Challenging Costs

Defending Crap Law

Customs law in the UK is incredibly draconian, giving almost unlimited and uncontestable powers to individual customs officers. Furthermore they ensure that their definitions of obscenity/indecency are impossible to challenge in the courts by escalating costs way outside the range of their unfortunate victims.

Here is a detailed account of some of the devices they employ to maintain this disgraceful status quo.

Letter to To The Right Honourable the Lord Irvine of Lairg
Lord High Chancellor of Great Britain

14 October 2000

Human Rights Scandal

An example of modern justice at English law

I am writing to share with you, if I may, an example of modern justice under the Human Rights Act 1998 This is a case where a State Department used the threat of costs to intimidate a Defendant into dropping out of proceedings This happened on 12^th October 2000, just over a week after the new Act came into force.

I hereby enclose copies of the speech that would have been used in Court, had the Defendant not been intimidated by the threat of financial ruin into not testifying in Court Copies of this letter to you will be sent to the Prime Minister and to the media.

 The case in question is a civil one It concerned the import of 2 different DVDs from the USA The total value of the consignment was around £36 (incl. P&P) The importer had never viewed the material He chose the titles from an internet website.

HM Customs intercepted the DVDs en-route and seized them because they were 'indecent/obscene' There then followed a series of correspondence between the importer and HM Customs There seemed to be an inconsistency in HM Customs' view of why the material had been considered to be obscene (and why they had been seized)

In any event, the DVDs were held to have been imported contrary to section 42 of the Customs Consolidation Act 1876 by reason of their 'indecency/obscenity'

The only test for obscenity is that which has arisen from case law following the introduction of the Obscene Publications Act 1959 This case did not centre on any criminal activity, however, because it could not be said that the importer had 'knowingly' imported the material, nor did he intend to distribute the DVDs to any other person.

Section 42 of the Customs Consolidation Act is not clear There is no way that members of the public can find out whether some article is, or is likely to be, deemed 'obscene' There is no complete official list of banned films There is no set criteria given by which citizens can work out what items may be obscene The only way to discover if an item is obscene is to attempt to import it. If Customs seize it, then a Court must decide the issue.   This fact of Customs' Law in the UK is contrary to the requirement of the Human Rights Act that any interference/restriction/obstruction of a citizen's rights must be prescribed by law.

Customs laid complaint before a magistrates' court How the proceedings started is important in relation to the costs implications involved. Whereas there is no power to award costs made by way of Application by virtue of section 64 of the Magistrates' Courts Act 1980, e.g. an application made under the Police Property Act 1897, no such rule extends to proceedings begun by way of complaint

Under s.64 of the 1980 Act, 'the court may order a successful complainant such costs as it thinks just and reasonable' In this case, a Customs Officer, Mrs. Mal Guest, made the complaint in her own name but the complaint was made, for all intents and purposes by:  HM Customs & Excise - a Government Agency

The importer thus became the Defendant Being the sole breadwinner with a young family, the Defendant could ill afford to appoint a solicitor to defend  his case in the Magistrates' Court He knew that a Court had to decide the issue, there was no alternative for the Defendant but to go to Court, if the issue of whether the DVDs were obscene or not was to be decided.

However, the Defendant was not foolhardy He knew that although there was an important principle at stake, there was a chance that he may have to pay costs, so he set about trying to find out what he could about the nature of the proceedings and the likely costs implications before going ahead.

The Defendant was informed by Customs Officer, A K Vickery, in a letter dated 14^th March 2000, and by Andrew McNamara in a letter dated 14^th April 2000 that the proceedings were civil in nature, but were to be held in the Magistrates Court.    However, in all subsequent letters from HM Customs' Solicitor's Office, all letters were headed 'Regina -v- Paul H' (which is the traditional way to refer to criminal proceedings).

