Excise duty restoration of goods – dismissed on facts

LONDON TRIBUNAL CENTRE

HUGH MALCOLM TRINDER	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	  Dr David Williams (Chairman)
  Mr S Das LL.M., A.C.I.S.

						

Sitting in public in London on 29 September 2003

The Appellant did not appear and was not represented

Mr Singh for the Respondents

© CROWN COPYRIGHT 2002

DECISION

1	We dismiss the appeal.

2	Mr Trinder is appealing against a review decision made on 18 October 2002 by Mr Brenton, a review officer for the respondents. The decision was a confirmation of a decision taken by officers of the respondent on 3 June 2002 to seize excisable goods from Mr Trinder and not to restore them.

3	Shortly before the day on which the case was listed for hearing the respondent asked for an adjournment. This was because some of the customs officers involved in the case were not available as witnesses on the day of the hearing. However, by a letter dated 9 September 2003 and received on 16 September 2003 the appellant indicted that he would not attend the hearing. This was because “my mental health does not permit me to attend. Anxiety and Panic attacks render me useless and manifests them selves from vomiting to fainting.” He then set out the reasons for his appeal. An almost identical letter was subsequently received, dated 10 September. For the respondents, Mr Singh withdrew the adjournment request at the start of the hearing and invited the tribunal to continue. 

4	The tribunal adjourned and, having considered the matter, decided to hear the case in the appellant’s absence. It saw no useful purpose in adjourning for the claimant to attend on another date. Nor did it require the attendance of the absent officers.    

The facts

5	The tribunal accepted the witness statements and note book evidence of officers involved in the initial interception of Mr Trinder on 3 June 2002, and accompanying documentary evidence. These showed that the appellant was returning to the United Kingdom through Dover Hoverport as a foot passenger on the evening of 3 June 2002 when he was stopped by customs officers. He was travelling alone. He was carrying 800 cigarettes, 1 kg hand rolling tobacco and 5 cases of lager. They were purchased for cash at 5.30 that afternoon at the Calais Hoverport. In reply to questions he told the officers that he had previously travelled on the same route the previous day with his son. His son had bought excise goods but Mr Trinder had not. However, when he was searched, a receipt was found on Mr Trinder for 800 cigarettes, 1 kg of tobacco and 2 litres of spirits purchased on a hovercraft and timed at 10.30 that morning. Those goods were also purchased for cash. Having found this additional receipt, the officers asked the appellant to explain why the goods bought that afternoon were for personal use, bearing in mind the purchases earlier that day. The officers also accompanied Mr Trinder to his car, parked in an adjacent car park. In the boot of the car they found 7 cases of lager, and a receipt for the purchase of 11 cases of lager purchased by a foot passenger in the afternoon of the previous day.  But the goods purchased earlier that day were not there. 

6	After interviewing the appellant further, the officers seized the goods in Mr Trinder’s possession when stopped in the Hoverport, but not the lager in the car. Mr Trinder did not contest the validity of the seizure of the goods, and the tribunal accepts that the goods were validly seized and condemned. 

The appellant’s health

7	Before considering the review decision, the tribunal took note of the appellant’s statements and evidence about his medical condition. When asked by the customs officers about his income when he was stopped, he stated that he was in receipt of severe disablement allowance. The tribunal notes that this was awarded to claimants who had been either incapable of work or severely disabled, or both, for a prolonged period.   It also notes that he stated that he was carrying beta-blockers and diazepam when stopped by the customs officers. He also produced two letters from medical practitioners. One appears to be from his general practitioner (though it does not expressly say so, and nor did he). It is dated 5 March 2002 and is addressed to whom it may concern. It confirms that the appellant then had a number of medical problems, including diabetes, the after effects of ischaemic heart disease and a coronary by-pass, jaundice, a longstanding anxiety disorder, and knee problems for which a knee replacement was being considered. A separate letter from the same medical practice also indicates diagnoses of confirmed alcoholism and chronic depression. A letter dated 7 February 2002, only part of which was in the papers, confirms lower back pain in 1998 and the knee problems, caused by an earlier road traffic accident.
  
