E01036
EXCISE GOODS – Procedure – Appellant appealed against both seizure and restoration – Review decision on restoration made before appeal against seizure withdrawn – Whether Appellant able to contest facts relating to seizure before Tribunal – Weller considered 
RESTORATION – Reviewing office proceeded on basis Appellant would not have succeeded in Magistrates Court – Whether decision reasonable – Appeal allowed

LONDON TRIBUNAL CENTRE

	DAVID MANSEL DAWKIN	           Appellant

-	and –

	THE COMMISSIONERS FOR HER MAJESTY’S REVENUE & CUSTOMS 	 Respondents

				Tribunal:	MISS J C GORT (Chairman)
						MR J N BROWN CBE, FCA, ATII

Sitting in public in Birmingham on 25 January 2007

The Appellant in person

Mr C Watson of counsel instructed by the Solicitor’s Office, for the Respondents

© CROWN COPYRIGHT 2007

DECISION

1.	This is an appeal against a decision of the Respondents to uphold a decision not to restore excise goods seized on 15 May 2005.  

2.	The background to the appeal is that the Appellant, Mr Dawkin, had been stopped in the early hours of the morning on Sunday 15 May at Birmingham International airport in possession of 9,000 cigarettes and 2½ kilogrammes of hand-rolling tobacco.  Further details are set out below.  Mr Dawkin wrote a letter dated 17 May 2005 to the Respondents. With that letter he had enclosed both a notice of appeal against seizure and a request for restoration of the items.  This letter was in part treated as a complaint against both the seizing officer and his superior to whom Mr Dawkin had complained.  A full letter dealing with the complaint, but not upholding it, was sent to Mr Dawkin by a letter dated 8 June 2005.  

3.	By a letter dated 10 June 2005 a letter refusing restoration of the seized goods was sent, and by a letter dated 14 June 2005 a letter was sent upholding the legality of the seizure of the goods and informing Mr Dawkin that the Commissioners would contest any claim that the seizure was unlawful in the Magistrates Court.  In that letter the last paragraph states:

“I must also inform you that should the Court decide that the things should be condemned as liable to forfeiture, Customs and Excise normally ask for costs to be awarded which are likely to be not less than several hundred pounds.”

There was no reference to any request for costs in respect of the refusal to grant restoration.  

4.	By a letter dated 1 July 2005 Mr Dawkin wrote to “the Regional Head of the London and National Protection Region”.  This letter appears to be in reply to the investigation of his complaint by a Ms Anna Pickles, and is not a reply to the two matters which were then under appeal.  By two further letters also dated 1 July 2005 Mr Dawkin wrote to the two officers involved in the seizure and restoration matters and requested a review of his case.  In all three letters Mr Dawkin contested what he understood to be the seizing officer’s view of events.  In particular, in his letter to Mr Digby, the officer dealing with seizure, Mr Dawkin asked for a copy of the notes which had been made by the seizing officer.  No such copy was ever provided to Mr Dawkin, and the first occasion on which he was able to see what had been said was on the day of the appeal hearing before the Tribunal.  Mr Dawkin in particular had said:

“I was surprised at some of the answers I am supposed to have given to Reynolds (the seizing officer).  The problem is there are several inaccuracies in the list of `selected’ answers (refer to page 2 of your letter).”

He then lists several answers which he is alleged to have given and describes these as “false”.  In his letter to the officer dealing with restoration, he wrote:

“I can understand Dionne Spearman’s (the officer who refused restoration) decision based on the information supplied.  I am still in the process of disputing this information, regarding the legality of the seizure and the misunderstanding of the facts by the seizing officer.  I only realised what had been put in the officer’s statement in recent correspondence and the outcome of my case had already been decided.”

5.	By a letter dated 20 July 2005 a review officer wrote to Mr Dawkin about what would appear to be the review of the restoration, although in the second paragraph it is written:

“An independent Customs review officer will conduct the review by examining and considering all the information that we have about this case and writing to you with a fresh decision.  The review officer will not have been involved in either the seizure or the original decision.”

There is no specific reference to the fact that this officer is dealing only with the matter of restoration, which can only be discerned from the fact that he informs Mr Dawkin that he may appeal the original decision to the VAT and Duties Tribunal, and there is no mention of the Magistrates Court.  

