Revenue and Customs, R (on the application of) v Pisciotto

Questions asked by customs officers about cash seized for possible civil forfeiture do not require a caution under Code C10 of the Police and Criminal Evidence Act 1984 where the questions concern the cash and its provenance, rather than suspected criminal offending and possible prosecution. The civil nature of the forfeiture proceedings is material: they are actions in rem concerning the cash, and the person from whom it was seized need not himself be involved in criminal conduct. Section 78 of the Act applies only to criminal proceedings. It cannot be used to exclude evidence in cash-forfeiture proceedings, although the court may use applicable civil powers where fairness requires it.

HM Revenue and Customs appealed by way of case stated against the Manchester Crown Court’s decision of 16 October 2008. The Crown Court had allowed the respondent’s appeal against a cash-forfeiture order made by Trafford Magistrates’ Court after cash was seized at an airport under the Proceeds of Crime Act 2002.

The Crown Court held that the customs officer should have cautioned the respondent under Code C10 of the Police and Criminal Evidence Act 1984, and excluded the further evidence under section 78. Four questions were referred concerning the need for a caution in civil forfeiture proceedings and the availability of section 78.

The appeal by case stated was allowed to the extent that the Crown Court’s ruling excluding the further evidence was quashed. No other order was sought or required.

1. Nature of the proceedings. Cash forfeiture under section 240 of the Proceeds of Crime Act 2002 is civil and constitutes an action in rem. The relevant question is whether the cash is recoverable property or intended for use in unlawful conduct. It is immaterial whether the person from whom the cash was seized personally committed an offence.
2. Caution. Code C10.1 requires a caution where a person is suspected of an offence and answers or silence may be given in evidence in a prosecution. It does not require a caution where questioning is directed to the cash and its provenance for the purposes of civil forfeiture, and the officer is not questioning the person about an offence or possible criminal proceedings.
3. The broad questions referred had to be confined to the facts found. The Crown Court had made no finding that the officer was asking, or was about to ask, questions about an offence. It had instead assumed facts about her state of mind and intended questioning. On the findings made, the answers to the caution questions were therefore negative.
4. The officer’s failure expressly to state that the answers would be used only in civil proceedings made no difference on these facts. The Proceeds of Crime Act 2002 Code provided relevant guidance, but there had been no search and insufficient evidence to establish breach of its procedural requirements.
5. Section 78 of the Police and Criminal Evidence Act 1984 concerns evidence on which the prosecution proposes to rely, and section 82 confirms that the relevant proceedings are criminal proceedings. It therefore had no application to the civil forfeiture proceedings. Any exclusion of evidence on fairness grounds would have to rest on civil procedural powers.

1. High Court (Administrative Court): On an appeal by case stated, the Crown Court’s ruling excluding the further customs evidence was quashed. No other order was made.
2. Manchester Crown Court: On 16 October 2008, the court allowed the respondent’s appeal against the Trafford Magistrates’ Court forfeiture order and excluded further evidence after finding a breach of Code C10.
3. Trafford Magistrates’ Court: On 2 June 2008, the court made an order for forfeiture of the seized cash.