03 8188 DENNIS MICHAEL RADFORD Mrs E Gilliland Mr R Presho York 10 June The Appellant appeared in person Miss Xanthe Craddock, of counsel, instructed by the Solicitor's Office of HM Customs and Excise, for the Respondents 

	RESTORATION OF VEHICLE  — regular traveller for personal reasons — trip solely for purchase of goods at Adinkerke — proportionality and hardship considered — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

 
 	
	DENNIS MICHAEL RADFORD	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	 Mrs E Gilliland (Chairman)
						 Mr R Presho (Member)	

Sitting in public in York on 10 June 2004

The Appellant appeared in person

Miss Xanthe Craddock, of counsel, instructed by the Solicitor's Office of HM Customs and Excise, for the Respondents

	© CROWN COPYRIGHT 2004

DECISION

1.	The appeal before us is that of Dennis Michael Radford (the Appellant) against a decision of the Commissioners not to restore goods and a vehicle seized from the Appellant on 26 August 2003 at Dover Hoverport. The Appellant has presented his own case and has requested that his evidence-in-chief be treated as if given under oath and has submitted to cross-examination under oath by Counsel  for the Commissioners. He has not called as a witness his wife who was his travelling companion to the continent as he has felt that that would be too upsetting for her. Miss Xanthe Craddock Counsel for the Commissioners has called one witness namely the Review officer Mr. Brian Anthony Rayden.
2.	The facts, which are not in dispute, are that the Appellant was stopped at Dover Hoverport by Customs and Excise on 26 August 2003. He was driving his car a BMW registration number S41 KCC (the vehicle) and his wife was the passenger. The excise goods seized comprised 20 kgs.of tobacco, 560 cigarettes, 50 cigarillos, 2.25 litres of still wine, 1litre of brandy and 36 litres of beer (the goods). The vehicle was also seized. We have in the bundle before us a copy of the handwritten notebook of Andrew Dawe who interviewed the Appellant and that of Carol Quickfall who interviewed the Appellant’s wife Teresa Jean Radford. There is also a copy memorandum  timed at 15.45 on 26 August 2003 which has been signed by B. Cummings another officer at 16.12 on the same day. When first stopped the Appellant told the Customs officer that they had been to Adinkerke that day from Nottingham and the reason for the trip was to “buy some beer and baccy”. He said that he had bought 6 cases of beer and when asked how much tobacco he had replied 80 pouches. On examination of the boot the officer found a quantity of excise goods. The Appellant told him that he had been stopped before by Customs about 2 years ago but had not had goods seized. The interview record shows that when the officer removed a quantity of beer from the boot he found two boxes of hand rolling tobacco wrapped in black bin liners. When asked why he did not tell the officer about these the Appellant responded that he did not know the legal limits. The officer read the formal statement and both the Appellant and his wife agreed to stay to be interviewed. At the interview the Appellant confirmed that he had paid for the ferry ticket (£19) and had paid cash for the excise goods. He said that the Virginia tobacco was his wife’s, the Drum tobacco his, the 200 Benson and Hedges cigarettes were his daughter-in- law’s, and 200 Superking Lights were for his mother-in-law. The Appellant said that he was semi-retired “0n sick”; he had taken his pensions and that was where the money had come from; he had little in the way of outgoings, just a mortgage of £160 a month. He smoked 40 roll ups a day, very occasionally a cigarette. Depending on how he did the rolling, he would get 40 fat or 50 thin cigarettes from a pouch. A pouch would last a day and the tobacco would last him for 6 – 9 months. He confirmed that no one else would be smoking the tobacco, that no one had given him any money for it and no one would be giving any money for it. He had purchased 2 different brands as he used one and his wife used the other. Again he was asked why he did not declare the two boxes behind the beer in the boot and his reply was “I didn’t know the legal limit I could bring through. I presumed I was over the limit, I did not think that serious”. He had last travelled to buy excise goods about nine months before. He had however travelled the previous week through Cheriton to St. Omer to see his son but had not bought any excise goods then. He paid in Adinkerke £2.25 for a packet of Golden Virginia and £2.28 for the Drum. He did not know UK prices as he did not buy it in the UK. On other visits to see his son sometimes he would buy 200 cigarettes for his daughter-in-law but that was not very often. When asked if he knew that it was an offence to sell excise goods his reply was “Yeah”. The notebook entry has endorsed at the bottom “Notice 1 issued” and then “I agree with the above interview D Radford 3.20pm”.
