Clasper & Anor v Customs & Excise [2003] UKVAT(Excise) E00569 (08 December 2003)

EXCISE DUTIES — excise goods brought into UK from France — goods and vehicle used for transporting them seized — restoration refused — whether refusal appropriate — yes — appeal dismissed

MANCHESTER TRIBUNAL CENTRE
 	
KENNETH CLASPER & ANN CLASPER
Appellants
- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE
Respondents

		Tribunal:	Colin Bishopp (Chairman)
				Roland Presho FCMA
				
Sitting in public in Newcastle-upon-Tyne on 18 November 2003

The appellants in person
Emma Piasecki of counsel, instructed by their solicitor’s office, for the respondents

© CROWN COPYRIGHT 2003

DECISION
1	On 29 May 2002 the appellants, Kenneth Clasper and his wife Ann, arrived at Dover, after disembarking from a cross-channel vessel. They were in a Landrover vehicle, towing a trailer, and were accompanied by a friend, Robert Pattle. They were stopped by Customs officers and were found to have with them 408 litres of beer, 225 litres of wine and 2,400 cigarettes, all purchased in France. The officers came to the conclusion that the goods were not being brought to the country for personal consumption and they seized the goods, the Landrover and the trailer. Mr and Mrs Clasper later asked that they be restored, but restoration was refused, and the refusal was upheld on review. They now appeal against that refusal.
2	Mr and Mrs Clasper represented themselves at the hearing, although it was Mr Clasper who spoke on their behalf. Neither gave formal evidence. The Commissioners were represented by Emma Piasecki of counsel. She too led no oral evidence, but we had the statements of the officer who conducted the review, Kathryn Philpott, and of another officer, Peter Pott, who operates an automatic number-plate reading system which analyses the information obtained by cameras located at the English and French entrances to the channel tunnel.
3	Although other factors, particularly some perceived inconsistencies between what was said by the appellants and by Mr Pattle to the Customs officers when they were separately interviewed at Dover, played their part, it is evident from her letters (one to each of Mr and Mrs Clasper) conveying the decisions she reached following her review that Mrs Philpott was most influenced by the frequency with which Mr Clasper had crossed the channel. We do not propose to deal with those other factors since we take the view that, individually and collectively, they do not amount to a great deal and, without the frequency of Mr Clasper’s trips, they would in our view almost certainly not justify a refusal to restore the goods and the vehicle. It is the frequency of those trips which is the striking feature of this case.
4	According to Mr Pott’s statement, Mr Clasper’s Landrover had crossed the channel, through the tunnel, on twenty identified occasions between 26 February 2001 and 28 May 2002, the day before it was seized. Mr Clasper made the point that his car had, on occasion, been recorded twice in quick succession (because, he said, if he arrived too early to use a restricted ticket, he was sent away in order to return shortly afterwards) but the total of twenty trips excludes any such double counting. Mrs Clasper, when at Dover, mentioned trips taken by ferry, and the trip with which we are concerned was made, we understand, by hovercraft. Mrs Philpott’s letter identifies other trips made by Mr Clasper in other vehicles, some of which had been declared to the ferry companies with slightly incorrect registration marks, although Mr Clasper appeared in their records as the lead passenger. Altogether, it appears that at least fifty trips had been made by Mr Clasper. Moreover, he had been stopped on several occasions and had been found in possession of excise goods; sometimes the goods were seized.
5	Mr Clasper did not contend that Mrs Philpott’s information was incorrect, but told us that he had not purchased excise goods on every occasion—he often went to the continent to buy other goods, he said, since almost everything was cheaper on the continent—and the trip he had undertaken on the previous day was made in order to earn some “loyalty points” which he would use later in the year when taking his grandchildren on a caravanning holiday. He had bought some beer while he was in France on that occasion (he had left it at Mr Pattle’s home in Essex and had intended to take it to his own home in Newcastle later). He made a good deal of the fact that he and his companions had only the indicative limit of cigarettes—then 800—each, and no tobacco, and argued that if he were truly intending to profit from his trips he would have bought tobacco, rather than alcoholic drink, and would not have risked his Landrover and trailer worth together, he said, about £6,500. He thought that his share of the alcoholic drinks—that is, according to him, 120 litres of beer and 70 litres of wine—would last him about a month, or rather less if he had visitors. Assuming there were no visitors, and leaving the beer he had bought on the previous day out of account, that estimate implies consumption by Mr Clasper alone of four litres of beer and over two litres of wine every day. 
6	We found almost all of what we were told by Mr Clasper quite implausible. He made no real challenge of Mrs Philpott’s estimate of the number of his journeys, which we take as reasonably accurate. The quantity of goods, although (in the case of the beer) a little over the well-known indicative limit of 110 litres per traveller, was not particularly great; but Mr Clasper admitted having bought a similar amount of beer on the previous day, and we do not believe that he did not, routinely, bring significant quantities of excise goods with him on every trip. The frequency of his trips is formidable, and the attempts to disguise the registration mark of the vehicles he was using—which he did not deny—speak for themselves; we consider his claim that his trip on 28 May was motivated by a desire to obtain “loyalty points” is of the same character, namely an attempt to deceive.
7	In short, we are satisfied that Mr Clasper was engaged in commercial smuggling, since he could not possibly consume himself as much alcoholic drink as he claimed. It was not suggested to us that Mrs Clasper was to be distinguished in any way, and we therefore conclude that she was at least complicit in her husband’s activities, although the evidence of the frequency of her own trips was less compelling. The Commissioners’ policy that vehicles used for commercial smuggling, as well as the goods themselves, will be seized and not restored was approved by the Court of Appeal in Lindsay v Customs & Excise Commissioners [2002] STC 588 (see particularly paragraph 63). We have no doubt at all that Mrs Philpott reached the right decision in this case and that the appeal must be dismissed.

COLIN BISHOPP
Chairman
Release date:
MAN/2002/8265
MAN/2002/8273