6.	Mr Dawkin wrote a further, undated, letter contesting the events at the time of the seizure, and referred to receiving a letter from Customs on 10 September; this letter is not in the Commissioners’ bundle of documents provided to the Tribunal. On 2 October 2005 he wrote again with reference to the seizure of his goods stating that for the past three months he had received no reply to his letter to Mr Digby pointing out the inaccuracies of officer Reynolds’ notes as recorded in Mr Digby’s letter.  He also referred to the fact that he had requested an original copy of those notes, which he had not received, and he was  still awaiting a reply from Mr Duckworth, who Mr Dawkin describes as the reviewing officer based at Gatwick, but from whom there is no correspondence in the bundle.  In this letter Mr Dawkin also makes reference to Mrs Perkins who had, by a letter dated 31 August 2005, reviewed the decision not to restore the seized goods, and against whose decision this appeal lies.  It is clear from the review decision that the issue of the legality of the seizure was still being contested by Mr Dawkin.  By a letter dated 15 November 2005 Mr Dawkin wrote to the Tribunal saying that he was still awaiting a reply to a letter which he had sent by registered post to Mr Duckworth on 5 July 2005.  He had also written to Mrs Perkins on 22 September 2005, but had had no reply from her either.

7.	It emerged in evidence that Mr Dawkin had at some point seen a solicitor about this case, and following seeing the solicitor, had decided not to proceed with the appeal against seizure in the Magistrates Court. The solicitor had told him that the hearing in the Magistrates Court would cost a lot of money, and would take a lot of time and would also involve his paying a solicitor’s fee. Mr Dawkin did not personally know any solicitors in Birmingham.  

8.	At the hearing of the appeal the Commissioners provided a bundle of documents and we heard evidence from Raymond Brenton, a review officer who had not been involved in reviewing this case, and from Mr Dawkin himself. We did not hear from officer Reynolds, or from Mrs Perkins.

The law

9.	The Tobacco Products Duty Act 1979 provides:

“1.	Tobacco products

(1)	In this Act `tobacco products’ means any of the following products, namely:

(a)	cigarettes;
(b)	cigars;
(c)	hand-rolling tobacco;
(d)	other smoking tobacco; and
(e)	chewing tobacco,

which are manufactured wholly or partly from tobacco or any substance used as a substitute for tobacco, but does not include herbal smoking products.

(2)	Subject to subsection (3) below, in this Act `hand-rolling tobacco’ means tobacco – 

(a)	which is sold or advertised by the importer or manufacturer as suitable for making into cigarettes; or
(aa)	which is of a kind used for making into cigarettes; or 
(b)	of which more than 25 per cent by weight of the tobacco particles have a width of less than 1mm.

2.	Charge and remission or repayment of tobacco products duty:

(1)	There shall be charged on tobacco products imported into or manufactured in the United Kingdom a duty of excise at the rates shown, …, in the Table in Schedule 1 to this Act.

(3)	…”

10.	The Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 S.I. 1992/3095 provide:

“4.	Excise Duty Point:

(1)	Except in the cases specified in paragraphs (2) to (6) below, the excise duty point in relation to any Community excise goods shall be the time when the goods are charged with duty at importation.”

11.	However, Council Directive (92/12/EC) on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products provides:

“Article 8

As regards products acquired 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 Articles 6, 7 and 8, excise duty shall become chargeable where products for consumption in a Member State are held for a commercial purpose in another Member State.

(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.

For the purposes of applying the content of the fifth indent of the first subparagraph, Member States may lay down guide levels, solely as a form of evidence.  These guide levels may not be lower than – 

(a)	Tobacco products

cigarettes 800 items
cigarillos (cigars not weighing more than 3g each) 400 items
cigars 200 items
smoking tobacco 1.0kg

(c)	Alcoholic beverages

spirit drinks 10 l 
intermediate products 20 l
wines (including a maximum of 60 l of sparkling wines)
90 l
beers 110 l.”

