Unlawful seizure of cash is no bar to forfeiture

In the secretary of state for the Home Department v Tuncel and Basbaydar [2012] EWHC 402 Keith J was effectively asked to determine the question of whether an unlawful seizure of cash precludes forfeiture under section 298 POCA 2002. Mr Tuncel and Mr Basbaydar had been trying to board a plane to Istanbul at Heathrow when customs officers discovered £20,000 and £30,000 in cash in their respective suitcases. Naturally enough, the cash was seized under section 294. The cash was detained and subsequently forfeited at Uxbridge Magistrates Court. Mr Tuncel and Mr Basbaydar appealed to Isleworth Crown Court. Their case came before His Honour Judge Oliver for a re-hearing in the normal way. However, after hearing evidence relating to the seizure of the cash (crucially interspersed with one of the witnesses for the Appellants simply for the sake of expedience), Oliver HHJ found that the Appellants had no case to answer as the court was not satisfied that customs officers had acted lawfully in seizing the cash as there was no evidence they had any grounds for suspecting that the section 294 conditions had been satisfied. HMRC asked the Crown Court to state a case for the opinion of the High Court. Rather unsatisfactorily, it appears that Counsel for the Respondents did not draw the attention of Keith J to the fact that sullivan J (as he then was) had referred to Muneka at some length in his very important judgment in Jeffrey Green. That case is still good law and formed the basis for the decision in Carol Angus earlier last year that the Crown must identify the kind or kinds of unlawful conduct that led to the obtaining of the cash. Keith J concluded that the decision in Muneka did not support the reasoning of HHJ Oliver. He found that there is no doctrine in cases concerning the forfeiture of cash denying the authorities the fruits of the forbidden tree as there was no provision in section 298 requiring the cash to have been seized lawfully. Moreover, Keith J ruled that HHJ Oliver had no power to dismiss the case at half time in any event, as in civil proceedings such a submission was limited to cases where a defendant had elected not to call any evidence. In this case, one of the witnesses for the defence had given evidence interspersed between Crown witnesses simply for the sake of convenience. The matter was remitted back for a re-hearing. It has to be said that there is little point in creating safeguards within a statutory regime if there is no sanction for failing to comply with them. Whilst evidence obtained unlawfully is sometimes deemed admissible in criminal proceedings, a defendant always has recourse to the civil courts to seek relief for the unlawful behaviour (in theory anyway). Where does the Respondent turn when his cash unlawfully seized from him? It seems the answer to that is nowhere and this is quite frankly symbolic of the whole procedural regime for cash seizure, detention and forfeiture which requires a radical overhaul as it is in danger of becoming an embarrassment.