Hauliers who are ‘complicit’ in cross-border contraband smuggling are liable to have their vehicles seized by the UK Border Force (UKBF). As a case concerning a £13 million haul of illegal drugs showed, however, defining what exactly is meant by complicity is often far from straightforward.
A lorry loaded with 43 trollies of fresh-cut flowers was stopped by UKBF officers in the control zone at Coquelles, in France. Packed inside the bases of many of the trollies were 250kg of cocaine and 169kg of amphetamine. The vehicle, which was bound for the UK, was seized and its driver, the sole director of the company that owned it, was arrested.
The driver later stood trial on drug smuggling charges but was acquitted by a jury. In a decision that was subsequently confirmed on review, UKBF nevertheless refused to restore the vehicle to the company. Whilst not asserting that the driver knew the drugs were on board, UKBF contended that he had failed to make reasonable checks in relation to the consignor, the consignees and the goods themselves.
In challenging that decision as unreasonable and disproportionate, the company argued that the driver was an innocent victim and guilty of no more than an error of judgment. He was unable to observe the lorry being loaded because of COVID-19 precautions. The drugs were so skilfully concealed that he would have remained unaware of their presence in any event. Fabricated consignment notes were only handed to him when he picked up the load and he had no time to check them.
Upholding his appeal, the First-tier Tribunal (FTT) noted that a person may be found to be complicit in a smuggling attempt if he or she turns a blind eye to suspicious circumstances and fails to make appropriate inquiries. However, that scenario was to be distinguished from failing to carry out reasonable checks irrespective of whether there was a suspicion of smuggling.
The driver’s acquittal, whilst not decisive, was significant. The review decision did not refer to any specific finding that he was complicit in the smuggling attempt. An allegation that he failed to carry out checks because he knew that they would be futile should not have been taken into account. That error was by itself sufficient to render the decision unsafe and unreasonable. The FTT directed that a fresh review be conducted in the light of its ruling by an officer who had not previously had any connection to the case.