FOURTH SECTION
DECISION
Application no. 21843/04
by Brian KENT
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 30 August 2005 as a Chamber composed of:
MrJ. Casadevall, President,
SirNicolas Bratza,
MrM. Pellonpää,
MrR. Maruste,
MrS. Pavlovschi,
MrJ. Borrego Borrego,
MrJ. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 15 June 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the parties’ letters of 20 and 30 June 2005,
Having deliberated, decides as follows:
FACTS AND COMPLAINTS
The applicant, Mr Brian Kent, is a British national who was born in 1952 and lives in Elstree. He was represented before the Court by Ms S. George of Messrs Rothera Dowson, a firm of lawyers practising in Nottingham. The Government were represented by their Agent, Ms E. Willmott, of the Foreign and Commonwealth Office, London.
In October 2000, clandestine immigrants were found in the applicant’s lorry as he was entering the United Kingdom. At Immigration Control he was served with a penalty notice under the Immigration and Asylum Act 1999 ("the 1999 Act"), demanding payment of £14,000. He was unable to pay, and the lorry was seized. The applicant’s objection to the penalty notice was unsuccessful, and on 17 December 2001 he commenced proceedings for a declaration that his rights had been violated, for return of the lorry, and for damages for loss of earnings.
The scheme of civil penalties under the 1999 Act which was applied in the applicant’s case was also challenged by a number of road transport operators. That challenge was ultimately determined by the Court of Appeal on 22 February 2002 in the case of International Transport Roth GmbH and others v. Secretary of State for the Home Department ([2002] EWCA Civ 158). The Court of Appeal in that case found the scheme not to be compatible with Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. The legislative scheme was subsequently amended.
The applicant’s lorry was returned to him on 18 July 2002, and the pleadings in the proceedings were amended to a claim for loss of earnings, costs of accommodation and damages for the loss of value of his vehicle, which had been damaged and parts had been removed whilst it had been parked up in the period from October 2000.
On 19 December 2003, HHJ Cowell gave judgment in the Central London County Court. The judge considered that the application of a fixed penalty to the applicant was "most unfair", because if he had not alerted the authorities to the fact that someone had tampered with the cord which closed the vehicle, the authorities would never have become aware of the clandestine immigrants. However, the fixed penalty nevertheless became payable under Section 32 (1) of the 1999 Act.
The judge assessed the quantum of damages on the basis that the detention of the lorry had been unlawful. He found that the applicant’s lorry had lost some £7,700 of its value whilst detained, and that loss of earnings (past and future) amounted to £41,175. In fact, the detention of the lorry had not been unlawful under the scheme in the 1999 Act because it was within the power of the Secretary of State to detain the lorry.
However, in the Roth case, the whole scheme under the 1999 Act had been declared incompatible with the Convention, and the Human Rights Act expressly provided that a declaration of incompatibility did not affect the validity of the legislation it applied to. Further, it was not possible to interpret the legislation in a manner compatible with the Convention which, as the judge said, gave rise to "the admittedly odd result that the more unfair and incapable of compatible interpretation an Act of Parliament or provision in it may be, the more conclusive is the absence of protection given to the likes of [the applicant] because of Section 6(2)".
The judge made a declaration that the applicant’s Convention rights had been infringed, dismissed the action and granted leave to appeal. An appeal was lodged with the Court of Appeal, but not proceeded with.
The applicant alleged violation of the right to a fair trial under Article 6, a breach of the right to property under Article 1 of Protocol No. 1 and Article 8 of the Convention, and violations of Articles 13 and 14 of the Convention.
PROCEDURE
On 25 October 2004 the Court decided to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
REASONS FOR THE DECISION
By letter dated 30 June 2005, the applicant’s representatives informed the Court that the applicant had concluded a settlement with the United Kingdom Government and did not wish to pursue the application (Article 37 § 1 (a) of the Convention).
In accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention which require the continuation of the examination of the application.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Michael O’Boyle Josep Casadevall
RegistrarPresident
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