FREE CHAPTER from ‘A Practical Guide to Challenging Seizures under the Customs and Excise Management Act 1979’ by Paul Tapsell

CHAPTER ONE – FORFEITURE: THE STATUTORY FRAMEWORK


“Liable to Forfeiture”

The Customs and Excise Management Act 1979 (“CEMA” or “the Act”) makes numerous references to items being seized and/or detained as being “liable to forfeiture” in a wide range of circumstances but fails to provide any statutory definition of the phrase.

Section 49 CEMA provides the principal provision relating to liability to forfeiture:

“49(1) Where –

(a) …any imported goods, being goods chargeable on their importation with customs or excise duty, are, without payment of that duty, (i) unshipped in any port, (ii) unloaded from any aircraft in the United Kingdom …

(b) any goods are imported, landed or unloaded contrary to any prohibition or restriction for the time being in force with respect thereto under or by virtue of any enactment; or

(c) any goods, being goods chargeable with any duty or goods the importation of which is for the time being prohibited or restricted by or under any enactment, are found, whether before or after the unloading thereof, to have been concealed in any manner on board any ship or aircraft or, while in Northern Ireland, in any vehicle; or

“(d) any goods are imported or concealed in a container holding goods of a different description; or

(e) any imported goods are found, whether before or after delivery, not to correspond with the entry made thereof; or

(f) any imported goods are concealed or packed in a manner appearing to be intended to deceive and officers,

those goods shall, subject to subsection (2) below, be liable to forfeiture.”

Further legislation deals with the imposition of duty on goods (see Chapter 3 “Excise Goods and Personal Allowances” below) and prohibition or restrictions (e.g. in respect of weapons, drugs, indecent or obscene material, etc.).

Similarly, section 78(4) provides that any goods subject to duty which are not declared or are concealed are liable to forfeiture and other provisions create such liability, for instance, where a ship, aircraft or a vehicle has been “constructed, adapted, altered or fitted in any manner for the purpose of concealing goods” (section 88)

The Act grants extensive powers of search, seizure and detention to Border Force (or other persons acting on their behalf) and provides that:

“139(1) Any thing liable to forfeiture under the customs and excise Acts may be seized or detained by any officer or constable or any member of Her Majesty’s armed forces or coastguard.”

The lack of any statutory definition of “liable to forfeiture” gave rise to questions regarding the lawfulness of the detention of goods which were subsequently found not to be liable to forfeiture (for example following further inquiries) and was finally resolved in the Supreme Court in (R (Eastenders Cash & Carry plc & Others) v Revenue and Customs Commissioners [2014] UKSC 34, where it was decided:

“ … the detention of the goods was lawful because there had been no abuse of authority on the part of the officers; and there had been no such abuse because their authority to examine the goods in order to determine the duty payable, or (by implication) whether the goods were liable to forfeiture, carried with it, by necessary implication, an authority to detain the goods for such time as was reasonably necessary in order to make that determination. Where the determination required the making of inquiries, going beyond an inspection of the goods themselves, it was lawful to detain the goods for such time as was reasonably necessary to make those inquiries” (paragraph 35).

Section 139(1A), brought in as a response to the Eastenders litigation expressly allows the detention of items where the detaining officer “reasonably suspects” that the items may be liable to forfeiture.

Section 141 goes on to make provision for the forfeiture of ships, vehicles, etc. used in connection with goods liable to forfeiture (“Secondary Forfeiture”):

“141(1) Without prejudice to any other provision of the Customs and Excise Management Acts 1979, 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 any 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; and

(b) any other thing mixed, packed or found with the thing so liable

shall also be liable to forfeiture.”

and section 141(2) goes on to render any “tackle, apparel or furniture” of any “ship, aircraft, vehicle or animal” also liable to forfeiture.

Section 144 CEMA (see below) provides immunity for the Commissioners in respect of any losses incurred by an individual if there were reasonable grounds for the original seizure, regardless of the subsequent decision that the item was not, in fact, liable to forfeiture and so the item was not condemned.

Schedule 2A of the Act makes provisions for the procedure where items have been detained which includes allowing detention for up to 30 days (whereupon it is deemed to be seized, para 2(3)) and requiring the Commissioners (i.e. Border Force) to:

“take reasonable steps to give written notice of the detention of any thing, and of the grounds for the detention, to any person who to their knowledge was, at the time of the detention, the owner or one of the owners of the things” (para 3(1)).

Written notice is not required where the detention takes place in the presence of the owner of the thing, their servant or agent, “a person who has (or appears to have) possession or control of the thing being detained” (para 3(2(ba)), the master or commander of a ship or aircraft, or a vehicle operator (where the goods are detained from a vehicle).

Schedule 3 of CEMA sets out the provisions relating to forfeiture and condemnation proceedings and is dealt with in detail in Part 3 below.

Historically, the majority of contested condemnation cases involved situations where individuals came into the country with excess excise goods (i.e. alcohol or tobacco) and the goods were seized under section 49(1) as being not for personal use and the vehicle being used to transport the goods was often seized by Border Force under section 141.

This gave rise to situations where, for example, the owner of a car which was being driven by their partner to take a group of friends to the continent, had their car seized because one of the passengers had excise goods over the limit. In such a case (Customs and Excise Commissioners v Newbury [2003] 1 WLR 2131) it was established that a Court considering condemnation proceedings had to take into account to proportionality of condemning the car seized as being liable to forfeiture pursuant to section 141 (see Chapter 9, Proportionality, below).

Since Brexit the “personal use” provisions under the Excise Goods (Holding, Movement and Duty Point) Regulations 2010 (with, under Regulation 13(4), “minimum indicative guidelines” including 90 litres of wine(including a maximum of 60 litres of sparkling wine), 10 litres of spirits, 110 litres of beer and 800 cigarettes or 1 kg of tobacco) were removed and replaced by the reintroduction of significantly reduced “Personal Allowances” for travellers (e.g. 18 litres of wine, 4 litres of spirits, 42 litres of beer, and 200 cigarettes or 250g of tobacco). This has significantly reduced the economic attraction of the “booze cruise” or “tobacco run” for individuals but increased the risk of the unwary traveller having their vehicle seized.

Similarly, an individual failing to declare (non-excise) goods purchased abroad worth over £390 (or £270 if they arrived by private plane or boat) or a person driving a vehicle which had been adapted by a previous owner for the purposes of concealing goods (regardless of whether any such concealed goods were present or the new owner was aware of the adaptation) is liable to have those goods or that vehicle seized by Border Force.

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