No Laughing Matter – UK Border Force get it wrong

Oliver Powell, instructed by Peter Hastings of Rogers & Norton Solicitors, appeared in Court in Southampton in relation to a UK Border Force (‘UKBF’) investigation into a large scale importation of metal vial cream chargers containing 8 gram compressed nitrous oxide (laughing gas) cartridges (‘the Goods’)).

Oliver Powell appeared on behalf of Rapid Infusion Limited (‘the Company’), a wholesaler that specialises in the sale of InfusoWhip, a rapid infusion set widely used in the catering industry.

It was the UKBF’s case that the Goods imported were liable to forfeiture pursuant to s.49(1)(b) Customs and Excise Management Act 1979 (‘CEMA’) by virtue of the fact that the Goods were imported in breach of a prohibition imposed by s.12 PSA 2016. In the alternative, that they are liable to forfeiture pursuant s.55(2) Psychoactive Substances Act 2016 (‘PSA’) because: the Goods were imported into the UK; were likely to be consumed by any individual for their psychoactive effects; and the importation was not for an exempted activity.

Following service of Oliver’s skeleton argument and further evidence from the Company, the day before the trial was due to commence the UKBF withdrew their application for condemnation of the Goods. UKBF opposed the resulting application for costs (relying on Perinpanathan v City of Westminster Magistrates’ Court and 2 others [2010] EWCA Civ 40) and invited the court to make a ‘section 144 CEMA certificate’, namely that there were reasonable grounds for the seizure. Despite UKBF’s opposition to the application for costs, the application for costs was successful and the Company was awarded costs in the full amount sought. In addition, Oliver successfully opposed the UKBF’s application for a ‘section 144 CEMA certificate’, thereby leaving the door open for the Company to pursue separate civil proceedings for damages against UKBF.

In addition, the decision had wider implications for the Company, with the UKBF agreeing to withdraw a further application for condemnation of goods seized from the Company that was due to be heard in Ipswich in autumn 2019.

Oliver is a contributor to Millington & Sutherland Williams on the Proceeds of Crime (Fifth Edition), OUP, which includes a chapter on condemnation and restoration of good seized by HMRC/UKBF. His practice encompasses; asset recovery (civil and criminal), bribery & corruption, indirect tax, sanctions and matters involving financial wrongdoing.

Should you require further information about Oliver, or if you would like to instruct him, please contact David Smith, Business Development Director.

News 4 Sep, 2019