EXCISE DUTY restoration of vehicle and trailer used and driven by owner who was an Irish haulier load contained almost four million cigarettes among load of frozen chicken wings imported from Holland haulier claimed he was not knowingly involved in smuggling excise goods whether failure to make reasonable checks whether haulier had acted with lack of care Commissioners review decision not to restore vehicle without payment of trade value of vehicle and trailer whether decision was reasonable whether decision was proportionate appeal allowed and further review directed
MANCHESTER TRIBUNAL CENTRE
NEVILLE DOWLING Appellant
- and -
THE COMMISSIONERS FOR
HER MAJESTY'S REVENUE AND CUSTOMS Respondents
Tribunal: Ian Vellins (Chairman)
Susan Stott FCA CTA
Sitting in public in Manchester on 29 June 2006
Joanne Emery, solicitor, for the Appellant
Michelle Mayo, counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents
© CROWN COPYRIGHT 2006
"1. Tobacco products
(1) In this Act 'tobacco products' means any of the following products, namely -
(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 1 mm.
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.
"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".
"Where any imported goods are concealed or packed in any manner appearing to be intended to deceive an officer, those goods shall, subject to subsection (2) below, be liable to forfeiture"
"Any thing chargeable with any duty or tax which is found concealed, or is not declared, ... shall be liable to forfeiture".
"Any thing liable to forfeiture under the Customs and Excise Acts may be seized or detained by any officer "
and this is followed in Section 141(1) of CEMA
"Without prejudice to any other provision of the Customs and Excise Acts 1979, where any thing has become liable 10 forfeiture under the Customs and Excise Acts
(a) any vehicle which has been used for carriage, handling, deposit or concealment of the thing so liable to forfeiture, either at a time when it was so liable or for the purpose of the commission of the offence for which it later became so liable; and
(b) any other thing missed, packed or found with the thing so liable, shall also be liable to forfeiture"
The Tribunal's Jurisdiction
"4. In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of the appeal tribunal on an appeal under this section shall be confined to a power, where the tribunal are satisfied that the Commissioners or other person making the decision could not reasonably have arrived at it, to do one or more of the following, that is to say -
(a) to direct that decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct;
(b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision;"
"A person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to matters which he is bound to consider. He must exclude from consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may be said, and often is said, to be acting unreasonably".
"Could only properly [review the decision] if it were shown that the Commissioners had acted in a way in which no reasonable panel of Commissioners could have acted; if they had taken into account some irrelevant matter or had disregarded something to which they should have given weight".
"Did the Commissioners reach the decision which no reasonable Commissioners could have reached? Did the Commissioners take into account all relevant considerations in this case? Did the Commissioners leave out of account all relevant considerations? In all of these questions it is necessary that the Commissioners should have acted on a correct understanding of the law. A decision which rests on an error of law is not reasonable".
The Restoration Policy of the Commissioners as stated in the Review Decision:
"The Commissioners policy for the restoration of heavy goods vehicles is designed to tackle cross border smuggling rigorously and to disrupt the supply of excise goods to the illicit market significantly.
1) If the Commissioners are not satisfied that the driver or haulier are not knowingly involved in smuggling excise goods then:
- If the revenue involved is significant, on the first detection the vehicle may not be restored
- In other cases, on the first detection the vehicle may be restored for a fee equal to 100% of the revenue involved; or the trade value of the vehicle (whichever is the lower). On the second or subsequent occasions the vehicle may not be restored.
2) If the Commissioners are not satisfied that the driver or haulier have carried out what Customs consider to be basic reasonable checks which would have identified the illicit load: then on the first occasion the vehicle may be seized and restoration offered a fee equal to 20% of the revenue involved; or the trade value of the vehicle (whichever is the lower). On the second detection the vehicle may be seized and not restored.
4) If the Commissioners are not satisfied that the driver and haulier have taken reasonable steps to ensure the legitimacy of the load the vehicle may be seized and restored free of charge.
If the Commissioners are satisfied that the haulier is either responsible for, or complicit in the smuggling attempt then on the first detection
- If the total revenue evaded is less than £50,000 the vehicle may be restored for the revenue or the trade value of the vehicle, whichever is the lower.
- If the total revenue evaded exceeds £50,000 the vehicle should not be restored."
