The Secretary of State for the Home Department v Filit Tuncel and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keith |
| Judgment Date | 28 February 2012 |
| Neutral Citation | [2012] EWHC 402 (Admin) |
| Docket Number | Case No: CO/13081/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 February 2012 |
[2012] EWHC 402 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Keith
Case No: CO/13081/2010
Mr Andrew Bird (instructed by the Cash Forfeiture and Condemnation Legal Team, UK Border Agency) for the Appellant
Ms Sophie Shotton (instructed by Kilic Has & Onay LLP) for the First Respondent
Mr Alexander Rooke (instructed by ADH Law) for the Second Respondent
Hearing date: 21 December 2011
Introduction
Police officers, customs officers and accredited financial investigators may seize and detain cash if they have reasonable grounds for suspecting that the cash has been obtained through, or is intended for use in, unlawful conduct. They can then apply to a magistrates' court for the cash to be forfeited. The court may order the cash to be forfeited if it is satisfied that the cash was obtained through, or was intended for use in, unlawful conduct. But what if the court is satisfied of that, but concludes that when the cash was originally seized, there were no reasonable grounds for suspecting that it had been obtained through, or was intended for use in, unlawful conduct? Is the court in those circumstances obliged to refuse the application for a forfeiture? That is the issue which this appeal by way of case stated raises. It arises in the context of customs officers seizing the cash of travellers passing through an immigration control point, but there are many other occasions when cash may be seized.
The twist in the story is that none of the parties sought to argue that the absence at the time the cash was seized of reasonable grounds for suspecting that it had been obtained through, or was intended for use in, unlawful conduct should deprive the court of its power of forfeiture. The point was taken by the Crown Court of its own motion when it was hearing an appeal from an order for the forfeiture of the cash made by the magistrates' court.
The relevant facts
On 6 November 2008, Filit Tuncel and Sadik Basbaydar were due to travel from Heathrow to Istanbul on a Turkish Airlines flight. The luggage which they had checked in was searched by customs officers. In Mr Tuncel's luggage £20,000.00 in £20 notes was found wrapped in tin foil. £30,000.00 in £10 and £20 notes was found similarly wrapped in Mr Basbaydar's luggage. They were questioned by customs officers about the cash. The officers were not satisfied with the explanations they were given, and the cash was seized under section 294(1) of the Proceeds of Crime Act 2002 ("the Act"), which provides:
"A customs officer, a constable or an accredited financial investigator may seize any cash if he has reasonable grounds for suspecting that it is –
(a) recoverable property, or
(b) intended by any person for use in unlawful conduct."
Recoverable property is defined in section 304(1) of the Act as property "obtained through unlawful conduct".
Following its seizure, the cash was detained pursuant to section 295(1) of the Act, which provides:
"While the customs officer, constable or accredited financial investigator continues to have reasonable grounds for his suspicion, cash seized under section 294 may be detained initially for a period of 48 hours."
On the following day, i.e. 7 November 2008, and therefore before the expiry of the 48 hours, an application was made to a magistrates' court for an extension of the period during which the cash could be detained by a further three months pursuant to section 295(2) of the Act, which provides (so far as is material):
"The period for which the cash or any part of it may be detained may be extended by an order made by a magistrates' court …; but the order may not authorise the detention of any cash –
(a) beyond the end of the period of six months beginning with the date of the order,
(b) in the case of any further order under this section, beyond the end of the period of two years beginning with the date of the first order."
In order to make such an order, the magistrates' court had to be satisfied, amongst other things, that there were "reasonable grounds for suspecting that the cash [was] recoverable property" (section 295(5)) or "reasonable grounds for suspecting that the cash [was] intended to be used in unlawful conduct" (section 295(6)). The application for an extension of the period of detention was not opposed, and the magistrates' court extended the period of detention for three months. Subsequent applications for further extensions were likewise not opposed, and the magistrates' court on each occasion extended the period of the detention.
