E00393

Excise Duties – Non-restoration of seized goods and vehicle – Alcohol brought in in excess guidelines – Appellant not native English speaker – Wrong burden of proof applied by seizing and reviewing officers – No account taken of language difficulties or cultural differences 
Procedure – Second review letter written – No application made to tribunal – No request from Appellant – Letter not admitted

LONDON TRIBUNAL CENTRE

	MRS S AMIN	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	MISS J C GORT   (Chairman)
						MRS R RUDD
					 	MR A McLOUGHLIN

Sitting in public in London on 16 January 2003

Miss Z Amin, the Appellant’s daughter, for the Appellant

Miss Z Taylor of counsel, for the Respondents

© CROWN COPYRIGHT 2003

DECISION

1.	This is an appeal against a decision of the Commissioners on review contained in a letter dated 6 April 2001 not to restore to the Appellant a quantity of alcohol and a vehicle which had been seized by them on 19 January 2001 at the United Kingdom control zone in Coquelles.

2.	Before and after the review letter of 6 April 2001 there had been correspondence between the parties.  By a letter dated 19 February 2001 the Appellant had informed the Respondents that she wished to appeal.  Subsequently, although there had been no request by the Appellant nor direction by the Tribunal, by a letter dated 18 December 2002 the Respondents purported to re-review the decision.  The Appellant, who had submitted a “statement of  response” following the first review decision, by a letter dated 8 January 2002 responded to the further review letter of December 2001.  

3.	At the outset of the hearing Miss Taylor made an application for the second review decision to be treated as the decision against which the appeal now lay.  This application was made both on the grounds of expediency, and on the basis that both the Appellant and her representative had been made aware of the changes in the law which had taken place between the original review letter and the subsequent one and had had an opportunity to consider the further review letter.  This application was refused, there being no basis in law for the issuing of a re-review letter in circumstances where there was no prior application to the Tribunal and no application by the Appellant for a further review to be carried out.

4.	Miss Taylor then applied to the Tribunal for the appeal to be allowed without the hearing taking place, the intention being that the further review letter would then stand as the Respondents’ decision, and the Appellant would then be entitled to appeal against that further review.  This application was refused.

5.	Miss Taylor further applied for the hearing to proceed only insofar as the two Customs officers who had originally stopped and seized the goods and vehicle should give their evidence, and the hearing should then be adjourned for the officer who had carried out the first review, who was not present in court, to be called to give evidence.  That application was also refused, however a final application by Miss Taylor that the reviewing officer’s witness statement should be allowed to stand as his evidence was allowed, there having been no objection by the Appellant to this course.

The background

6.	On 19 January 2001 the Appellant was driving vehicle registration number H970 RJE accompanied by a Mr M Chohan.  She was stopped by Customs officers who were on duty at the UK control zone in Coquelles.

7.	The Appellant had in the car 45 cases of beer containing some 540 litres in total, and some chocolate.  She was required by an officer, Mr Clark, to satisfy him that the goods were not intended for a commercial purpose.  The Appellant and her passenger were both interviewed.

8.	In the course of her interview the Appellant informed the officer inter alia that the car was hers, that she had booked the trip a few days before, she had paid for the trip and the beer was hers alone.  She had bought the beer because her daughter was getting engaged and they would have a party the following Saturday. She would have a marquee in the garden which was not yet booked. She was expecting about 250 people, although nobody had as yet been invited.  She had English friends who drank beer. Whilst she had not been to the beer and wine cash and carry before, she had frequently travelled to the City of Europe cash and carry and had last travelled on the previous Tuesday when she had bought vegetables, prawns and other kitchen stuff.

9.	The Appellant told the officer that she had never previously bought tobacco or cigarettes, and she had last bought beer from Tesco some four to five months previously.  She financed the trip from her savings, and her weekly income was some £200.  In addition she had a widow’s pension of about £100 a week.  Her savings amounted to between £700 and £1000.  She had two dependant children aged 13 and 17 years.

10.	Mr Chohan’s answers in interview were substantially the same as the Appellant’s.  He had inter alia said that the trip had been planned one week ago, it was Mrs Amin’s idea, she was paying for the ticket, Mrs Amin owned all the beer and chocolate, they had last travelled abroad four or five days earlier to shop at City of Europe, they had not bought beer or tobacco on that occasion because the car had been filled with groceries and there was not enough room for the beer as well.  The beer was for Mrs Amin’s daughter’s engagement party and no more trips were planned to buy further quantities of beer.  No other alcohol than the beer was to be purchased for the party.  He had been told by Mrs Amin that 300 people would be going to the party.  He himself had travelled may be 15 times previously.

