E00354
Car seizure – Use by sons without conditions or restrictions – Reasonableness of decision not to restore

LONDON TRIBUNAL CENTRE

	JOHN JANES	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	Adrian Shipwright (Chairman)

Sitting in public in Cardiff 10 July 2002

The Appellant appeared in person

Mr Keller of Counsel for the Respondents

© CROWN COPYRIGHT 2002

DECISION

Introduction
1.	This appeal by John Janes Senior against a decision of the Respondent not to restore a vehicle, a Ford Mondeo car, registration number M 564 TYB ("the Car") to the Appellant.  The decision was contained in the letter dated 24th October 2001.  The seizure of the goods was not an issue in this case which only concern the seizure of the Car.  It is understood that the Car has already been sold.
The Issue
2.	The issue in this case was whether the Respondent's decision not to restore the Car was unreasonable. The Tribunal has no jurisdiction to substitute its own decision for that of the review officer. The Tribunal’s jurisdiction is a supervisory one only.
Background 
3.	It was not disputed that the following was the case.
(a)	The Car was registered in of the Appellant's name.
(b)	The Car was seized on the second of August 2001 at Dover.
(c)	The Car was then in the possession of the Appellant’s two sons, John and Jason Janes, and another.
(d)	32.7 kg of hand rolling tobacco and 200 cigarettes concealed in Persil boxes, seat cushions and a soft toy were found in the Car.
(e)	The tobacco and cigarettes were seized as was the Car "... because it was used for transporting goods liable to forfeiture".  The legality of the seizure was not in question in this case.
Evidence
4.	A bundle of documents containing copies of the Notice of Appeal and related documents, correspondence and witness statements was produced and not disputed. Witness statements from Brian Anthony Rayden, Nicolas Syrett and Gerry Dolan were included within the bundle.
5.	The Witness Statement from Gerry Dolan set out pro forma general assertions as to "high policy".  It was not relevant to the specific issues of the case.  I did not find it pertinent or useful in the particular case.  It added nothing to what was already set out in the decision letter. Further Mr Dolan was not available for cross examination.
6.	Of those providing witness statements only Brian Anthony Rayden gave oral evidence.  Mr John Janes Senior also gave evidence.
7.	Mr Janes Senior was an honest witness and I believe what he had to say to be true. A letter in support of Mr Janes from Helen Mary Jones, The Assembly Member for Llanelli, was included in the bundle and bought to my attention as she had requested.
8.	I find following facts.
(a)	John Junior and Jason were the Appellant's elder sons ("the Sons").
(b)	Their mother (Mr Janes Senior's wife) had died in May 2000.
(c)	The Sons aged about 17 and 19 at the time were in the Army.
(d)	The Car was insured for Mr Janes Senior and his sons to drive.
(e)	Mr Janes wished "to spoil" the Sons after their mother's death.
(f)	He allowed the Sons to use the Car without imposing strict controls or conditions on the Sons.  In particular, he did not place specific conditions on them as to where they could go.
(g)	He did not question them as to their use of the Car.
(h)	He expected that the Car would be used by the Sons for local matters such as visiting girlfriends, shopping, bowling and similar matters.
(i)	He did not question the Sons as to how long and for what purpose they wanted the Car.
(j)	He was not aware that the Sons would take the Car abroad and was not certain that at the time it could have made such a journey.
(k)	Mr Janes accepted that a purple Ford Mondeo had been registered subsequently in his name.  This car was really his son, John Janes Junior’s car.  It was registered in John Janes Senior’s name for “insurance purposes”.
(l)	A Peugeot 205 had been registered by reference to Mr Janes Senior's address but was registered in his son's name (i.e. in John Janes Junior's name).  This had cause some confusion at the hearing.
(m)	Mr Janes Senior was not aware that the Sons were going abroad or intended to bring large quantities of tobacco into the United Kingdom.
(n)	Mr Janes Senior accepted that what his sons did was wrong.
(o)	As Mr Janes Senior Senior was in receipt of invalidity benefit and lived out of town  the car was a very important means of transport for him.  This was particularly so as regards taking children to school, shopping, and going to the doctor's surgery.
(p)	It is understood that Mr Janes Senior would not be able easily to afford to replace the Car.
The Appellant's Submissions
9.	Mr Janes considered that he was the victim in this matter.  He accepted that the Sons had done wrong but did not see why he should be inconvenienced by this.  It caused him a great deal of inconvenience to be without the Car.  It was his lifeline.  He needed the car in order to go to:
(a)	The School - to take his ten year-old daughter to and from school;
(b)	The Doctor’s - as he suffered, he told me, (inter alia) from depression, neuralgia and migraines;
(c)	The Cemetery - to visit his wife's grave;
(d)	The Shops - to go shopping as he lives some way from the shops; and
(e)	deal with emergencies.
       He accepted that the goods should be seized but did not see that it was fair for his car to be seized when he had no part in the importation which led to its seizure.