I am the Defendant's wife. I am a Trainee Solicitor I have a good Honours Degree in Law (an LLB) from the University of London's Birkbeck College and I am currently more than halfway through the postgraduate Diploma in Legal Practice at Manchester Metropolitan University I was the Butterworths' Prize Winner for Medical Law & Ethics at Birkbeck in 1998.

I agreed to help my husband defend his case in Court because I agreed with my husband that there was an important legal principle at stake Although I was familiar with the new CPR, I had never heard of Condemnation Proceedings and my usual methods of legal research drew a blank So we decided to ask around for advice.

The Defendant sent correspondence to 'UK.legal' - an internet based discussion group (newsgroup) for lawyers. No-one there knew what Condemnation Proceedings involved. Contact was made with the Court where the trial was to be held.   The only information received from the Court advised that such proceedings had never been held there and that it would 'be adjourned'.

Contact was made on a number of occasions with the Lord Chancellor's Department to find out especially what procedural rules governed these proceedings Was it the new Civil Procedure Rules introduced under Lord Woolf; or was it the Magistrates Courts Act and Rules?  No-one seemed to know, least of all staff in the Lord Chancellor's Department, but they did their best to give some (albeit very limited) answers.

The Defendant was also understandably wary of the possible costs implications in trying to defend a principle of law with very limited financial means, but he was reassured with the belief that the Court would know that there was no other way of deciding the matter; that he had done nothing wrong; that the DVDs were very low value; and that any costs awarded had to be just and reasonable in all the circumstances. He kept this in mind after contacting: Customs; the Lord Chancellor's Dept.; the Court Service and the Leigh & Wigan Magistrates' Justices' Clerk to ask what the likely cost involved would be, all drew a blank.

The Defendant turned up for the hearing dates scheduled for 10^th August 2000, only to be told that a court clerk was sick and that due to this staff shortage, there was no way that they could take the hearing that day Another date was re-scheduled at no fault of the Defendant.

Outside the courtroom, I asked Counsel for HM Customs, Mr Paul Burns, of Exchange Chambers, Liverpool, whether he wanted to exchange skeleton arguments He said that as no order had been made that he would not But he did say that in order that we could 'get everything settled on the day' (or words to that effect) that I should tell him what our argument was going to be I told him that as the new trial date was in October (at Mr. Burns' own insistence) that we would be relying on the Human Rights Act 1998.

The Customs Officer in attendance with Mr Burns at the Court suggested that we write to their solicitor to that effect and that Customs may in that instance 'drop the matter'. However, we did not hold much faith in this assertion because Customs had already told us, in correspondence, that they were 'legally obliged' to take the matter to Court.

On the 28^th of September 2000, I received a letter from HM Customs' Solicitor's Office, from a Mrs. S Gungadin (Legal Executive Officer) Note that that letter states, 'Please send any skeleton argument on Human Rights Act by 9 October' This is evidence that I informed Counsel for Customs, in August, what my argument was going to be.

I attempted to contact Mr Burns several times to give him skeleton argument I telephoned his Chambers to be told he was at court and I e-mailed him several times.   When the e-mail addresses supplied failed, I looked up his details in the Bar Directory on-line, found his Chambers' website and e-mailed them direct with a message I even told Customs' Solicitor's Office to give Mr Burns my telephone number at home so that I could present him with my skeleton argument before the hearing. In short, I told him what my argument would be in August (i.e. that I would rely on the Human Rights Act) and I also attempted, several times, to present him with details of the exact Articles that I would be relying on, before trial.

Furthermore, Mr Burns is an experienced Barrister and the Human Rights Act 1998 is the biggest single piece of legislation to enter the legal history of the UK (in my opinion) There are only so many articles and the situations in which they can apply.   Surely Mr. Burns could have been expected to work out what Articles I was going to rely on?  After all, I worked it out and I'm only a student.

Anyway, my husband and I diligently prepared for this trial I spent hours scouring the internet for information and I asked for input from lots of experienced lawyers, including my lecturers at Law School I announced to everyone on my course, in the middle of a lecture, what I was going to do.   I was excited (and they shared in that excitement) that we were on the brink of receiving an important result in the new dawn of Human Rights.