The review letter

11.	The reviewing officer was a Mr A W Hack.  In his review letter Mr Hack referred to the officer requiring the Appellant to satisfy him that the goods, being in excess of the guidance levels, were for her own use and not for a commercial purpose.  

12.	The review officer referred to the Appellant’s and Mr Chohan’s interviews, and also to a letter dated 22 January 2001 written by the Appellant in which the Appellant had repeated that the beer was for her daughter’s engagement party to which a large number of guests were to be invited, that she had frequently travelled to France to buy food and other such goods, that she had been stopped many times by Customs, that on each occasion had been allowed to go and she required the goods and vehicle to be restored as she was experiencing difficulties without the car which she needed to go to work and to take her children to school.  

13.	Having referred to the applicable legislation and the department’s general policy that seized excise goods were not restored other than exceptionally, Mr Hack then set out his reasoning under the heading `consideration’.  He wrote:

“It is for me to determine whether the contested decision in one which a reasonable body of commissioners could not have reached.  Before considering the issue of restoration I have first to examine whether or not the goods were properly seized.  That seizure was contingent upon your being able to demonstrate that the goods were for your own use and not for any commercial purpose.”

14.	He then continued:

“I note from the answers given by you at interview and in your subsequent letter that the excise goods were for your daughter’s engagement party.  Moreover, you also say that you had been frequently travelling to France to buy food for the same occasion.  It would appear from the vast numbers you had intended to invite, that the party was to be a significant event.  I have to say that I find it beyond comprehension that you had gone to all this trouble without having first invited or even mentioned it to any one of the intended 250 guests.  Neither do I believe that it would be reasonable not to have made any arrangements for hiring a marquee just seven days before such a grand occasion.”

15.	Mr Hack referred to the Appellant having said that the loss of the vehicle was causing her hardship and with regard to this stated:

“In the continuing absence of any evidence that the goods were not for a commercial purpose I am satisfied that the refusal to restore them was in line with the policy.

“Similarly, the Commissioners do not accept hardship as appropriate grounds for the restoration of a vehicle.”

16.	Mr Hack’s final statement under the heading “consideration” is:

“I consider that the decisions are not ones which a reasonable body of commissioners could not have reached.”

The law

17.	Section 13 of the Customs and Excise Duties (General Reliefs) Act 1979 gives  the Commissioners the power by order to confer upon persons entering the UK reliefs from duty.  The basis for relief is the Excise Duties (Personal Reliefs) Order 1992 (“the 1992 Order”) which implements the 1992 Excise Directive which has direct effect.  

18.	Article 3 of the 1992 Order provides that:

Relief from duty of excise – cross-border shopping 

Subject to the provisions of this Order a community traveller entering the United Kingdom shall be relieved from payment of any duty on excise goods which he has obtained for his own use in the course of cross-border shopping and which he has transported.

19.	Articles 2 and 3 of the Channel Tunnel (Alcoholic Liquor & Tobacco Products) Order 2000 (“the 2000 Order”) gives application to the 1992 Order in relation to goods imported to the Channel Tunnel. 

20.	Article 3A of the 1992 Order (inserted by the 2000 Order) provides that:

Relief from duty of excise – conditions – Shuttle train goods 

3A-(1)	In relation to shuttle train goods, this article shall have effect for the purpose of determining whether relief has been treated as having been afforded under article 3 above.

(2)	No relief shall be treated as having been afforded if the goods are held for a commercial purpose.  

(3)	Where the shuttle train goods exceed any of the quantity shown in the Schedule to this Order the Commissioners may require the person holding the goods to satisfy them that the goods are not held for a commercial purpose.

(4)	In determining whether or not any person holds shuttle train goods for a commercial purpose regard should be taken of the facts as listed in subparagraphs (a)-(j) of Article 5(2) below.

(5)	If a person holding the goods is required so to do but fails to satisfy the Commissioners that he does not hold them for a commercial purpose, it shall be presumed that the goods are held for a commercial purpose.

