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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ho & Ors, Re Judicial Review [2003] ScotCS 161 (03 June 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/161.html Cite as: [2003] ScotCS 161, 2004 SCLR 15 |
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OUTER HOUSE, COURT OF SESSION |
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P443/03 P444/03 P445/03 P446/03
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OPINION OF LORD CLARKE in the petitions of YIN YONG HO, PO LAM HO, WONG MENG HONG AND SUN LIN CHIN Petitioners; for Judicial Review of (a) a seizure of cash under section 294 of the Proceeds of Crime Act 2002 and (b) detention under section 295(1) of cash seized under section 294 and (c) an order under section 295 of that Act to extend the period for which cash may be detained
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Petitioners: Di Rollo, Q.C., Mackay; Cannons
First Respondent (Lord Advocate): Docherty, Q.C., Crawford; Scottish Executive
Second Respondent (Advocate-General for Scotland): Drummond; Shepherd & Wedderburn, W.S.
3 June 2003
Introduction
[1] In these four petitions for judicial review, the petitioners seek reduction of certain acts of Customs and Excise officers and reduction of certain orders pronounced in the Sheriff Court. They, furthermore, seek return to them of sums of cash seized from them and which continue to be kept from them as a result of the foregoing Sheriff Court orders. The petitioners also seek damages for what is said to be the loss, injury and damage they have suffered as a result of unlawful conduct on the part of the customs officers. The petitions were served on the Lord Advocate and the Advocate General for Scotland. In Article 1 of each of the petitions, it is averred as follows:"The respondents are the Lord Advocate representing the procurator fiscal and the Scottish Ministers and the Advocate General representing HM Customs and Excise."
Beyond that there is no attempt by the petitioners to aver for which of the various decisions and acts, which they seek to attack, the respective ministers are responsible. The matter came before me for a first hearing in advance of which answers had been lodged on behalf of both of the ministers. There is no point taken in those answers about the failure of the petitioners to distinguish, as between the respondents, the acts and decisions for which the petitioners claim they are respectively responsible. At the hearing before me each minister was represented by counsel and no point was taken regarding any failure by the petitioners in this respect. Both respondents have, however, taken pleas to the competency of the petitions. Because of the lack of time available (the first hearing having been initially set down for one day only) it was agreed that the discussion at the first hearing should be restricted initially to the respondents' pleas as to competency.
Factual Background
[2] All four of the petitions are concerned with the seizure of cash from the petitioners under the provisions of the Proceeds of Crime Act 2002. The initial seizure of the cash in the cases of the petitions of Yin Hong Ho, Po Lam Ho and Wong Meng Hong took place on 27 January 2003 at Glasgow Airport. Yin Yong Ho and Po Lam Ho are husband and wife. It is averred in the petition of Wong Meng Hong that he was introduced to Mr and Mrs Ho at the airport and that prior to that he had not met the couple. All three of the petitioners had both sterling and Hong Kong dollars in their possession which was seized by customs officers at the airport. In respect of the total sum seized from all three of the petitioners, interlocutors were pronounced by the Sheriff at Greenock, on 29 January 2003 in the following terms:"The Sheriff having considered the foregoing Application at the instance of the Procurator Fiscal, and being satisfied that the terms and conditions set out in terms of Section 295(5) of the Proceeds of Crime Act 2002 have been met, Grants an Order at 14.40 hours, in terms of aforesaid Act for the continued detention of the sum of £33,360 Sterling and Hong Kong $5910 of cash referred to therein for a period not exceeding 3 months from this date."
The interlocutors then provide for the intimation to these petitioners of the application that had been made to the Sheriff and the order itself.
[3] The seizure of the cash from the fourth named petitioner Sun Lin Chin, took place on 28 January 2003 at Glasgow Airport. That petitioner had in his possession bankers drafts and Hong Kong dollars which were seized from him by customs officers at the airport. In the petition in relation to Mr Sun Lin Chin it is averred that by interlocutor dated 30 January 2003 the Sheriff at Paisley made an order in the following terms:"The Sheriff having considered the foregoing Application at the instance of the Procurator Fiscal, and being satisfied that the terms and conditions set out in terms of Section 295(5) of the Proceeds of Crime Act 2002 have been met, Grants an Order at 12.14pm in terms of aforesaid Act for the continued retention of the £7,410 sterling, £7,900 bankers drafts HK $1,210 of money referred to therein for a period not exceeding 3 months from this date."
The Statutory Background
[4] These petitions are concerned with the application of certain of the provisions of the Proceeds of Crime Act 2002. Section 289(2) provides as follows:"If a customs officer or constable has reasonable grounds for suspecting that a person (the suspect) is carrying cash -
(a) which is recoverable property or is intended by any person for use in unlawful conduct, and
(b) the amount of which is not less than the minimum amount,
he may exercise the following powers.
Section 298(3) then provides:
"The officer or constable may, so far as he thinks it necessary or expedient, require the suspect -
(a) to permit a search of any article he has with him,
(b) to permit a search of his person."
"Recoverable property" is defined in Section 304(1) in the following way "property obtained through unlawful conduct is recoverable property". "Unlawful conduct" is defined by Section 241 of the Act as follows "conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part". "The minimum amount" is defined in Section 303 of the Act as follows:
"(1) in this Chapter, the minimum amount is the amount in sterling specified in an order made by the Secretary of State after consultation with the Scottish Ministers.
(2) For that purpose the amount of any cash held in a currency other than sterling must be taken to be its sterling equivalent, calculated in accordance with the prevailing rate of exchange."
I was informed that, at present "the minimum amount" is fixed at £10,000 Sterling.
Section 289(4) of the Act provides as follows:
"An officer or constable exercising powers by virtue of subsection (3)(b) may detain the suspect for so long as is necessary for their exercise".
