Practice and Procedure

R (On the application of GORGIEVSKI) v HM CUSTOMS & EXCISE (2003)

PUBLISHED November 12, 2003

A technical failure to fully comply with the rules as to the notice of an application for an order under s.43 Drug Trafficking Act 1994 and a hearing in respect of the same did not, on the facts, invalidate the order subsequently made.Application for judicial review of a decision of Horseferry Road Magistrates Court on 5 March 2003 to make an order for the forfeiture of ?87,562 from the claimant ('G') under s.43 Drug Trafficking Act 1994. G was stopped at London Waterloo (International) station and cash in the above sum was found. It was seized and thereafter detained pursuant to a series of orders under s.42 of the Act, the last of which authorised its detention until 3 May 2002. Customs wished to apply for a forfeiture order under s.43 of the Act and on 11 April 2002 they informed G's solicitors of their intent. Customs later wished to vacate a trial date that, on their case, had been set for 29 April 2002. They attempted to contact G's solicitors by telephone but could only leave a message. The message was not picked up until 29 April 2002. G's solicitors told Customs that the message was the first notification they had received that the trial date had originally even been fixed for 29 April 2002. In the event, the trial did not go ahead on that date but was adjourned until 3 May 2002 and then further adjourned until taken over by later proceedings. G's solicitors indicated that they considered that there was no point in them attending on any of the dates as they could not get instructions from G. Eventually the hearing took place on 5 March 2003 when the order was made. On this application G argued that: (i) the hearing date had never been fixed for 29 April 2002; or (ii) the order was invalid because the application for it had not been validly made; (iii) the application was invalid because the court had not notified him of it or the hearing on 29 April 2002 as required by r.9(2) Magistrates' Courts (Detention and Forfeiture of Drug Trafficking Cash) Rules 1991 SI 1991/1923. Moreover, there had been doubt over whether the hearing related to a proposed order under s.43 of the Act or another order under s.42; and (iv) Rule 9(2) of the rules was mandatory and the draconian nature of the legislation required it to be construed narrowly notwithstanding that the non-compliance was in the nature of a technical defect.HELD: (1) It was inherently unlikely that the hearing date had not been fixed for 29 April 2002. Given the evidence that Customs had sought to vacate that date there was a plain inference that it had been so fixed. (2) It was clear from G's solicitors' own fax of 29 April 2002 that they were aware that the hearing was in respect of an order sought under s.43 of the Act. (3) In any event, G had received notice of the hearing on 29 April 2002 although that notice was late and inadequate. However, the hearing did not in fact proceed. That sort of procedural irregularity did not irretrievably flaw any proceedings that followed it (R v Luton Justices, ex p Judah Abecasis (2000) LTL/9/3/2000 considered). Further, whilst the plain simple mandatory/directory dichotomy had in the past been regarded as the key to such questions, it was not now without more to be used to resolve issues of this type. Rather there was a need to do justice in all the circumstances of the case (Ravichandran v Secretary of State for the Home Department (2000) 1 WLR 354) considered. (4) In the present case, given the fact that the hearing had not gone ahead there was an unreality to G's submissions and in all the circumstances the district judge had been fully entitled to make the order.Application refused.

[2003] EWHC 2773 (Admin)