(6)	Where the person holding the goods fails to satisfy the Commissioners that he does not hold them for a commercial purpose, the purpose of any proceedings instituted in accordance with paragraph 8 of Schedule 3 to the Customs and Excise Management Act 1979 or any appeal under section 16 of the Finance Act 1994, his failure should cause the goods to be treated as “goods held for a commercial purpose” and accordingly section 154(2) of the Customs and Excise Management Act 1979 shall apply.

21.	Article 5 of the 1992 Order provides that:

5.	Relief from duty of excise – conditions
(3)	The reliefs afforded under this Order are subject to the condition that the excise goods in question are not … held for use for [a commercial purpose] whether by the community traveller who imported them or by some other person who has possession or control of them; and if that condition is not complied with in relation to any excise goods, those goods shall, without prejudice to article 6 below, be liable to forfeiture.

(4)	[In determining whether or not the condition imposed in paragraph (1) above has been complied with], regard shall be taken of –

(a)	his reasons for having possession or control of those goods;
(b)	whether or not he is a revenue trader;
(c)	his conduct in relation to those goods and for the purposes of this sub-paragraph, conduct includes his intentions at any time in relation to those goods; 
(d)	the location of the goods;
(e)	the mode of transport used to convey those goods;
(f)	any document or other information whatsoever relating to those goods;
(g)	the nature of those goods including the nature and condition of any package or container;
(h)	the quantity of those goods;
(i)	whether he has personally financed the purchase of those goods;
(j)	other circumstances which appears to be relevant.

22.	The Minimum Indicative Levels (“MILS”) set out in the Schedule to the 1992 Order are with regard to alcoholic beverages110 litres of beer.  The 1992 Directive provides inter alia as follows:

Article 8

As regards products required by private individuals for their own use and transported by them, the principle governing the internal market lays down that excise duty shall be charged in the Member State in which they are acquired.  

Article 9

1.	Without prejudice to article 6, 7 and 8, excise duty shall become chargeable where products for consumption in a Member State are held for commercial purposes in another Member State.  

In this case, the duty shall be due in the Member State in whose territory the products are and should become chargeable to the holder of the products.  

2.	To establish that the products referred to in  article 8 are intended for commercial purposes, Member States must take account, inter alia, of the following:

-	the commercial status of the holder of the products and his reasons for  holding them,
-	the place where the products are located or, if appropriate, the mode of transport used, 
-	any document relating to the products,
-	the nature of the products,
-	the quantity of the products.

23.	Section 141 of the 1979 Act provides that:

“Where any thing has become liable to forfeiture under the Customs and Excise Act … any … vehicle … which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture … shall also be liable to forfeiture.”

24.	Section 139 of the 1979 Act provides that:

“Any thing liable to forfeiture under the Customs and Excise Acts may be seized or detained by any officer …”

The evidence

25.	The Tribunal heard evidence from Mr John Paul Swaffer, the officer of Customs and Excise who had originally stopped the car, from Mr Matthew Brian Clark, the Customs officer who had interviewed the Appellant, from the Appellant herself and from her daughter.  Both the officers produced their notebooks.  In addition witness statements from the reviewing officer Mr Andrew William Hack and from Mr Gerry Dolan, officer of Customs and Excise, who set out the Commissioners’ policy with regard to seizure, were received in evidence.   A bundle of documents containing inter alia the correspondence, the two review letters and copies of the officers’ notebooks was produced.

26.	Mr Swaffer gave evidence that he had not only stopped the car, but he had also rummaged the vehicle and had interviewed Mr Chohan.  

27.	Mr Clark had been called to assist Mr Swaffer and he had interviewed Mrs Amin.  .  

28.	Following the record of the interview in his notebook Mr Clark had written that he was not satisfied for the following reasons:

“1.	Frequent travellers
 2.	Party not yet organised
 3.	Over M.I.L.S.
 4.	Evidence of frequent travel
 5.	Vague and evasive
 6.	Inconsistent stories
 7.	Income incommensurate with amount spent”

29.	Mr Clark was asked what the inconsistencies were that he had referred to and these were said to be inconsistencies between Mrs Amin’s and Mr Chohan’s evidence, in particular Mr Chohan had said the arrangement was made a week ago whereas Mrs Amin had said the trip was booked a few days ago and Mrs Amin had said 250 people were to be invited whereas Mr Chohan had said 300.  He could not point to any other inconsistencies.  He said that he had not been aware of any language difficulties experienced by Mrs Amin.  

30.	In cross-examination Mr Clark accepted that he had not taken into consideration the fact that in January a person might have less by way of savings because it was not open to him to be too intrusive with regard to such matters.  

