Blackside Ltd, R (on the application of) v Secretary of State for the Home Department

A seizure under section 139 of the Customs and Excise Management Act 1979 is not unlawful merely because the officer did not know, at the time, whether the goods were in fact liable to forfeiture. The decision must nevertheless be taken honestly, must not be irrational or perverse, and must be proportionate. An owner who was absent when the goods were seized must receive written notice of both the seizure and its grounds. The notice need not use a prescribed form or cite the statutory power, but a disclaimer cannot prevent a document from operating as a notice. The ultimate question whether goods were liable to forfeiture remains for condemnation proceedings.

Blackside Ltd sought judicial review of Border Force’s seizure of a consignment of beer under section 139 of the Customs and Excise Management Act 1979. It argued that no sufficient objective basis for seizure had been given and that no lawful reason had been provided at the time. The Secretary of State relied on suspected repeated use of an administrative reference code and irregularities in the accompanying paperwork. Condemnation proceedings were already pending in the East Kent Magistrates’ Court. The central issues were whether reasons had to be given at the time of seizure, whether the statutory notice requirements had been met, and whether the seizure was unlawful on public law or human-rights grounds.

1. Application dismissed. Blackside Ltd failed to establish that the seizure was unlawful. Whether the goods were in fact liable to forfeiture was to be determined in the pending condemnation proceedings.
2. The court was bound by Commissioners for Her Majesty’s Revenue and Customs v First Stop Wholesale Ltd [2013] EWCA Civ 183. Reasons for seizure need not be given at the time of seizure. The absence of reasonable grounds for suspicion did not itself establish unlawfulness.
3. The officer’s state of mind was nevertheless relevant. A seizure had to be undertaken honestly and in good faith, not irrationally or perversely, and as a proportionate interference with property rights under article 1 of the First Protocol. The threshold for proportionality was relatively low because the seizure was subject to condemnation proceedings.
4. Paragraph 1(1) of Schedule 3 required written notice to an owner who was not present, stating both that the goods had been seized and the grounds. There was no prescribed form, and it was unnecessary to cite the statutory provision if the reason was made clear. The email of 26 September 2012 and, in any event, the letter of 19 October 2012 satisfied that requirement. Describing the latter as not being a notice of seizure could not alter its legal effect.
5. The driver was not shown to be the claimant’s agent. The defendant bore the burden of establishing that agency, and the claimant’s later knowledge of the seizure did not support the necessary inference.
6. The evidence did not establish reasonable grounds for the particular suspicion relied upon. However, the suspicion was honestly held and was not irrational or perverse, given the wider circumstances, the paperwork irregularity and the changeable trailer number. The seizure was therefore not shown to be unlawful.