Amber Services Europe Ltd & Anor v The Director of Border Revenue

Liability to forfeiture under section 170B(2) of the Customs and Excise Management Act 1979 does not require a prior criminal conviction under section 170B(1). The issue is determined in civil condemnation proceedings under Schedule 3. The court must decide, on the civil standard, whether a person was guilty of the offence, whether identified or not. The criminal penalties under section 170B(1) and the civil forfeiture consequence under section 170B(2) are distinct routes. The statutory scheme would be undermined if goods could not be seized and condemned merely because no offender had been convicted.

Two appeals by way of case stated arose from decisions of a District Judge in condemnation proceedings concerning imported unprocessed tobacco. The goods had been seized as allegedly liable to forfeiture under section 170B of the Customs and Excise Management Act 1979. In one case, a vehicle was also seized under section 141. The District Judge found, on the balance of probabilities, that offences under section 170B(1) had been committed and condemned the goods, and vehicle where applicable, as forfeited. No person had been charged with or convicted of an offence. The common question was whether conviction was required before goods could be liable to forfeiture under section 170B(2).

1. Appeals dismissed. The court answered the stated question in the negative.
2. Section 170B(2) is one of the provisions creating liability to forfeiture under the customs and excise legislation. By section 139(6), disputed liability is determined through the civil condemnation procedures in Schedule 3. Under paragraph 6, the court must condemn the thing if it finds that, at the time of seizure, it was liable to forfeiture.
3. In those civil proceedings, the court determines whether the statutory precondition is satisfied: namely, whether any person, identified or not, was guilty of an offence under section 170B(1). Proof of a prior conviction is not required. The relevant standard is the civil standard of proof.
4. The distinction between section 170B(1), which imposes criminal penalties on conviction, and section 170B(2), which imposes liability in respect of the goods, is deliberate. The provisions create different routes to different consequences and are not sequential requirements.
5. The decision in R (Eastenders Cash and Carry plc v Commissioners of Her Majesty’s Revenue and Customs [2014] UKSC 34 concerned the statutory power to seize or detain goods and did not require a different result. It established that liability to forfeiture depends on objectively ascertained facts rather than officers’ suspicions. That principle was consistent with determining liability in the condemnation proceedings, and did not make conviction a prerequisite.
6. The contrary construction would produce anomalous results, including preventing effective seizure or forfeiture where the offender could not be identified or no conviction could be obtained. Parliament should not be taken to have intended that outcome.

Not stated in the judgment.