The Review Decision and the Background to the Review Decision
"2. On Thursday 10 November 2005, our client's vehicles were seized by HM Customs & Excise at McHaulage, Lynora, Dickies Lane South, Blackpool ("McHaulage") on the basis that the trailer was carrying an unknown quantity of tobacco products. For your information, we enclose a copy of the Seizure Information handed to our client.
3. Our client was initially placed under arrest and interviewed by your officers at McHaulage. After being interviewed and checks carried on our client, it was finally accepted by your officers that our client did not have any knowledge or was aware of the tobacco products found in his trailer. Whilst our client was then released, unfortunately for our client, his vehicles were not.
4. In order to secure the restoration of his vehicles as quickly as possible, we set out below, the circumstances in this matter. Please note however that our client explained these circumstances fully to your officers on 10 November 2005. He also provided them with the appropriate telephone numbers and contact details at that time.
5. In or around the beginning of November, our client met a gentleman called Paul, who was of Irish nationality, in Holland while he was loading fruit to bring back to the UK. Our client entered into a conversation with Paul and discussed bringing loads back to the UK. Paul said that he could be of assistance and that he would contact our client when he had a load coming back to the UK to see if he was available.
6. On 9 November 2005, our client was already in Holland when he received a telephone call from Paul. Paul told him that he had a load of frozen chickens that needed to be collected from a factory in Asten, Holland and delivered to James Burden Ltd in Kent. We attach a fax confirming the details. Please note however that although it was faxed on 9 November 2005, our client did see it until he returned home on 10 November 2005.
7. Our client was provided with the loading details over the telephone and told to go the factory at Asten. When he arrived, he was met by a gentleman who worked at the factory. He jumped into our client's vehicle and asked him to drive to another part of the factory for loading. Our client reversed the vehicle into the loading bay, opened the doors and then got back into the tractor unit. As our client did not have the appropriate clothes to wear, for health and safety reasons he was not allowed to be present whilst the vehicle was being loaded.
8. The vehicle took a reasonable amount of time to load and as soon as it was completed, our client shut the doors and secured them by way of a padlock. He was provided with the appropriate paperwork, which was given to your officers on 10 November 2005 and drove away.
9. He stopped twice on-route from Asten to Calais, once in Antwerp for break and again just before he was about to leave Belgium. Whilst he was on his second break in Belgium, he was approached by Belgium customs officers, who were carrying out random checks. He provided them with the appropriate paperwork and opened the trailer. The officers climbed inside the trailer and after checking everything was in order, they allowed our client to continue with his journey. Our client then proceeded to Calais where he cleared both immigration and customs before disembarking in Dover.
10. Approximately 40 minutes after he had left Dover, he received a telephone call at approximately 1 am from an English gentleman, again the contact number has already been provided to your officers. He was told that the load had been sold and he was now required to deliver it to an address near Kirkham. Our client therefore proceeded to drive in the direction of Kirkham before stopping at a parking area on the M62 near Manchester for a few hours rest.
11. At approximately 10am on 10 November 2005, our client received another telephone call from the English gentlemen asking our client to confirm that he was on his way to Kirkham. Our client confirmed that he was nearly at Kirkham and he was given directions as to where the load was to be delivered. When he arrived at where he now knows to be McHaulage, he was met by two people. He was asked to reverse the trailer over to a shed on the premises and he again unlocked the doors and climbed back into the tractor unit to get some sleep as he believed it would take them a couple of hours to unload. He had only been asleep approximately 15 minutes when he was woken up by your customs officers.
12. At no stage did anything occur suspicious to our client and as you will see from your officer's interview notes, our client co-operated fully. Our client did not, at any time, have any knowledge of the true nature of the products that had been loaded into the trailer. In addition, due to him being unable to be present when the products were loaded, he was never in any position to check the contents of the load. In fact, even when the load was inspected by Belgium customs officers, it did not appear that there was anything untoward with it.
13. As mentioned above, whilst our client was initially arrested, he was released without charge and in fact informed by your officers, whose names our client cannot recall (only that one wore glasses) that "you're ok, we've checked you out and you'll be leaving shortly". Our client was told this on several occasions and after approximately an hour he was told that he was free to go.
14. Our client co-operated fully with your officers on 10 November 2005 and provided them with all the contact numbers that he had on his telephone and paperwork available to him at that time. Please also note that our client is more than happy to co-operate with your officers, if necessary, in the future. Our client has in fact tried to contact "Paul" several times. However, not surprisingly, this number has now been disconnected.
