Smuggling, Confiscation and Forfeiture

DOIhttp://doi.org/10.1111/1468-2230.00408
Publication Date01 September 2002
AuthorPeter Alldridge
unfortunate that the House of Lords seems to have been so confident of its
interpretation of EC law that it effectively engaged in crystal ball gazing to arrive
at a definition of unfair and overlooked its broader role in the development of EC
consumer law.
Smuggling, Confiscation and Forfeiture
Peter Alldridge*
The English talk about having their cake and eating it.
1
The Welsh talk of having
the penny and the bun. Italians, more lyrically, talk of having their lover merry and
the bottle still full. All these are metaphors to describe the unattainability of
mutually exclusive paths to happiness. The legal reality of the House of Lords,
however, is that the Customs and Excise does get both to tax the smuggled
cigarettes and to seize them. In RvSmith (David Cadman)
2
the House of Lords
held that a person who smuggles cigarettes into the country is liable, in addition to
whatever punishment is imposed upon conviction, to the forfeiture of the cigarettes
and then also to a confiscation order to the value of the unpaid duty. This exercise
in judicial overkill raises questions both as to the construction of the relevant
legislation (whose re-enactment is, at the time of writing, before Parliament) and
some wider questions of principle as to the confiscation legislation.
Smith also wrote a further chapter in the judicial saga of the statutory expression
‘pecuniary advantage’, the problems of which should have ended long ago. It
holds, without the matter having been properly argued, that where an order is being
made to proceeds of crime in a case where the crime involved the deferral of a
debt, the order should be to the value of the whole debt, not just the financial value
of the deferral. This drives confiscation law far beyond its original objective in the
profits of crime, and leaves the criminal who manages to secure the termination of
a debt better placed than the one who only achieves its deferral. In an atmosphere
in which money laundering is blamed for many of the evils of the world,
3
with
laws to recover the proceeds of crime are increasingly harsh, such decisions as this
at least require scrutiny.
Forfeiture and confiscation
The relationship between forfeiture and confiscation is central to Smith. Forfeiture
is the seizure of property by the state because of it use in the commission of crime.
There is a range of statutory forfeiture powers. Outside the field of customs law,
* Cardiff Law School
1 A corruption of the earlier form, which seems to have been eating the cake and having it. eg ‘Wouldst
thou both eat thy cake and have it?’ George Herbert (1593–1633), The Size.
3 After the attacks on the US, Tony Blair, stated repeatedly that 90% of heroin sold in Britain was of
Afghan origin. (Labour Party conference October 2nd 2001; ‘Air Strikes on Afghanistan: Prime
Minister’s Speech’ The Independent, 8 October 2001; HC Debates 8th October 2001 cols 814 & 821).
The Anti-Terrorism, Crime and Security Act 2001 contains provisions (ss 1–3 and sched 2) further
(than the Terrorism Act 2000) facilitating the seizure of ‘terrorist property’.
September 2002] RvSmith (David Cadman)
ßThe Modern Law Review Limited 2002 781

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