The Respondents' Submissions

10.	Mr Keller of Counsel made the following submissions on behalf of the Respondents.
(a)	This appeal concerned a narrow issue (i.e. the third party issue) as to the reasonableness of the decision not to restore the Car on review. The seizure of the goods and the Car were not in issue in this case.
(b)	The Tribunal's powers were circumscribed.  It only had power to order a further review where in its supervisory role it considered that the decision was "unreasonable" in the sense of being outside the range of possible reasonable decisions that a properly instructed and informed officer could properly reach.
(c)	On the case law it was reasonable not to restore a vehicle where the third party had knowledge of what was proposed or consented to illegal use.  He relied on Hopping v  CCE as authority for this. The President, His Honour Stephen Oliver QC said in that case :
 "At the same time we think the reviewing officer could reasonably   have concluded, as he did, that Mrs Hopping knew of and consented to the regular midweek Channel crossings made to Calais and back by her car…”

He continued later:
 "Our overall conclusion is that Mrs Hopping's knowledge and acceptance that trips could reasonably have been inferred by the officer.  It is not our function to decide whether the officer was right or not, all we are allowed by the 1994 Act to do is to determine whether he could reasonably have reached the conclusion that he did.  Mrs Hopping has suffered severe penalty of losing her car.  But she was close to the action must be taken to have known the implications of allowing her car to be used for these bootlegging trips.  The published stakes were high: use it and lose it.  They were widely known.  She allowed her car to be used and her loss of it is not, we think, a disproportionate consequence".

(d)	It was submitted on behalf of the Respondent that here it should be inferred that Mr Janes had such knowledge when there was such proximity as his sons were living with him.  It was not plausible that he did not make inquiry as the Car was his sole form of transport.
(e)	The Respondent's key point was that it was reasonable not to restore a vehicle where a third party had taken an unacceptable risk (cf a parking offence). In those circumstances he was deemed to assume the risk of seizure.
(f)	Mr Keller relied on a number of authorities to support this proposition.  He relied first on what was said in Houlton Meats v CCE (albeit in a commercial context). Dr Avery Jones said at paragraph 15:
"... The Appellant has to take the consequences of its employee’s actions when driving with their permission, even though we accept that there is little that it can do to prevent it happening.  We do not think that the non-restoration of the car is disproportionate in failing to achieve the fair balance between the demands of the general interest of the community in preventing smuggling, and the requirements of the protection of the Appellant's fundamental rights as owner of the car".

(g)	He also referred to Mahood Mustafa v CCE.  Lady Mitting said if :
"However, Mrs Marshall's decision did not even rely on any such assumptions.  She based her refusal to restore on the premise that by lending the vehicle, he accepted the risk of its misuse.  This is, in the particular circumstances of this case, a reasonable view.  In many of the cases before the Tribunal the third party owner has lent a vehicle for a limited time and/or for a specific and innocent purpose and his trust has been abused by the driver's misuse of the vehicle.  This is not such a case.  The Appellant allows his brother a completely free hand -- he has unrestricted and unfettered use of the car and the Appellant claims to have no interest in what the vehicle is used for, not even knowing if it is properly insured...”

(h)	Mr Keller submitted that what was said in Davinder Dulai v CCE also supported his argument. Mr Demack said:
 "In the instant case, Mr Dulai, not merely consented to the use of his van by Mr Singh, but apparently took no steps whatsoever to protect it or prevent it from being used for any purpose .... in so allowing Mr Singh to use his van, Mr Dulai took the risk of his using it for commercially motivated smuggling... Mr Dulai acted recklessly so that he must accept responsibility for the purpose for which it was actually used ”.

(i)	 Reference was also properly made to Grainger v CCE where it was said there had to be a limit to the risk.  Mr Keller submitted that this case was distinguishable on its facts and relied on what was said at paragraph 39(a) of the decision .
(j)	In summary, he invited the Tribunal to dismiss the appeal either because:
i.	Mr Janes Senior must as an evidential likelihood have known
	what was happening if one looks at the end result; or
ii.	Mr Janes Senior by giving a free hand to the Sons had taken the risk of losing the Car.  Mustafa and Grainger were distinguishable.
 In either case the Respondent's decision was reasonable and so could not be disturbed.
Conclusion
11.	  	(a)	I do not find that Mr Janes Senior did know what the Sons  
		intended to do with the Car as set out in the Findings of Facts above.  
(a)	  	I do find that Mr Janes Senior had given the Sons free and unrestricted 
	use of the Car (see above).
(b)	   	I consider what Dr Avery Jones said  in Houlton Meats is applicable  
here.  The Appellant has to take the consequences of the Son’s actions when driving with his unrestricted and unconditional permission, even though there was little in those circumstances to prevent it happening.
This is so whether there is a family, employment or commercial context.  
(c)	 	I do not think that the non-restoration of the car is disproportionate in 
failing to achieve the fair balance between the demands of the general interest of the community in preventing smuggling, and the requirements of the protection of the Appellant's fundamental rights as owner of the Car.
(d)	      Although, I might not have reached the same conclusion as the 
	Respondent I find that the Respondent's decision in this case:
i.	is not outside the scope of reasonable decisions; 
ii.	is not based on irrelevant considerations;
iii.	is not based on the application of the wrong test;
iv.	is not fettered by any policy or other restrictions; of
v.	is not otherwise impeachable.
	Accordingly, the appeal is dismissed.

ADRIAN SHIPWRIGHT
CHAIRMAN

RELEASED: 8 October 2002

LON/02/8030