15. Given that your officers fully accept our client is an innocent party in this matter and that he was not involved in any way, we request that our client's vehicles are restored immediately without penalty.
16. The vehicles combined value is approximately E100,000, both of which are currently under loan agreements with GE Capital Woodchester and Lombard & Ulster. The monthly payments in respect of these vehicles are approximately E3,500 per month and if the vehicles are not returned quickly, our client will have to inform the finance companies that they are no longer in his possession.
17. More importantly, the vehicles are losing our client approximately E5-6,OOO per week. Without generating any income, our client is simply not in a position to meet the financial payment due under the finance agreements payable on 20th of each month. Therefore unless the vehicles are restored quickly, this will have serious financial implications both for our client and his business."
"1. Our client's abovementioned articulated vehicle (tractor unit and trailer) was seized by your office on 10 November 2005 at McHaulage, Lynora, Dickies Lane South, Blackpool. On 18 November 2005 we wrote requesting restoration of these vehicles (copy enclosed). Our letter was reviewed by your office and on 15 December 2005 a decision was made that our client's vehicle would be restored upon several conditions, one of which being payment of the trade value of £39,150.00 ("the decision letter") (copy enclosed).
2.Our client does not accept the decision dated 15 December 2005 and we therefore request that a review takes place.
3.It is clear that our client was not "knowingly involved in smuggling excise goods" and that this was accepted by your officers both at the time the vehicle was seized and by Jackie Hall when deciding whether the vehicles could be restored. The decision has therefore been based solely on whether or not our client has "carried out what Customs consider to be basic reasonable checks which would have identified the illicit load'.Basic Reasonable Checks
4.In the last paragraph on page 2 of the decision letter, it states that "everyone involved in the transportation of goods into the UK must make themselves aware of the Customs procedures. This information is freely available ... ". Despite stating that Customs procedures and policies are freely available, we have been unable to find these on your internet. In addition, your National Advice Service and customs officers at red point, Dover Port, are unaware of any such information (telephone reference number: ARV18744) and your customs officer at Liverpool airport is also unaware of this information.
5.I also emailed Jackie Hall on Friday and again today asking where I can find this information. Despite being able to answer my other queries she is not able to immediately tell me where I can find this information on the internet.
6.It is therefore quite clear that this information is not as freely available as suggested. Whilst our client has used his reasonable endeavours to ensure that his vehicles are not used to smuggle goods into the UK, it is wholly unreasonable to impose a policy upon hauliers when it is not made clear precisely what checks or procedures they are supposed to follow.
7.In relation to the "circumstances surrounding the seizure" and the checks that our client should have conducted we set out our response as follows:-
8.The decision letter states that "basic checks would have revealed ... Hauliers should conduct a thorough manual check ... ". However, this is a contradiction in terms. A "thorough manual check" is more than a "basic check". However, that said, as stated in our letter dated 18 November 2005, due to the health and safety regulations, our client was not allowed to be present whilst the vehicle was being loaded. Whilst hauliers are not happy about their trailers being loaded without them, this is a perfectly normal practise, particularly when dealing with food products, and one that would not raise suspicion in any way.Point 1: Manual Check of the Load
9.The frozen chickens were transported on pallets and these pallets would have been loaded into the vehicle from the rear by a forklift. The trailer is not a curtain-sider and the only way to load products and check them is via the rear doors. The chickens were packed into white boxes and stacked between 11-13 boxes high. The trailer was fully loaded and there was only approximately 3-4ft of space between the top boxes and the roof. Our client was therefore simply not in a position to conduct a "thorough manual check' of the load. You should note that the cigarettes were placed in the middle of the load so that on a visual inspection only the white boxes could be seen.
10.It was simply not possible or practical for our client to "conduct a thorough manual check of the load'. The trailer had been loaded by a forklift and our client could not have physically moved any boxes to see what if anything else was behind the white boxes. Indeed, even if our client had climbed into the trailer and walked along the top, he again would only have seen white boxes. In any event, our client could not have climbed into the roof space and walked along the frozen products as there would have been an extremely high probability that the customer would have rejected the load as a result of footprints being found on their food products. There is also, of course, our client's own personal safety which needs to be taken into account.
