Case No: CO/2869/2000
Neutral Citation Number: [2001] EWHC ADMIN 195 
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 15th March 2001

B e f o r e :

LORD JUSTICE BROOKE
and
MR JUSTICE POTTS 

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	REGINA
on the application of BALBO B&C AUTO TRANSPORTI INTERNAZIONALI	

Claimant	
			
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT
	Defendant

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Nevil Phillips & Nicholas Craig (instructed by Holmes Hardington Walser Johnston Winter for the Claimant)
John Howell QC & Robin Tam (instructed by the Treasury Solicitor for the Defendant)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Brooke : 
1.	This is the judgment of the court.
2.	This is an application by Balbo B&C Auto Transporti Internazionali for judicial review of a decision by the Secretary of State on 12th June 2000 whereby he decided that a Notice of Liability to Civil Penalty issued pursuant to Section 35 of the Immigration and Asylum Act 1999 (“the 1999 Act”) in respect of 11 persons being clandestine entrants should stand.
3.	The brief history of the matter is that on 6th June 2000 a transporter owned by the claimants was searched by immigration service officials on its arrival by ferry from Calais.  When the trailer was opened, 11 clandestine entrants (including six children) were found within it.  Since the claimants were the persons responsible for the clandestine entrants found in the transporter they owned they were prima facie liable to the penalties (being eleven times the prescribed amount) mentioned in Section 32(2) of the Act.  On the same day the Secretary of State served a penalty notice in accordance with the Act, and on 9th June 2000 solicitors acting for the claimants served a notice of objection pursuant to Section 35(7).  Three days later the Secretary of State made the decision whose validity is impugned in these proceedings.  He said that in his view the penalty was payable and he gave his reasons for this decision.
4.	On the hearing of this application the Secretary of State raised as a preliminary point the question whether there was not a much more suitable alternative remedy available to the applicants.  He was referring to their right to raise any arguments they wished when the Secretary of State issued proceedings against them in court to recover the penalty.
5.	We decided to hear argument on this point as a preliminary issue.  At the end of the argument we said that we were satisfied that there was a more convenient alternative remedy and that the application would therefore be dismissed.  In this judgment we are setting out our reasons for this decision.
6.	The relevant statutory provisions are contained in Part II of the 1999 Act.  Because they are relatively new, we will set them out in some detail, so far as is material:
	"32.	(1)  A person is a clandestine entrant if -
	(a)  he arrives in the United Kingdom concealed in a vehicle, ship or aircraft,
	(b)  he passes, or attempts to pass, through immigration control concealed in a vehicle, or
	(c)  he arrives in the United Kingdom on a ship or aircraft, having embarked -
	(i)  concealed in a vehicle; and
	(ii) at a time when the ship or aircraft was outside the United Kingdom, and claims, or indicates that he intends to seek, asylum in the United Kingdom or evades, or attempts to evade, immigration control.
	(2)  The person (or persons) responsible for a clandestine entrant is (or are together) liable to -
	(a)  a penalty of the prescribed amount in respect of the clandestine entrant; and
	(b)  an additional penalty of that amount in respect of each person who was concealed with the clandestine entrant in the same transporter.
	(3)  A penalty imposed under this section must be paid to the Secretary of State before the end of the prescribed period.
	(4)  Payment of the full amount of a penalty by one or more of the persons responsible for the clandestine entrant discharges the liability of each of the persons responsible for that entrant.
(5)  In the case of a clandestine entrant to whom subsection (1)(a) applies, each of the following is a responsible person -
....
	(b)  if it is a vehicle (but not a detached trailer), the owner, hirer or driver of the vehicle;
...
	(7)  Subject to any defence provided by section 34, it is immaterial whether a responsible person knew or suspected -
	(a)  that the clandestine entrant was concealed in the transporter; or
	(b)  that there were one or more other persons concealed with the clandestine entrant in the same transporter."
