E01159

EXCISE DUTY – Appeal under s.16 FA 1994 against a review decision to offer restoration of a freight tractor unit on payment of a restoration fee equal to 50% of the trade value of the unit – neither haulier nor driver responsible for or complicit in the carriage of an illicit load in the trailer drawn by the unit – whether basic reasonable checks were carried out which would have identified the illicit load – found they were not – whether the decision was reasonable in all the circumstances – found that although the imposition of a restoration fee was reasonable the review officer had taken into account irrelevant considerations in reaching his decision – Appeal therefore allowed – A further review directed under s.16(4)(b) FA 1994

LONDON TRIBUNAL CENTRE

	JOBE TRANSPORT LIMITED	Appellant

	- and -

	THE COMMISSIONERS FOR HER MAJESTY’S 
	REVENUE AND CUSTOMS	Respondents

			Tribunal:	JOHN WALTERS QC (Chairman)

Sitting in public in Norwich on 17 September 2008

Mr. G. Goodwill, Counsel, instructed by Martin Arthur, Solicitor, appeared for the Appellant 

Mr. R. Jones, Counsel, instructed by the Solicitor for HM Revenue and Customs, appeared for the Respondents

© CROWN COPYRIGHT 2008

DECISION

1.	Jobe Transport Limited (“the Appellant”) appeals against the decision on review of the Respondent Commissioners to offer restoration of the Appellant’s DAF tractor vehicle, registration number Y10 KPE (“the Vehicle”), for a fee of £9,825.  This sum is agreed to be equal to 50% of the trade value of the Vehicle.
2.	The decision was communicated to the Appellant’s solicitor by Customs Review Officer Harris by a letter (“the Review Decision Letter”) dated 3 October 2007.  By the decision, the Commissioners departed from their original decision (taken by Officer Mrs. H. Shaw of the Post Seizure Unit and communicated to the Appellant by a letter dated 5 September 2007) to offer restoration of the Vehicle for a fee of £19,650, equal to the whole of agreed trade value of the Vehicle.
3.	For the Appellant, Mr. Goodwill’s case is that the decision to demand a fee of £9,825 as a condition of the restoration of the Vehicle is unreasonable, because it is disproportionately large.  He submits that if the Commissioners could reasonably demand payment of any fee as a condition of restoration of the Vehicle such a fee could not exceed an amount equal to 25% of the trade value of the Vehicle.  Any higher fee would be disproportionately large.  He suggests that a fee equal to 25% of the trade value of the Vehicle is at the higher end of a range of fees which would be reasonable and proportionate; a decision to restore the Vehicle without payment of any fee would be reasonable and proportionate, while a fee equal to 10% of trade value of the Vehicle is the “median” reasonable and proportionate fee.
4.	The Tribunal comments that by this submission the Appellant must be taken to accept that the Commissioners could not be criticised (on grounds or reasonableness or proportionality) for demanding a restoration fee equal to 25% of the trade value of the Vehicle, or any lower fee. 
5.	The facts of the case are that the Vehicle, driven by a Mr. Ogilvie, was stopped at Ramsgate dock by Customs on 2 August 2007 when towing a trailer carrying 1,087,400 cigarettes (attracting excise duty of £164,675.85) (“the Excise Goods”) together with a legitimate load of other goods.  The trailer belonged to Maenhout Transport.
6.	The Excise Goods were contained in four black shrink-wrapped pallets, each labelled Dow Chemicals.  There was no appropriate paperwork to accompany the Excise Goods and they and the Vehicle were seized under section 139(1) of the Customs and Excise Management Act 1979 (“CEMA”).  The driver, Mr. Ogilvie,  was issued with Customs Notice 12A (“Goods and/or Vehicles Seized by Customs”) and, as neither the Appellant nor any other person challenged the legality of the seizure, the Excise Goods and the Vehicle (and the trailer) were condemned as forfeit under paragraph 5 of Schedule 3 to CEMA.
7.	Mr. Ogilvie was arrested on 2 August 2007 and subsequently charged with a criminal offence.  Later, the charges were dropped.
8.	On 7 August 2007 the Appellant wrote to the Commissioners asking for restoration of the Vehicle, and, on 9 August 2007, Mr. Brian Boccius, Director and transport manager of the Appellant voluntarily attended the custody suite at Dover, where he was arrested and interviewed under caution concerning the seizure.  A full transcript of the tape-recorded interview was with the Tribunal’s papers.  Mr. Boccius’s then solicitor (Mr. David Prescott) was present at the interview.
9.	The significant facts emerging from the interview were as follows.  Mr. Boccius received an enquiry, which was agreed by him and confirmed by a faxed request, from a Mevlot Ferati at a given address in Dagenham, to collect 6 pallets from a given address in Bruges, Belgium and deliver to Dow Chemicals at Kings Lynn, for an agreed price inclusive of ferry fees of £900. 
10.	Mr. Boccius had never dealt with Mevlot Ferati before.  At a later stage the delivery address was changed, by a telephone call, from Dow Chemicals to BMH Freight in Basildon, Essex. 
11.	Mr. Boccius explained that he had arranged for the load to be picked up in Maenhout Transport’s trailer against the express instructions of Maenhout Transport.  Mr. Ogilvie had not been able to find the given collection address, but he noticed someone waving at him and he found the collection point, where there were 4 pallets, not 6, to be collected.