11.It should be noted that our client has been transporting frozen chickens for the past 8 years and as a result has extensive experience of exactly how frozen chickens should be stacked and how the vehicle should feel accordingly to the amount of weight he has in the trailer. For example, frozen chickens are usually packaged in white boxes and are not stacked any higher than 11-13 boxes high otherwise the bottom level starts to crumble under the weight.
12.The temperature gauge on the refrigerator unit was also operating correctly. Frozen chickens maintain a temperature of approximately -20°c and as a result you would expect the refrigerator unit to hover around -18°c to -20°c. If different products are present in the trailer, for example, breakfast cereals, then the refrigerator unit will find it difficult to maintain the abovementioned temperature as they freeze at a much lower level. The refrigerator unit would therefore be running constantly to ensure a level of -20°c was maintained. However, this was not the case, as our client could hear the unit switching itself on and off throughout the journey.
13.As mentioned at paragraph 11, our client has considerable experience transporting frozen products and in particular chickens. From experience therefore, once our client drove away from the depot in Astenhof he was able to feel whether or not the vehicle was driving correctly in relation to the quantity of frozen products on board. Our client confirms that the vehicle was operating exactly as it should and he had no reason to suspect that he was carrying anything other than frozen chickens.
14.It is essential that you consider the checks that our client could have carried out at the time the trailer was loaded and not with the benefit of hindsight. In this regard, our client carried out the only "basic reasonable checks" that were available to him at that time. Namely:-
14.1 he carried out a visual inspection to ensure that all the boxes were evenly loaded and of the same colour (white);
14.2 he noted that all the boxes were new;
14.3 he noted that the boxes had been loaded correctly to ensure that the bottom boxes were not squashed;
14.4 the paperwork showed that the frozen chickens were to be delivered to a well-known chicken wholesaler in England;
14.5 he checked the "onboard weighing system" in the tractor unit to ensure that the weight was correct for the amount of frozen chickens that he was supposed to be carrying;
14.6 he checked the temperature gauge of the refrigerator unit to ensure that the products were holding the correct temperature; and
14.7 he noted that the vehicle was operating correctly.
15.It should also be noted that at paragraph 9 of our letter dated 18 November 2005, Belgium customs officers carried out a random inspection of our client's vehicle. Our client provided them with the paperwork for the products he was carrying and both officers climbed inside the trailer, stood up and looked at the boxes of frozen chickens. After carrying out the same "basic reasonable" check of the trailer that our client did and after checking his paperwork they allowed him to continue.
16.Our client also cleared customs at both the ports in Calais and Dover without any suspicions being raised before eventually arrived at McHaulage in Blackpool. Even when the customs officers first arrived at McHaulage it took them approximately 10-15 minutes to locate the illicit goods and it was only after they had removed a pallet of frozen chickens from the trailer by using a forklift that they became aware that there were indeed illicit goods present.
17.It is therefore wholly inaccurate to say that "basic checks would have revealed the presence of illicit goods" given that trained customs officers were satisfied, on a "basic check" that no illicit goods were being carried in our client's vehicles.
18.Again, it is essential that you consider the position at the time our client received the paperwork and not with the benefit of hindsight. Two points have been raised in relation to this issue, namely that the origin of the frozen chicken is different to the collection depot in Astenhof and the chicken was out of date.Point 2: Paperwork
19.It is standard practice throughout the haulage industry that the origin of a product may differ from the collection depot. This is particularly so in relation to food products. For example, fruit and vegetables may originate from anywhere around the world but the haulier will collect it from a central depot.Origin of the Frozen Chicken
20.Our client was aware that the products had originated from Belgium and not from Astenhof in Holland. In fact, our client has been transporting frozen chickens from Van Hoey, who is a major chicken company in Belgium, for the past 5-7 years and has often collected products of Van Hoey's from other places in Holland.
21.For your information, we enclose the information from a website which states that Van Hoey "is one of the leading Belgian exporters of poultry products". If anything, our client has received additional comfort by the fact that he was transporting frozen chickens that had originated from a well-known company. Given his extensive experience of transporting chickens from Van Hoey this only re-emphasised that, after carrying out checks listed at paragraph 14 above, everything was in order.