12.	The Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002.  S.I. 2692 amends the above legislation.

13.	The Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002 … The Tobacco Products Regulations 2001

4.	(1)	Amend the Tobacco Products Regulations 2001[8] as follows;

(2)	In the definition of “duty” in regulation 3(1) before the work “means”
insert – 

“,except in regulation 12(1B) 9d) below,”

(3)	In regulation 12, after paragraph (1) insert – 

“(1A)	In the case of tobacco products acquired by a person in another member State for his own use and transported by him to the United Kingdom, the excise duty point is the time when those goods are held or used for a commercial purpose by any person.”

(1B)	For the purpose of paragraph (1A) above – 

“(a)	`member State’ includes the Principality of Monaco and San Marino, but does not include the Island of Heligoland and the territory of Busingen in the Federal Republic of Germany, Livigno, Campione d’Italia and the waters of Lake Lugano in the Italian Republic, Ceuta, Melilla land the Canary Islands in the Kingdom of Spain, or the overseas departments of the French Republic …”.

(b)	“own use” includes use as a personal gift,

(c)	if the goods in question are – 

(i)	transferred to another person for money or money’s worth (including any reimbursement of expenses incurred in connection with obtaining them), or 
(ii)	the person holding them intends to make such a transfer, those goods are to be regarded as being held for a commercial purpose,

(d)	if the goods are not duty and tax paid in the member State at the time of acquisition, or the duty and tax that was paid will be or had been reimbursed, refunded or otherwise dispensed with, those goods are to be regarded as being held for a commercial purpose,

(e)	without prejudice to sub-paragraphs (c) and (d) above, in determining whether excise goods are held or used for a commercial purpose by any person regard shall be taken of – 

(i)	that person’s reasons for having possession or control of those products,
(ii)	whether or not that person is a revenue trader (as defined in section 1(1) of the Customs and Excise Management Act 1979),
(iii)	that person’s conduct, including his intended use of those goods or any refusal to disclose his intended use of those products,
(iv)	the location of those products,
(v)	the mode of transport used to convey those products,
(vi)	any document or other information whatsoever relating to those products,
(vii)	the nature of those products including the nature and condition of any package or container,
(viii)	the quantity of those products, and in particular, whether the quantity exceeds any of the following quantities – 

3,200 cigarettes
400 cigarillos (cigars weighing no more than 3 grams each)
200 cigars
3 kilograms of any other tobacco products 

(ix)	whether that person personally financed the purchase of those products,
(x)	any other circumstance that appears to be relevant.

14.	In Regulation 23(1), after paragraph (a), insert – 

“(aa)	they were acquired by a person in another member State for his own use and transported by him to the United Kingdom.”

15.	Section 152(b) CEMA 1979 provides that the Commissioners may as they see fit, restore, subject to such conditions (if any) as they think proper, any thing forfeited or seized.

The facts

16.	Mr Reynolds had recorded in his notebook on 15 May inter alia as follows. Mr Dawkin was stopped at Birmingham airport at 3.40am.  He had come from Palma and informed the officer that he had 10,000 cigarettes with him. On examination of the baggage 9,000 cigarettes were found and 2.5kg of hand rolling tobacco.  It is recorded that Mr Dawkin informed the officer that he lived in Majorca and had done so for 2½ years.  He intended visiting England for a couple of days and would return in a month’s time.  His last visit had been some six or seven weeks previously. He was coming in order to visit his mother and the cigarettes were for his friends and family. He had never been stopped by Customs previously.  He worked as a welder on the island, and could not remember how much the goods had cost.  It is noted that he said:  “My wife went down”. A question and answer which the Commissioners had regarded as critical was: 

“Question:	Will you be remunerated for these cigarettes?
Answer:	A guy gave me a hundred quid and said bring me some cigarettes.”

When asked who had said that, he gave the name of Billy Blane, who was “one of my son’s mates”.  He was then asked:

“What about the rest of the cigarettes, were you given money for them?

Answer:	No, but I will when I get back.  I am not making a profit on them.”

17.	Following the question and answers it is noted that Mr Dawkin said that there were no warning signs in the airport stating the limits of the goods you could bring into the country, and that the goods were brought legally and he had receipts to prove it.  It is also recorded that Mr Dawkin refused to sign the officer’s notebook.  However he did write in his own handwriting his address in Majorca. This writing is very large and scrawled. There is no record of Mr Dawkin asking to see Mr Reynolds’ superior officer, but in a different handwriting from the notes it is written: “Awkward pax refused to sign notebook.” Various receipts were exhibited, it is not clear whether these were attached to the officer’s notebook or not.  

