AS TO THE ADMISSIBILITY OF
Application No. 18465/91
by AIR CANADA
against the United Kingdom
The European Commission of Human Rights sitting in private on
1 April 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 May 1991 by
Air Canada against the United Kingdom and registered on 8 July 1991
under file No. 18465/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to:
- the observations submitted by the respondent Government on
25 March 1992 and the observations in reply submitted by the
applicant company on 22 May 1992;
- the further observations submitted by the Government on
15 July 1992 and the applicant company's reply of
16 September 1992;
- the parties' further observations, submitted by the respondent
Government on 22 January and by the applicant company on
26 January 1993;
- the hearing held on 1 April 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a corporation incorporated under Canadian law.
It is a registered overseas company in the United Kingdom with a
registered office in Hounslow, Middlesex. It is represented before the
Commission by Messrs Neil McGilchrist and David Johnston, solicitors,
of Messrs. Beaumont and Son, Solicitors, London.
The facts of the case, as submitted by the parties, may be
summarised as follows:
A Tristar aeroplane, owned and operated by the applicant company,
landed at London Heathrow Airport on 26 April 1987 where it discharged
cargo including a container which, when opened, was found to contain
331 kgs of cannabis resin, of a "street value" of about £800,000. The
aeroplane was on a regular scheduled flight starting in Singapore and
travelling to Toronto, landing en route at Bombay and Heathrow. It
carried both fare-paying passengers and cargo. Subsequently the
aircraft made further international flights which included return
visits to the United Kingdom. On one of these subsequent visits which
occurred on Friday 1 May 1987, a bank holiday, representatives of the
Commissioners of Customs and Excise ("the Commissioners") seized the
aircraft as liable to forfeiture under Section 141 (1) of the Customs
and Excise Management Act 1979 ("the 1979 Act"). Later on the same
day, acting under powers contained in Section 139 (5) and para. 16 of
Schedule 3 of the 1979 Act, the aircraft was delivered back to the
applicant company on payment by the latter of £50,000. On 20 May 1987
the applicant company's solicitors gave notice of a claim challenging
the Commissioners' assertion that the aircraft was liable to
forfeiture. Accordingly, the Commissioners initiated condemnation
proceedings as required by para. 6 of Schedule 3 to the 1979 Act.
On the hearing of a preliminary issue, it was accepted that the
importation of cannabis resin was prohibited under Section 31 of the
Misuse of Drugs Act 1971 and that the cannabis was liable to forfeiture
by virtue of Section 49 (1)(b) of that Act. It was also accepted that
after landing on 26 April 1987 the aircraft had made several scheduled
international flights including flights into the United Kingdom before
it was seized on 1 May 1987.
The following questions were formulated for the trial of the
preliminary issue:
"(1) Whether the facts (a) that cannabis resin was found in
container ULD 6075AC and (b) that that container had been
carried by Aircraft on Flight AC 859 on 26 April 1987 alone
constitute 'use of aircraft for the carriage of a thing
liable to forfeiture' within the meaning of Section 141
(1)(a) of the Customs and Excise Management Act 1979 such
as to justify its subsequent seizure on 1 May 1987.
(2) Whether it is a defence to the plaintiffs' [the
Commissioners'] claim in this action if the defendants [the
applicant company] establish that they did not know that
the aforesaid container contained cannabis resin and were
not reckless in failing so to discover.
(3) Whether it is a defence to the plaintiffs' claim in this
action if the defendants established that they could not with
reasonable diligence have discovered that cannabis had been
secreted and hidden or was being carried in the container nor
could they by the exercise of reasonable diligence have prevented
its being secreted and hidden in the container.
(4) Whether it is necessary for the plaintiffs to prove in
this action:
i. that the defendants knew or ought to have
known that cannabis resin was on board the
aircraft on 26 April 1987 and/or
ii. that the aircraft was on other than a
regular scheduled and legitimate flight."
Mr. Justice Tucker gave judgment on 7 November 1988 on the
preliminary issue. After considering the law and the authorities, he
concluded:
"I cannot think that the draughtsman of the 1979 Act had
the present situation in mind. I cannot believe that it
was the intention of Parliament that the innocent and bona
fide operator of an extremely valuable aircraft on an
international scheduled flight should be at risk of having
the aircraft forfeited if, unknown to him and without any
recklessness on his part, some evil-minded person smuggles
contraband or prohibited goods aboard the aircraft. It
cannot sensibly be said that in such circumstances the
aircraft "has been used for the carriage". What has been
used is no more than the opportunity afforded by the
availability of cargo space on an already scheduled flight
which was going to be made in any event."