7.	On the facts of the present case, the application of section 32 creates no difficulty.  The eleven persons concealed in the trailer were clandestine entrants because they arrived in the United Kingdom concealed in a vehicle and one of the other conditions at the end of section 32(1) was fulfilled.  The owners of the vehicle were among the persons responsible for these clandestine entrants (s 32(5)(b)), and as such they were liable to the penalties referred to in section 32(2), which must be paid to the Secretary of State before the end of “the prescribed period” (being 60 days from the service of the penalty notice which informs the person served that the Secretary of State has decided that he is liable, not counting “any period during which the Secretary of State considers any objection notice”): see s 32(3), and regulations 4(1) and (2) of the Carriers’ Liability (Clandestine Entrants and Sale of Transporters) Regulations 2000.  Subject to any defence provided by section 34, it is immaterial whether the owners knew or suspected any of the matters set out in section 32(7).
8.	Nothing in this judgment turns on any of the provisions of the code of practice provided for in section 33, but we need to set out section 34 in full:
	"34.	(1)  This section applies if it is alleged that a person (“the carrier”) is liable to a penalty under section 32.
	(2)  It is a defence for the carrier to show that he, or an employee of his who was directly responsible for allowing the clandestine entrant to be concealed, was acting under duress.
	(3)  It is also a defence for the carrier to show that -
	(a)  he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter;
	(b)  an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter; and
	(c)  that on the occasion in question the person or persons responsible for operating that system did so properly.
	(4)  In determining, for the purposes of this section, whether a particular system is effective, regard is to be had to the code of practice issued by the Secretary of State under section 33.
	(5)  If there are two or more persons responsible for a clandestine entrant, the fact that one or more of them has a defence under subsection (3) does not affect the liability of the others.
	(6)  But if a person responsible for a clandestine entrant has a defence under subsection (2), the liability of any other person responsible for that entrant is discharged."
9.	The normal meaning of such a provision, coupled with the liability-creating provisions of section 32, is that section 32 creates an absolute legal liability in the sense that no mens rea has to be proved.  This legal liability will, however, be negated if the responsible person in question can prove on the balance of probabilities one of the matters set out in Section 34(2) or (3).
10.	Section 35 provides, so far as is material, that:
	"35.	(1)  If the Secretary of State decides that a person (“P”) is liable to one or more penalties under section 32, he must notify P of his decision.
	(2)  A notice under subsection (1) (a ‘penalty notice’) must -
	(a)  state the Secretary of State’s reasons for 	deciding that P is liable to the penalty (or penalties);
	(b)  state the amount of the penalty (or penalties) to which P is liable;
	(c)  specify the date before which, and the manner in which, the penalty (or penalties) must be paid; and
	(d)  include an explanation of the steps -
	(i)  that P must take if he objects to the penalty;
	(ii)  that the Secretary of State may take under this Part to recover any unpaid penalty.
....
	(6)  If a person on whom a penalty notice is served, or who is treated as having had a penalty notice served on him, alleges that he is not liable for one or more, or all, of the penalties specified in the penalty notice, he may give written notice of his allegation to the Secretary of State.
	(7)  Notice under sub-section (6) (‘a notice of objection’) must -
	(a)  give reasons for the allegation; and
	(b)  be given before the end of such period as may be prescribed.
	(8)  If a notice of objection is given before the end of the prescribed period, the Secretary of State must consider it and determine whether or not any penalty to which it relates is payable.
....
	(10)  Any sum payable to the Secretary of State as a penalty under section 32 may be recovered by the Secretary of State as a debt due to him."
11.	In the present case an immigration officer acting on behalf of the Secretary of State served a penalty notice in the requisite form (Form IS 11) on 6th June, requiring payment of £22,000 not later than 5th August 2000.  The notice ends as follows:
	"Any sum payable to the Secretary of State as a penalty under section 32 of the Act may be recoverable by the Secretary of State through the Courts.  In addition, if payment in full is not received, the Secretary of State may apply to the court for leave to sell the transporter if 84 days have elapsed since it was detained."