18.	The officer’s notes record the specific interview consisting of 16 questions and answers as lasting for three-quarters of an hour.  At 4.30 Mr Dawkin was told that the goods were being seized, and the final time noted in the notebook is 5.40.  

19.	From the beginning, namely in his letter of 17 May 2005 up until and including his evidence before this Tribunal, Mr Dawkin has contested Mr Reynolds’ version of events.  In his initial letter Mr Dawkin referred to an Asian officer who had originally stopped him together with Mr Reynolds and who “accused” him of being with two other people who were at the airport at the same time.  He wrote that Mr Reynolds had implied to Mr Dawkin that if someone offered him money for the cigarettes he would accept this. Mr Reynolds had asked if he knew that it was illegal to resell cigarettes in the UK, and he had replied yes to this question, but he himself had asked the officer several questions such as if someone had pre-paid for the goods which he bought into the United Kingdom, would he have to pay United Kingdom tax on them as the UK and Spain were both in the EC and tax had already been paid on the goods, and would he be given the opportunity to pay the tax difference?  Mr Dawkin further wrote that he had told Reynolds that the main reason he was flying to England was to visit his mother who was seriously ill, and he would be flying back to Majorca the next day due to work commitments.  He stated that he had insisted the items seized would not be resold in the United Kingdom, and he was then asked the names of the people who would be receiving these gifts who were described as “so-called” friends.  Because he was annoyed at the innuendos he had asked to see the senior officer.

20.	Mr Dawkin does not appear to have fared better at the hands of the senior officer who, when Mr Dawkin told him that he had bought the cigarettes legally, and had receipts to prove it, said “But where did the money come from?”  Mr Dawkin told him that he had his own welding business in Majorca, a fact which does not appear in the notes.  Mr Dawkin had also told him about there being no guidelines at Palma airport for outgoing passengers regarding the quantity of tobacco which could lawfully be taken back to the United Kingdom, and that at Birmingham airport there were no warning signs advising what could be brought in from other EC countries, there was only a reference to non-EC countries.  He had invited the officer to accompany him to the departure areas to show him that there were no such notices, but the officer refused and said “It’s not my airport, not my problem.” Finally in his initial letter Mr Dawkin had referred to the fact that he was of good character, having no criminal record and stated that if he had knowingly committed an offence, then he should be prosecuted.  

21.	In the letter of 1 July 2005 written by Mr Dawkin in respect of the letter dealing with his complaint, he stated that he believed that his questions about paying duty in both the UK and Spain had been misunderstood, because the senior officer had told him that he believed transactions had taken place and the goods were therefore being seized.  Mr Dawkin wrote that he had insisted that the cigarettes were not going to be sold.  With regard to the letter from Mr Digby about the seizure of the goods, Mr Dawkin had written (as noted above) that there were several inaccuracies.  He listed these as being:

 (1) 	That he had no idea when he would be returning to England as it depended on 	his work commitments and the costs and availability of flights.

(2)	It was untrue that he said his son’s friend had given him £100 and asked him 	to bring some cigarettes for him.

(3)	He did not say he had not been given any money for the rest of the goods but 	would be given money when he got back to England, and

(4)	He denied saying that he would not be making a profit on the cigarettes.

In addition he said that the answer recorded by the officer that he was not going to sell the cigarettes as he was aware that it was illegal to do so, was in direct contradiction to the above statements regarding receiving money and selling the  cigarettes.

22.	In his letter to Mr Digby, also dated 1 July, Mr Dawkin repeated the same points, and said that it was his opinion that Mr Reynolds had misinterpreted the different scenarios Mr Dawkin had put to him as being facts.  He records in his letter that he had a general conversation with Mr Reynolds, and that Mr Reynolds’ notes were not made until after the conversation. He had refused to sign those notes because he was unable to read them, the writing being hardly legible being so small, and he needed different glasses for reading close up.  He had asked Mr Reynolds to read the notes to him, which he did, but as only selected parts of the conversation had been noted, he considered Mr Reynolds had misinterpreted what he had said.  He asked for a copy of Mr Reynolds’ notes in order to see exactly what he had written.

