, ex parte Hoverspeed Ltd & ors (2002) 3 WLR 1219, revealed the importance of establishing the guilty mind of the traveller whose goods had been seized. Further, the appellants argued that the decision of Engel ors v Netherlands (1976) 1 EHRR 706 applied to the extent that it was necessary to identify the manner in which the domestic state classified the proceedings, the nature of the offence and the character of the penalty.HELD: (1) The decisions of AGOSI v UK (1987) 9 EHRR 1 and Air Canada v UK (1995) 20 EHRR 150 showed that the European Court did not regard condemnation as criminal proceedings per se, and it was difficult to see how it considered it to have been criminal proceedings at all. (2) The effect of the appellants' arguments was to use s.3 Human Rights Act 1998 in order to read into the CEMA the word "criminal" in para.8 sch.3 where that provision specifically stated that the proceedings were "civil". That argument required instances where condemnation proceedings under the Act were civil and in other instances criminal. Such an interpretation was not available and lead ultimately to procedural difficulties. (3) The revocation of the PRO took the appellants' arguments nowhere. The issue on condemnation proceedings was not he blameworthiness of the owner of the goods seized. (4) The application of the principles identified in Engel (supra) was to be treated as no more than a starting point. However, considering those principles, it was clear that there was no penalty imposed under condemnation proceedings. The court merely made a declaration as to whether the goods were to be retained or returned. The issue of whether proceedings were in the nature of criminal proceedings was to consider whether the state was using its powers to penalise a wrong doing regardless of the criteria set out in Engel. (5) Accordingly, condemnation proceedings did not amount to criminal proceedings for the purposes of s.12 Access to Justice Act 1999. The appeal was therefore dismissed.Appeal dismissed.
 EWCA Civ 237