31.	Mr Clark did not remember whether Mrs Amin had ever asked him to repeat any questions or not. He accepted that the profit margin on tobacco would be substantially larger than it would be on lager beer, being some three to four times higher.  It was usual for teams of eight to ten people to be in the area at the time when a car was searched.  It was generally the case that an individual was taking to one side where he or she will be able to view any search of the car which was undertaken.  

32.	Mrs Amin’s evidence was to the effect that the party was to be a pre-engagement party for her daughter in accordance with custom.  The purpose of the party was to give both families the opportunity to meet, there was no formal engagement at this stage.

33.	The party had in the end been held on 3 February, because a large number of people had been unable to come on the Saturday following the seizure of the car.  120 people had been asked from her side of the family, and 120 from her daughter’s fiancé’s side.  In the event about 180 people had come. There had not been a marquee, and she herself had not made any enquiries about it because her daughter was doing that.  A marquee had not been booked because it was quite expensive, but one could have been available at short notice.  

34.	The Appellant confirmed that she had never previously had any need to buy beer, which had been bought specifically for the party.  She had been aware of the guidelines as to quantities but had also known that she was allowed to bring in as much as she wanted for personal use. She had bought in bulk because she was offered a discount, she had not in fact been intending to buy as much beer as she had, but had done so because it was cheaper to buy a larger quantity.

35.	The Appellant had made frequent trips across the channel, sometimes under the tunnel and sometimes by ferry, because there were very good discounts on travel and sometimes she had travelled for as little as £1 return.  

36.	On previous trips she had bought make-up and perfume, and in particular on the trip prior to being stopped she had bought prawns and vegetables which were to be used for the party.  She had been stopped on many previous occasions and the car had been searched but she had always been allowed to proceed. 

37.	The Appellant described her house as being quite large having three large reception rooms and a large kitchen and they had been able to fit 180 people in without the need for a marquee.  It was worth almost £500,000.

38.	With regard to the occasion when the car was stopped, it was the Appellant’s evidence that some five to six officers had been examining the car and banging the cases of beer on the ground with such force that some of the bottles had broken.  They had used screwdrivers to open up the car and had examined the seats, the bonnet and the tyres amongst other things.  She had not always understood what Mr Clark was asking her and had quite often asked him to repeat questions he had asked.  She had been very scared by the behaviour of the officers at the time.

39.	With regard to her daughter’s engagement, it was to be an arranged marriage in accordance with custom. The two families had been introduced to each other a few months before and she had been told about a proposal from the boy’s side.  She herself was a widow and the arrangements were being made by her and her brother.  She had definitely intended to have the party the following Saturday and it was to be an informal occasion.  It was not usual to print cards for such a pre-engagement party.

40.	She had asked Mr Chohan to come with her across the channel because she herself had a bad back and was unable to lift heavy things, having had an operation on her back.  Mr Chohan was not responsible for any of the arrangements for the party.  At the time that she was interviewed she had a headache.  The vegetables, juices and prawns which she had bought for the party on the Tuesday before she was stopped had been frozen.  

41.	Miss Zubiah Amin gave evidence to the effect that she had met her fiancé only once and on that occasion they had not been allowed to speak. The party which her mother was arranging was a chance for families to get together in a relaxed atmosphere and was to be the first occasion on which she could speak to her fiancé.  It had been her suggestion that the beer was bought in because her friends had considered it would not be a proper party without alcohol.  Her mother did not herself drink.

42.	Miss Amin was at university but had worked previously and had some savings of which she was putting £100 towards the party.  She had not known how much beer her mother would buy, but it was her mother’s nature always to be very generous.  

43.	She herself had made enquiries about the marquee and the company she spoke to had said that they only required three to four days notice.  The estimate for the hire was some £360-£370  but in addition they would have needed to pay for heaters, light and matting, and it was therefore considered too expensive.  She had told her mother about these enquiries and just before she travelled her mother had suggested that she asked the neighbours who had recently hired a marquee. She herself had written the letters which were sent to the Respondents by her mother.  

The Respondents’ case

44.	Under section 163A of the Customs and Excise Management Act 1979 (“the 1979 Act”), if an officer had reasonable grounds  to suspect that the Appellant had with her goods which were liable to forfeiture the officer could search any article that she had with her: see Commissioners of Customs and Excise v R on the application of Hoverspeed Ltd & Others [2002] EWCA Civ 1804 at paragraph 15.