Adopting the words of Lord Reid in the case of Warner v. the
Metropolitan Police Commissioner ([1969] 2 QB 256), he said:
"I refuse to believe that Parliament can ever have intended
such an oppressive result."
He determined the preliminary issues as follows:
"1. No. Those facts alone do not constitute "use of the
aircraft for the carriage of a thing liable to forfeiture."
2. Yes. It is a defence.
3. Yes. It is a defence.
4. It is necessary for the plaintiffs to prove in this
action:
(i) that the defendants knew or ought to have
known that cannabis resin was on board the
aircraft on 26 April 1987; or (but not and)
(ii) that the aircraft was on other than a
regular scheduled and legitimate flight."
The Commissioners appealed to the Court of Appeal, which gave its
judgment on 14 June 1990.
Lord Justice Purchas, giving the first judgment, described the
question in the appeal thus:
"Does the aircraft or other vehicle container, etc. become
liable to forfeiture without more merely because it is
established that it was used for the carriage of prohibited
goods; or is it necessary before the forfeiture provisions of
Section 141 (1) can be invoked to establish that there was some
degree of knowledge in the owner or user or proprietor of the
aircraft; or a reckless disregard in relation to what was being
carried on the aircraft?"
After summarising the arguments and considering the authorities,
he found:
"The wording of Section 141 is, in my view, clear and
unambiguous and does not permit of any implication or
construction so as to import an element equivalent to mens
rea [criminal intent] nor does it involve in any way any
person in the widest sense whether as user, proprietor or
owner but depends solely on "the thing" being used in the
commission of the offence which rendered the goods liable
to forfeiture. ... In my judgment the mitigating provisions
included in Section 152 and paragraph 16 of Schedule 3,
indicate clearly that Parliament intended to trust to the
Commissioners the exercise of these matters of discretion.
Apart from this the exercise of this discretion will be
readily open to review by the court under R.S.C. Order 53.
This is a remedy which has developed very considerably in
recent years and was not so available at the time when the
earlier authorities were decided. I would only comment
that there may well be a case to exclude inter-continental
or large passenger jet aeroplanes flying on scheduled
flights from Section 141 (1) in the same way as vessels
over a certain size have been excluded and to provide for
them in Section 142. ...
The expression 'which has been used for the carriage of the
thing so liable to forfeiture' is perfectly
straightforward. To attempt to distinguish in some way the
carriage of the article in question on a scheduled flight
as opposed to a specially commissioned flight raises a
totally illogical distinction and flies in the face of the
ordinary meaning of the words in the section."
Lord Justice Balcombe and Sir David Croom-Johnson, agreeing with
Lord Justice Purchas, gave separate judgments.
The questions for consideration on the preliminary issue were
accordingly answered as follows:
1. Yes.
2. No.
3. No.
4. No.
Leave to appeal to the House of Lords was refused.
On 7 November 1990 the House of Lords also refused to grant leave
to appeal.
On 15 July 1992, in the course of the proceedings before the
Commission, the respondent Government submitted further observations
which included a list of nine matters which had given rise to concern
about Air Canada's procedures at Heathrow Airport. These matters
related to specific cases in which drugs had entered or were believed
to have entered the United Kingdom via Air Canada, and to
correspondence between Air Canada and the authorities involved.
Relevant domestic law and practice
Customs and Excise Management Act 1979
Section 139 (5)
"Subject to Sub-sections (3) and (4) and to Schedule 3 to
the Act any thing seized or detained under the Customs and
Excise Acts shall, pending the determination as to its
forfeiture or disposal, be dealt with and if condemned or
deemed to have been condemned or forfeited, shall be
disposed of in such manner as the Commissioners may
direct."
Section 141 (1)
"...where any thing has become liable to forfeiture under
the Customs and Excise Acts -
(a) any ship, aircraft, vehicle, animal,
container (including any article of passengers'
baggage) or other thing whatsoever which has
been used for the carriage, handling, deposit or
concealment of the thing so liable to
forfeiture, either at a time when it was so
liable or for the purposes of the commission of
the offence for which it later became so liable;
... shall also be liable to forfeiture."
Section 142 (1)
"Notwithstanding any other provision of the Customs and
Excise Acts 1979, a ship of 250 or more tons register shall
not be liable to forfeiture under or by virtue of any
provision of
the Customs and Excise Acts 1979, unless the offence in respect
of or in connection with which the forfeiture is claimed -
(a) was substantially the object of the voyage
during which the offence was committed; or
(b) was committed while the ship was under chase
by a vessel in the service of Her Majesty after
failing to bring to when properly summoned to do
so by that vessel."