I am now dreading going back to college to tell them of the injustice we suffered How ironic and how more marked the injustice under the banner of Human Rights!

We got to the Leigh & Wigan Magistrates' Court in plenty of time, after dropping our children off at nursery for the day.   We were both extremely nervous at being present at a Court trial for the first time, but we were also confident that we were about to receive justice.

We never got that justice. We never got to say our carefully prepared speech.

Almost soon as we got there, Mr Paul Burns, Counsel for Customs, ushered us into an interview room, supposedly to discuss what we were going to do at trial He said that he would oppose my representing my husband Yet he had told us in August that he would not I told him that the Magistrates would decide the issue (because I am not legally qualified)

He then asked whether we had considered the costs implications At that moment in time, that was the last thing on our minds We were more concerned with whether we would speak up clearly enough and whether the lay Justices would be able to follow our line of reasoning But Mr. Burns' voice took on a more sinister tone and he said, 'because I can tell you that the costs involved are substantial'.

I replied, 'that doesn't mean anything to me', because Mr Burns', a wealthy barrister's idea of 'substantial', was likely to vary considerably from mine, a student and mother of two young children, living in a council let house.  'Thousands', he replied, chillingly.

Mr. Burns asked whether we had financial backing We replied that we did not He went on to say that he considered the adjournment in August (when the clerk was sick) as a 'Pre-trial review', that we would have to pay for That included two Customs Officers coming from London, his fees, the solicitors fees etc. all dating back to January when the DVDs were intercepted.

Further, he said that he would press for an adjournment because he had asked me to exchange skeleton arguments and because I had not (which was completely untrue), then he would need more time to prepare. This would, he informed us, most likely involve everyone having to come back another day, with the rising costs implications of the Customs' Officers travelling to/from London; his fees; more solicitors' costs etc. etc.

My husband was present. It did not matter which of us he said it to He knew that we were married That any costs implications would affect us as a family. I was, quite literally, terrified.

I was in a Court of Law and I have never been so scared in my entire life. Suddenly my family's future was in ruins. We were like rabbits caught in headlights We couldn't go back We couldn't go forward We faced the possibility of financial ruin - the consequences of which we would be repaying for the rest of our lives and all for two DVDs worth £36 and for having the audacity to really believe that the Human Rights Act could protect ordinary, honest, hardworking citizens like us, against the State.

The horrible truth was that we were not vexatious litigants We had not brought the case to prove a point The proceedings were started by the State (Customs) against Paul.

I asked Mr. Burns to give me exact figures I told him that I wanted to know how much it would cost to drop out then and how much to go forward. Mr Burns asked the Customs Officer to find out the figures.   The Customs Officers remained with Mr Burns in the interview Room, contacting their solicitor's office by mobile telephone to find out what costs were involved With the benefit of hindsight, I now find it surprising that, just before a trial, he hadn't already worked out his figures.

Paul and I went to speak to the Clerk.   I told the Clerk that we were worried about costs and what Mr Burns had said I asked him whether we would have to pay all the costs that Customs asked for. He said he didn't know, that it was up to the Magistrates.   He said that the Court hadn't had a case like ours in over 8 years.

The clerk then went onto tell us about how contributions towards costs are usually awarded in criminal cases, for e.g. £55 'But civil cases, phew!'  He then relayed to us a story about the recent civil case in that Court, of a farmer accidentally destroying some crested newts in a field and being ordered to pay £30,000 costs.

Paul and I went back outside and stood in the corridor The clerk chatted to the usher in the courtroom Customs' were still in the interview room The trial hadn't even begun, but for us, it was over Paul looked like a broken man I felt violated and completely helpless We were at the mercy of Customs and they knew it.