45.	The officer was permitted to rely on profiles and trends to establish the said reasonable grounds: see Hoverspeed at paragraph 39(iv).  It was for the Respondents to show that there were reasonable grounds justifying the check carried out on the Appellant under section 163A of the 1979 Act.  If they fail to do so, the check would have been invalid.  Even if the check is found to have been invalid, it was submitted that this has no effect on the validity of any subsequent seizure of items found during the check:  see Hoverspeed at paragraph 49.

46.	The Tribunal’s jurisdiction was statutory in nature and was set out in sections 14-16 of the Finance Act 1994.  

47.	The Tribunal must consider whether it is satisfied that the Commissioners could not reasonably have arrived at the decision on the review, and we were referred to the case of Lindsay v Commissioners of Customs and Excise [2002] STC 588 and the case of Bowd v Customs and Excise Commissioners [1995] V&DR 212.  The Commissioners’ decision could only be found to be unreasonable if the Appellant could show that they had acted in a way which no reasonable panel of commissioners could have acted, and that they had taken into account some irrelevant matter or disregarded something to which they should have given weight or made some other error of law. 

48.	It was considered that it was open to the Tribunal to make findings of fact, but the seizure itself was not a matter the tribunal could consider.  In the present case no challenge had been made by the Appellant to the seizure itself.

49.	In the present case some 540 litres of beer had been found in the Appellant’s possession, and therefore the goods being five times in excess of  the guidelines were liable to seizure, as was the car.  It was acknowledged that the Respondents have the power to give relief where the goods were not held for commercial purposes.  

50.	It was acknowledge that the 1992 Order did not fully implement the 1992 Directive, which was of direct effect, but in the present circumstances, the Commissioners were entitled to arrive at the decision which they had reached as to the commerciality of the importation. As far as the interview went, the Appellant had signed the interview record and had at no time indicated that she was experiencing difficulties. The officers had found her explanations implausible and it was not unreasonable for the officer to feel that he could not be satisfied that she was not bringing the beer for a commercial purpose.

51.	With regard to the Appellant’s submission that the wrong burden of proof had been applied, the Respondents relied on paragraph 173 of the case of  Commissioners of Customs and Excise v R on the application of Hoverspeed Ltd & Others [2002] EWCA Civ 1804 where Brook LJ said with regard to the burden of proof being on the Commissioners as follows:

“As a matter of strict law we consider that claimants’ contentions are correct.  Whether this will make much difference as a matter of practice is open to question.  After all, as Lord Woolf pointed out in Goldsmith … no one is in a better position to know whether the goods are to be used for private or commercial purposes and the person in possession of them and if Customs officers do not believe him, there is in practical terms not much difference between his failing to satisfy them that they are not being held for his own use (the PRO test) and them being satisfied that they are being held for ‘commercial’ use (the test under the directive).  In a borderline case, however, the location of the burden of proof  may well make a difference.”

52.	The fact that in the present case there had been a reversal of the burden of proof by the officers was not something which had played any relevant part in the decision to seize.  This was not a borderline case: the officers  had found Mrs Amin’s explanation implausible.  Since they were not satisfied that the beer was for a party, they were entitled to consider that it was intended for a commercial purpose.  The seizure of the excise goods was not invalidated by the fact that the officers had not understood the correct legal position with regard to the burden of proof as this had not played any part in the decision to seize (see Hoverspeed paragraphs 55, 56,and 59).

53.	Mr Hack had properly summarised the background in both his witness statement and his letter.  It correctly set out the applicable legal provisions and had displayed an understanding of the law as it should be applied.  He had correctly considered the policies which were in place at the time, although it was acknowledged that there were now new policies in place with regard to vehicles and goods.  

54.	It was submitted that there had been no error of law in the present case and that Mr Hack had taken into account all the matter which were before him and had considered all the relevant policies.  

55.	With regard to proportionality, the test in Lindsay as to whether the goods in question were to be sold on a not for profit basis was of no relevance in the present case.  Proportionality was aimed at what the Commissioners were trying to achieve as a whole, and the proper test to be applied when considering whether the Appellant’s rights under article 1 of the 1st  Protocol had been breached was the “fair balance test” applied by the European Court in the case of Sporrong & Lonnroth v Sweden (1982) 5 EHRR 35 where at paragraph 69 the European Court said:

“… the court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.  The search for this balance is inherent in the whole of the convention and is also reflected in the structure of article 1.”