Section 289(5) is in the following terms
"The powers conferred by this section -
(a) are exerciseable only so far as reasonably required for the purpose of finding cash,
(b) are exerciseable by a customs officer only if he has reasonable grounds for suspecting that the unlawful conduct in question relates to an assigned matter (within the meaning of the Customs and Excise Management Act 1979 (c.2))".
"Cash" is defined by Section 289(6) as follows:
"(a) notes and coins in any currency,
(b) postal orders,
(c) cheques of any kind, including travellers' cheques,
(d) bankers' drafts,
(e) bearer bonds and bearer shares.
found at any place in the United Kingdom"
The powers of search conferred in section 289 of the Act are circumscribed in various ways. In the first place Section 290 provides as follows:
"(1) The powers conferred by Section 289 may be exercised only with the appropriate approval unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.
(2) The appropriate approval means the approval of a judicial officer (or if that is not practicable in any case) the approval of a senior officer.
(3) A judicial officer means -
(a) in relation to England and Wales and Northern Ireland, a justice of the peace,
(b) in relation to Scotland, the sheriff.
(4) A senior officer means -
(a) in relation to the exercise of the power by a customs officer, a customs officer of a rank designated by the Commissioners of Customs and Excise as equivalent to that of a senior police officer,
(b) in relation to the exercise of the power by a constable, a senior police officer.
(5) A senior police officer means a police officer of at least the rank of inspector.
(6) If the powers are exercised without the approval of a judicial officer in a case where -
(a) no cash is seized by virtue of Section 294, or
(b) any cash so seized is not detained for more than 48 hours,
the customs officer or constable who exercised the powers must give a written report to the appointed person.
(7) The report must give particulars of the circumstances which led him to believe that -
(a) the powers were exerciseable, and
(b) it was not practicable to obtain approval of a judicial officer.
(8) In this section and Section 291, the appointed person means -
(a) in relation to England and Wales and Northern Ireland, a person appointed by the Secretary of State,.
(b) in relation to Scotland, a person appointed by the Scottish Ministers.
(9) The appointed person must not be a person employed under or for the purposes of a government department or of the Scottish Administration; and the terms and conditions of his appointment, including any remuneration or expenses to be paid to him, are to be determined by the person appointing him."
Section 293 of the Act then goes on to provide as follows:
"(1) The Scottish Ministers must make a code of practice in connection with the exercise by constables in relation to Scotland of the powers conferred by virtue of section 289.
(2) Where they propose to issue a code of practice they must -
(a) publish a draft,
(b) consider any representations made to them about the draft,
(c) if they think it appropriate, modify the draft in the light of any such representations.
(3) They must lay a draft of the code before the Scottish Parliament.
(4) When they have laid a draft of the code before the Scottish Parliament they may bring it into operation by order.
(5) They may revise the whole or any part of the code issued by them and issue the code as revised; and subsections (2) to (4) apply to such a revised code as they apply to the original code.
(6) A failure by a constable to comply with a provision of the code does not of itself make him liable to criminal or civil proceedings.
(7) The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant."
Section 292 provides for a code of practice to be made by the Secretary of State in connection with the exercise by customs officers of the powers conferred on them by virtue of Section 289 on the same lines as the code of practice to made under Section 293 and with the same effect. The provisions of Sections 290, 292 and 293 in my opinion, clearly demonstrate that the legislature appreciated that the nature and extent of the powers conferred by Section 289 were such as required to be exercised subject to significant safeguards against their potential for abuse. It is, perhaps, significant to note that Section 292(7) and 293(7) envisaged that the codes of practice might be looked at in court proceedings which are not confined in Scotland to the particular types of proceedings provided for in the Act, far less to proceedings in the Sheriff court.
[5] The following provisions of the 2002 Act proceed to deal with the powers of customs officers and constables to seize cash. Section 294 of the Act provides as follows:"(1) A customs officer or constable may seize any cash if he has reasonable grounds for suspecting that it is -
(a) recoverable property, or
(b) intended by any person for use in unlawful conduct.
(2) A customs officer or constable may also seize cash part of which he has reasonable grounds for suspecting to be -
(a) recoverable property, or
(b) intended by any person for use in unlawful conduct,
if it is not reasonably practicably to seize only that part.
(3) This section does not authorise the seizure of an amount in cash if it or, as the case may be, the part to which his suspicion relates, is less than the minimum amount"
I would refer back to the definitions of "recoverable property", "unlawful conduct" and "minimum amount" to which I have referred above.
[6] Section 302 of the Act provides for compensation to be paid to persons to whom the cash belongs, or from whom it was seized, in the event of no forfeiture order being made in respect of it. In terms of that section compensation beyond the interest earned on the cash which has been placed on an interest bearing account (or which should have been so earned) is only to be ordered where the Sheriff is satisfied that the applicant has suffered loss as a result of the detention of the cash and that the circumstances are exceptional (see Section 302(4)). Section 302(5) provides that:"The amount of compensation to be paid under subsection (4) is the amount the court or Sheriff thinks reasonable, having regard to the loss suffered and any other relevant circumstances."
The Petitioners' Case, as Averred.