22.This was particularly so, given the fact that our client was, as he believed at this time, delivering to James Burden Limited, a well-known, chicken company in England, to whom he had delivered products on many occasions. You should note that it was not until he arrived in England that he was told that the products had been sold and the delivery depot changed.
23.For your information we also enclose the home page of James Burden Ltd's website, which states that the company is "the largest wholesaler of poultry on the market. The high volumes and fast turnover, ensure absolute value for money ... ". You will also note that "The Company acts as the sole agents in the UK and Ireland for Van Hoey N. V.".
24.It is wholly unrealistic to say that as a result of the frozen chickens being out of date our client should have been suspicious. Companies transport all kinds of different products for all different kinds of reasons. It is not for our client to question or guess why out-of-date chickens were being sent to James Burden Limited in Kent.Out-of-Date
25.When carrying out the visual inspection of the load, our client did not notice any dates on the white boxes and even if he had this would not have raised immediate suspicion particularly as everything else appeared to be in order. It is important to recognise that whilst certain incidents may appear strange to people operating outside the transport industry, they are in fact totally normal and indeed every day occurrences.
26.It is perfectly possible that these chickens could have been sold for use in pet food or even relabelling for sale. Frozen products are edible for years and it is sometimes the case that whilst they have been labelled with a sell by date, this does not mean that the product is actually inedible.
Point 3: Credibility27.It is wholly inaccurate that our client took no steps to establish the credibility of the load. Our client carried out the checks listed at paragraph 14 above and was satisfied that everything appeared correct. From the points set out above, there was nothing that caused our client concern or suspicion in relation to the load. It is not clear, and we note that no steps have been listed, exactly what else our client could have done in the circumstances to establish the credibility of the load. The load had originated from a well-known chicken company in Belgium (see paragraph 21 above)Credibility of the Load
28.As mentioned at paragraph 20 our client has often collected loads for Van Hoey at different places in Holland albeit that the company itself is based in Belgium.
29.It is also wholly inaccurate that our client took no steps to establish the credibility of the destination. As mentioned at paragraphs 22-23, our client believed that he was delivering to and is well-aware of James Burden Limited in Kent. There can be doubt that at the time of loading, our client was entirely satisfied with the credibility of the destination of the frozen chickens. It was not until he arrived in England, as mentioned at paragraph 10 of our letter dated 18 November 2005, that the delivery destination was changed.Credibility of Destination
30.Although the decision letter states that "concern should have arisen when changes to the delivery instructions that contradicted the paperwork were made on route" this again is simply inaccurate and unrealistic. As mentioned at paragraph 23, James Burden Limited work on a fast turnover and it is not unusual for our client to be given a different point of delivery on-route. Again, our client has often been transporting products for Van Hoey to a specific destination before being contacted and told to deliver it somewhere else.
31.It is extremely common in the transport industry for products to be sold on route or to receive telephone calls changing the delivery details. In fact, in many situations, hauliers are unaware of the delivery destination at all and are either told to head for a certain town or place before being given full details. Again, it is important to recognise that whilst certain incidents may appear strange to people operating outside the transport industry, they are in fact totally normal and indeed every day occurrences.
32.It is a common occurrence that hauliers are never aware of the identity of the owners of goods and a lot of their business is carried out through agents. In this situation, given the fact that the frozen chickens appear to have originated in Belgium, were being collected in Holland, delivered to Kent and then sold on route, it would have been extremely difficult and unrealistic to expect our client to establish the credibility of the owner.Credibility of Owner
33.We note that the decision letter makes reference to the fact that our client "was prepared to undertake the job on the strength of one meeting and one telephone call ...". However, this is simply how business is undertaken. Our client met Paul from HSF Logistics whilst he was waiting for a load at Keelings in Holland. Keelings is a large Irish company who has a base in Holland and Ireland. Our client spoke to Paul for approximately two hours and was perfectly satisfied, on the face of it, to accept work on the basis that Paul was also undertaking loads for Keelings, a reputable company, and both Paul and his vehicle looked professional and reputable.
34.We note that no steps have been listed as to exactly what our client could have done in order to confirm the credibility of Paul or his company and we are unclear exactly what steps our client could have taken. All business worldwide is carried out on the basis of taking people at face value and it is only if things appear out of place or cause concern that people look at the situation more closely.