12.	The price charged was a good rate for the job, because the Appellant had no (or minimal) extra expense in making the collection.  He expected the CMR paperwork to be provided with the load.  Mr. Boccius also hoped that the contact might, as Mevlot Ferati had indicated, develop into regular work for the Appellant.  He denied that he, or Mr. Ogilvie, had known the nature of the load (i.e. that it was cigarettes).
13.	After the seizure, Mr. Boccius had made no effort to contact Mevlot Ferati.
14.	On 13 August 2007, the trailer was restored to Maenhout Transport free of charge.
15.	On 16 August 2007 the Commissioners wrote to the Appellant in connection with their  consideration of the Appellant’s request for restoration of the Vehicle requiring proof of ownership of the Vehicle and stating that it was for the Appellant to decide what evidence to provide but that it would be in the Appellant’s interest to consider sending (1) a copy of the terms and conditions of the driver’s contract; (2) copies of employment references from the driver’s previous employers; (3) details of any measures the Appellant takes to prevent the Vehicle from being used for smuggling; (4) details of the checks the Appellant makes to ensure the legitimacy of the consignor and the consignee; (5) details of any physical checks made of the load; and (6) copies of any instructions or written procedures that the Appellant issues to its drivers or other staff.
16.	On 20 August 2007, Mr. Boccius, for the Appellant, enclosed documents satisfying the Commissioners of its ownership of the Vehicle and otherwise replied as follows:
“We at all times try to take as many steps as we can not to be used in the way we have been in this matter.
Our driver, Richard Ogilvie, was following instructions from myself.  We believed that the collection we were making was all OK.  We had a letter headed fax and phone number plus a proper collection address along with a delivery address.
The boxes (pallets) were marked for the said address, so nothing out of the ordinary for the driver to notice.
We collected the goods and carried on as usual.  It was not until we got to Customs that we knew what was in the boxes.
We cross the Channel once or twice a week and over the last 4 years have never had a problem.
Mr. Ogilvie has worked for the company for as many years and is a very good worker and family man much like myself.  I, more than most, wish we had not done this collection.
My driver and I were unfortunately used and are both paying the price for these very worrying times.
We are a small family business with no need financially or otherwise to be involved in anything like this.
We would appreciate the return of our truck Y10 KPE so we can try and get back to normal.”				 
17.	The Commissioners’ response was the original decision taken by Officer Mrs. H. Shaw of the Post Seizure Unit, and communicated to the Appellant by a letter dated 5 September 2007, to offer restoration of the Vehicle for a fee of £19,650, equal to the whole of agreed trade value of the Vehicle.
18.	 The Appellant’s Solicitor wrote on 17 September 2007 requesting a review of the original decision. The Solicitor’s letter gave more details of the facts of the case.  Mr. Boccius knew the original consignment address, Dow Chemicals, and that it was a legitimate business.  The change of delivery address did not strike him as unusual as delivery details often change.  The nature of Mevlot Ferati’s initial enquiry leading to the placing of the order for the collection and delivery of the Excise Goods was normal and not such as to raise any suspicions.  Mr. Boccius requested and received confirmation by fax and made telephone calls in response to the fax.  This, argued the Solicitor, showed that Mr. Boccius had taken reasonable precautions to establish that the transaction was legitimate.  The call from Mevlot Ferati had been from a land line which seemed to be that of a genuine business.  The original delivery address (Dow Chemicals) was known to Mr. Boccius and the replacement delivery address was apparently the address of a freight company, and so appeared genuine.  The pick up point (a warehouse on an industrial estate) was not such as to causer the driver to be suspicious.  The goods were correctly addressed to Dow Chemicals.  They could not have been physically inspected by the driver except by interfering with the black plastic with which they were shrink-wrapped.  The Solicitor stated that the Appellant is a small family run transport company operating on tight margins.  The loss of one vehicle had caused serious hardship.  The Vehicle was the subject of a finance agreement under which the Appellant was liable to pay £595 per month, even though the Vehicle was out of use.  The Appellant was suffering a loss of income of between £1,000 and £2,000 a week by reason of the forfeiture.  The Solicitor stated that the Appellant did not have the resources to pay the restoration fee demanded of £19,650.  The Solicitor argued that the restoration fee fixed at 100% of the trade value of the Vehicle was disproportionate to the degree of fault involved.  He suggested that a figure representing perhaps 10% might be a fairer reflection of the degree of fault.