56.	Any decision reached which affected the Appellant’s property rights   must be proportionate in all these circumstances, bearing in mind the legitimate aims of the Commissioners, the scale of the problem they were trying to control and the effect on the Appellant. 

The Appellant’s case

57.	In the statement of response on behalf of the Appellant it had been stated that only 125 of the 250 guests were to be Mrs Amin’s own guests, it was not to be a formal party and therefore no formal invitation was given.  The party was known about by word of mouth.  There had been no definite plan to have a marquee and as the house was big enough to hold 250 people a marquee was not a necessity.

58.	At the time of the interview the Appellant had been shocked about the events and also scared and intimidated by the violent way in which her car was taken apart.  It should have been realised by the Commissioners that the Appellant was not in the right frame of mind to answer questions.  Whilst she had been stopped on numerous occasions as part of a routine check, she had never previously been interrogated.  Furthermore, English was Mrs Amin’s second language, her first language being Urdu, she had not always fully understood the questions.  

59.	The Appellant had never had any intention of selling the goods, and had no expectation of being interrogated.  It had been stated on the radio and in other media that you are able to buy as many duty free products as you liked.  

60.	It was much more cost-effective  for the Appellant to buy in bulk in France for the imminent engagement party rather than travelling backwards and forwards to France only bringing in the amounts within the guidance levels.  She had never previously bought alcohol in France.  

61.	In a letter of 6 April the Respondents set out five factors which they took into account in deciding whether to restore the goods as follows:

(i)	Any evidence of previous smuggling or failure to comply with legal requirements

(ii)	Any evidence that the person involved knew what they were doing was wrong

(iii)	Any evidence that the person was paid to make the journey

(iv)	Large quantities of goods which might damage legitimate trade and

(v)	Any evidence that the goods were for a commercial purpose.

It was claimed that none of those factors had been breached and the Respondents had no evidence to prove otherwise.  The wrong burden of proof was relied on by the Respondents, it being expected that the Appellant would prove that there had been an engagement party.  The fact that the party had not been planned in detail did not mean there was not to be a party.  The Customs had taken the point that because she had an excess amount of alcohol therefore the use was commercial and it was for her to  prove that it was not.  

62.	Proportionality was an issue in this case in that the car had been bought comparatively recently for £4,000, whereas the duty said to be evaded was only £470.

63.	At the time of the interview the Appellant had all sorts of matters going through her head, in particular she wanted to go home and she was frightened.  She had not elaborated on matters regarding the party in her letter because she did not realise she needed to, it was only at the Tribunal that it had become clear that it was necessary to give that evidence.

Reasons for decision

64.	Having heard the evidence of  Mrs Amin and her daughter we have no doubt that at the time of the seizure there was to be a pre-engagement party in the near future.  We accept that the beer was bought by Mrs Amin for that party.  We found both Mrs Amin and her daughter to be entirely truthful witnesses.  

65.	We find that Mrs Amin does have language difficulties when speaking in English on certain occasions.  She had difficulty in expressing herself on more than one occasion when giving evidence before us and on several occasions did not properly understand the questions put to her.  We note that at no time was she asked by the officers to give a full explanation of the party, she was asked a series of questions to which she gave brief and not inaccurate answers.  Mr Clark had taken no account of the fact that English was not the Appellant’s first language and had made no note that several questions had had to be repeated, as we find to have been the case both from the Appellant’s own evidence as to this and because the interview, which is not lengthy, is recorded as having taken an hour and ten minutes.

66.	With regard to the matters which the officer himself took into account when deciding to seize the vehicle, we find no evidence that Mrs Amin was vague and evasive from the record of the interview, and on no occasion could she possibly be described as being vague and evasive before us.  We find that any inconsistency between the answers she gave and those Mr Chohan gave were de minimis.  It was hardly significant that Mr Chohan had thought the ticket had been booked a few days earlier than in fact it was, nor that he thought 300 people would be coming whereas Mrs Amin intended inviting about 250 people.  Mr Clark’s finding that there was not to be a party because it was not organised in the sense that no written invitations had been sent out and no marquee booked, reveals a cultural misunderstanding on the part of the officer.  Similarly we do not find that the amount of money spent by Mrs Amin on the beer was incommensurate with her income and level of savings at the time, particularly bearing in mind that it was January, a time when it might be expected that a person’s savings would be at their lowest.  The fact that Mrs Amin told the officer that she was not just a frequent traveller, but an extremely frequent traveller is in our view evidence that she was a truth teller.  It is far more likely that somebody who was buying goods for a commercial purpose would attempt to conceal the number of trips they had previously made.