23.	In the letter which he wrote to Mrs Perkins following receipt of the review letter, Mr Dawkin disputed further matters from the interview. In particular he disputed that he had used phrases such as, “my wife went down”, and “a guy gave me a hundred quid and said bring me some cigarettes”.  He also disputed that he had admitted during the formal interview that the goods were for others who had not travelled but had either paid or would pay.

24.	In his evidence to us Mr Dawkin was entirely consistent in his answers with regard to the matters he disputed in the officer’s notebook. In addition he confirmed that he had his own welding business in which he employed nine people. He told the Tribunal that he regularly travelled to the United Kingdom, he had never been stopped by Customs before, he was a busy man and he and his wife both had large families. He had an income of approximately £40,000 per annum, and his wife also worked. He did not consider that £1,000 was a lot to spend on cigarettes.    

25.	He repeated that Mr Reynolds had not made any notes at the time the conversation took place, and that he himself had questioned Reynolds about the guidelines and limits. He was not aware of the commerciality statement, which the officer had recorded as being read to him. He thought that he had talked to Reynolds for some 10 to 15 minutes before the officer moved away and wrote his notes, and that point the goods had not been seized.  He disputed that he had said he worked as a welder, but said that he had told Reynolds that he had a welding business. He agreed that it was correct that he had said that Billy Blaine was one of his son’s mates, who, in addition to looking after his mother’s garden,  kept an eye on her as she was infirm.  

26.	Mr Dawkin told the Tribunal that it had been his intention to leave the cigarettes at his mother’s house as he knew he would be returning later that month.  At that time he himself smoked but he had since given up.  He had three brothers and their wives all of whom smoked, and his father, who was alive at the time, also smoked. The cigarettes would had been for possibly ten friends and members of the family, including his son and his wife’s sisters. He did not intend to hand them all over at one time. He himself did not roll cigarettes so he did not know how many you could get from a packet of hand rolling tobacco, but his father and his brother used it.  He employed people in England as well as in Majorca.  

27.	In her review letter Mrs Perkins had accepted all the matters recorded in the interview as being correctly recorded. She noted that Mr Dawkin had challenged the legality of the seizure in the Magistrates Court and was awaiting a hearing there.  However, she recorded that her decision was based on the assumption that the Court would find that the seizure was lawful and would condemn the things as forfeit.  

28.	Mrs Perkins had made a note of the matters specifically referred to by Mr Dawkin in his letter of 17 May.  She also set out the matters referred to by Mr Dawkin in his subsequent letters of 1 July, and his answer to Mr Digby that he had “fully understood why the conclusion was reached that the goods were correctly seized.”  She does not refer to the fact that Mr Dawkin had asked to see the officer’s notes, nor that they had not been provided to him, nor that that he had in his correspondence said that he had his own welding business, and disputed that he had said that he was a welder as recorded by officer Reynolds.

29.	Under the heading “Consideration” Mrs Perkins had written that she had not been provided with any details of exceptional circumstances that would result in her deciding to restore the goods to Mr Dawkin under the Commissioners’ policy.  She then set out the matters which she had taken into account, and in this regard she took notice of the quantity of the cigarettes, she quoted from the notes of interview the passage about his saying that he had been given £100 by Billy Blaine, she noted that the questions and recorded responses were clear and unequivocal. The cost of the cigarettes was clearly a factor which had influenced her as she had written:  “I am not persuaded by your revised version of events that you would be giving these goods away without recompense.”  She recorded that he had had ample opportunity to comment within the notebook when it was offered to him, but had chosen not to do so. Mrs Perkins records that she had been presented with no reasons to doubt the veracity of the officer’s notebook in that matter.  Finally she noted that the UK revenue involved in the case amounted to £1,627.81.

30.	Mr Brenton’s evidence was to the effect that, having looked at the officer’s notebook, he would have drawn the same conclusions as the reviewing officer.  He considered the notebook was clear and concise, and he had no reason to doubt that the officer followed standard procedure and he believed that Mr Dawkin would have been given ample opportunity to read the notes and to add any comments he wished.  Mr Brenton then said that a professional standards section had been set up by the Commissioners because officers had been criticised by the judiciary for their interviewing techniques. Some four years ago he himself had addressed a seminar on that issue and it was an ongoing matter.  Mr Brenton acknowledged that the note stating “awkward pax” “ was inappropriate, and he could not think why the officer had written that.