Section 152
"The Commissioners may, as they see fit -
(a) stay, sist or compound any proceedings for
an offence or for the condemnation of any thing
as being forfeited under the Customs and Excise
Acts; or
(b) restore, subject to such conditions (if any)
as they think proper, any thing forfeited or
seized under those Acts; or
(c) after judgment mitigate or remit any
pecuniary penalty imposed under those Acts;
..."
Schedule 3, para. 6
"Where notice of claim in respect of any thing is duly given in
accordance with [paragraph 5] the Commissioners shall take
proceedings for the condemnation of that thing by the court, and
if the court finds that the thing was at the time of seizure
liable to forfeiture the court shall condemn it as forfeited."
Schedule 3, para. 16
"Where any thing has been seized as liable to forfeiture
the Commissioners may at any time if they see fit and
notwithstanding that the thing has not yet been condemned,
or is not yet deemed to have been condemned, as forfeited -
(a) deliver it up to any claimant upon his
paying to the Commissioners such sum as they
think proper, being a sum not exceeding that
which in their opinion represents the value of
the thing, including any duty or tax chargeable
thereon which has not been paid; ..."
Domestic Case-law
Judicial review proceedings in respect of decisions of the
Commissioners under Section 152 have been brought in two cases. In R.
v. Commissioners of Customs and Excise ex parte Haworth (judgment of
17 July 1985) the Commissioners had seized the applicant's yacht as
liable to forfeiture. He asked the Commissioners to exercise their
discretion under Section 152 and return the yacht. The High Court,
after considering correspondence between the applicant and the
authorities and describing the Commissioners' powers as "astonishing",
found that the Commissioners had not properly exercised their
discretion in that they had not given Mr. Haworth the opportunity to
reply to matters held against him. The decision did not affect the
seizure of his yacht.
In R. v. Commissioners of Customs and Excise ex parte Tsahl
(judgment of 11 December 1989) the Commissioners had decided to return
diamonds which had been seized on payment of £228,190. The High Court
was prepared to interfere with the Commissioners' discretion only to
the extent of requiring the Commissioners to take as date of valuation
of the diamonds (for the purpose of determining the amount of the
payment for their return) the date of return rather than the date of
import.
COMPLAINTS
The applicant company considers that there is no proportionality
between the width of Section 141 of the 1979 Act as applied in the
present case and the aim sought to be pursued. They allege a violation
of Article 1 of Protocol No. 1 to the Convention in this respect.
The applicant company also alleges a violation of Article 6 of
the Convention. It refers to the dissenting opinion of Judge Pettiti
in the Agosi case (Eur. Court H.R., Agosi judgment of 24 October 1986,
Series A no. 108) according to which the applicant in that case was
"denied the opportunity both of proving its innocence in criminal
proceedings and of asserting its rights in civil proceedings".
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 May 1991 and registered on
8 July 1991.
On 6 January 1992 the Commission decided to communicate the
application to the respondent Government and to request the parties to
submit their written observations on the admissibility and merits of
the application so far as it relates to Article 1 of Protocol No. 1 to
the Convention.
The Government submitted their observations on 25 March 1992 and
the applicant company submitted its observations in reply on
22 May 1992. On 15 July 1992 the Government submitted further
observations, to which the applicant replied on 16 September 1992.
On 7 December 1992 the Commission decided to invite the parties
to an oral hearing on the admissibility and merits of the case. It
also decided to request them to submit further written observations on
the admissibility and merits of the issues arising under Article 6 of
the Convention.
The respondent Government submitted their observations on 22
January 1993 and the applicant company submitted its observations on
26 January 1993.
At the hearing, which was held on 1 April 1993, the parties were
represented as follows:
For the Government
Mrs. A. F. GLOVER, Foreign and Commonwealth Office, Agent
Mr. D. PANNICK, Q.C., Counsel
Mrs. C. D. HUGILL, HM Customs and Excise, Adviser
Mr. I. WALTON, HM Customs and Excise, Adviser
For the Applicant
Mr. D. B. JOHNSTON, Solicitor, Messrs. Beaumont & Son
Mr. R. WEBB, Q.C., Counsel.
After the hearing the Commission deliberated and declared the
application admissible.