They came back with the figures.   Three and a half thousand pounds if we dropped it there and then (professing kindness on their part, they said that they wouldn't charge us the solicitor's costs) Seven and a half thousand, 'and ticking...'  were Mr. Burns' exact words, if we carried on (and that was the figure without a further adjournment). The clerk advised us that if we appealed to the Crown that the figure could be, 'ten times that'.

There was no way we had the means to pay that So we accepted our defeat.

The clerk advised that Paul did not have to take oath and state that the DVDs were his There seemed little point:  they were going to be destroyed anyway.

The Magistrates came in. Paul did not take oath, but he was made to put forward the costs considerations himself I didn't get to speak The Magistrates made the order for condemnation of the DVDs, went out, came back and awarded £1500 in costs in favour of Customs.

We were so relieved to get out of there We had been expecting to pay the equivalent price of a terraced house around here, for having the audacity to seek justice At least we had gotten off relatively lightly.

However, neither of us could shake off that feeling of 'violation' at how we had been treated We had been through such a traumatic experience and it had happened in a Court of Law, over Paul's supposed right to possess property that he had already paid £36 for The irony is that we had gone to Court to stop Customs from violating Paul's Human Rights.

The more we thought about it, the more upset we became We are now convinced that the amount awarded was excessive We are also angry at how we were bullied by Counsel for Customs.

I have studied law for over 5 years.   In all that time, I have been sold the idea of justice and of the rule of law:  that every man is equal before the law I revelled in the complexity and elasticity of wonderful legal concepts and I truly believed that the truth of an event was decided by who had the best legal argument on the day of trial.

How wrong I was, if our experience is typical How tragic that it has happened barely a week after the introduction of the Human Rights Act

If our experience is typical, then I fear for our legal system I fear for our nation and I fear for my little children growing up in that nation, where the State will bring to force anything in its power against its citizens, including lies and bullying tactics

I fear most of all because now the State has the shield of the Human Rights Act to hide against No-one will believe that this sort of thing could have happened after the introduction of the Human Rights Act No-one will believe that this could have happened to ordinary people in the dawn of a new liberty under the law But it did.

As a Trainee Solicitor, and an honest person, I also know that I cannot succeed in a working environment where my opponents are going to use such bullying tactics and lies to win In the last few days, I have been re-thinking my career aspirations.

I just pray that my faith can be restored.  I hope that I can be somehow assured that this was not the act of the State; that this was instead some breach of some law by an individual person/department and that this behaviour will not be condoned.

I can only trust that this injustice will be remedied somehow.

 

Defence Speech

• The Defendant is here today to state that the DVDs seized as liable to forfeiture should not be condemned and/or destroyed.
• The Defendant contends that the condemnation of the DVDs would be a violation of his human rights. 
• The Defendant complains that HM Customs & Excise have (and are continuing to) violate his human rights.
• HM Customs & Excise have violated the Defendant's human rights by intercepting his mail. 
• The proposed condemnation and destruction of the DVDs would result in further violations of the Defendant's human rights.
•  The Defendant complains that: Article 8; Article 10; and Article 1 of The First Protocol in Part II Of the Human Rights Act 1998 have all been violated.

I would like to hand out copies of the wording of each Article cited in the Defence.

Facts

The Defendant to these proceedings is Mr. Paul H He is a married man with 2 young children He is employed as a manager in the rail industry He is over 21, with no criminal convictions.

In the first week of January this year, Mr H ordered two DVDs from Gamelink, a supplier of adult films, based in the USA Mr H ordered the DVDs from the company's website on the internet.  He paid by credit card He is the owner of the DVDs.

Mr H had no chance to examine the DVDs prior to purchase The 2 DVDs ordered are different films This would therefore suggest that Mr H purchased the films for his own enjoyment, not intending to distribute or supply them to any other person.

The Defendant believes that the material of each film features consenting adults and does not contravene aspects of the criminal law.

It is interesting that the Defendant chose the DVD format, rather than the video format (which is usually cheaper). After all, Mr H does own a video player. 