3.	Mrs. Radford confirmed in the interview record that she had travelled with her husband to Belgium and Calais for cigarettes, hand rolling tobacco, and beer. She had bought one box of Golden Virginia, one box of Drum, six crates of Stella, three bottles of wine and 200 cigarettes for which her husband had paid in cash. The Golden Virginia was mainly for her but she would give some to her daughter-in-law and mother when they wanted any. No one had given her any money for the goods nor would they. The Drum tobacco was for her husband and the cigarettes for her when she went out. She said that she did not know how many pouches she would smoke per week, three or something like that and thought that when at home she would smoke twenty-ish roll ups; she could get 2/3 days worth about 60-ish roll ups from a pouch. When asked how long the tobacco would last her she said that she would not have to buy any until well after Christmas depending on how much she would give away. When she purchased hand rolling tobacco in the UK, it was in shops, but they had been to France and Belgium before for tobacco and cigarettes, the last time perhaps three months before when they brought back about 100 pouches between them. She thought that there was still some Drum left. Like her husband she was off work “on sick”; they both claimed incapacity benefits, £144.00 fortnightly for each person; there was no other income other than her husband’s pension. The outgoings were insurance which paid the mortgage, services, and telephone. They had £3,000 in a bank ISA. She had been on sickness benefit for 3 years and her husband 20 months. She signed the record under the statement “I agree it is an accurate account of what was said”. Then she signed again under “Public Notice 1 issued and explained”. The officer recorded that he was satisfied that the goods were for a commercial purpose and accordingly the goods and the vehicle were seized; the reasons given for this action by the officer were: 1. Mis-declaration; 2. Inconsistencies in stories; 3. Quantity of goods; 4. Frequency of travel; 5. Unreasonable to give HRT away as per (Mrs. Radford answer); 6. Vague consumption rate (both).
4.	The Appellant has told us that he then completed Part B of the booklet and sent it to Dover. When he phoned 2 days later he was told that they had not received it and accordingly he wrote a letter which he sent Recorded Delivery and asked for his car back. We have in the bundle before us a copy of 6 letter B dated 27 August 2003 requesting restoration of the vehicle. The Appellant said on it that he had a bad back complaint from breaking his back and the vehicle was his means of getting from place to place. He went on to say that he visited his son in St.Omer regularly and the vehicle was his only means of getting there without a lot of back pain. He also stated that he thought the seizure of the car was too harsh in relation to the value of the goods seized. The Appellant wrote again on 1 September 2003 requesting restoration of the vehicle again referring to his bad back and it being his means of moving around. He also requested the return of the beer, brandy, cigarettes, and wine. This request for restoration it has been noted did not include the hand rolling tobacco. In his evidence at the hearing the Appellant has said that he did not make reference to the tobacco in his request for restoration as he had been told by Customs officers that the tobacco would not be returned to him. The request for restoration was considered by D. Willbourne of the Post Seizure Unit but by letter of 16 December 2003 that officer said that he had seen no evidence of exceptional circumstances in the case which would justify a departure from the Commissioners normal policy of refusal to restore seized goods and vehicles. The Appellant wrote again to the Commissioners on 18 September requesting a review. The points he then made were that there was no evidence of his having smuggled before; he did not believe he was doing anything wrong; he was not paid by anyone to bring goods back; he did not consider that the goods he was bringing back constituted a large amount; and there was no evidence that he was going to use the goods for commercial purposes. He again insisted that he was a frequent traveller to France on average every two weeks and only brought goods back when he was running out, not on every trip. He needed the vehicle due to his back problems; he was unable to move far without a car, or to see his son in France. He said that if confirmation about his back was needed, the Commissioners could contact Dr. Delaney and he gave his doctor’s address and telephone number.
5.	Mr. Rayden conducted a review and his decision is set out in his letter of 13 October 2003. He dealt in some detail with the background and legislation, the restoration policy of the Commissioners for both goods and vehicles and he stated that he considered that the most likely explanation was that the Appellant was importing the tobacco for sale at a profit. Accordingly he confirmed the contested decision not to offer restoration of either the goods or the vehicle.
6.	The Appellant then brought an appeal to the tribunal. His Notice of Appeal was submitted by solicitors on his behalf and dated 21 November 2003. The approximate sum of money in dispute was stated to be £8,000 and the grounds of appeal were:
“There is no evidence of previous smuggling or failure to comply with legal requirements. There is no evidence I was paid to make the journey. There is no evidence the goods were for commercial purposes. I was travelling to France for the legitimate purpose of seeing my son in a French prison.”