THE LAW
1. The applicant company alleges a violation of Article 1 of
Protocol No. 1 (P1-1) to the Convention which provides as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
The Government consider that the applicant company, by not
applying to the High Court for judicial review of the decision of the
Commissioners of Customs and Excise ("the Commissioners") to return its
aircraft on payment of £50,000, has failed to exhaust domestic
remedies. In the alternative, the Government submit that the complaint
is manifestly ill-founded as various matters had given rise to
considerable concern about the procedures adopted by Air Canada and
that these matters, taken together with the possibility of an
application for leave to apply for judicial review, satisfy the
requirements of Article 1 of Protocol No. 1 (P1-1) that a fair balance
be struck between the conflicting interests in the case.
The applicant company submits that judicial review could not have
adequately remedied its complaints under Article 1 of Protocol No. 1
(P1-1) as judicial review is of limited scope; in particular it does
not include an examination of proportionality, it is a review rather
than a decision-taking process, and it is discretionary. It further
submits that a fair balance has not been struck between the demands of
the general interest and its own interests where, notwithstanding the
assumption on which the condemnation proceedings were based that there
was no fault by Air Canada, Air Canada was outwitted by a clever
smuggler and deprived of its aeroplane and £50,000.
With regard to the Government's contention that the applicant
company has not exhausted domestic remedies in connection with this
complaint, the Commission first notes that, by requiring the
Commissioners to institute condemnation proceedings and by pursuing
those proceedings to the Court of Appeal and the House of Lords, the
applicant company did everything possible to challenge the seizure as
such.
The Commission next notes that the applicant's complaints do not
relate to two separate incidents - one concerning the seizure and
subsequent forfeiture of aircraft and the other concerning the
requirement that they pay £50,000 for its return - but rather to the
events as a whole. It is clear from the two decided cases on Section
152 of the Customs and Excise Management Act 1979 (R. v. Commissioners
of Customs and Excise ex parte Haworth, judgment of 17 July 1985; R.
v. Commissioners of Customs and Excise ex parte Tsahl, judgment of 11
December 1989) that the courts would only deal with matter which would
be peripheral to the central issues in the present case. Thus in
Haworth, where the Commissioners appear not to have exercised their
Section 152 discretion, the High Court ordered the Commissioners to re-
consider whether to exercise that discretion: the courts did not take
any decision on the merits of the case at all. In Tsahl, which
concerned the return of forfeited diamonds for a fixed proportion of
their value, the High Court was only prepared to intervene to the
extent of taking a different date of valuation. It is apparent from
the general tenor of both these judgments, at least in cases involving
the exercise of the Commissioners' discretion under Section 152 of the
Customs and Excise Management Act, that the courts accept that the
Commissioners have a remarkably wide discretion in deciding whether and
on what conditions to restore things forfeited. Even if, as in the
Haworth case, the applicant company could have founded an application
for judicial review on a procedural error, the effect would only have
been to have required the Commissioners to reconsider the exercise of
their discretion. Judicial review would not have provided any remedy
for the seizure and detention of the aircraft, in respect of which the
applicants had exhausted the domestic remedies in the condemnation
proceedings. The applicants do not complain simply of the imposition
of a condition for return of the aircraft. Their complaint embraces
the seizure, detention and return on conditions.
For all these reasons the Commission finds that it cannot be said
that the applicant company has failed to exhaust domestic remedies in
respect of its complaint under Article 1 of Protocol No. 1 (P1-1) to
the Convention. This finding does not prejudice any argument under
Article 1 of Protocol No. 1 (P1-1) that the procedural requirements of
that provision were met by the availability of judicial review.
As to the remaining issues under this complaint, the Commission
finds that serious issues of fact and law are raised which can only be
resolved by an examination of the merits. The complaint cannot
therefore
be declared manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention. No other grounds for
inadmissibility have been established.
2. The applicant company, referring to the dissenting opinion of
Judge Pettiti in Agosi (Eur. Court H.R., Agosi judgment of 24 October
1986, Series A no. 108, p. 26), also alleges a violation of Article 6
(Art. 6) of the Convention.
The respondent Government regard any statutory "interferences"
with property under Sections 141 (1) and 152 of the Customs and Excise
Management Act 1979 as matters which do not determine civil rights or
obligations or criminal charges within the meaning of Article 6 para.
1 (Art. 6-1) of the Convention, and contend that the provision
therefore does not apply. They consider that the condemnation
proceedings in any event complied fully with Article 6 (Art. 6) of the
Convention, and that, as the applicant company did not apply for
judicial review of the requirement to pay £50,000 for return of its
aircraft, it may not make hypothetical complaints about any such
proceedings.
The Commission finds that this complaint, too, raises serious
issues of fact and law which can only be resolved by an examination of
the merits. It cannot therefore declare it manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
No other grounds for inadmissibility have been established.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy