56 foRfeituRe undeR  the customs and excise act 1996 directed at their status, and the person with an interest in them is being deprived of nothing to which they would otherwise be entitled. 211    However, not all goods liable to Customs forfeiture fall into this category. The confiscation of dutiable goods, in addition to the payment of any duty, deprives the person with an interest in the goods of their lawful property, and should properly be seen as in the nature of a penalty. For example, where dutiable goods have been incorrectly declared or a craft has been used to carry contraband, any forfeiture may seriously affect a person’s livelihood, or deprive him or her of significant assets. In our view, any such confiscation should be proportionate and should take into account the nature and seriousness of the conduct, for example, whether a failure to declare duty was the result of genuine error and whether the amount of contraband in the craft was small, or its carriage was a first-time violation, or the result of negligence rather than deliberate wrongdoing. 212    This principle of proportionality has been recognised by the English Court of Appeal and the European Court of Human Rights in their recent consideration of customs’ cases regarding seizure and restoration of property.¹⁶⁶ So, for example, in Lindsay v customs and excise commissioners¹⁶⁷ the English Court of Appeal held  that  a  policy  that  required  seizure  of  cars  (except  for  rented  vehicles) used for smuggling excise goods (such as tobacco) from Europe into England, unless in exceptional circumstances, involved deprivation of possession within Protocol 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.¹⁶⁸ It would thus only be justified if: _• it was in the public interest; _• there was proportionality between the means employed and the aim pursued;¹⁶⁹ and _• regard was had to individual cases (such as whether the smuggling was for profit making). 213    Mr  Lindsay  attempted  to  import  about  £2000  worth  of  tobacco  products which were seized together with his car. The Court held that the principle of proportionality meant that each case should be considered on its facts, including the scale of importation, attempt at concealment, the value of the vehicle and the degree of hardship caused by forfeiture. The Court upheld the Value Added Tax and Duties Tribunal’s conclusion that the decision not to restore the car to Mr Lindsay was disproportionate to the contravention. 166   For a European Court of Human Rights decision on when forfeiture by the State is justified see agosi v uK (1987) 9 EHRR 1, para 54. 167   Lindsay v customs & excise commissioners [2002] EWCA Civ 267; [2002] 3 All ER 118; 1 WLR 1766. 168   Protocol 1, article 1, of the European Convention for the Protection of Human Rights and Fundamental Freedoms states: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. 169   See air canada v uK (1995) 20 EHRR 150, discussed below.