“ 20……………………. There must, therefore, be something more than a failure on the part of the applicant to invoke condemnation proceedings before the Tribunal is empowered to question the legality of the forfeiture. 22. It is, in my judgment, clear from that passage that in the run of the mill cases where there has been a failure to give a paragraph 3 notice invoking the condemnation proceedings the deeming provisions will operate against the applicant in any subsequent appeal to the Tribunal . The Tribunal’s function, therefore, is analogous to a sentencing court once a defendant has been convicted. No matter that the defendant still protests his innocence of the charge against him, the functioning of the sentencing court is to accept mitigation but not to question the original conviction. 23. …. So the relevant questions will always be, first, could the applicant have raised the question of lawfulness of forfeiture in other proceedings and, if the answer to that question is yes, why did he not do so. In light of his reasons for not raising the matter of condemnation proceedings the Tribunal can then answer the question should he have done so and if they answer that question ‘yes’ then it will be, in most cases, an abuse of process for him to raise the question before the Tribunal.”
“Note: if your only reason for requesting the return of the seized things is that you think that Customs have no legal right to seize them (e.g. that the excise goods were entirely for your ‘own use’ or they were to be given to others as gifts ‘free of charge’), you cannot rely on that as a reason for it to be returned to you. In those circumstances you must also challenge the legality of the seizure as set out in Section 2 of this notice. If you wish us only to consider returning the seized thing you must make it clear (by ticking the box below) that you do not also wish to contest the legality of the seizure. It was therefore made quite plan to Mr Brady that the correct place to challenge the legality of the seizure was the Magistrates Court. In his letter Mr Brady unequivocally states that he does not wish to “legally challenge the seizure and requests that any condemnation proceedings are halted forthwith.”
“63. …….. I would not have been prepared to condemn the commissioners’ policy had it been one that was applied to those who were using their cars for commercial smuggling, giving that phrase the meaning that it naturally bears of smuggling goods in order to sell them at a profit. Those who deliberately use their cars to further fraudulent commercial ventures in the knowledge that if they are caught their cars will be rendered liable to forfeiture cannot reasonably be heard to complain if they lose their vehicles. Nor does it seem to me that, in such circumstances, the value of the car used need be taken into consideration. Those circumstances will normally take place beyond the threshold where that factor can carry any significant weight in the balance. Cases of exceptional hardship must always, of course, be given due consideration.”