I have dealt with a number of cases recently where vehicles have been seized by Border Force pursuant to their powers under Section 88 of the Customs and Excise Management Act 1979 (“CEMA”), which provides that:
(c) any other vehicle is or has been within the limits of any port, railway customs area or aerodrome or, while in Northern Ireland, within the prescribed area,
while constructed, adapted, altered or fitted in any manner for the purpose of concealing goods, that ship, aircraft or other vehicle shall be liable to forfeiture.”
These cases involve vehicles where a concealment of some kind has been constructed within the structure of the vehicle, e.g. additional box-type elements attached to, and intended to look as if they are part of, the chassis of the vehicle, or a means of access has been made into an existing void within the body of the vehicle. The concealment (as the name suggests) is intended to pass unnoticed on a casual, or even a more detailed, inspection and to be used to smuggle goods, cash, drugs, etc. across international borders.
The cases I have dealt with usually involve individuals who have purchased the vehicle, often quite recently and/or at auction, and who were or claimed to be unaware of the existence of the concealment. There is usually no evidence that the concealment has actually been used for smuggling and Border Force rely on section 88 so that the existence of the concealment is sufficient to justify the seizure of the vehicle.
Once the vehicle has been seized the owner can apply for the vehicle to be returned, either in the Magistrates’ Court in “Condemnation” proceedings or via an internal “Restoration” review by Border Force. In the latter procedure , if the seizure is upheld and the vehicle is not restored (or will only be restored on payment of a fee determined by Border Force), the owner can appeal to the First Tier Tribunal Tax Chamber. This article deals with the situation under the condemnation process.
Condemnation proceedings are in relation to the vehicle itself (they are “in rem”) rather than involving any suggestion or evidence that the owner was personally or directly involved in any smuggling-type activities and so the innocence, or otherwise, of the owner of the vehicle is irrelevant to the question of whether or not the vehicle should be condemned.
The test to be applied by the Court when considering a condemnation hearing is set out at paragraph 6 of schedule 3 of CEMA, i.e. that:
“… if the court finds that the thing was at the time of the seizure liable to forfeiture the court shall condemn it as forfeit”,
and the case of Fox v Customs and Excise Commissioners  EWHC 1244
(Admin), considering the application of paragraph 6 of the Schedule, states that:
“… the statutory language [i.e. “shall condemn”] is mandatory: where the goods are liable to forfeiture the court is bound to condemn them. …The legislature in enacting the 1979 Act made plain its intention that the court should have no discretion …” (Lightman J at para 16).
The result has been that the Court (having researched the point, and with some reluctance) has taken the view that it has no discretion; if the vehicle has been adapted for the purposes of concealing goods, albeit by persons unknown, then it must be condemned and no question of proportionality arises.
It follows that the only “defence” which might be relevant would be if the owner could show that then adaptation had been created for a legitimate purpose.
Previous articles have dealt with the issue of “secondary forfeiture” under section 141 of CEMA, e.g. where goods or a vehicle have been seized when they have been mixed with or used to transport other items which were liable to forfeiture. The reader may be familiar with the case of Customs & Excise Commissioners v Newbury  EWHC 702 (Admin) where Mrs Newbury’s car and excise goods belonging to Mr Newbury were seized because a passenger in the car being driven by Mr Newbury but owned by Mrs Newbury (who was not present) had purchased excise goods for a third party and so were liable to forfeiture. Newbury confirmed that a court has to decide whether the forfeiture of Mrs Newbury’s vehicle or Mr Newbury’s goods was proportionate before ordering their condemnation.
I am not aware of any cases where it has been argued (successfully or otherwise) that proportionality arguments should also apply in “adaptation” condemnation cases (although similar arguments have been raised in restoration appeals before the Tax Chamber). In any event there is, no doubt, a strong argument that it is justifiable and proportionate for adapted vehicles to be seized and destroyed rather than potentially allowing them to be used for smuggling in the future. Perhaps there will be a test case soon …
Members of Becket Chambers’ Civil Team are able to assist with condemnation, forfeiture and other matters; please contact the clerks on 01227 786331 or via email@example.com for further details.