[7] Having set out the relevant statutory provision, I now return to the petitioners' averments. Each of the petitioners complains about the nature of the searches carried out by the customs officers and the manner in which the searches were carried out, which they allege caused them embarrassment, fear and humiliation. They aver that the conduct of the customs officers in this regard was unlawful and without justification. They claim that an award of damages is necessary "to afford just satisfaction in terms of Section 8 of the Human Rights Act 1998". They then proceed to aver that the seizure of the cash and the order of the Sheriff were unlawful, ultra vires and of no effect. In relation to the searches carried out on them, they complain that they were not carried out in conformity with the codes of practice made under Section 292 of the 2002 Act. They furthermore aver that while the Customs and Excise Department has informed their agents that the searches were not carried out under Section 289 of the 2002 Act but were, nevertheless, authorised by provisions contained in Section 78 of the Customs and Excise Management Act 1979, those last mentioned provisions did not authorise the search or questioning of the petitioners which did, in fact, take place. [8] Each of the petitioners avers that the summary applications made in respect of the money seized from them to the Sheriff, under Section 295, narrated that the customs officers had reasonable grounds for suspecting part of the cash seized was recoverable property. Nevertheless, all the cash in question has been detained. The petitioners aver that cash may be seized only if the customs officer has reasonable grounds for suspecting that it is recoverable property within the meaning of the Act or intended by any person for use in unlawful conduct within the meaning of the Act and that, further, "only if it is not reasonably practicable to seize only the part to which the suspicion relates may all the cash be seized." The petitioners aver that the customs officers had no reasonable grounds for suspicion in terms of the Act and that, in any event, even if there were such grounds, it would have been reasonably practicable to release part of the cash not affected by such suspicion. It is averred on behalf of the petitioners that the summary applications brought by the procurator fiscal under Section 295 do not themselves indicate whether the cash was seized under reference to the provisions of Section 294(2)(a) or the provisions of Section 294(2)(b) or both, nor what reasonable grounds, if any, there were for having suspicions in terms thereof. No reason, it is said, was given in the applications as to why it was not reasonably practicable to seize only that part of the cash to which any suspicion related. [9] In relation to the petitioner Yin Yong Ho, it is averred that, in her case, the sum of cash seized from her was less than the minimum amount as defined under the provisions of Sections 303 of the 2002 Act. It is averred "The minimum amount is £10,000 (as provided by The Proceeds of Crime Act 2002 (Recovery of Cash in Summary Proceedings Minimum Amount) Order 2002 SI No. 3016. The cash seized from this petitioner amounted to £4,900." [10] In the petitions of Yin Yong Ho, Po Lam Ho and Wong Meng Hong it is averred that three separate seizures of three separate amounts of cash were made, yet the applications under Section 295 were made against all these petitioners jointly and in respect of the cumulative total of the sums seized from them individually. According to the petitioners three separate applications for extensions of time were required to be brought in respect of each seizure. It is furthermore asserted, in the petitions that "the Act does not authorise the amalgamation of seizures in order to achieve a cumulo seizure of £10,000 or more". [11] The petitioners then turn their attack on the procedure before the Sheriffs and the interlocutors pronounced by the Sheriffs. It is said that the Sheriff, in each case, made the order in question under Section 295(5) in circumstances where he required to make the order under Section 295(7). Moreover, and in any event, it is averred that to make any order the Sheriff required to be satisfied that there were reasonable grounds for suspecting that part of the cash was recoverable property and either its continued detention was justified to investigate its derivation or to consider bringing proceedings against any person for an offence with which that cash is connected, or that proceedings against a person for an offence with which the cash is connected have been started and have not been concluded. The Sheriff also had to be satisfied that it was not reasonably practicable to detain only that part of the cash in relation to which there were suspicions. The complaint against the Sheriff in each case is that he:"could not be satisfied that there are reasonable grounds for suspecting that any part of the cash is recoverable as no such grounds existed. Further, despite making an order in respect of all of the cash seized, only part of which was apparently the subject of suspicion, he failed to consider whether it was reasonably practicable to detain only that part, as he is required to do under section 295(7)(b)"
"if, on the other hand, the Sheriff was advised of a basis for the reasonable grounds, apart from the averments contained in the Summary Application then it was incumbent upon him to indicate his reasons for being so satisfied. In the absence of such averment, failing which reasons, the Interlocutor pronounced by the Sheriff's ultra vires. It cannot stand nor may the period of detention be further extended".
Additional Case
[14] In opening his submissions, in reply to submissions which had been made senior counsel for the first named respondent, senior counsel for the petitioners drew my attention to receipts which were given to the petitioners for the monies seized from them. The receipts are referred to in the petitions and are lodged in process. On the body of each of the receipts appears the following statement:"The cash may have to be forfeited under the Proceeds of Crime Act 2002. For seizures made in England, Wales or Northern Ireland HM Customs and Excise will apply to a magistrate within 48 hours from the time of seizure for an order to detain the cash for up to 3 months. In Scotland the Procurator Fiscal will apply to the Sheriff on behalf of HM Customs and Excise for such an order.
You may attend the relevant hearings and may wish to consult a solicitor for advice on your rights.
At any time while the cash is detained you may claim that it is not liable to be detained or forfeiture." (My emphasis).
Notwithstanding the statement on the receipts, which I have highlighted, to the effect that the petitioners might attend the hearing before the Sheriff on the application to continue detention of the cash for up to three months, senior counsel for the first named respondent, whose submissions counsel for the second named respondent adopted, had submitted that none of the petitioners was entitled to be notified of the time or place of the hearing before the Sheriff, far less be heard or be represented at any such hearing. All that the petitioners were entitled to, it was submitted, was notification of any order made by the Sheriff in terms of Section 295(8). After discussion between senior counsel for the petitioners and the court about the possible significance of the terms of the receipts given to the petitioners, in relation to the submission that had been made on behalf of the respondents, senior counsel for the petitioners intimated that he intended to seek leave to amend the petitions to add a new ground for attacking the Sheriffs interlocutors, arising from these matters. An amendment was not produced until the resumed first hearing on the matter. On that occasion senior counsel for the petitioner sought leave to lodge a minute of amendment in each of the petitions. Senior counsel for the first named respondent did not appear on that occasion, but junior counsel for the first named respondent and junior counsel for the second named respondent did not oppose the petitioners being allowed to amend the petitions in terms of the minutes of amendment. Furthermore, they did not seek to have the first hearing discharged to allow them to consider the minutes of amendment and to answer them, but they did indicate that they may wish to answer the content of the minutes of amendment in due course. They did not, however, consider that the content of the minutes of amendment materially altered their position with regard to competency.