The Respondents’ case

31.	Unusually we were not presented with a skeleton argument in this case by Mr Watson.  He submitted that Mr Dawkin had had a clear opportunity to go to the Magistrates Court which would have been the appropriate forum in which to challenge the legality of the seizure and to cross-examine officer Reynolds, and it was not now open to him to challenge the seizure.  The reviewing officer had been entitled to take the officer’s notes as representing an accurate account and the fact that Mr Dawkin had not been given a copy of the officer’s note did not damage the validity of the review decision. Mr Dawkin had known that the Magistrates Court was the proper forum to challenge the seizure and he had had a clear opportunity to go there, and had taken the view that he would not go there, not just on grounds of cost but on grounds of convenience.  It was contradictory for Mr Dawkin to spend £1,000 on cigarettes but to consider he did not have sufficient money to contest the matter in the Magistrates Court.

32.	It was submitted that the real issue before the Tribunal was the reasonableness of the decision with regard to restoration.  The Tribunal was referred to the case of Gascoyne v Customs and Excise Commissioners [2004] EWCA Civ 1162, and it was submitted that this was the leading Court of Appeal authority for the fact that an appellant had only a limited window in which to challenge the legality of the seizure.  At paragraph 46-48 Buxton LJ said as follows:

“46.	All that said I shall now turn to express my view on what was said by  Phillips LJ (in the case of Gora).  So far as domestic law is concerned I would respectfully say that the observations were clearly correct.  I do not think it can have been intended that the exporter before the tribunal would have a second bite of the cherry of lawfulness, having failed in the condemnation proceedings, or let them go by default.    

47.	To the extent that it was argued that the literal provisions of section 152(b) are wide enough to allow such a second bite, I would agree that that is so, but the reason why the importer can not have that liberty is not because of the terms of the statute, but because of the normal English law rules of res judicata or abuse of process.

48.	As I have already said, that conclusion does not lead to the more severe conclusion, tentatively drawn by Lord Phillips in paragraph 10 of the original judgment in this case, in that it does not cause the tribunal to be effectively functus even on issues of discretion.”

33.	It was submitted that in the present case it was an abuse of process to ventilate the matters which could have been aired in the Magistrates Court.

34.	The Tribunal was also referred to the case of the Commissioners of Revenue and Customs v Albert Charles Smith, heard in the Royal Courts of Justice on 17 November 2005 before Mr Justice Lewison.  At paragraph 23 Lewison J referred to Gascoyne and said:

“Lord Justice Buxton’s reference to abuse of process or to considerations analogous to abuse of process are, in my view, references to the well-known principle that it may be an abuse of process to raise in one tribunal matters that could and should have been raised in another.  So the relevant questions will always be, first, could the applicant have raised the question of lawfulness of forfeiture in other proceedings and, if the answer to that question is yes, why did he not do so?  In the light of his reason for not raising the matter in condemnation proceedings the tribunal can then answer the question should he have done so and if they answer that question `yes’, then it will be, in most cases, an abuse of process for him to raise the question before the tribunal.”

35.	At the conclusion of Mr Watson’s submissions the Tribunal referred him to the case of the Commissioners of Customs and Excise v David Weller [2006] EWHC 237, which had been provided to the Tribunal by Mr Watson at the outset of the hearing, but to which he had made no reference. The Tribunal allowed him a 15 minute adjournment to take instructions on the matters raised by that case, but at the conclusion of 15 minutes Mr Watson chose not to address us further.  

The Appellant’s case

36.	Mr Dawkin’s case in summary was that he had done nothing wrong at all, his answers had been incorrectly recorded, he considered as a matter of principle it was wrong for Customs to investigate Customs, and he had been deterred from going to the Magistrates Court because of the issue of costs which had been raised by the Commissioners in one of their letters to him.