19.	On the basis of the information received, as summarised above, the Respondents, through Customs Review Officer Harris in the Review Decision Letter, offered the Vehicle for restoration for the reduced fee of £9,825.
20.	That fee was apparently paid by the Appellant without prejudice to its submissions in this appeal, in order to obtain restoration of the Vehicle.
21.	Officer Harris gave oral evidence to the Tribunal.  He explained the Commissioners’ policy for the restoration of freight vehicles.  This had already been outlined in the Review Decision Letter as follows:
“The Commissioners’ policy for the restoration of goods vehicles that have been used for smuggling excise goods is intended to tackle cross border smuggling and to disrupt the supply of excise goods to the illicit 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 for the smuggling attempt:
	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 not the driver were responsible for or complicit in the smuggling attempt 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,
•	Otherwise, on the first occasion the vehicle will normally be restored for 20% of the revenue involved in the smuggling attempt (or for 100% of the trade value of the vehicle if lower).  On a second or subsequent occasion (within 6 months) the vehicle will not normally be restored.”
22.	It is not necessary to set out the Commissioners’ stated policy in the cases described at B and C above, because Officer Harris determined that the facts of this appeal came within case A above, and this was not disputed by the Appellant – that is, it was common ground between the parties that neither the haulier (the Appellant) nor the driver (Mr. Ogilvie) was responsible for the smuggling attempt.
23.	The argument before the Tribunal as presented by the parties was therefore chiefly concerned with the extent to which the Appellant and Mr. Ogilvie carried out “basic reasonable checks” to confirm the legitimacy of the load and to detect any illicit load.  The Appellant accepted that the amount of duty in issue in this case, £164,675.85, was sufficient to warrant a restoration fee if “basic reasonable checks” had not been carried out.  It also accepted that a policy requiring “basic reasonable checks” to be carried out was legitimate, but Mr. Goodwill submitted that not enough credit had been given by the Commissioners to the Appellant for the checks which were carried out.
24.	The points made by Officer Harris in the Review Decision Letter were as follows.  First, that the Appellant was in clear violation of its agreement with Maenhout Transport in using that company’s trailer for the transport of the Excise Goods.  “They did so in the full knowledge that it was so and therefore they have to accept a certain degree of responsibility for their reckless action.  The agreement is in place so as to limit the possibility of such a smuggling attempt taking place.”  Secondly, the point was made that it was strange that Mr. Boccius had not tried to have any further contact with Mevlot Ferati since the seizure.  “Surely this would be his first action in order to establish their bona fides and to establish what had caused his vehicle to be used to transport illicit goods in to the UK.”
25.	Officer Harris relied on the Tribunal decision in Eugene Crilly v Commissioners of Customs & Excise, quoting in the Review Decision Letter paragraphs 18, 20 and 24 of that decision.  In those paragraphs the Tribunal (Chairman: Mr. Devlin) stated its view that the Commissioners are entitled to develop, maintain and apply policies in this area and that the question arises as to whether the Commissioners’ policy set out to achieve a “fair balance” between the demands of the general interest of the Community and the requirements of the protection of the individual’s fundamental rights.  He approved the distinction made in the policy he was considering between (a) those instances where the Commissioners have evidence to indicate that their driver or haulier are knowingly involved in the smuggling of excise goods, (b) those instances where there is evidence to suggest that the driver or haulier, although not knowingly involved in smuggling have nevertheless failed to carry out such basic reasonable checks upon their vehicle as would have enabled the illicit load to be identified, and (c) those instances where the driver or haulier had taken all reasonable steps to ensure the legitimacy of the load.  The Tribunal went on to state that “these various categories of illicit importations in our view warrant differential treatment in terms of a vehicle restoration policy, if the requirements of fairness and proportionality are to be satisfied”.  The Tribunal further stated that in its view the State is able to impose, by means of a restoration policy, obligations of vigilance on drivers and hauliers, providing that the burdens imposed as a result are not excessive so as to enable the relationship of proportionality to remain between the means employed and the aim sought to be realised.  The Tribunal’s view was that the Commissioners’ policy which it was considering satisfied these requirements.  This Tribunal is in respectful agreement with the Tribunal in Crilly in respect of all that is stated in this paragraph.