[15] I allowed the petitioners to amend their petitions in terms of the minutes of amendment. The minutes of amendment add a new statement of fact, 5(e), in each of the petitions in the following terms:"The receipt for the cash seized from the petitioner (Schedule of Documents: Document 4) states inter alia:-
'The cash may have to be forfeited under the Proceeds of Crime Act 2002. For seizures made in England and Wales or Northern Ireland, HM Custom (sic) and Excise will apply to a magistrate within 48 hours from the time of seizure for an order to detain the cash for up to 3 months. In Scotland the Procurator Fiscal will apply to the Sheriff on behalf of HM Customs and Excise for such an order. You may attend the relevant hearings, and may wish to consult a solicitor for advice on your rights'.
The Scottish Ministers' position is that notwithstanding these express terms there is no right to attend the hearing before the Sheriff or be heard at it. Accordingly the petitioner was not advised of a time or place of the hearing and was not permitted to be heard at it. It is submitted that contrary to the position of the Scottish Ministers the petitioner had a right to be heard before the Sheriff. He had a right because of the nature of the decision being made by the Sheriff. The Sheriff required to be satisfied of certain facts and if so satisfied the petitioner was liable to be deprived of his property for a period of three months. Accordingly the petitioner had a right to be heard and in the absence of such a right the decision of the Sheriff cannot stand. In any event he had a right because he was advised clearly and unequivocally that he had such a right. The decision of the Sheriff having been deliberately made in his absence cannot stand."
1. The searches of the petitioners were unlawful and therefore the consequent seizure and detention of the cash were unlawful.
2. The customs officers had in the circumstances no grounds for reasonable suspicion that the conditions set out in the statute for seizure of cash to be justified, were met.
3. The customs officers were not entitled, in the particular circumstances, to seize the total amount of cash in question when they had a suspicion only in relation to parts thereof.
4. In the case of the petitioner, Yin Yong Ho, the customs officers were not entitled to seize the cash which was below the minimum amount prescribed in terms of the legislation.
5. The petitioners were not given the opportunity of being heard or represented before the Sheriff at the hearing of the Section 295 applications.
7. The applications themselves were defective in that they did not provide sufficient material to the Sheriff to enable him to be satisfied in relation to the matters required to be satisfied about in terms of Section 295.
8. The Sheriff's decision and interlocutors were defective because of the absence of adequate reasons.
The Respondents' attack on Competency
[18] The attack on the competency of the petitions, made by senior counsel for the first named respondent, was based on the single proposition that the petitioners were barred from judicial review of the matters complained of because of the availability of a statutory remedy. This proposition was broken down into four submissions. The first was that that the scope of the statutory remedies available under the 2002 Act were sufficiently wide to provide the petitioners with "a remedy" for their complaints. The second was that the petitioners had not exercised their statutory remedy and the general principle was that they must do so before they could resort to judicial review. The third submission was that where a party has not exhausted his statutory remedy then only in special circumstances, such as where the complaint was in relation to an act or decision which involved a fundamental invalidity or involved a palpable excess of jurisdiction could that party resort to judicial review. The last of the four points made by senior counsel, for the first named respondent, in support of his general proposition, was that this court should be wary of trespassing on the jurisdiction of other courts and bodies. After having reviewed the various statutory provisions in the 2002 Act, to which I have referred above, senior counsel's position was that the provisions of Section 297(3) of the Act were sufficiently widely drawn to permit an applicant, who brings an application to the Sheriff under that sub-section, to advance any argument, whether relating to the initial lawfulness of the seizure and detention of the cash or any subsequent change of circumstance since those events. I was advised by senior counsel for the first respondent that applications for forfeiture of the cash had been now made but the proceedings in relation thereto were "sisted" to await the outcome of the present proceedings. He went on to submit that if the application for forfeiture under Section 298 continued then, in due course, there would be what he described as "a full blown hearing". Section 298(4) of the Act, however, provides that:"Where an application for the forfeiture of any cash is made under this section, the cash is to be detained (and may not be released under any power conferred by this chapter) until any proceedings in pursuance of the application (including any proceedings on appeal) are concluded."
Senior counsel for the first named respondent had to recognise that, in the light of that provision, since applications for forfeiture had now been made, the petitioners were no longer able to bring an application under Section 297, but he submitted that they had had that opportunity and had not taken it before the applications for forfeiture were made. Senior counsel also reminded me of the provisions of Section 302 regarding compensation and interest but had to acknowledge that these, however, are remedies which are not available to the petitioners at this point in time.
[19] Having drawn my attention to those various provisions in the 2002 Act, senior counsel referred me to the case of British Railways Board v Glasgow Corporation 1978 SC 224 in support of the general proposition that the supervisory jurisdiction of the Court of Session cannot be invoked where a statutory appeal procedure has not been exhausted. As Lord Kissen in his judgment, in that case, at page 234 remarked "the court's jurisdiction cannot be invoked where, as here, the statutory appeal procedure has not been exhausted and the question sought to be raised in the court could have been decided by the statutory appeal". It is important, in my opinion, however, not to lose sight of the important qualification in Lord Kissen's dictum viz, "and the question sought to be raised in the court could have been decided by the statutory appeal". Reference was also made to the case of Tarmac Econowaste Ltd v The Assessor for Lothian Region 1991 SLT 77 to illustrate that the principle applied not only where there was a statutory right of appeal but also where other statutory remedies were available. While senior counsel accepted that the legality of the searches, in the present cases, might be subject to judicial review, he maintained that the burden of the petitions involved a complaint about the seizure and detention of the cash and the extended time of their detention all of which, he submitted, could have been dealt with by the Sheriff in an application, made to him, under Section 297 of the 2002 Act. [20] With regard to the question of the legality of the searches, however, senior counsel drew my attention to the case of Commissioners of Customs and Excise v R. Ex. p Hoverspeed Limited and Others (2003) 1 CMLR 742. That was a case where individuals challenged, by way of judicial review in England, the seizure by customs officers of cigarettes, tobacco and alcohol being brought from France in a car driven by one of them. The car was also seized. Among other things they complained that the checks which the customs officers had carried out as to the contents of the car, which led to the seizure of the goods and the car were unlawful. The Court of Appeal, in that case, held that the seizure of the goods could not be regarded as axiomatically invalid merely because it occurred as a result of a check which itself was invalid - see page 773. Senior counsel also, however, referred me to a passage in the judgment of the court, given by Mance LJ, at page 776 where his Lordship, having been referred to certain remedies available in the statutory provisions, under which the seizures took place, said this:"we agree that in view of the alternative framework of remedies, courts should be reluctant to interfere on the facts with decisions by Customs whether to seize, despite the discretionary element introduced by the word "may" which appears in Section 139(1). The proper remedy in such cases is, as Mr Barling submits, to use that framework of remedies."
