Operators face a bureaucratic and costly nightmare that can take months to resolve should they have a truck seized by UK Border Force (UKBF). UK customs authorities have the power to seize and detain any vehicle they believe is being used to carry goods liable to forfeiture.
These include goods on which excise duty is suspected to have not been paid, goods without the correct load paperwork, and illicit goods such as drugs and firearms. Under the Immigration and Asylum Act 1999, UK customs authorities can also seize an operator’s vehicle if there is an outstanding fine for failing to prevent the carriage of illegal immigrants or if the authorities are concerned that any such fine will not be paid on time.
So what can hauliers do to ensure their trucks do not fall foul of the UKBF’s seizure powers? Chris Powell, transport lawyer at Smith Bowyer Clarke recommends operators implement a clear set of company procedures. “Given this sweeping power of seizure, hauliers and drivers involved in cross-channel work should ensure they conduct reasonable checks of the vehicle, the load, and the accompanying paperwork before, to and during the journey.
Join the club
“Hauliers should also make appropriate checks in relation to customers and vet drivers carefully. It is also a good idea to ensure drivers have proper training to enable them to identify potential problems with the load and the load paperwork,” he advises.
Vikki Woodfine, head of road transport and logistics at law firm DWF, recommends that operators running trucks across the border on a regular basis join the UKBF’s free accreditation scheme. “The scheme requires operators to show they have an effective system to prevent the carriage of clandestine entrants and that it takes all reasonable steps to enforce that system. Civil penalties will not be imposed on accredited members if clandestine entrants are subsequently discovered and the operator can demonstrate effective compliance with the scheme,” she explains.
If, despite these precautions, an operator finds one of his trucks has been seized by UKBF, Woodfine advises the firm responds promptly, not least because the authorities can apply for a vehicle to be sold without consent of the owner or operator. “It is sensible to respond as soon as reasonably possible once in a position to do so. If an operator is challenging a seizure on suspicion of smuggling, they must do so within a calendar month of the date of seizure,” she says.
Powell says there are two main ways a haulier can seek to recover a vehicle that has been seized for carrying goods liable to forfeiture. “If the haulier believes that UK customs authorities had no legal right to seize the vehicle in the first place, he should ask the customs authorities to return the vehicle or begin condemnation proceedings,” he advises.
“If, however, the haulier accepts that the initial seizure was lawful, but can show that reasonable steps had been taken to ensure the legitimacy of the load, he can complete a restoration request,” he adds. Getting back a vehicle that has been seized due to suspicion of excise duty evasion can be a complicated process, says Woodfine.
“Restoration proceedings involve an officer from UKBF or HMRC reviewing the vehicle seizure and the operator’s individual circumstances and this may result in the release of the vehicle for a fee or in very rare circumstances, for no fee. “A restoration decision can be appealed and if an operator is still unhappy with the outcome, it can appeal to a tribunal, but this final step can be a costly exercise,” she warns.
Condemnation proceedings can be lengthy as they can take months to get to court, adds Woodfine. “Given the delays that can occur in the court system, restoration proceedings could result in a vehicle being returned weeks or months before the condemnation proceedings begin. However, the authorities also make it clear that it is their general policy not to return vehicles used for commercial smuggling,” she says.
Waits and measures
Powell agrees that the restoration process can take some time. He says: “This can be a slow process. It is not unusual for a haulier to wait weeks, if not months, before any restoration request is processed by UK Border Force. The timely intervention of lawyers with experience in this field can often speed up the process,” he advises, adding that having the relevant documents ready can also help to reduce any delay.
Costs and penalties can also vary, depending on the reason for the vehicle seizure and while penalties can be challenged, operators need to weigh up the cost of the challenge and the delay that might bring compared with the cost of the penalty, Woodfine advises.
Operators that are running leased vehicles on cross-channel routes should also be aware that they will be liable to greater costs should these vehicles be seized, warns Woodfine. “More and more finance agreements contain provisions allowing the lessee to require the return of financed vehicles or require lessors to pay all money owed immediately,” she explains, adding that this can sometimes be applied to all of the vehicles the operator leases, even if only one vehicle has been seized.
Count your losses
Woodfine adds that in some cases UKBF will sell the vehicle at auction rather than return it, often at a price lower than the value of the leased vehicle, leaving the operator responsible for paying the finance company the difference. Having a truck seized can also bring long-term costs, such as loss of business and the reputational damage of being associated with smuggling activities.
So can operators claim any compensation from the government or through their insurance if they can prove they are the victims rather than perpetrators of the alleged crime? Powell says operators can claim back loss of earnings from having a truck seized if it can be shown that the truck had been unlawfully seized.
However there appears to be little support for UK operators from insurers, he adds. “We do not know of any UK-based insurer prepared to underwrite this form of risk. We do know, however, of a number of European insurers that provide cover for this eventuality to haulier clients.”
Bywater Transport had one of its fleet of 40 trucks seized by UKBF in December last year and has yet to have it returned. The Mercedes-Benz truck, which was leased by the family firm from dealership Sparshatts of Kent, was seized on 21 December at the Port of Dover and the driver was arrested.
No details of any alleged crime have been given to MD John Bywater by UKBF. Despite numerous attempts by Bywater and Sparshatts to find out when the truck will be released, and lobbying from local MP Charlie Elphicke, UKBF has yet to give a clear answer.
One agent told Sparshatts the truck may never be returned, despite the fact that neither the firm’s directors nor its employees are being investigated by UKBF. The firm calculates the seizure has cost the business at least £15,000. in lost trade and lease payments, to date.