Mr H purchased the films in DVD format because DVD players are capable of being 'password protected', unlike video players DVD players can prohibit access to the viewing of films, unless the password is known. Mr H believed that this feature would help him to ensure that only he had access to the adult material contained in them, and in order that they could not be accidentally be viewed by anyone who might be offended by such material.

The DVDs were dispatched by Gamelink to Mr H and were intercepted by Customs on the 9^th February 2000.   Mr H received notification of the seizure a few days later.

Law

In order to determine whether there has been a violation of the Defendant's human rights, the Court should apply a three-fold test

But before that test can be applied, the first question for this Court will be whether the Defendant's rights have been restricted or obstructed.

Thus, with regard to the complaint that Article 8 has been violated, the first question will be whether the Defendant's right to respect for private and family life, his home and his correspondence has been restricted or obstructed.

The Defendant argues that the interception of his mail by Customs violated Article 8.

With regard to the complaint that Article 10 has been violated, the first question will be whether the Defendant's right to Freedom of Expression has been restricted or obstructed.

The Defendant argues that his right to freedom of expression has been infringed because Customs have attempted to ban the DVDs by reference to their 'indecency/obscenity' - the test of which can only be determined retrospectively - and that this directly affects Mr H because he has a right to receive the ideas of the film makers without interference by a public body (Customs) and regardless of frontiers.

The Defendant argues that he would have ensured that no-one else would have been confronted unintentionally, against their will, with the DVD's, because the Defendant purchased them for his own use. Mr H intended to keep the DVDs in his possession and to further protect the viewing of them by way of a password on his DVD playing equipment.

Given these facts, and as stated in the European case of Hoare v UK (which I will hand out with the relevant section highlighted) there must be particularly compelling reasons to justify an interference of the Defendant's right to Freedom of Expression Also reference to Schere v. Switzerland.

The reasons in the present case must be strictly justified because this case involves a Defendant who has simply imported one copy of a film for his own sole use.

With regard to the complaint that Article 1 of The First Protocol in Part II has been violated, the first question will be whether the Defendant's right to the peaceful enjoyment of his possessions has been violated.

The Defendant argues that Customs have deprived him of his property (the DVDs) in an instance that was not 'in the public interest' as required by the said Act.

In deciding whether any of these rights have been violated, this will involve considering what the right in question should, and does, mean If it is found that the right has not been violated, then that is plainly the end of the complaint.

If, however, it is found that one of these rights has in some way been restricted or obstructed, then this court is obliged to apply a three-fold test. First it must ask whether the restriction or obstruction is 'prescribed by law'. This means that it must be governed by legal rules, which are sufficiently clear and accessible to enable the individual citizen to find out what the rules are.

This, generally speaking, limits the freedom of the authorities to make up the rules as they go along, and to make decisions directed to a particular case.

Customs contend that the DVDs were indecent or obscene articles which were imported contrary to the prohibition contained in s42 of the Customs Consolidation Act 1876 and it is for this reason that condemnation proceedings have been ordered (pursuant to s139 and schedule 3 to the Customs & Excise Management Act 1979).

There is no definition of indecent or obscene given in the 1876 Act There is no criteria by which an article can be objectively assessed as being obscene or not. The only definition of 'obscene' that exists at law is the test for obscenity which has been developed from criminal cases pursued under the Obscene Publications Act 1959

Further, in a letter from HM Customs Officer A K Vickery to Mr H dated 14^th March 2000, Customs informed the Defendant that 'the intention [of s42 of the Customs Consolidation Act 1876], is to prohibit the importation of any material which is not legally available for sale or hire in the UK; and which is prohibited by the Obscene Publications Act 1959 (section 2).

In summary of this point: Customs, the public authority which intercepted the Defendant's mail; seized his property; and which has applied to destroy the Defendant's property, is relying on an Act from 1876, the intention of which they attribute to a later Act of 1959, and to which they add the 'catch all' proviso that the property must be legally available in the UK The latter being despite the fact that there is no way of knowing whether an article is legally available or not until decided, retrospectively, by a court, whether it is obscene or not.