Senior counsel, as I understood him, sought to rely upon that dictum in support of his general proposition in the present case. It may, however, be of some significance to note that Mance LJ went on to say "However, there may possibly be claims for damages under Community Law of the Convention, for which this framework does not cater ". The court then apparently went on to accept that such matters might remain to be determined in judicial review and outwith the statutory framework. Senior counsel, however, maintained that what he described as the "tagging on" of damages claims, in the present petitions, ought not to turn otherwise inappropriate applications for judicial review into appropriate ones.
[21] The statutory provisions with which the present proceedings are concerned can, in some respects, be seen to be an extension of powers and procedures which existed previously in relation to cash which was suspected to have been the proceeds of drug trafficking. Those provisions are contained in the Drug Trafficking Act 1994. Section 42 of that Act can be seen to contain very similar provisions in relation to seizure of such cash as are contained in Sections 294-297, inclusive, of the 2002 Act. In particular Section 297 of the 2002 Act can be seen to be the equivalent of Section 42(6) of the 1994 Act. It may be instructive, however, to have regard to the differences in the wording of the respective provisions with regard to when the Sheriff may direct the release of detained cash. In Section 42(6) of the 1994 Act it is provided as follows:"At any time while cash is detained by virtue of the preceding provisions of this section -
(a) a magistrates' court or in Scotland the sheriff may direct its release if satisfied -
(i) on an application made by the person from whom it was seized or a person by or on whose behalf it was being imported or exported, that there are no, or are no longer any, such grounds for its detention as are mentioned in subsection (2) above;" (My emphasis).
The grounds mentioned in subsection (2) of Section 42 of the 1994 Act are that there are reasonable grounds for respecting that the cash directly or indirectly represents any person's proceeds of drug trafficking, or is intended by any person for use in drug trafficking and that continued detention of the cash is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the United Kingdom or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.
Section 297(2) and (3) of the 2002 Act, it will be recalled, provide as follows:
"(2) A magistrates court or (in Scotland) the sheriff may direct the release of the whole or any part of the cash if the following condition is met.
(3) The condition is that the court or Sheriff is satisfied, on an application by the person from whom the cash was seized, that the conditions of section 295 for the detention of the cash are no longer met in relation to the cash to be released". (My emphasis).
It will be noted that the condition in Section 297 is not that the conditions under Section 295 are not met but only that they are no longer met. That contrasts with the wording which I have emphasised in the equivalent provision in the 1994 Act. Senior counsel for the first named respondent recognised that, at first sight, the contrast between the wording in Section 297 of the 2002 Act and the wording of Section 42 of the 1994 Act might argue for the Sheriff being concerned under Section 297 only with a change of circumstances which may have arisen since the original order was made under Section 295, but he argued that the omission of the words "the conditions are not met" did not prevent the Sheriff, in a Section 297 application, from considering whether the Section 295 conditions had ever been met, as well as whether they continued to be met.
[22] Junior counsel for the second named respondent adopted the submissions made on behalf of the first respondent and made certain submissions under reference to Section 302 of the 2002 Act to the effect that the petitioners could recover damages in relation to the matters they complained of by employing the provisions of that section.The Petitioners' Response as to Competency
[23] In reply senior counsel for the petitioners submitted that in exercising his Section 297 jurisdiction, the Sheriff could not deal with the complaints which the petitioners made in the petitions. The Sheriff's jurisdiction under Section 297, having regard to the words "the conditions in section 295 for the detention of the cash are no longer met in relation to the cash to be released" was limited to examining whether there had been a change of circumstances which meant that while the conditions specified in Section 295 had originally been met when the matter came before him under that section, that was no longer the position when he was considering the application being made under Section 297. In that respect senior counsel for the petitioners contrasted the wording of Section 297 in the 2002 Act with the wording of Section 42(6) of the 1994 Act. In judging the question of competency, it was necessary, counsel submitted, to identify carefully what was being complained of and then to ascertain whether the statutory remedy, if any, addressed that complaint. While the petitioners did not, in terms, seek declarators that the searches of them and the seizures of the cash were unlawful, they sought reduction of these acts and the remedy of reduction carried with it if granted, an implied declarator that the acts being reduced were unlawful. There was nothing in the statutory procedure, relied upon by the respondents, to provide redress to the petitioners in respect of unlawful searches and seizures of cash. These were matters which, if they were to be challenged, had to be challenged by way of judicial review. [24] The legislation in question was stigmatised by senior counsel for the petitioners as "draconian" in nature and he submitted, it was, accordingly, of great importance that those empowered to implement and enforce its provisions should do so in good faith and according to law. If they did not do so their actions fell to be controlled by way of judicial review. It was not a criminal offence to carry a sum of money on one's person in excess of £10,000. One had every right to carry about on one's person as much money as one wished. Any interference with that right by the public authorities was not to exceed what was permitted by law. The petitioners' complaints were that the interference with their rights had gone beyond what was permitted. As far as the procedures prescribed by the statutory wording were concerned, there was nothing in the wording of Section 295 itself which