Sam Healey was instructed by two clients who were stopped by Border Force as they were about to board a flight to Thailand. It was suggested at that time by the Border Force Officers that the cash seized (in excess of £55,000) represented criminal property and that it had either originated from criminal conduct or was to be used for criminal conduct. Later, HM Revenue & Customs (‘HMRC’) confirmed as the prosecuting authority, that they believed that the cash had not been properly declared to HMRC for tax purposes. This, however, ignored the fact that the cash that had been seized was the income for a legitimate business and income that had fallen across two tax years. In effect, there had been a period of delay before some of the cash that had been seized was even due for declaration as income to HMRC.

In this particular case, the delay in the appeal being progressed due to the unavailability of witnesses and also the impact of Covid-19 worked, somewhat, to the Appellant’s advantage. By the time the appeal was heard (by coincidence at a Nightingale Court at the recently transformed Lowry Theatre), the position was that the whole amount of cash that had been seized had been declared in self-assessment returns submitted to HMRC. Accordingly, the tax returns had been filed and also the necessary tax had been paid. Whilst this had been made clear to HMRC over a number of months following the seizure of the cash, by the time that the appeal was due to take place, HMRC had no option but to concede that their basis for forfeiture of the money in the first instance was no longer valid. More specifically, the argument that the money was ‘recoverable property’ was without merit.

The appeal was therefore allowed and the full amount of money that had been seized at the airport, subsequently ordered to be forfeited at the Magistrates’ Court, is now to be returned in full. In addition, HMRC are required to pay some of the client’s legal costs and also interest on the costs that were paid at the Magistrates’ Court, which also must be returned.

Sam Healey worked with Helen Kelsall and Richard Dawson, a barrister at Lincoln House Chambers