Reasons for decision

37.	The first issue to be decided by the Tribunal is whether it is in fact an abuse of process for Mr Dawkin to raise the circumstances surrounding the seizure before us in this tribunal when he had withdrawn his application for a hearing in the Magistrates Court.  We do not consider that in the circumstances of this case it would in fact be an abuse for the following reasons.  In the first place Mr Dawkin does live abroad, and any reasonable businessman will take account not just of the cost of such proceedings, but also of the inconvenience of having to travel, possibly on more than one occasion, to the United Kingdom to contest those proceedings as well as the cost of representation and the possible costs asked for by the Commissioners.  We consider it does not lie in the mouth of the Respondents to suggest that £1,000 is an excessive amount to spend on cigarettes as gifts, and at the same time to say that Mr Dawkin could well afford the cost of going to the Magistrates Court. Cost is not always a matter of finance only, but is also to be measured in terms of time and inconvenience.

38.	The case of Weller concerned an appeal confined to challenging an interlocutory order of the tribunal which provided:-

“(3)	That the appeal shall proceed on the basis that the tribunal has jurisdiction to consider whether the seized goods were for the appellant’s personal use even though there had been no condemnation proceedings and condemnation has not been challenged …”

In the case of Weller, Gascoyne (supra), Gora v Customs and Excise Commissioners [2003] 3 WLR 160 and Smith (supra) were considered. In Weller Mr Justice Evans-Lombe adopted Mr Justice Lewison’s approach in Smith, namely, that, whether or not an importer, having suffered a deemed forfeiture under paragraph 5 of Schedule 3, is able to raise the validity of the forfeiture on a review by the Commissioners and on appeal from them to the Tribunal, depends on two questions. The first question is: did the importer have a realistic opportunity to invoke the condemnation procedure and the second is, if he did, are there nonetheless reasons, disclosed by the facts of the case which should persuade the Commissioners or the Tribunal to permit him to reopen the question of the validity of the original seizure on an application for the return of the goods? It was considered that the first question would almost always be answered in the affirmative, since facts would have to be very unusual to base a conclusion that an importer was prevented, in the 30 days succeeding forfeiture, from giving notice to the Customs to initiate condemnation procedure in the Magistrates Court.

39.	In Weller the tribunal had given an affirmative answer to the second question, but gave no indication of the particular factors, in the material before it, which had led to that conclusion.  Whilst the tribunal did not give its reasons, in evidence it had been stated that there was the risk of an award of £750 costs against Mr Weller in condemnation proceedings, which would not be awarded in the tribunal, and also that condemnation proceedings would have meant his being away from work for long periods and that Mr Weller had wished to avoid stress.  Mr Evans-Lombe concluded that the tribunal plainly had jurisdiction to admit an argument in support of the appeal amounting to a challenge to the validity of the forfeiture.  He continued: “The only remaining question, therefore, is whether it is possible to say that there was no material before the tribunal on which they could properly base the conclusion that, on all the particular facts of the case, Mr Weller should be entitled to contest the validity of the forfeiture.  Although she does not expressly say so, it is apparent from the witness statement of Mr Timpson-Hunt that the experienced chairman was directing herself to this question.  I have come to the conclusion that I am not able to say, on the material before me, and applying the principles of proportionality to that material, that no reasonable tribunal, properly advised, could have come to the conclusion which this tribunal did.  It follows that this appeal must be dismissed.”

40.	In the circumstances of the appeal before us we were somewhat surprised that Mr Watson did not take the opportunity given to him at the end of his submissions to pursue the question of whether in the circumstances it was reasonable for the appellant not to have pursued his appeal in the Magistrates Court.  

41.	We are very concerned that the Commissioners, whilst conducting affairs relating to Mr Dawkin’s appeal to the Tribunal reasonably expeditiously, were very slow to deal with matters relating to the appeal to the Magistrates Court. Not only were they slow, but as stated above, they did not make clear to Mr Dawkin in later correspondence that they had not been dealing with the issue of the seizure in their letter of 20 July 2005.  It might well have been understood, even by a solicitor, that that review related to the seizure as well as to the restoration. In our view there is no doubt that such delay, coupled with the mention of their seeking costs in Magistrates Court proceedings, would deter anybody other than somebody who had prior knowledge or experience of both systems, and who would therefore realise the disadvantage he would suffer if he did not pursue the matter in the Magistrates Court.  