excluded a right of persons such as the petitioners to be notified of the applications made under that section and to be heard or represented before the Sheriff on the hearing of such applications. The wording of the receipts for the cash seized, which were given to the petitioners in the present cases, told them clearly that they would have such an opportunity. It was understood that in England and Wales persons from whom money had been seized, under the statute, had the right to be heard before the court when the court was considering a Section 295 application. An example of a person whose monies had been seized being represented at the "48 hours" hearing, under the 1994 Act, could be seen in the case of Walsh and Ethirington v HM Customs and Excise 2001 CLR 982. Yet it was now being asserted, by counsel on behalf of the respondents, that the petitioners had no right to be notified of any applications made under Section 295, far less to be present or represented at the hearings of the applications, their sole right being to be informed of any order pronounced as a result. The petitioners now sought to have reviewed the legality of the section 295 proceedings in those circumstances. This was not something the Sheriff could do in an exercise of his Section 297 jurisdiction. [25] The Sheriff did not appear, on the face of things, at least, ever to have addressed the question which arose, in the case of the petitioner Yin Yong Ho, that the sum seized was less than the minimum amount in terms of the statute. Nor did he appear to have addressed the question of the propriety of cumulo applications being brought in respect of the three seizures of money seized from the petitioners Yin Yong Ho, Po Lam Ho and Wong Meng Hong. The question as to the legality of the customs officers' acts in these respects was amenable to judicial review. Moreover the petitioners wanted to attack the procedure adopted by the Sheriffs at the Section 295 hearings. The applications presented to the Sheriffs, and their interlocutors following thereon, gave no indication, at all, as to the material upon which it was decided that the Section 295 conditions for continuing the detention of the cash were met. It was of particular importance if, contrary to what the petitioners' primary position was, they had no right to be notified of the Section 295 applications far less be heard or represented at the hearing of those applications, that they be provided with full and proper reasons as to why it was considered that the cash should continue to be detained. The Sheriff's interlocutors did not provide any such reasons. These actings of the Sheriffs, in these respects, once again, were amenable to judicial review and the petitioners' complaints in those respects were not something which could competently be reviewed in Section 297 proceedings. [26] The procedure followed in relation to the Section 295 applications was summary application procedure in the Sheriff Court. The primary legislation itself did not specify that. The procedure was prescribed by an act of sederunt, namely the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules Amendment (No. 5) (Proceeds of Crime Act 2002) 2002 SI 2002 No. 563. Paragraph 3.19.2 - (1) of that order provides that:"An application to the Sheriff for an order under Section 295(2) and (7) (extended detention of seized cash) shall be made by summary application"
Section 295(2) provides not only that the Sheriff can grant an extension of time during which the seized cash may be detained up to a maximum of three months, it also provides that subsequent orders may be made for further extensions of time up to a maximum of three months, though by section 295(2)(b) it is provided that, any further order shall not go beyond the end of the period of two years, beginning with the date of the first order. In that connection the provisions of para.3.19.2(2) and (3) of the Act of Sederunt are noteworthy. They are in the following terms:
"(2) An application for any further order for the detention of cash under section 295(2) shall be made by minute in the process of the original application for extended detention of seized cash and shall be proceeded with in accordance with sub-paragraph (3) below.
(3) On the lodging of an application for any further order the sheriff shall -
(a) fix a date for determination of the application; and
(b) order service of the application together with notice of such date for determination on any persons whom he considers may be affected."
The order, accordingly, makes express provision for the application for "a further order" to be served, and notification of any date upon which it is to determined is to be given to persons whom the Sheriff considers may be "affected".
[27] Senior counsel for the petitioners drew my attention to the answers for the respondents, which had been intimated to the petitioners, and which were before the court. In these it is averred that the questioning of the petitioners, which took place at the airport by the customs officers, was done under powers contained in section 78(2) of the Customs and Excise Management Act 1979 and the searching of the petitioners was said to be done under section 164 of that Act. If that were to be the respondents' position, then the petitioners would seek to establish that those provisions did not authorise the actings of the customs officers in question and the searching of the petitioners at the airport, in the particular circumstances. They, furthermore, would contend that, as a result, everything flowing thereafter was invalid and unlawful. Until the answers for the respondents were intimated to the petitioners, they had never been given any notice, by anyone, of the basis of the customs officers' reasonable grounds for suspecting that the cash was recoverable property or what the unlawful conduct was for which it was alleged the cash was to be used. That would, in itself, be a cause for challenging the validity of the whole procedure. But even having regard to what was now set out in the respondents' answers, in relation to these matters, the petitioners would maintain that the material allegedly relied upon as grounds for seizure of the cash was inadequate. In any event, having regard to the position adopted by the respondents in relation to competency, senior counsel for the petitioners submitted that, given that the petitioners had not been provided, prior to the lodging of the answers to the petitions, with any information with regard to what it was the customs officers relied upon, to form their alleged reasonable suspicions, and what was the unlawful conduct the cash was said to relate to, they