Challenging Customs’ Seizures – Condemnation or Restoration

When “Customs” (usually the Border Force or HMRC) seize an individual’s or a company’s goods and/or vehicles using their powers under the Customs and Excise Management Act 1979, for example under section 49 where goods are subject to excise duty, or a prohibition or restriction or section 141 where “any ship, aircraft, vehicle, animal, container or any other thing which has been used for the carriage, handling or concealment of the thing .. liable to forfeiture … or any other thing mixed, packed or found with the thing so liable”, the individual or company has a choice as to how to challenge that seizure and to seek the return of his property.

Condemnation or Restoration

One option is to use the “condemnation” process, pursuant to Schedule 3 of the 1979 Act, where the matter is taken before a Magistrates’ Court who can consider the lawfulness of the seizure and determine whether the goods and/or vehicle should be returned, and the second is to seek a review of the decision to seize and “restoration” under section 152(b) of the 1979 Act, which will be dealt with by an independent officer of the Border Force or HMRC; if the reviewing officer upholds the original decision then the individual/company can appeal that decision to the First Tier Tax Tribunal (“FTTT”). It is open to (and often advisable for) the individual/company to undertake both processes in parallel.

Time limits

There are time limits for both processes: condemnation appeals (via a written “Notice of Claim”) have to be made within one month of the original seizure whereas a request for a review of a seizure must be made in writing within 45 days of the original decision and then an appeal to the FTTT should be made within 30 days of the date of the review decision (or if no response has been received within 45 days of the request for a review). These time limits should be regarded as mandatory; although the FTTT has a discretion to extend time for the service of the appeal it is rarely exercised.

Ownership

It is also important to bear in mind that, while the condemnation process requires a party to swear to ownership of the goods or vehicle which has been seized (Schedule 3, Paragraph 10 of the 1979 Act), restoration does not involve that requirement; indeed HMRC’s own Notice 12A (dealing with Restoration states, at section 4.1 “HMRC and Border Force will normally only restore a thing to its rightful owner but they will take arrangements with third parties into consideration” (my emphasis) – see https://www.gov.uk/government/publications/notice-12a-what-you-can-do-if-things-are-seized-by-hm-revenue-and-customs/excise-notice-12a-what-you-can-do-if-things-are-seized-by-hm-revenue-and-customs

I have considered the condemnation process in other articles – see e.g. http://becket-chambers.co.uk/2016/08/03/tobacco-car-seizures-customs/ – so will focus now on the restoration process (while contrasting it with the condemnation regime).

Restoration

The test to be applied in restorations is whether the decision to restore (i.e. the review decision, rather than the original seizure) could not reasonably have been made, so that if the decision falls within the range of reasonable decisions open to the reviewing officer, on the evidence and information available, the appeal will not be allowed. The appellant (the individual/company) has to show that the decision was unreasonable and has to do so to the civil standard (i.e. more likely than not); in condemnation appeals it is for the Border Force or HMRC to show (again, to the civil standard) that the goods, for example were imported for a commercial purpose.

Once a restoration appeal has been lodged, using the T240 form available online – see https://www.gov.uk/government/publications/notice-of-appeal-ask-a-tax-judge-to-examine-a-dispute-form-t240 – and the appeal needs to include various details including the grounds for making the appeal and a copy of the decision being appealed (the form indicates what else is needed – read it carefully!). Thereafter the “Respondent” i.e. the body responding to the appeal, so Border Force or HMRC, will provide a Statement of Case setting out, predictably, the basis for the decision and why it should be upheld. The Tribunal will then make “Directions”, in effect an Order setting out the timetable for the process, which will usually include “disclosure” (each party showing the other all their relevant and material documents), provision of any witness evidence/statements and preparation of bundles for the trial.

It should go without saying that orders of the Tribunal should be followed and, if there is likely to be a problem complying., e.g. you need more time, you should endeavour to agree an extension of time with the other side, and if no agreement is reached ask the Tribunal, explaining why you are unable to comply and how long you need. I say “it should go …” because it is astonishing how often parties fail to comply but are then mortified because their case has been struck out for that failure!

The hearing before the Tribunal is intended to be less formal than in a traditional Court, but it still follows a process with the witnesses in turn giving evidence and being cross-examined and while the Tribunal will endeavour to support a “litigant in person” (i.e. without a lawyer) it makes sense to try to observe a hearing to see what happens before you turn up for your case!

It is important to note that condemnation proceedings are the only avenue which allows a challenge to the legality of the seizure (i.e. that the goods and/or vehicle should not have been seized in the first place); restoration starts from the premise that the goods were lawfully seized but the appellant seeks to show that it is reasonable and proportionate that they should be restored (see, for instance, HMRC v Jones [2011] EWCA Civ 824).

Advice and assistance in respect of restoration appeals (and condemnations) can be obtained from the members of Becket Chambers’ Direct Access barristers; please contact the clerks on 01227 786331 for more information.