E00819
RESTORATION OF VEHICLE — owner not user — reasonable view of decision not to restore — appeal allowed
MANCHESTER TRIBUNAL CENTRE
SUSAN MOSS Appellant
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: Miss J Warburton (Chairman)
Mrs M Crompton (Member)
Sitting in public in Manchester on 6 May 2004 and 7 October 2004
The appellant appeared in person
6 May 2004- Mr J Shields of Counsel, instructed by the solicitor of the Customs and Excise for the Respondents
7 October 2004 - Miss L Walmsey of Counsel, instructed by the Solicitor for the Customs and Excise for the Respondents
© CROWN COPYRIGHT 2004
DECISION
- This is an appeal by Susan Moss against a decision to refuse to restore a Ford Mondeo vehicle registration number L452 LA0, seized at Coquelles on 13 March 2001. The decision on review not to restore is contained in a letter dated 6 October 2003. This review was directed at an earlier hearing before the Tribunal on 9 September 2003.
- The Commissioners were originally represented by Mr J Shields of Counsel and on the resumed hearing, by Miss L Walmsley, both of counsel, instructed by the solicitor for Customs and Excise. The Commissioners put in a bundle of copy documents. The Appellant appeared in person.
- We originally heard evidence on oath from the Appellant and Christopher Bond, the driver of the vehicle. During the course of Mr Bond's evidence it became clear that there was a conflict of evidence as to events at the time of seizure and the Commissioners were granted an adjournment to enable the seizing officer to be called to give evidence. At the resumed hearing we heard further evidence on oath from Christopher Bond and from Martin Bond, his son, who was a passenger. We also heard evidence on oath from John Mark Round and Brian Anthony Rayden, both officers of HM Customs and Excise. There was an agreed witness statement from Gordon Smith a supervisor with P & O Portsmouth Ltd. From the oral and written evidence we find the main facts to be as follows.
The Facts
- The Appellant's partner is Christopher Bond. He has properties in France but stayed with the Appellant when in the UK. On 13 March 2001 Christopher Bond took the Appellant's vehicle, a Ford Mondeo estate, with her permission to take furniture to his house in France. His son, Martin Bond, and friend Stephen Clark were passengers in the car. They went via Euro tunnel. On the return journey the vehicle was stopped at Coquelles. In the vehicle were 21.75kg of tobacco, 87 litres of beer and 60.75 litres of wine.
- Christopher Bond deals in militaria. In the vehicle, covered with coats on the back seat of the vehicle, were a deactivated pistol, ammunition belts and a bayonet. When the gun was discovered first the police and then Special Branch were called. Christopher Bond was arrested but no subsequent action was taken by the police in respect of the pistol and other items.
- The excise goods and vehicle were seized by John Round, an officer of Customs and Excise. His notebook, which is not signed, records initial questions and answers and then states that the passengers declined to stay for interview. The Appellant made a request for restoration of the vehicle of 15 March 2001. The Appellant was requested to attend for interview, which she did on 26 April 2001. The request for restoration was refused by letter on 27 April 2001. Reasons for that decision were given in a letter dated 16 May 2001, which contained the reason 'the vehicle contained bodywork concealments'. On 26 June 2001, the Appellant's solicitors wrote requesting a review of that decision enclosing a statement from the Appellant, details of trips booked by the Appellant with Euro Tunnel and a letter from Kent Police stating that no action was being taken against Christopher Bond. Through lapse of time, the decision not to restore was deemed upheld on 22 July 2001. Following appeal to the Tribunal, the Commissioners were directed to carry out a review on 9 September 2003. No condemnation proceedings took place in relation to the vehicle.
- The review was carried out by Brian Rayden on 6 October 2003. He reviewed all the papers including records of interviews and later correspondence. Brian Rayden concluded that restoration of the vehicle should not be made. He concluded from the quantity of goods that the goods were for a commercial purpose. He had already noted references in the seizing officer's notebook to a denial by Christopher Bond that they had cigarettes or tobacco and that goods were concealed under carpet and under both seats. Brian Rayden also concluded that Christopher Bond had de facto ownership of the vehicle and that to restore it to the Appellant would be to restore it to Christopher Bond whom he considered to have attempted smuggling.
- Both the Appellant and Christopher Bond travelled reasonably frequently to France. The Appellant arranged 19 trips in 13 months via Euro Tunnel. Mr Bond booked 18 trips with P&O Ferries between April 2000 and December 2001 for five different vehicles.
- The Appellant is a single parent with two children who lives in a rural area with limited public transport. After the car was seized, she had to rely on friends to take her children to school and get lifts to work. She was also unable to get to college to continue her studies. Her father gave her a loan and she purchased a car which she acquired on 6 June 2001. The Ford Mondeo had been valued at £2,500.00.