67.	Given that the car was stopped at nearly midnight, and that the interview lasted for over an hour, it is not surprising that Mrs Amin’s answers were brief.  We also accept that she was frightened by the events and in such circumstances her answers might not have been as full as they would have been in other circumstances.  There was also the difficulty she had in properly expressing herself referred to earlier.

68.	It was submitted by Miss Taylor that in the present case there was no practical difference as a result of the officers having considered that the burden was on Mrs Amin to satisfy them that she was not holding the goods for a commercial purpose.  We find that in the present case there was a considerable difference in effect because the officers had made no allowance whatsoever for the cultural differences which undoubtedly exist between the Appellant and the officers.  The approach adopted by the officers to the party might have been reasonable had Mrs Amin been an English woman.  Mr Clark appeared unaware of the close family connections and the customary arrangements for marriage of people from Mrs Amin’s community and asked no questions which might have elicited the true nature of the planned party.  

69.	Mr Hack in his review letter was quite clearly setting out the wrong test when he repeated twice that he had to consider whether the decisions of the officers were one which a reasonable body of commissioners could not have reached.  Whilst he correctly firstly examined whether or not the goods were properly seized, in his witness statement he stated that that seizure “was contingent upon the Appellant being able to demonstrate that the goods were for her own use and not for any commercial purpose,” thus he too was applying the wrong burden of truth and took no account of the fact that the officers had applied the wrong burden.  He took no account of the matters referred to above regarding the Appellant’s ability with language, her culture, nor the lateness of the hour.  The alcohol was not hidden in any way whatsoever, and if Mrs Amin had been bringing goods in for a commercial purpose it would have been far easier for her to have brought in hand-rolling tobacco or cigarettes.

70.	Because of the wrong approach to the burden of proof by both the officers who seized the vehicle and Mr Hack,  it was never properly put to the Appellant that it would be in her interest to offer further evidence both as to the circumstances of the party and any hardship caused to her by loss of the vehicle.  Mr Hack in his witness statement said:

“She offered no elaboration except to say that the loss of the vehicle was causing her hardship. With the continuing absence of any evidence that the goods were not for a commercial purpose I was satisfied that the refusal to restore them was in line with the policy.”

71.	In the present case we do not consider that the quantity of beer, and the circumstances in which Mrs Amin was bringing it into the country, are such that the purchase was self-evidently a commercial one, nor do we consider that it was open to the Respondents to rely on the officer’s failure to believe Mrs Amin’s account of the intended party.  In such circumstances an officer must have good grounds for not believing a person in the Appellant’s position.  As set out above, the reasons given by Mr Clark are not ones that we find applicable in the present case.  The reviewing officer made no reference to the particular tests applied by Mr Clark and does not appear to have considered them.  In particular he makes no comment on the officer’s finding that the Appellant was vague and evasive, nor does he appear to have taken account of the fact that there is no proper evidence of inconsistency.  For the reviewing officer to state that it was “beyond his comprehension” that anybody would give a party in the way Mrs Amin intended merely shows that he has no experience whatsoever of arranged marriages and the Muslim culture.

72.	In all the circumstances we consider that the reviewing officer made three substantial errors of law firstly he did not take account of the fact that the officers had applied the wrong burden of proof, which in this case we consider is of effect, secondly he unquestioningly accepted the officer’s findings with regard to consistency and vagueness in the face of evidence to the contrary, and thirdly he approached his job on the wrong basis, namely that he considered that he had to decide whether or not the officers had acted reasonably on Wednesbury grounds. 

73.	We therefore remit this appeal to the Respondents for a further review by an officer who has not dealt with the matter previously, such review to be on the basis of the facts as we have found them, such review to be completed and served on the tribunal within 28 days of the date of the release of this decision.

74.	The Respondents to pay the Appellant reasonable costs of and relating this appeal.

MISS J C GORT
CHAIRMAN

RELEASED: 14 March 2003
LON/01/8063
££Mrs S Amin v The Commissioners of Customs and Excise [2003] UKVAT(Excise) E00393 (14 March 2003)