On 13 July 2009, Her Majesty's Revenue and Customs ("HMRC") lodged an application for the forfeiture of the cash with Uxbridge Magistrates' Court pursuant to section 298(1) of the Act, which provides (so far as is material):
"While cash is detained under section 295, an application for the forfeiture of the whole or any part of it may be made … to a magistrates' court by the Commissioners of Customs and Excise, an accredited financial investigator or a constable …"
That application had the effect of authorising the continued detention of the cash, because section 298(4) of the Act provides:
"Where an application for the forfeiture of any cash is made under this section, the cash is to be detained (and may not be released under any power conferred by this Chapter) until any proceedings in pursuance of the application (including any proceedings on appeal) are concluded".
The application for the forfeiture of the whole of the £50,000.00 was made against Mr Tuncel alone, Mr Basbaydar being named in the application as someone who would be affected by an order for its forfeiture. That was done, I assume, because Mr Basbaydar had denied that the £30,000.00 found in his luggage was his. When the cash had been seized, he had told customs officers (so it was alleged) that Mr Tuncel was going to give him the £30,000.00 in Istanbul as a loan for his struggling business.
The application for the forfeiture of the cash was heard at Uxbridge Magistrates' Court on 2 and 3 June 2010. By then, the functions of HMRC in relation to the seizure and forfeiture of the cash had become exercisable by the Secretary of State for the Home Department: see sections 1(1) and 1(2) of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act") and the scheme made on 3 August 2009 pursuant to section 26 of the 2009 Act. That explains the heading of this judgment, but since the executive agency within the Home Office which exercises these functions of the Secretary of State is the UKBA, I shall refer to the application as having been made by the UKBA.
The question for the court was whether it was satisfied that the cash had been obtained through, or was intended for use in, unlawful conduct. That was because section 298(2) of the Act provides (so far as is material):
"The court … may order the forfeiture of the cash or any part of it if satisfied that the cash or part –
(a) is recoverable property, or
(b) is intended by any person for use in unlawful conduct."
It is to be noted that there is no express requirement for the court to be satisfied that at the time the cash was originally seized there had to have been reasonable grounds for suspecting that the cash had been obtained through, or was intended for use in, unlawful conduct. All that is required is for the court to be satisfied that the cash was obtained through, or intended for use in, unlawful conduct. In the event, the magistrates' court ordered the cash to be forfeited. It provided written reasons for its decision. It was satisfied that the £20,000.00 found in Mr Tuncel's luggage was both recoverable property and "intended for criminal activity". It was satisfied that the £30,000.00 found in Mr Basbaydar's luggage was "intended to be used in criminal activity".
Mr Tuncel and Mr Basbaydar appealed against the order for the forfeiture to the Crown Court. The appeal was heard at Isleworth Crown Court by Judge Oliver and a magistrate on 28 and 29 October 2010. The appeal took the form of a re-hearing. In the course of the hearing, the judge raised the question whether, before an order for forfeiture could be made under section 298(2), the court had to be satisfied that at the time when the cash had been seized, there had to have been reasonable grounds for suspecting that the cash had been obtained through, or was intended for use in, unlawful conduct. That was, as I have said, not a point which had been taken by counsel for Mr Tuncel and Mr Basbaydar, but since the judge was concerned about the issue, he asked some of the customs officers who gave evidence on behalf of the UKBA whether the searches which they had made of the luggage of Mr Tuncel and Mr Basbaydar had been random searches or the result of information received. They gave what the judge in his ruling described as "the standard answer", namely that they would neither confirm nor deny whether or not they had been acting on information received.
At the conclusion of the evidence called on behalf of the UKBA, and before counsel for Mr Tuncel and Mr Basbaydar had been asked whether it was proposed to call evidence on their behalf, the court purported to rule that they had no case to answer. The judge's ruling shows that the court's view was that, before the court could be satisfied that the cash had been obtained through, or was intended for use in, unlawful conduct, and therefore before an order for the forfeiture of...
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