26.	  Officer Harris’s evidence was that he had departed from the strict application of the policy in reducing the restoration fee from an amount equal to 100% of the trade value of the vehicle to an amount equal to 50% of that value.  This showed that he had not been fettered by the policy and had taken a decision which reflected his view of the degree of recklessness displayed by the Appellant and the lack of basic reasonable checks carried out.  He confirmed that the reasons given in the Review Decision Letter were his reasons for reaching his decision. Although he knew that the fee which the Appellant hoped to earn from the delivery was £900, he did not take that into account as a relevant consideration in making his decision.  Nor did he take into account the Appellant’s assertion that its business operated on tight margins.  He considered the potential loss of duty and not the potential profit which the Appellant expected to earn.  He said that he did not accept that the fee of £900 was a relevant factor to take into account, because it did not impact on the loss to the Department.
27.	He justified taking into account the fact that the Appellant had, in taking the consignment in issue, been in breach of its agreement with Maenhout Transport as an indication of the degree of recklessness with which the Appellant approached the transaction.  
28.	 He justified taking into account the fact that there had been no post-event enquiry by Mr. Boccius, in that he had not tried to have any further contact with Mevlot Ferati since the seizure, by saying that this fact indicated to him that Mr. Boccius knew he was taking a risk, and that having been caught, he realised that there was not much point in contacting Mevlot Ferati.  He said that if he had been in Mr. Boccius’s position, “that would have been my first port of call”.  
29.	Officer Harris had not seen a copy of the faxed request to the Appellant from Mevlot Ferati at a given address in Dagenham, to collect 6 pallets from a given address in Bruges, Belgium and deliver to Dow Chemicals at Kings Lynn, for an agreed price inclusive of ferry fees of £900. When it was put to him that his not having seen that document undermined his decision, he stated that seeing it would not have changed his view.
30.	Officer Harris said that he had no reason not to accept at face value what Mr. Boccius had said at the interview on 9 August 2007.
31.	Officer Harris was recalled to give evidence specifically on whether he had taken into account the hardship caused to the Appellant by the seizure, as it was explained in the Solicitor’s letter of 17 September 2007.   He stated that he took it into account, but did not deem it to be exceptional hardship, such as would have bankrupted the Appellant.  Further, he would have expected corroborative evidence of any hardship suffered.  If he had found exceptional hardship in the case, he would have considered restoring the Vehicle free of charge.
32.	Mr. Goodwill’s submission, for the Appellant, was that a restoration fee equal to 50% of the trade value of the vehicle was unreasonable.  The limit of a reasonable restoration fee would be an amount equal to 25% of the trade value of the Vehicle.  The breach of contract with Maenhout Transport should have carried no (or minimal) weight in Officer Harris’s consideration, because it was irrelevant to the issue of whether the Appellant had carried out reasonable basic checks to prevent an illicit load.
33.	Mr. Goodwill submitted that the Appellant should have been given more credit for Mr. Boccius’s cooperation in his interview, and that the fact that the Appellant stood to earn a fee of £900 should have been taken into account in fixing the restoration fee.
34.	As to hardship, Mr. Goodwill submitted that Officer Harris had only considered whether the case displayed exceptional hardship.  This was contrary to the Commissioners’ policy as disclosed by him in the Review Decision Letter, which stated that “any evidence of hardship is always considered”.
35.	Mr. Jones, for the Commissioners, pointed out that the Appellant has in fact paid the restoration fee of £9,825, which is an indication that the Commissioners’ decision has not caused undue hardship.  He reiterated that there was a complete absence of independent documentary evidence of hardship on the part of the Appellant.
36.	He submitted that Officer Harris had properly not considered the fee hoped to be earned by the Appellant.  The policy being applied by Officer Harris, being the policy approved in Crilly was directed to balancing the potential evasion of revenue against the damage to the Appellant in having the vehicle seized.  The profit the Appellant hoped to make from the transaction was irrelevant to this calculation.
37.	He referred to paragraphs [63] and [64] of Lindsay v Commissioners of Customs and Excise [2002] EWCA Civ 267.  At [64]. Lord Phillips MR said (in the context of a private motorist seeking restoration of his car) that where the importation of excise goods is not for the purpose of making a profit, “I consider that the principle of proportionality requires that each case should be considered on its particular facts, which will include the scale of importation, whether it is a ‘first offence’, whether there was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship that will be caused by forfeiture.”  Lord Phillips MR said that there was open to the Commissioners a wide range of lesser sanctions that would enable them to impose a sanction that is proportionate where forfeiture of the vehicle is not justified.
