E01108

CUSTOMS AND EXCISE MANAGEMENT ACT 1979 – importation of obscene material – non-restoration of a motor vehicle – no evidence of exceptional hardship – non-restoration decision reasonable – Appeal dismissed.

LONDON TRIBUNAL CENTRE

	METE GOKCE  	Appellant

	- and -

	HER MAJESTY’S REVENUE and CUSTOMS	Respondents

			Tribunal: MICHAEL TILDESLEY OBE	 (Chairman)
				      ALEX McLOUGHLIN (Member)	  

Sitting in public in London on 18 February 2008

The Appellant did not appear

Rupert Jones, counsel instructed by the Acting Solicitor for HM Revenue & Customs, for the Respondents

© CROWN COPYRIGHT 2008

DECISION
The Appeal
1.	The Appellant was appealing against the Respondents’ decision on review dated 24 July 2007 not to restore a vehicle, Volkswagon Sharan registration number BT04 EOE,  seized on 9 September 2006.
Background 
2.	On 9 September 2006 at Dover Eastern Docks the Appellant was stopped by a Customs Officer while driving the said vehicle. The Officer conducted a search of the vehicle and discovered a pink bag concealed in the near side quarter panel of the vehicle. The pink bag contained two unpackaged DVDs of moving and still images of adults engaged in sexual acts with children and animals. The material on the DVDs was classified as most obscene. The Officer seized the vehicle as it was being used to transport prohibited goods. The Appellant was interviewed making no comment to the questions put. On 30 April 2007 the Appellant pleaded guilty to a charge of evasion of a prohibition or restriction contrary to section 50 of the Customs and Excise Management Act 1979 and sentenced to 10 months custody. 
The Dispute
3.	The Appellant contended that he had suffered exceptional hardship from the non-restoration of his vehicle. He required the vehicle so that he could resume his livelihood after release from prison and to take his three young children to school.
4.	We are required to determine whether the Respondents’ refusal to restore the vehicle was a decision which no reasonable body of Commissioners could have arrived at. In order for the decision to have been reasonable the Respondents must have considered all relevant matters and must not have taken into consideration irrelevant matters.
The Evidence
5.	We heard evidence from Mr David Harris, the officer who conducted the review of the non-restoration decision. The Respondents supplied a bundle of documents which was admitted in evidence.
6.	The Appellant did not attend the hearing. We were satisfied that he had been duly notified of the hearing date. We decided to proceed in his absence in accordance with rule 26 of the Tribunal Rules 1986. In reaching our decision we took account of his correspondence which was included in the Respondents’ bundle of documents.
Reasons for Decision
7.	We found that Mr Harris took account of the following facts in his decision upholding the non-restoration of the Appellant’s vehicle:
(1)	When stopped by a Customs Officer the Appellant failed to disclose the existence of  prohibited indecent goods which were concealed in the near side quarter panel of his vehicle.
(2)	The Appellant declined to give an explanation for possession of the indecent goods when interviewed by the Officer. 
(3)	The attempted smuggling of the indecent goods could not have taken place without the vehicle.
(4)	The indecent material was stored on electronic media which enabled the material to be copied and distributed with ease and had obvious commercial potential.
(5)	The Appellant’s representations about using his vehicle to take his children to school, which in Mr Harris’ view did not constitute grounds for exceptional hardship.
8.	We find that the facts taken into account by Mr Harris were relevant to the non-restoration decision. We find no evidence that Mr Harris took into account some irrelevant matter or disregarded something to which he should have given weight in coming to his decision on the 24 July 2007. 
9.	The Appellant in his correspondence did not substantiate his contention of exceptional hardship. He supplied no evidence of how the non-restoration of his vehicle affected his livelihood.  His family resided in an area well served by public transport which would alleviate any perceived difficulties of taking his children to school. We, therefore, find that there were no grounds for exceptional hardship.
10.	We considered that the non-restoration of the vehicle was proportionate to the Appellant’s contravention of the law dealing with improper importation of goods. The Appellant pleaded guilty to the unlawful importation for which he received a custodial sentence. The importation involved obscene goods of the most serious category.
11.	We are satisfied for the reasons set out above that the Respondents’ decision on review dated 24 July 2007 refusing restoration of a motor vehicle, Volkswagon Sharan registration number BT04 EOE, was reasonably arrived at within the meaning of section 16(4) of the Finance Act 1994. We, therefore, dismiss the Appeal and make no order for costs.

                                            MICHAEL TILDESLEY OBE
CHAIRMAN
RELEASE DATE: 24 April 2008

LON 2007/8079