12.	Solicitors acting for the owners served a notice of objection pursuant to section 35(6), giving reasons for their objection, by a letter dated 9th June 2000.  By a letter dated 12th June an inspector at the UK Immigration Service Headquarters responded to the objection, and stated why he did not consider that a valid defence under section 34 had been made out.  He therefore told them that the liability under the penalty notice stood, and extended the time for payment to allow for the time taken to reply to the letter of objection.  He enclosed with his letter Form IS 11B, which was signed by an immigration officer on behalf of the Secretary of State.  This form is entitled “Clandestine Entrants - Determination of Notice of Objection and Demand for Penalty”, and demands the sum of £22,000, to be paid not later than 9th August 2000.  On this occasion the form repeats the final sentence of the earlier form, but says nothing about the penalty being recoverable by the Secretary of State through the courts.
13.	It was this omission, no doubt, and the emphasis contained in the form on the fact that this civil penalty must be paid by 9th August, which led the owners’ solicitors to believe that the only means of challenging the lawfulness of this notice was by way of judicial review.  As the argument proceeded, it appeared increasingly odd that this should have been Parliament’s intention, because if the Secretary of State were to be the sole arbiter of the question whether a person served with a penalty notice had a viable defence under section 34 he would be acting as judge in his own cause.  Since the issue between the Secretary of State and the owners related to the determination of the owners’ civil obligations, such an interpretation of the provisions would immediately fall foul of the “fair trial” requirement of Article 6(1) of the European Convention on Human Rights.
14.	In our judgment the Act should not be interpreted in this way.  If the owners consider they have a valid defence to the penalty notice, notwithstanding the Secretary of State’s rejection of their objection, they should wait until the Secretary of State sues them, which he will be able to do as soon as the time prescribed for payment has expired.  In such proceedings the Secretary of State will be alleging that the owners are liable to a penalty under section 32 (s 34(1)), and the owners will be able, if so advised, to assert in those proceedings any of the defences available to them under section 34.  Court proceedings of this kind would be the natural forum for a trial of disputed fact, such as would arise when the viability of a section 34 defence is in issue.  Judicial review proceedings would not.
15.	It should be noted in this context that the draftsman deliberately chose the words “liable to a penalty under section 32”.  The issue in the proceedings will be whether a successful section 34 defence will mean that the responsible persons are not liable to a penalty under section 32 after all, because they can show that they were acting under duress, or that an effective system for preventing the carriage of clandestine entrants was in operation, and so on.  If they are found not to be liable to a penalty under section 32, then whatever may have happened under the section 35 procedure will fall away.  Similarly if the Secretary of State seeks the leave of the court to sell the transporter pursuant to section 37 and Schedule 1, paragraph 1(1) of the Act, the court is not to give its leave except on proof that the penalty was due and that the person liable to pay it has failed to do so (Sch 1, para 1(2)(a) and (b)).  It will be open to the owner of the transporter in such proceedings to assert that he was not liable to pay the penalty because he had a valid section 34 defence.
16.	Mr Phillips suggested that if an owner tendered satisfactory security to obtain the release of a transporter detained under section 36 of the Act (see s 37(3)(a)) he would have to wait, perhaps indefinitely, for the Secretary of State to initiate proceedings in order to obtain the release of his security.  We do not understand why this necessarily follows, because it would always be open to the owner in such circumstances to seek a declaration that he was not a person liable to a penalty under section 32 and an order restoring to him, or cancelling, the security he tendered.
17.	We are sure that unnecessary difficulties have arisen in this case because the statutory provisions are rather dense, and because Forms IS 11 and IS 11B do not state with the clarity that one would expect from government forms the right of a person served with a penalty notice to rely on the statutory defences in court proceedings whether or not he has availed himself of the administrative objection procedure open to him under section 35.  We hope that consideration may be given to the redrafting of these forms in order to set the position out with greater clarity.
18.	However that may be, we are satisfied that the appropriate venue for this dispute is an ordinary court (almost certainly a county court), and we therefore dismiss this application for judicial review on the grounds that a far more convenient alternative forum is available.