7.	The main submissions of the Appellant in this appeal were first that the goods were brought in for personal use not for a commercial purpose. Secondly in any event to seize the vehicle for the value of the goods at issue was out of all proportion. Thirdly that there were humanitarian grounds for restoration. The seizure of the vehicle caused him great hardship. He had broken his back and suffered severe back pain. In support of this he produced a copy letter from his doctor. Mr. Rayden confirmed that he had not seen this letter at the time he was making his review decision though the name and address of the doctor had been supplied to him. When pressed on this the Review officer confirmed that he would have taken it into consideration but that it was still his opinion that his decision would be unchanged. We do not consider it to be part of the role of the Commissioners to enter into direct correspondence with possible advisers or witnesses for the Appellant. This could give rise to issues as to confidentiality. It is for the Appellant to make sure that all matters he wishes to be considered by the Commissioners are placed before them. In addition the Appellant has told us that his son is in prison on remand at St. Omer in France. He and his wife went regularly to see him, taking his daughter-in-law and grandchildren with them. The Appellant has told us also that at the time of the seizure they had a second car, a Metro, which was his wife’s and indeed they took it to France on one occasion after the seizure of the vehicle. They no longer had it and now the car he was using was that of the son in prison until such time as he needed it.
8.	The Appellant has referred us to inconsistencies in the Commissioners’ case. He has  insisted that the interviewing officer was S.Hayes and not A.Dawe even though A.Dawe’s initials and signature are on the interview record which the Appellant agreed and signed. It has been acknowledged that there was an inaccuracy in the Review officer’s review letter. Mr. Rayden in a subsequent letter of 29 October 2003 confirmed that both the Appellant and his wife had identified the Golden Virginia tobacco as hers and the Drum tobacco as his. Mr. Rayden had referred also to the explanation given shortly before by the Appellant for the short trips to France i.e. that his son was in prison there. Mr. Rayden however had seen no reason to vary his decision not to restore.
9.	The Appellant has also stated that he was not treated properly by the officers of Customs and Excise when he was stopped and the goods and the vehicle were seized.  He took objection to the badgering stance of the officers. He has however pursued this elsewhere and has confirmed to the tribunal that he was treated properly by Mr. Rayden. From the account given by the Appellant there would appear to have been  a number of officers around at the time of the stop interview and seizure. We do not consider it likely that the interviewing officer set out incorrect initials and incorrectly signed the interview record.
10.	In turn the Review officer in his review letter and in evidence before us  and Counsel in her submissions referred to inaccuracies and inconsistencies in the Appellant’s presentation and replies to cross-examination. First the Appellant clearly had lied to the officer when first stopped as to the amount of goods he was carrying. He has been quite straightforward to us in his evidence today in that he has acknowledged that he was not then telling the truth. He put this down not to any attempt to mislead or conceal but because he was under duress, panicked, was being pressured and was concerned for his wife whom he heard crying in an adjoining room. The Appellant however lied in saying that he had “80 pouches", when first stopped, before the boot was examined and before he and his wife had agreed to be interviewed. When at that early stage he was asked by the officer “Why didn’t you tell me about these” (i.e. the two boxes of hand rolling tobacco wrapped in black bin liners detected under the quantity of beer in the boot) the Appellant’s reply was “I didn’t know the legal limits”. The officer then asked “So you have more than 80 pouches” and the Appellant responded “Yeah”.
11.	The Appellant and his wife were separately interviewed and gave contrary indications as to when they had last been abroad to purchase goods. The Appellant had said nine months before and his wife in her interview record had said three months. The Appellant seems to have been suggesting in reply to cross- examination on this point that he could not put an exact date on it but there was not a great difference between three months and six to nine months which he said he had told the officer. In fact the reference to six to nine months was in response to a question as to how long the tobacco would last for. The Appellant’s reply when specifically asked the last time he had travelled to buy excise goods was “About 9 months ago. Can’t tell exact dates.” The Commissioners have queried also the short timescale available to the Appellant on the day trips to France; it would appear that the records showed some four or five hours available but the Appellant has put it to the tribunal that the round trip to the prison and visiting could be done in three hours.
12.	We have noted that the Appellant said at the interview that he bought his smoking material abroad and did not even know the English price and his wife also indicated that most of their purchases were from abroad. In the interview record the Appellant’s wife had also said that there was some Drum tobacco left from the last purchase trip but we have not noted any specific explanation as to why therefore such large quantities would  need to be  purchased on the journey the subject of the appeal. The Appellant did not disagree with his wife’s statement that on the last trip whenever made 100 pouches were bought.