35.Our client is an experienced owner operator and has been operating in the transport industry for many years. He has always taken his responsibilities seriously and has never had any problems like this in the past. When he has ever had any concerns about a customer or a load, he has always refused to take it. In fact, since this incident our client has turned away work for customers that are not familiar to him. Whilst this seriously hampers his business, he is, unfortunately, now well aware of the risks of not doing so.
36.This point is wholly unreasonable. How could our client have possibly been aware before he arrived at McHaulage that there were no refrigeration facilities? As far as our client was aware he was delivering frozen chickens to a depot which had suitable facilities for storing them. Even after arriving, our client did not have access to the building and as stated at paragraph 11 of our letter dated 18 November 2005, our client merely reversed the trailer into a loading bay of a modern building and unlocked the doors.Point 4: Premises at McHaulage
37.As he believed it would take some time to unload the trailer and he would not be allowed to watch due to health and safety regulations, he climbed back into the tractor unit to get some sleep. In fact, he was only asleep approximately 15 minutes before being woken up by your customs officers.
38.In addition, when our client arrived at the premises there were other tractor units and trailers present. There were forklifts within the vicinity and the building looked relatively new. In addition, the overall location appeared to be in a relatively industrial area with another haulier's yard within close proximity. Everything appeared to be in place and there was nothing that caused our client concern.
39.Whilst it is not clear exactly what the relevance is for our client's fridge motor being switched off, we confirm that he switched it off prior to unlocking the doors, as he always does. There is simply no point in keeping it running because once the doors are open the refrigerator is merely trying to freeze the outside air.
40.Whilst we note the four points listed for refusing to restore our client's free of charge, we consider this to be an incredibly harsh and ill-founded decision for the following reasons:-Conclusion
40.1 Our client took all "basic reasonable steps" that he could at the time of loading to ensure the legitimacy of the load;
40.2 Our client's vehicle was physically checked by Belgium customs officers, cleared by UK customs at Calais and Dover, all of whom were satisfied the trailer was carrying the frozen chicken products listed on the paperwork;
40.3 At the time of loading, the frozen chicken was being transported between two well-known and respected poultry wholesalers.
40.4 It was not until pallets of frozen chicken were removed from the trailer by forklift at McHaulage that it was apparent that illicit goods were present;
40.5 The procedures and policies to which the decision letters refers do not appear to be freely available and even your own officers cannot tell us where they can be found or located;
40.6 There appears to be no clear list of steps or guidance available to hauliers as to precisely what checks or steps they should undertake;
40.7 A basic check as listed in your policy cannot include "a thorough manual check" as this is clearly a contradiction in terms;
40.8 The reasons listed have either been reached with the benefit of hindsight or are simply unrealistic or impractical; and
40.9 Even if our client had carried out further checks, for the reasons set out above they would not have raised suspicion or revealed the fact that illicit goods had been placed in his vehicle without his knowledge.
42. Our client is simply not in a position to pay the trade value of the vehicle, particularly as the vehicles are already on finance agreements. As I am sure you can appreciate, our client's business is suffering hugely as a result of him not being able to operate the vehicles currently seized and it is likely that he will be unable to continue operating at all if this matter cannot be speedily resolved. On this basis, we shall be grateful if you review the decision as a matter of urgency."
"You claim it is not clear to hauliers what checks or procedures should be followed to prevent smuggling. I do not accept this is generally the case and I believe that most measures to be common sense to a haulier who wants to protect himself and his vehicle. Your client could have contacted one of a variety of road haulier associations who give help and assistance about many matters including measures to prevent smuggling. Searching the internet would have no doubt also have been of assistance.
In practice, hauliers and drivers are already legally required to undertake a number of checks for immigration purposes and under the CMR convention.
As an experienced haulier, your client is no doubt aware that vehicles such as his are used for smuggling purposes, including that of drugs, people or excise goods. He is responsible for the integrity of the load he carries and for taking steps to prevent his vehicle from being used to smuggle. I have no doubt he would be aware of the potential serious consequences of his vehicle being found to be involved in smuggling. It is clearly going to be more difficult for a driver to check a consignment once it has been loaded onto the vehicle by fork lift trucks because smuggled goods or people will often be carefully concealed. This is why checking the consignment when it is being loaded against the paperwork (a thorough manual check) is the best and obvious way to prevent smuggling. This may mean having the correct protective clothing such as boots and high visibility jackets and so these should be carried by drivers.