Therefore the Defendant argues that the 1876 Act fails to prescribe, at law, the reasons that Customs may seize property as liable to forfeiture.

 The second question that this Court must ask in applying the three-fold  'violation test' is whether the restriction or obstruction in question falls under one of the objectives listed in the Article, which has been held to be an exhaustive list and not simply by way of illustration.

If the object of the restriction does fall within one of the listed headings, then the court comes to the third and most difficult question: is the restriction/violation of the Defendant's human right necessary in a democratic society?

To obtain a favourable answer to this question, it must be shown that that the restriction fulfils a pressing social need and that it is proportionate to the aim of responding to that need. While it is not incumbent on Customs to show that any of the restrictions of Mr H's human rights are indispensable, it is not enough for Customs to show that the restriction is reasonable.    After all, the European Court of Human Rights has imposed a strict test of necessity, relying on such concepts as pluralism, tolerance and broad-mindedness. The overriding principle is clear: since the right in question is to be regarded as fundamental, any restriction of it must be strictly justified.

Conclusion

In conclusion, I would like to quote the words of the Lord Chancellor on the 16 December 1997 in his Tom Sergt Memorial Lecture when he said, under the heading of 'The Morality of Decisions', (at p 9):

'...The Court will look at the positive right. It will only accept an interference with that right where a justification, allowed under the Convention, is made out. The scrutiny will not be limited to seeing if the words of an exception can be satisfied.

The Court will need to be satisfied that the spirit of this exception is made out. It will need to be satisfied that the interference with the protected right is justified in the public interest in a free democratic society.

Moreover, the Courts will in this area have to apply the Convention principle of proportionality. This means the Court will be looking substantively at that question. It will not be limited to a secondary review of the decision making process but at the primary question of the merits of the decision itself.

In reaching its judgement, therefore, the Court will need to expand and explain its own view of whether the conduct is legitimate. It will produce in short a decision on the morality of the conduct and not simply its compliance with the bare letter of the law'.

Thus, this Court must today examine afresh the morality of a law which allows HM Customs to intercept a person's mail and to seize their property and to ultimately destroy that property without first allowing the citizen to find out for sure which items may be liable to such seizure.

That is, this Honourable Court must examine the morality of a law which relies on it to decide, retrospectively, on the legality of an item purchased by an individual for their own enjoyment.

Costs

The General rule under s.64 of the Magistrates Court Act 1980 is that in civil proceedings, a successful complainant can be reimbursed but any award of costs must be 'just and reasonable'. However, the Defence asks that the Court takes into consideration the fact that although these are civil proceedings that were begun by way of complaint by Mal Guest, Mrs Guest in fact acts on behalf of HM Customs & Excise and, therefore, the true complainant is HM Customs & Excise, ie a Public Body.

In this instance, the Defence ask that the proceedings be treated as though they have been made by way of application and that no award of costs be made to either side, since this Court was the only way of deciding the matter of indecency/obscenity of the DVDs.

The Defence would emphasise that Mr H has not 'contended' this matter He has simply deferred to the authority of this honourable court to decide the matter of indecency/obscenity, as required by law.

We would therefore ask that no award of costs is made to either side.

Further Considerations

• Items at centre of dispute very low value ~£36 (inc of P & P);
• No 'fault' element on the part of the Defendant (he had to order the items and come to Court before he could know that they were indecent/obscene);
• Customs have a large office in Manchester - an officer from there could have attended (as at least 3 officers from London were allowed to view the DVDs anyway, why not another from Manchester);
• The services of Counsel was not strictly necessary, given the low value, civil nature of the proceedings;
• The services of a local solicitor would have been sufficient;
• Costs should not be prohibitive in the defence of civil proceedings.

Update: Costs

25th April 2010

Customs were awarded costs but never actually claimed them. Perhaps the customs case was more about sending 'don't challenge us' messages rather than worrying about the trivia of this case.