could not avail themselves properly of the remedy available under section 297. The interlocutors pronounced following the applications under section 295, which were served on the petitioners, gave them no specification as to the basis upon which the Sheriff was satisfied in relation to the matters referred to therein. To succeed in a section 297 application the petitioners would need to have that information so that they could seek to refute or contradict it. [28] The summary applications narrated that the customs officers had reasonable grounds for supposing part of the seized cash was recoverable property or intended by some person for use in unlawful conduct. On that basis the Sheriffs should have considered the applications in terms of section 295(7) of the 2002 Act, but the interlocutors did not refer to that provision. Instead the interlocutors referred to section 295(5). In their answers the first respondents had said that this problem had arisen from a clerical error in that the words "part of which" should not have appeared in the applications themselves. It, nevertheless, was the basis upon which the applications purported to proceed. Lastly, in the case of Yin Yong Ho, there was no adequate explanation given in terms of the Sheriff's interlocutor, as to why the cash seized from her, which fell below the minimum amount, was validly detained. [29] In relation to all of these matters the petitioners' position was that the whole procedure, from beginning to end, as a result of which the cash remained detained, was flawed and invalid. The petitioners sought reduction of the various acts taken by the customs officers, the procurator fiscal and the Sheriff at the various stages referred to. They sought damages for the loss, injury and damage they had suffered because of these invalid acts and procedures. The remedies which were available under the 2002 Act, did not address such complaints, nor provide remedies in relation thereto The limited scope of the section 297 procedure could be seen from the English case of Shah (1999) 163 J.P. 734 (which dealt with the equivalent procedure in the Drug Trafficking Act 1994). The question which the Sheriff could address in such proceedings did not extend to the various questions raised by the petitioners in these cases. Moreover, the compensation regime provided for in section 302 addressed only the primary loss suffered from wrongful deprivation of the possession of cash and only, in "exceptional circumstances", could be employed beyond that. It was far from clear as to whether those provisions could provide for compensation being paid in respect of the types of losses which the petitioners sought to recover as a result of the actings they complained of in the present proceedings. [30] Senior counsel then referred me to various authorities relating to the question of alternative remedies. In the first place he referred me to the case of Mensah v Secretary of State for the Home Department 1992 S.L.T. 727. That was a case where the petitioner had taken a statutory appeal against a decision to deport her. The appeal was ultimately dismissed. She subsequently brought a petition for judicial review challenging the original decision to deport as being ultra vires and fundamentally invalid. The respondent, the Secretary of State, argued that the petition was incompetent because the available statutory remedies had not been fully utilised, with particular reference to the petitioner failing to raise a question of fundamental invalidity of the decision during the statutory appeal proceedings. The Lord Ordinary, Lord Coulsfield, refused to dismiss the petition as incompetent. In the course of his judgment his Lordship, at page 179I-J, said this:"There are a considerable number of authorities in which it has been stated as a general principle of the court will not grant redress in the exercise of its common law jurisdiction to review the proceedings of other authorities in circumstances in which a statutory remedy had been provided and has not been pursued. From the cases cited, however, it appears to me that the question must be whether the jurisdiction of the court is ousted by the terms of the particular statute and in relation to the particular complaint, always taking account of the general principle in construing the particular statute."
At a later stage, in his opinion, the Lord Ordinary, having reviewed a number of authorities said this, at page 180I-J:
"The effect of the authorities is, in my view, that recourse to the Court of Session is not excluded in the case of ultra vires or similar fundamental invalidity of a decision or action, unless, of course, the particular statute does on its own proper construction, provide for such exclusion. Further I can see no reason in the authorities to think that a person's right to challenge a decision in the court on the ground of fundamental invalidity should be lost because he has used the statutory remedy but not raised the issue of validity. If the decision is fundamentally invalid, I do not see why it should matter at what stage that is brought to light."
Senior counsel for the petitioners relied on those passages in support of his submission that even if the petitioners might have raised some, at least, of their present complaints in the section 297 proceedings, their attack was based on the procedure as a whole as being fundamentally invalid and they were not precluded now from raising that complaint by way of judicial review. Senior counsel referred me also to the case of MacKinnon v Argyll & Bute Council 2002 S.L.T. 1275. In that case a petition for judicial review of a decision of a local authority to adopt a private road as a public road was attacked as being incompetent because of a provision in the relevant roads legislation that disputes about such matters should be determined by arbitration. In the petition for judicial review the petitioner sought reduction of the decision of the local authority, in question, as involving an abuse of statutory powers. The Lord Ordinary having considered the terms of the relevant legislation said this, at page 1291B-C:
"....I consider it necessary to identify whether the statutory remedy provided for in section 16(3) of the Act of 1984 can be considered as providing an adequate remedy in the context of the issues which have arisen in the present petition and answers. My conclusion is that it cannot."
His Lordship, thereafter, held the petition to be competent. Senior counsel for the petitioners relying on that case, contended that the section 297 procedure could not provide the petitioners with an adequate remedy for the complaints they now brought.