42.	We are also very concerned that the review decision itself was taken on the basis that the Magistrates Court would not allow Mr Dawkin’s appeal, and that all the facts of the seizure were proven, and therefore it was taken without having allowed Mr Dawkin a proper opportunity to test the evidence of officer Reynolds.  It must be open to an appellant to challenge such an assumption by a reviewing officer, and thereby challenge the facts of the seizure.  For these reasons we do not consider it an abuse of process for Mr Dawkin to raise before us issues relating to the circumstances of the seizure, notwithstanding that he had at some point consulted a solicitor, and therefore withdrawn his appeal to the Magistrates Court..

43.	We found Mr Dawkin to be a straightforward and reliable witness.  We accept his version of events that night at Birmingham airport, and in particular regard one recorded answer as being very significant.  Mr Dawkin has his own welding business, yet it is recorded that he said he was “a welder”. This gives a very different impression to any reader and we are surprised that the officer did not at any stage make any enquiries as to Mr Dawkin’s financial circumstances.  If he had, the fact that Mr Dawkin earned some £40,000 a year, employed nine people, and had a wife who worked, might have made subsequent officers looking at the case less sceptical about his ability to spend £1,000 on cigarettes as gifts.  It was not ascertained by the officer that Mr Dawkin had employees in the United Kingdom, who were also intended recipients of these cigarettes.  The picture which emerged before us is very different from that painted by the few questions and answers recorded that night, and the one accepted unquestioningly by the review officer.  We accept Mr Dawkin’s evidence that the cigarettes were intended purely as gifts for friends and family.

44.	Insofar as the review letter is concerned, that being the document which is the subject of this appeal, as noted above we consider it completely inappropriate that it should have been undertaken on the basis that Mr Dawkin would have failed in the Magistrates Court. Furthermore Mrs Perkins appears to have taken no account of the contradiction pointed out by Mr Dawkin between his having said that the cigarettes were for personal use and for family and friends, and it also being recorded as his having said that he was given money for some of the cigarettes, and that he would be given money for the rest of them when he returned. Mrs Perkins concluded that Mr Dawkin had “ample opportunity” to comment within the notebook about the notes, and again she ignored the matters raised by Mr Dawkin, namely that the officer’s handwriting was very small, which indeed we found that it was, and that Mr Dawkin did not have his proper reading glasses with him.  The size and the stroke-making of Mr Dawkin’s handwriting in the notebook where he has written his address lends credibility to his evidence on this point, and is a matter which Mrs Perkins does not appear to have considered.  She has not taken any account of the fact that Mr Dawkin has a welding business rather than being a welder, a matter which he had referred to in correspondence, and which casts a different light on his financial circumstances. She did not take account of the fact that there were only some 16 very short questions and very short answers recorded in the period of time of the interview, which is noted as three-quarters of an hour, and which again lends veracity to Mr Dawkin’s account of his saying far more than was recorded there. Given the way Mr Dawkin gave his answers before us, we consider it extremely unlikely that he merely answered the questions in the way that appears from the officer’s notes.  

45.	The reviewing officer, although she records having read all the correspondence, seemed to think it not important to supply Mr Dawkin with a copy of the officer’s notebook before arriving at her decision, although he had clearly requested such a copy.  We consider that a reasonable officer properly conducting a review in a case where from the very beginning an appellant has challenged all the issues on which the Commissioners rely, would have provided the Appellant with that notebook.  

46.	We were impressed by the consistency of Mr Dawkin’s answers and the fact that he has maintained a virtually identical account over a period of two years.

47.	In all the circumstances we do not consider that the reviewing officer properly considered all the evidence before her, we do not consider that she acted reasonably in conducting the review at a time before the Appellant had had the opportunity to pursue his appeal in the Magistrates Court, and in taking as proven the matters which would have been aired in that court, and for these reasons we allow this appeal and direct that this matter be referred back to the Commissioners for reconsideration on the basis of the facts as we have found them.  

48.	The Appellant’s costs, limited to travel and all out of pocket expenses incurred in the course of pursuing this appeal, to be paid by the Respondents.

MISS J C GORT
CHAIRMAN

RELEASED: 2  April  2007

LON/05/8110