Had Mr Dowling watched the consignment being loaded, he could not have failed to notice the difference between the regular shaped white boxes of chicken with holes in them to allow for freezing and the irregular shaped brown boxes showing either the cigarettes themselves or the names of cigarettes on the side.
You have not been more specific about the particular health and safety issues in this case that your client claims prevented him from watching the vehicle being loaded. At point 8 of your letter you state that although hauliers are not happy about their trailers being loaded without them, it is a perfectly normal practice. You further claim that dealing in food products in particular would not raise suspicion in any way, a statement I do not accept. Smugglers will use any type of load they believe they can get away with, including food.
Just because some hauliers accept they will not be watching the loading of the vehicle does not make it an automatic excuse to indemnify the driver if the vehicle is subsequently found to be smuggling. Otherwise there would be no deterrent for hauliers who smuggle which would in turn make smuggling significantly easier.
As well as not checking the credibility of the load sufficiently, your client failed to make any checks into the credibility of Paul, the person he claims got him this job. He could have obtained a land line telephone number for him and his surname and checked he worked for the large Irish company he claimed to. He could have asked him why, when he worked for such a large company, he was managing a delivery for someone else. Just knowing a mobile number, a first name and having only met once, he was clearly taking a huge risk. That said, I do not accept however that this job came about as innocently as your client describes which I will come on to shortly.
Obtaining work from new individuals without making any checks will clearly mean there is a higher risk of smuggling. Although you claim this is how business is done, it does not mean that this again is a reasonable excuse for a haulier if smuggling does occur. Again, this would make smuggling a lot easier with little or no deterrent for hauliers. Likewise, receiving last minute calls from a new source to divert the load means your client had no real confirmation that James Burden Limited was ever the intended destination of the load.
Mr Dowling claims to have been stopped and his vehicle inspected by Customs abroad, although there is no evidence of this. He does not state whether they used fork lift trucks to remove and check the load. His claims that they allowed him to proceed whether correct or not does not in itself prove anything. You claim he was allowed through Dover Customs but I note you do not claim he was stopped by them. Again not being stopped by Customs does not in itself prove anything.
It is now known that the CMR document your client was carrying for the load was false. This has been confirmed by both James Burden Limited and Astenhof in Holland. The CMR would not have been false, however, if your client had collected the load from Astenhof as he claims. There can be little doubt, therefore, that your client collected the goods from somewhere else and has deliberately misled officers. I therefore believe it is reasonable to conclude that your client was more aware of what was going on and that this load contained something other than frozen chicken. I do not accept that your client was innocently duped into carrying this consignment of smuggled cigarettes. The officers in this case limited their action to seizure of the vehicle only, which was their decision to take, and it is not for me to comment on that decision.
Mr Dowling's dishonesty in respect of where he collected the load calls into question the credibility of all his other claims. It also indicates that he was involved in the smuggling attempt. Taking into account the Commissioners' policy in such instances, detailed earlier in this letter and the fact that the revenue evaded in excess of £50,000 it would be reasonable in this case to refuse restoration. Although I could overturn Mrs Hall's decision and refuse restoration, I do not intend to in this case. Mrs Hall's decision was based on the fact that Mr Dowling failed to make reasonable checks. However, the evidence points to the fact that Mr Dowling knew more about this consignment and misled officers. In this case, I am satisfied that Mrs Hall's decision to restore the vehicle for its trade value, being lower than the revenue evaded, is now very reasonable, considering all the circumstances.
You have not provided any evidence to persuade me to overturn or vary the disputed decision in this case.
Having considered all the relevant evidence in this case, I confirm my option to uphold the original decision, the vehicle is offered for restoration on the terms set out in Mrs Hall's decision dated 15 December 2005."
Evidence at Hearing of Appeal
Contentions of representatives at hearing
Conclusions and findings of fact
i. That the Respondents shall carry out a further review of the decision to restore the vehicle and trailer only on payment of the trade value of £39,150.
ii. The review shall be carried out by an officer who has had no previous connection with this matter.
iii. In carrying out the review, the Respondents shall have regard to the facts found by the tribunal in this decision as relevant consideration.
iv. The review should be carried out within six weeks of the release of this decision.
v. In the event of the review being adverse to the Appellant, that will be a decision from which a further appeal will lie to a tribunal.
Release Date: 2 August 2006