Part II Carriers’ Liability

Clandestine entrants

37 Effect of detention.

(1)

This section applies if a transporter is detained under F1section 36(1).

(2)

The person to whom the penalty notice was addressed, or the owner or any other person F2whose interests may be affected by detention of the transporter, may apply to the court for the transporter to be released.

(3)

The court may release the transporter if it considers that—

(a)

satisfactory security has been tendered in place of the transporter for the payment of the penalty alleged to be due and connected expenses;

(b)

there is no significant risk that the penalty (or one or more of the penalties) and any connected expenses will not be paid; or

(c)

there is a significant doubt as to whether the penalty is payable F3. . .

F4(3A)

The court may also release the transporter on the application of the owner of the transporter under subsection (2) if—

(a)

a penalty notice was not issued to the owner or an employee of his, and

(b)

the court considers it right to release the transporter.

(3B)

In determining whether to release a transporter under subsection (3A) the court shall consider—

(a)

the extent of any hardship caused by detention,

(b)

the extent (if any) to which the owner is responsible for the matters in respect of which the penalty notice was issued, and

(c)

any other matter which appears to the court to be relevant (whether specific to the circumstances of the case or of a general nature).

(4)

If the court has not ordered the release of the transporter, the Secretary of State may sell it if the penalty in question and connected expenses are not paid before the end of the period of 84 days beginning with the date on which the detention began.

(5)

“Connected expenses” means expenses reasonably incurred by the Secretary of State in connection with the detention.

F5(5A)

The power of sale under subsection (4) may be exercised only when no appeal against the imposition of the penalty is pending or can be brought (ignoring the possibility of an appeal out of time with permission).

(5B)

The power of sale under subsection (4) shall lapse if not exercised within a prescribed period.

(6)

Schedule 1 applies to the sale of transporters under this section.

F6(7)

This section applies to a transporter detained under section 36A as it applies to a transporter detained under section 36(1); but for that purpose—

(a)

the court may release the transporter only if the court considers that the detention was unlawful or under subsection (3A)(and subsection (3) shall not apply), and

(b)

the reference in subsection (4) to the period of 84 days shall be taken as a reference to a period prescribed for the purpose of this paragraph.