Excise Appellant - proprietor of haulage firm owner and driver commercial vehicle found to contain substantial quantities of cigarettes excise duty unpaid seizure of goods and vehicle decision taken not to restore review original decision confirmed whether decision not to restore should be upheld reasonableness appeal dismissed
BELFAST TRIBUNAL CENTRE
MARTIN O'CALLAGHAN Appellant
HER MAJESTY'S REVENUE & CUSTOMS Respondents
Tribunal: Alistair F W Devlin (Chairman)
Tony Hennessey FCA (Member)
Sitting in public in Belfast on 4 July 2008
Cormack McDonnell, solicitor of Tiernans, Solicitors, Newry for the Appellant
James Puzey of counsel instructed by the solicitor for Customs and Excise for the Respondents
© CROWN COPYRIGHT 2008
Notice of Appeal
'My lorry was innocently involved in this incident and whilst
I understand that it is technically liable for forfeiture it should
be restored to me'.
Evidence of the Appellant
The legal framework
'Any thing liable to forfeiture under the customs and excise Acts may be
seized or detained by any officer or constable or any member of Her
Majesty's armed forces or coastguard'
Section 141 of CEMA goes on to provide:
' ..where any thing has become liable to forfeiture under the customs
and excise Acts
[a] any ship, aircraft, vehicle, animal, container or other thing
whatsoever which has been used for the carriage, handling, deposit or
concealment of the thing so liable to forfeiture, either at a time when it
was so liable or for the purposes of the commission of the offence for
which it later became so liable; and
[b] any other thing mixed, packed or found with the things so liable,
shall also be liable to forfeiture.'
Finally, section 152 of CEMA establishes that:
'The Commissioners may, as they see fit
[b] restore, subject to such conditions [if any] as they think proper,
anything forfeited or seized under the Customs and Excise Acts.'
The Review Decision
'Commissioners' policy for the restoration of goods vehicles that have been
used in connection with the evasion of excise duty is intended to tackle and
disrupt the supply of illicit excise goods to the UK market. Each case is considered
carefully on its individual merits so as to decide whether exceptions should be
made and any evidence of hardship is always considered. The policy depends on
who is responsible/complicit in the offence.
A: neither the haulier nor the driver are responsible or
B: the driver, but not the haulier is responsible or
C: the haulier is responsible.
A. If the haulier provides evidence satisfying the Commissioners that neither
The haulier nor the driver were responsible for or complicit in the offence then:
If the haulier also provides evidence satisfying the Commissioners that both
the haulier and the driver carried out basic reasonable checks [including
conforming with the CMR Convention] to confirm the legitimacy of the load
and to detect any illicit load, the vehicle will normally be restored free of charge.
C. If the haulier fails to provide evidence satisfying the Commissioners that the
haulier was neither responsible for nor complicit in the offence then, if the revenue
involved is less than £50,000 and it is the first occasion, the vehicle will normally
be restored for 100% of the revenue involved [or the trade value of the vehicle if
less].The vehicle will not normally be restored on a second or subsequent occasion
or if the revenue involved is £50,000 or more.'
Submissions of the parties
instructions came on the telephone, and from a firm and an individual with whom the Appellant had never before done any business, and of which he says he knew little or nothing. The individual from whom the Appellant claimed to have received his instructions, namely 'Paul' never gave his full name, nor his position of employment within the firm allegedly concerned in the transaction, and never at any stage made a physical appearance before the Appellant either at unloading or otherwise. There was perhaps little if anything in any of this which, if considered solely in isolation ought reasonably to have aroused the Appellant's suspicions, but the same certainly in our view cannot be said of the circumstances in which the consignment subsequently came to be loaded onto the vehicle. These were that the consignment came to be loaded in two moieties: one of which was apparently loaded in the presence of the Appellant, and the other of which was loaded at an unknown location after the trailer had, so it was claimed, been asked to have been left at the side of the road. The Appellant in his evidence claimed to have done so, and to have left the partially laden and unlocked trailer in a lay-by at the side of the road, so as to enable the loading of the consignment to have been completed.
from another unknown and unidentified individual, which informed him that his destination, previously thought to be Leigh in Lancashire, was now to be changed, and that he was to head towards Manchester. Further highly suspicious circumstances then followed, such as the unexplained rendezvous with a car at a motorway junction which the Appellant was then, again without any let alone a convincing explanation asked to follow, and which he duly followed. Here, as before, on his own case, at no stage whatsoever during the course of this journey did he consider it necessary or appropriate to stop to check the load or any part of it, or to enquire from those accompanying him and to precisely what was going on. Finally, even though on his own evidence, he was by now highly bemused by the sequence of strange occurrences, he made no attempt to stop, pull in, check his load, or even make any attempt to enquire further of those who were leading him well in towards Ancoats and Manchester city centre, and in particular into an area which the Appellant himself said was nothing like the type of area where he would be expecting to be required to deliver the consignment in question.
ALISTAIR F. W. DEVLIN
Release date: 24 November 2008