I am often instructed in cases where people have been intercepted by Customs at a port, have been questioned about excise goods (tobacco or alcohol) they have brought in, and the goods and their car is seized. This article outlines the ‘condemnation procedure’ and some of the basic things that you need to know if your items are seized by the Border Force and you plan to appeal in the Magistrates Court.
What is ‘personal’ use?
As an individual, you are entitled to bring in excise goods for your own (personal, as opposed to commercial) use. The criteria to decide if those goods are for personal use or not are set out in the Excise Goods (Holding, Movement and Duty Point) Regulations 2010 (http://www.legislation.gov.uk/uksi/2010/593/regulation/13/made (Note: in October 2011 the quantities in Reg 13(4)(h) were cut to 800 cigarettes and/or 1 kg of “other tobacco products”, i.e. hand rolling tobacco),
These criteria include your reasons for having the goods, your conduct (e.g. whether you have declared or concealed the goods and answered the intercepting officer’s questions, any history of previous travel, your rate of consumption, your financial circumstances, etc.), the quantity of goods, and ‘any other circumstance’.
‘Own [or personal] use includes use as a personal gift but does not include the transfer of the goods to another person for money or money’s worth’ (Regulation 13(5)(b)), so a birthday present for a friend is okay, but not a ‘thank you’ for services rendered (babysitting, car repairs, window cleaning, etc.).
What do I need to do if my goods and vehicle have been seized?
If the goods and/or the vehicle you are travelling in have been seized, you have a month to lodge an appeal against the seizure (Customs and Excise Management Act 1979, Schedule 3, para3; http://www.legislation.gov.uk/ukpga/1979/2), either via the Magistrates Court (condemnation proceedings) or by an internal review within the Border Force (restoration), or both in parallel. This article focusses on the Condemnation process.
What will the Border Force (Customs) do?
When they receive an appeal the Border Force has six months to issue a ‘complaint’ in the Magistrates’ court (usually nearest the port of entry) who will arrange a first hearing and, if necessary, a date for the final hearing, often up to a year after the seizure (and be aware that your goods/vehicle will usually be detained until the hearing).
What happens at court?
A court considering a condemnation must follow the same criteria from the 2010 Regulations (above). The Border Force must show that your goods were not for personal use. However they only have to show this to the civil standard of proof (i.e. more likely than not, or 51%. As this is a civil matter not a criminal matter, they do not have to establish this ‘beyond reasonable doubt’).
If your goods are condemned as forfeit, the court will need to consider whether it is ‘proportionate’ to condemn the vehicle too (Customs & Excise v Newbury [2003] 2 All ER 964). This means that they will take into account whether it was a ‘social importation’ for friends and family with no profit being made, a one-off, or a modest quantity. But the court’s starting point is that if you are considered to have been importing commercial quantities, you cannot complain if your vehicles are also seized.
What might it cost if I lose – or even if I’m successful?
If the Border Force is successful they will claim costs (usually about £2,000 to £2,500) and you may later be issued with a tax demand for the duty evaded (about £160 per kilo of hand rolling tobacco).
If you successfully persuade the Court that the goods or car should not be condemned you can ask for your costs, but the case of Perinpanathan v Westminster Magistrates [2010] EWCA Civ 40 says that unless Border Force have acted in bad faith they should not have to pay costs if they lose (heads they win, tails you lose). Though, on the bright side, the court always has the discretion to make an order.
Either side can appeal from the Magistrates’ decision to the Crown Court by written notice within 21 days; the Crown Court will have a complete re-hearing.
Given the value of the case, especially if your vehicle has been seized, and considering the risk and potential cost of losing, it is worth your getting legal advice as to the merits of any appeal at an early stage. Direct Access provides a cost-effective means of getting advice straight from a barrister; visit http://www.direct2barrister.co.uk/