The Respondents' Reply
[31] In a short reply, junior counsel for the first respondent, in seeking to distinguish the authorities relied upon by the petitioners, submitted that the complaints which the petitioners raised, with the exception possibly of the legality of the searches, did not raise a question of fundamental invalidity. She maintained that all of the petitioners' complaints could be aired under the section 297 procedures, together with the provisions regarding compensation. She was obliged to submit that the legal position as to the proper construction to be placed on the wording of section 297, adopted by the respondents in submission, meant that the Sheriff was entitled to review at large his own previous decision made under section 295 or, indeed, the decision of another sheriff in that regard. Junior counsel then went on to advise me that the receipts for the cash seized had been issued, having regard to their terms, "in error". This was because there was no right, in Scotland, for persons from whom money had been seized to be notified of the section 295 application, or to be present, or represented at the hearing of the application. Such a right, however, did exist in England and Wales and the wording of the receipt was appropriate for the position there. Somewhat faintly, junior counsel suggested that the reason for the difference between the two jurisdictions in this respect was that magistrates courts in England and Wales can apparently be readily convened over weekends, and also that, unlike the position in England Wales, the section 295 applications were brought in Scotland by the procurator fiscal and not the customs officers. On being pressed as to whether any more principled basis for the exclusion of the right available in the operation of the UK legislation in England and Wales, from its operation in Scotland, junior counsel was unable to offer any such explanation.Decision
[32] I am satisfied, having regard to the provisions of the 2002 Act, the averments made in the petitions before me, as amended, and the submissions made in relation thereto, that it cannot be said that the petitions, as framed, are incompetent because of the existence of an alternative statutory remedy or remedies. The respondents did not point to any provision in the 2002 Act which excluded, in its terms, judicial review of the actions and decisions of those entrusted to operate it. Ultimately the question for me, therefore, is whether the statutory provisions provide at least substantially for the consideration of the complaints now brought by the petitioners and the remedies they seek in relation thereto. In my judgment, the answer to that question is clearly in the negative. [33] In these petitions the petitioners complain that the proceedings whereby they have been deprived of possession of the cash in question have, from the beginning to the present time, been fundamentally invalid both taken on their own, at each stage, and cumulatively. The complaints are in relation to the searches and questioning of them at the airport, the seizure of the cash itself, the nature of the proceedings brought under section 295, and before the Sheriff, for detention of the cash beyond 48 hours, and the nature and form of the orders pronounced by the Sheriff. Whether, ultimately, these complaints will prove to have any merit in them remains to be seen, but, as a matter of pure competency, I am satisfied that the petitioners are entitled to seek to have them raised by way of petition for judicial review. [34] While it may be that certain of the individual matters which the petitioners complain of might have been raised by them in an application under section 297 proceedings, I do not consider that the bulk of them could have been. It seems to me that there is a strong argument to be made that the Sheriff's jurisdiction in section 297 proceedings is, contrary to what counsel for the respondents maintained, restricted to a case where there has been a change of circumstances since the interlocutor pronounced by him or another sheriff, under the section 295 proceedings. The contrast between the wording of section 297 of the 2002 Act and the wording of section 42 of the 1994 Act is marked and counsel for the respondents were unable to provide me with any satisfactory explanation as to why the alteration of the wording had taken place and what its effect was. Their position appeared to be that the alteration was one without effect. Be that as it may, all that the Sheriff, in section 297(1) proceedings, can have regard to is whether the conditions set out in section 295 continue to be met. Those conditions relate solely to whether the customs officers had reasonable grounds for suspecting certain things about the cash and its use. The Sheriff is not, under that section, in my judgment, given as it were, a judicial review function as to questions of the fundamental validity and legality of the customs officers' actings in relation to questioning, searching and seizure of the property in question. What is more, the petitioners, as has been seen, complain that the procedure followed in relation to the section 295 applications was illegal and that the Sheriffs' interlocutors arising therefrom, were also invalid. I cannot read section 297 as bestowing upon the Sheriff a jurisdiction to review the legality of the procedure adopted under section 295 and his own actings arising therefrom or the actings of other Sheriffs. In addition, I agree with the approach taken by Lord Coulsfield in the case of Mensah above, that even if, contrary to what I have just said, the petitioners had been able to raise questions of fundamental validity in section 297(1) proceedings, such a possibility does not preclude the raising of these matters by way of judicial review, since the 2002 Act itself does not expressly exclude such a possibility, nor does it, in my opinion, by necessary implication. [35] It is, in my judgment, of some significance that the attack by the petitioners, for example, has exposed that, for what seemed to be reasons of pure procedural convenience, persons from whom money is seized under the legislation in England and Wales are, apparently, considered by the authorities to have the right to be notified of section 275 proceedings and to be heard and represented at them, whereas the authorities take the view that no such right should be made available to persons whose money is seized in Scotland. The obvious discrimination involved in relation to UK legislation, is something, the validity of which I am satisfied must be capable of being competently reviewed by this court in the exercise of its jurisdiction in judicial review. The petitioners also seek, in their petitions, damages arising from the alleged fundamental invalidity of the actings and decisions, about which they complain, and I am satisfied, for the reasons advanced on their behalf in this respect, that the Sheriff may not be able to make awards of damages in respect thereof under section 302 of the 2002 Act, having regard to its wording and context. There was also, in my judgment, some force in the submission made on behalf of the petitioners that, standing the fact that they were not given an opportunity to be present or be represented at the section 295 proceedings, and having regard to the very limited nature of the information said to have been given to them, prior to the answers being lodged in the present proceedings, as to the case against them, it was difficult, if not impossible, for them to know what case they had to rebut in any section 297 proceedings. It is further a relevant consideration, in my judgment, that once an application for forfeiture is made under the 2002 Act, which has happened here, there is no longer any opportunity for the petitioners to avail themselves of the section 297 procedure. The forfeiture procedure then must take its course. [36] I, accordingly, reach the conclusion that the present petitions are not incompetent in that they present, cumulatively a case that the whole procedure date, from beginning to end regarding the seizure and detention of the cash in question has been fundamentally invalid. The 2002 Act is legislation of very great significance and scope. The policy behind it is clear and understandable but, in its application, it has the considerable potential for abuse of the rights of innocent persons. The Act itself recognises that in various ways by building in safeguards, e.g. the provisions regarding codes of practice and compensation, but I am satisfied that the legislature, beyond that, did not intend that the review of the legality and validity of the operation of the legislative provisions, by the officials and courts, charged with the responsibilities under the Act, should be confined to the Sheriff court exercising the powers conferred by the Act in section 297 and section 302. Such matters, in my judgment, remain for this court to determine in the exercise of its jurisdiction under Rule of Court 58.3. That must be so, in my judgment, in particular where the complaints include complaints against the very procedure adopted and followed in the Sheriff court under section 295 in respect of which there is no right of appeal. It is the role of the Court of Session, and, it alone, as the Supreme Court, exercising this supervisory jurisdiction, to ensure that those vested with a legal authority exercise that authority lawfully and properly. "The existence of a supervisory jurisdiction is a fundamental element of a constitution which is based on respect for the rule of law. It is an inherent jurisdiction of a supreme court and cannot be taken away consistently with respect for the rule of law" (see Clyde & Edwards "Judicial Review" at para. 1.01). [37] For all the foregoing reasons I therefore hold the petitions to be competent and I will repel the respondents' pleas-in-law relating to competency.