Evidence
- The Appellant gave evidence to the Tribunal that the seizing of the car had had a serious adverse effect on her both as to dealing with the practicalities of transporting her children and emotionally. The stress following the seizure of the vehicle caused her to stop attending college where she was studying for her A.A.T. She gave evidence that she was made redundant in July 2002 and could not take the job offered because she did not have the relevant qualifications.
- In the statement submitted by the Appellant's solicitor to support the request for a review, the Appellant states that she went to France with Christopher Bond on a number of occasions.
- Christopher Bond gave evidence to the Tribunal that on 13 March 2001, the tobacco was bought first and placed on the floor of the vehicle. The wine was placed on top and finally when they stopped at Coquelles, 12 to 15 cases of beer were placed on top again. The car was full. The goods were not hidden. There was some tobacco on the rear passenger seat. Christopher Bond gave evidence that he was not questioned by a Customs Officer when the vehicle was stopped at Coquelles. He did not say the vehicle was his and did not say there was no tobacco in the vehicle. Any questions were addressed to the passengers Stephen Clark and Martin Bond. He did not give any statement to Customs Officers because he was arrested by Special Branch.
- Christopher Bond gave further evidence that about one third of the tobacco belonged to him. He then smoked a packet every two or three days. He did not know how long he expected the tobacco to last. He did not buy tobacco very often because he could not afford it. He usually bought tobacco in Belgium where it was cheaper. Christopher Bond strenuously denied that he was trading in tobacco. His frequent trips to France were to visit three properties he had there which he was doing up.
- In relation to the ferry tickets booked in his name with P&O, Christopher Bond gave evidence that he had changed one vehicle and that two of the other vehicles listed belonged to friends. He had a P&O owners abroad card which gave him a discount and he sometimes booked tickets for friends.
- Martin Bond gave evidence to the Tribunal that when the vehicle was stopped at Coquelles, the Customs Officer spoke to Stephen Clark and not his father. He was in the back of the car and there was tobacco and wine on the seat next to him. The car was full to the roof in the boot with beer. Some goods were covered with coats and blankets, others uncovered. Martin Bond gave evidence that he was not asked to make a statement about excise goods but was asked if he wanted to make a statement against his father in relation to the gun. His father had been taken off separately when the gun was found which was very soon after they were stopped.
- Martin Bond gave further evidence that seven or eight kilograms of the tobacco were his. He had taken the opportunity of a free trip to France and took as much of his savings as he could to stock up on tobacco. Martin Bond gave his evidence in a straight forward, convincing manner.
- John Mark Round gave evidence that he normally spoke to the driver of the vehicle but could not specifically remember speaking to Christopher Bond. He relied on the record in his notebook. He did not hand Christopher Bond over to the Police until he had finished with Custom's matters in relation to the goods and vehicle. He could not, however, remember searching the vehicle or the specific circumstances in which the pistol was found. He did not know why his notebook was not signed by the driver of the vehicle.
- In the light of the above evidence, we find as a fact that Martin Bond bought his tobacco for his own use. We also find as a fact that excise goods were not deliberately concealed for the purposes of smuggling and that Christopher Bond did not stay for interview with Customs Officers because he had been arrested.
The Law
- The law as it applies in this case has been the subject of review by the Divisional Court in Regina (Hoverspeed Limited) v Customs and Excise Commissioners [2002] 3WLR 1219 ("the Hoverspeed case") and to a more limited extent in relation to seizure by the Court of Appeal in Commissioners of Customs and Excise v The Queen on the application of Hoverspeed Limited [2002] EWCA Civ 1804. These cases make it clear that under the Excise Directive 92/12 EEC goods are either held for personal use and subject to excise duty in the member state of acquisition, Article 8, or held for commercial purpose and subject to excise duty in the member state in which they are held, Article 9 (see the Hoverspeed case para 105 and the Court of Appeal at para 65.)
- In Gora v Commissioners of Customs and Excise [2003] 3 WLR 160 the Court of Appeal stressed that the question as to whether goods are forfeit as being for commercial use is a matter for the magistrates court and not the Tribunal. Commissioners of Customs and Excise v Dickinson [2003] EWHC 2358 (Ch) decided that the issue of private use could be raised in relation to the discretionary procedure of restoration on the issue of proportionality – see para 49. In Gascoyne v Commissioners of Customs and Excise [2004] EWCA Civ 1162 the Court of Appeal considered the decision in Gora and held that the Convention rights meant that the Tribunal can re-open issues where forfeiture has been deemed correct under paragraph 5 of Schedule 3 of the Customs and Excise Management Act 1979 but must bear in mind consideration of abuse of process.
- The Tobacco Products Regulations 2001 as amended by Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002 set out a number of factors to be considered when determining whether a person is holding excise goods for a commercial purpose. These include reference to the quantity of goods and the indicative level for tobacco is 3 kgs. The Hoverspeed case also held that the burden of proof as to commerciality is on Customs. The relevant regulations apply to the UK Control Zone at Coquelles by the Channel Tunnel (Alcoholic Liquor and Tobacco Products) Order 2000.