13.	We have found it difficult to understand why the Appellant lied when he had been insistent that the goods brought in were for personal use. He has not sought to suggest that any goods were brought in for social distribution; his daughter-in-law and mother-in-law were to receive 200 cigarettes each without any payment and the balance of the cigarettes would be for his wife. The Appellant has confirmed the regularity of the trips made to France. Again we find it significant that in the Notice of Appeal he refers to the visit of 26 August 2003 being for the legitimate purpose of visiting his son in prison, when in fact as he has confirmed in evidence at the hearing that trip was and had been intended to be solely to buy goods. He has said by way of explanation that the solicitors got it wrong, but they could only base any paperwork on information given by him. Whilst we accept that the references to Golden Virginia and Drum tobacco were transposed, the total quantities were unchanged and ,even allowing for a joint purchase, the quantities brought in were substantially over the guidelines of which regard should be taken (3 kgs. of [ any other] tobacco products) as set out in the Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002. As we understand that the Appellant and his wife always made the trips together and even on the prison trips the Appellant has suggested there was time available, it would seem appropriate to buy to meet their requirements particularly as Mrs. Radford had said there was still some Drum (which we have been told the Appellant used) left from her last purchase trip. Further the Appellant said he had never checked on his wife’s consumption, but at 3 pouches per week as she had said obviously she used less than him. However the Appellant acknowledged that he had purchased the same amount 10 kgs. each of Golden Virginia and Drum which he considered made sense. In our view again for personal use the quantities would relate to consumption and one would normally expect a lesser quantity to be purchased for Mrs.Radford.  The Appellant also said at the hearing that the officer had not put in the record that he had referred to "8 pouches each" and he suggested that he had not had that put in the record as he did not know how to do it. There were a number of occasions available to him when he could have raised the point had there in fact been an inaccuracy. However even the revised figure was still incorrect compared with his importation.
14.	The role of the tribunal is to consider whether the decision of the Commissioners not to restore was reasonably arrived at. We are to satisfy ourselves that Wednesbury principles have been met; that no irrelevant matters were taken into account; that due weight was given to relevant matters and the law properly applied. The Appellant has brought up the question of proportionality. He  has also expressed outrage that the vehicle was sold without the Commissioners  informing him. Mr. Rayden confirmed to us that in his consideration on review he paid attention to the decision in Lindsay (Lindsay-v- Customs and Excise Commissioners [2002] 1WLR 1766). In that case Lord Phillips said that normally the deliberate use of a vehicle for smuggling to make a profit would take the case beyond the point where the value of the car can carry significant weight although he went on to say “ exceptional hardship must always be considered.” Lord Phillips also distinguished between such cases and importation for others but not for profit. There the  proportionality of the seizure was required to be considered bearing in mind the particular facts including the quantity of the goods imported, whether it was a  first offence, concealment, the value  of the vehicle and hardship.
15.	The position adopted by the Commissioners and confirmed by Mr. Rayden in his evidence was that this was a commercial venture. The Appellant never suggested that there was any element of social distribution. The policy of the Commissioners has inter alia a deterrent element in that where goods were imported for commercial use  the vehicle carrying those goods also would not be restored. We are satisfied and find that Mr. Rayden looked at the facts and the evidence and we find his approach reasonable. What steps were taken and when on the question as to when the vehicle was sold are not matters we need to consider in this appeal.
16.	There is however another factor to be considered and that is exceptional circumstances and hardship. We accept the evidence of the Appellant that he has back problems and back pain. The loss of a car in any circumstances causes inconvenience. Mr.Rayden has said that he explored the Appellant’s circumstances and did not consider there had been any exceptional hardship. We do not consider that the availability of Dr. Delaney’s letter at the hearing alters the position and Mr.Rayden also confirmed that whilst he would have given it consideration had it been available his decision would have been unchanged. The Appellant’s vehicle was not a modified one; we are not told that he is a disabled driver; he can walk and is not housebound. He has been able to arrange for alternative transport. We are satisfied and find that the Review officer was aware of the need to consider the issue of hardship in the Lindsay sense. The officer has told us that whilst he had treated the circumstances as constituting a first offence he nevertheless saw it as a commercial venture. Accordingly proportionality was not relevant. Further he did not consider that there was exceptional hardship such as would lead him to disapply the policy of non-restoration. We are satisfied and accordingly find that this decision of the Commissioners was reasonably arrived at.
17.	The appeal is dismissed.
18.	The Commissioners have not sought costs and we make no direction as to costs.

MRS E GILLILAND
CHAIRMAN
Release Date 05/08/2004
MAN/03/8188