8	The appellant protested that his rights under the Disability Discrimination Act 1995 had been ignored by the customs officers when they interviewed him. He alleged that they had also acted in breach of the Human Rights Act 1998. He submitted a photocopy of a couple of pages from a general work of legal reference on English law on the topic of discrimination against disabled people in support of these contentions. The tribunal asked Mr Singh, on behalf of the respondents, to deal with the disability issues. The appellant had given no detailed indication of any breach of a specific provision of the European Convention on Human Rights, to which the Human Rights Act 1998 might be applied in this case. The tribunal considers that there is no substance in that point.

The review officer’s evidence

9	Mr Brenton, a review officer employed by the respondents, gave evidence on oath of the review he conducted at the request of the appellant. With regard to the medical condition of the claimant, he noted that the officers had recorded that the appellant had stated at the time that he was suffering from a mental illness. However, the officers had offered the appellant the opportunity to be interviewed at a later date, or with the friend who had accompanied him to Dover but had not gone across to France with him, rather than being interviewed on his own at that time. That was not normal procedure. Nor was the action taken by the officer to consult a superior on this issue before continuing with the interview. He noted, and the tribunal accepted, that the appellant had signed the officer’s notebook at the time the interview started to say that he was able to be interviewed at the time.  The tribunal find no substantive reason indicated by any of the evidence to suggest that the conduct of the interview at that time and after those offers and the express consent of the appellant, was oppressive or discriminatory against the appellant. The tribunal attach little weight to the refusal of the appellant to sign the officers’ notebooks after the interviews on the grounds that he was sedated. There was no specific recorded evidence of sedation or of sedatives, and no direct evidence or obvious reason why the claimant should be sedated to such a level that he was unable to concentrate or read at that time, given his conduct in travelling that day and that he clearly did have that level of concentration at the beginning of the interview. 

10	In conducting his review, Mr Brenton took expressly into account the fact that the trip on which the appellant was stopped was his third trip in two days. The appellant had stated that the trip the previous day was the first for some weeks, and was to see if he was up to making the trip on his own. The tribunal noted that this was obviously so as it was followed by two further trips in the next 24 hours. The appellant stated that the second trip that day was because he could buy no beer on the trip earlier in the day. The tribunal found that unconvincing when there were several crates of beer in the appellant’s car during the period between the first and the second trips.   At the same time the appellant was unable to account for the location of the goods purchased on the first trip when stopped before getting back to his car from the second trip. The tribunal also accepted that the review officer was fully justified in taking into account the conflicting stories told by the appellant during his interviews. In particular, he had initially stated that the goods noted in the receipt that morning were his son’s when it was later clear that his son had only travelled the previous day.  

11	The tribunal also notes that the appellant had stated that his income was only severe disablement allowance. It notes that the statutory amount of that allowance was about £41 a week at the time of the incident. Yet the appellant was able to meet purchases in cash of over £280 on excisable goods on 3 June 2002 alone, in addition to costs of travel on that and the previous day, regardless of any other living expenses of the appellant. 

12	The appellant offered no new explanations about these events or his contemporary explanations of them in making his appeal. He stated only that “review fundamentally flawed. Officers note book confused with another case or adulterated after interview.” The tribunal was offered no evidence to support either contention, and could see none. Both contentions are rejected. There is nothing to suggest that the officers’ notebooks and evidence related to any person other than the appellant or that they have been altered in any way after the interviews. As already noted, the tribunal finds the appellant’s reason for not signing the notebooks at the end to be entirely unconvincing. Nor did the appellant’s letter to the tribunal add anything  save the comment that he had bought the amounts he was entitled to buy in accordance with the customs leaflets. That, however, fails to deal with the repeated pattern of travel and acquisition of excisable goods during 2 and 3 June 2002. 

13	The task of the tribunal is to consider whether there are any grounds for considering that the review decision of Mr Brenton was not properly conducted or that the decision taken by him should be further reviewed in the light of the facts or any other relevant consideration. The tribunal unhesitatingly finds that there is no basis at all for suggesting that the review was not properly conducted or that the review decision should have done other than confirm the original decision to seize the appellant’s goods. It expressly rejects as unfounded the unspecific and generalised suggestions that in some way the respondent’s actions were in breach of the appellant’s rights either under the Human Rights Act 1998 or under the Disability Discrimination Act.  

DAVID WILLIAMS
CHAIRMAN

RELEASED:

LON/02/8338