- The Commissioners are empowered by the Customs and Excise Management Act 1979 (CEMA) section 49 to forfeit dutiable goods which have been imported or held without payment of duty. All such goods are liable to seizure pursuant to section 139 of CEMA. Such powers must, however, be exercised with due regard to the proportionality as they involve the deprivation of a person's property. In the case of goods imported on a not-for-profit basis for friends or neighbours regard should be had to scale of importation, whether it is a 'first offence', any attempts at concealment and hardship in determining whether to forfeit goods – see Lindsay v Customs and Excise Commissioners [2002] STC 588 paras. 52 and 64.
- Section 152 (b) of the 1979 Act allows the Commissioners as they think fit to restore any goods which have been seized. A review and appeal procedure from decisions of the Commissioners is set out in Sections 15 and 16 of the Finance Act 1994. A holder of goods may appeal against a review decision of the Commissioners taken under section 15 to the Tribunal. The Tribunal's powers on appeal are, however, limited by Section 16 (4) to directing that the Commissioners' decision shall cease to have effect, to directing that a further review be carried out or, if the latter is no longer possible, declaring the decision to have been unreasonable. On appeal, it is for the Tribunal to consider that the response is proportionate in any case – see R (Hoverspeed Limited) v Customs and Excise Commissioners [2002] 3 WLR 1219 at paras 130(10) and 196.
Submissions
- The Appellant submitted that it was disproportionate for her to be deprived of her car and that she had suffered exceptional hardship.
- Miss Walmsley for the Commissioners submitted on the authority of Gora and Gascoyne that the Tribunal had only very limited jurisdiction to re-open the circumstances of forfeiture which did not apply in this case. The Appellant had had an opportunity to raise matters in condemnation proceedings. Miss Walmsley further submitted that the decision not to restore was reasonable. The Appellant was aware the vehicle was being used for short trips abroad. Restoration to the Appellant would be tantamount to restoration to the wrongdoer. The Appellant had not shown exceptional hardship.
Reasons for decision
- The Tribunal's jurisdiction under section 16 (4) of the Finance Act 1994 is not one to try again in the original decision to forfeit but to consider whether the decision on review not to restore goods is one that the Commissioners could not reasonably make.
- It is generally accepted that the test of reasonableness requires the Tribunal to ask:
? is this a decision which no reasonable panel of Commissioners could have come to?
? has some irrelevant matter been taken into account?
? has some matter which should have been taken into account been ignored?
? has there been some error of law?
(see Commissioners of Customs and Excise v JH Corbitt (Numismatists) Ltd [1980]
STC 231; Associated Provincial Houses Ltd v Wednesbury Corporation [1948] IKB 223)
- The Tribunal must also consider whether the decision not to restore was proportionate. In a case such as this, where there have been no condemnation proceedings and the Appellant owner of the vehicle was not present at the time of seizure, Convention rights may require some consideration of the circumstances of seizure bearing in mind the warnings as to abuse of process given in Gascoyne.
- When Mr Rayden reviewed the decision on 6 October 2003, he clearly reviewed all the evidence then available to him. It is also clear that he did not consider any irrelevant matters. He considered carefully the degree of hardship suffered by the Appellant and, in view of the replacement car being available within three months, came to the reasonable conclusion that no exceptional hardship had been suffered.
- Mr Rayden, in his decision, placed considerable emphasis on Christopher Bond lying to Customs Officers about there being no tobacco in the car, concealment of goods and refusal to stay for interview. His decision was based on restoration to the Appellant being equivalent to restoration to Christopher Bond. The papers before Mr Rayden contained no information from the Appellant about the use of the vehicle; her interview on 26 April 2001 was directed to whether the car was used with her permission. The papers contained no explanation for the failure of the seizing officer's notebook to be signed or as to why no interview took place at Coquelles. The papers did contain clear information that Christopher Bond had been arrested by Special Branch at Coquelles and a letter from Kent Constabulary that no action was to be taken against Christopher Bond. In the circumstances, bearing in mind that it was the Appellant who was deprived of her property, we consider it unreasonable that Mr Rayden did not seek further information about the circumstances of seizure and Christopher Bond's reasons for possession of the excise goods.
- It follows that we find that the decision on review as unreasonable. We do not consider that the result of any further review would inevitably be the same. In accordance with section 16(4)(b) of the Finance Act 1994, we direct that the Commissioners carry out a further review taking into account the findings of fact in this decision and the further information given in evidence. We further direct that the review be carried out within 45 days of the release of this decision by an officer not previously involved.
- Accordingly this appeal is allowed but we make no direction as to costs.
J WARBURTON
CHAIRMAN
Release date: 3 November 2004
MAN/2003/8185
