Written 2nd August 2024 by James Claughton
HMRC and Border Force can seize goods from suspects under Section 139 of the Customs and Excise Management Act 1979; goods can also be seized under the Proceeds Of Crime Act 2002 (POCA). Such seizures can cause not just inconvenience but can also be costly for individuals and businesses. There are, however, certain circumstances when it is possible to secure the return of such property.
Customs and Excise Management Act 1979
Under Customs and Excise Management Act 1979, HMRC or Border Force can seize any items ‘liable to forfeiture’ in circumstances which may include the following:
• Correct duty was not paid
• Prohibited items
• Breaches of customs laws
• Missing required licenses
• Where there is a dispute over the value of goods.
Under section 139 of the Customs and Excise Management Act 1979, HMRC or Border Force can carry out seizures of items such as goods and vehicles. Items frequently seized by HMRC include:
• Alcohol products
• Tobacco products
• Luxury watches
• Weapons
The reasons for any seizure should be detailed in a seizure notice which ought to be provided to the person from whom the goods are confiscated. Individuals whose items are seized may be liable for a storage fee which could be considerable when proceedings are lengthy.
If items are seized, the options for return are set out under Notice 12A.
Challenging a seizure
If you think that that your items were seized illegally and/or want HMRC/Border Force to return the items, the options are as follows:
- Condemnations proceedings – Under Notice 12A,the legality of a seizure can be challenged by way of proceedings which usually takes place in a Magistrates Court. This is done by way of a Notice of Claim sent to HMRC or Border Force, depending which body seized the items. In order to challenge legality of a seizure, a notice of claim must be sent to HMRC/Border Force within one of month of the date of seizure on the information notice or on the date shown on notice of seizure. Some of the most common examples of challenging the legality of a seizure include where the owner asserts that duty has been paid on UK excise goods that are liable to duty and where goods were not in fact prohibited or restricted. It is important to collate all relevant evidence which may support your assertions around the questionable legality of the seizure, for example, proof of paid duty or provenance of the goods which confirm that they are not prohibited or restricted.
- Restoration – Notice 12A also details the restoration process. this sets out how a request for return of the items can be explored even if it is accepted that the seizure was legal. This is done by way of restoration which involves writing to HMRC/Border Force to request that the seized items are returned. HMRC/Border Force will decide this. The decision can be challenged by way of a statutory review. The time limit to request a statutory review is 45 days from the restoration decision. An appeal against the statutory review can be dealt with by way of a tribunal. This must be done within 30 days of the statutory review decision. However, if the legality of seizure is not challenged it cannot be later challenged at a tribunal.
- Challenge the legality if the seizure and also ask for the items to be returned. Condemnation and Restoration are wholly separate routes for challenging seizures. However, option 3 involves both routes being carried out simultaneously
The above process is the same whether it is HMRC or Border Force responsible for seizure of the items. However it is crucial to be clear which has seized in order to carry out the return process. If it can be established that the there is a lawful reason for the importation of goods or items then items should be returned and legal costs may be recovered.
If this is not possible then minimisation of any penalty will be sought.
What happens to the items if not returned?
If it is decided that the seizure was carried out legally or if the seizure is not challenged, the items are generally sold at an auction or destroyed. Compensation may be available if it can be proved that items already destroyed were seized illegally.
Powers under POCA 2002
If officers have reason to suspect that cash above £1000 is intended to be used in criminal activity or if it was acquired by way of criminal activity, POCA allows seizure of those monies in order to secure forfeiture.
Seized monies can be held initially for 48 hours, during which time an application must be made to a Magistrates Court .
The Magistrates Court will hear whether the “continued detention [of the cash] is justified while its intended use is further investigated or consideration is given to bringing proceedings against any person” .
If the Magistrates determine that it is, the seized cash can be held for many months or years. Even if there is insufficient evidence for a prosecution against the suspect/the authorities do not prosecute, they can still apply for a civil cash forfeiture action as this is made under the lower threshold on the balance of probabilities. The individuals whose cash was seized must prove funds are legitimate. POCA proceedings can take a long time to come to fruition and it is crucial to provide strong evidence to support the explanation for the source of the funds.
As stated, seizures of this nature can have far-reaching consequences for an individual and/or their business, therefore it is important to explore your legal options as soon as possible to minimise the consequences and where possible recover your items.
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James joined Olliers in 2020, having studied Law with Business at the University of Liverpool followed by a Masters in Legal Practice.
James has a particular interest in the investigation stage of cases and has a significant caseload of pre charge cases. He frequently makes representations against charge on behalf of clients under investigation.