38.	I have concluded that in terms of the Commissioners’ policy applicable to cases (such as this) where neither the haulier nor the driver was responsible for or complicit in the smuggling attempt, the Appellant did not carry out sufficient basic reasonable checks to detect the illicit load.  Therefore in my view the Commissioners could reasonably require a restoration fee as a condition of the restoration to the Appellant of the Vehicle.  I consider that Mr. Goodwill rightly recognised that a restoration fee as high as 25% of the trade value of the Vehicle would be proportionate in all the circumstances of the case.
39.	My reasons for the conclusion that the Appellant did not carry out sufficient basic reasonable checks are as follows.  There was no CMR documentation with the load.  The Appellant did not have systems in place requiring the driver to obtain such documentation.  Nor did the Appellant have systems in place requiring the driver to confirm the legitimacy of the load in any other way, for example by physical inspection, or even by enquiry.  Nor did the Appellant have systems in place to encourage the driver to be alert to signs of irregularity, such as not being able to find the stated collection address for the consignment, and being directed to it by someone waving at him, and finding that the consignment consisted of 4 pallets rather than the 6 which the Appellant had told him had been bargained for.
40.	However, I have concluded that Officer Harris’s decision fixing the restoration fee at an amount equal to 50% of the agreed trade value of the vehicle was unreasonable for the following reasons.
41.	First, I consider that he failed to address the issue of whether the Appellant had carried out basic reasonable checks on the appropriate basis, which was that neither the Appellant, nor the driver, was responsible for the smuggling attempt.  He had decided that the case fell under paragraph A of the policy (see: paragraph 25 above) and therefore evidence which did not bear on the issue of whether the Appellant carried out basic reasonable checks, but instead bore on the issue of whether the Appellant was responsible for the smuggling attempt ought not to have been relied on as justification for his decision that the Appellant did not carry out basic reasonable checks.  
42.	In my view the evidence that the Appellant had taken delivery of the load in the trailer belonging to Maenhout Transport in breach of its agreement with that company, which was admitted by Mr. Boccius at least as early as during his interview on 7 August 2007, while, as Officer Harris noted, showing a degree of recklessness that might have been relevant to the issue of whether the Appellant was responsible for the smuggling attempt, was irrelevant to the issue of whether the Appellant carried out sufficient basic reasonable checks to detect the illicit load.  I find that the reason the Appellant took delivery of the load in breach of its agreement with Maenhout Transport was because that agreement was denied, but nonetheless it would have saved the Appellant a significant amount if the load was taken back in the trailer belonging to Maenhout Transport (as opposed to making other arrangements), and detection of the breach of the agreement was unlikely.  I also find that Maenhout Transport’s insistence on agreeing to any carriage of any other goods in their trailer was not in place to prevent smuggling as such, but to prevent the difficulties which would arise to them if their trailer was used for smuggling.
43.	Secondly, I consider that the reliance placed by Officer Harris on the evidence that Mr. Boccius had made no post-event enquiry, in that he had not tried to have any further contact with Mevlot Ferati since the seizure, was misplaced.  That evidence, as he admitted in cross-examination, indicated to him that Mr. Boccius knew he was taking a risk, and that having been caught, he realised that there was not much point in contacting Mevlot Ferati.  But such knowledge, although, again, it might have been relevant to the issue of whether the Appellant was responsible for the smuggling attempt, was irrelevant to the issue of whether the Appellant carried out sufficient basic reasonable checks to detect the illicit load.  It is equally possible that the reason why Mr. Boccius did not try to have further contact with Mevlot Ferati was that he considered that to do so would in all the circumstances be a waste of time and, if this was the case, the failure to try to have further contact would shed no light at all on whether he had originally thought he was taking a risk by accepting the consignment. Further, Officer Harris’s comparison of Mr. Boccius’s actions with what he said his own would have been – “that would have been my first port of call” – is obviously irrelevant to the issue he was considering.  Also, as Mr. Goodwill pointed out, Mr. Boccius’s conduct in question was after the event, and so cannot have had a bearing on the question of whether he carried out sufficient basic reasonable checks to detect the illicit load.
44.	I have, however, concluded that Officer Harris reasonably failed to take account of the fact that the Appellant’s involvement in the transaction was motivated solely by the wish to earn a fee of £900 for very little (if any) extra outgoings.  Although this fact is part of the overall circumstances of the case, consideration of it would not assist the Commissioners in reaching a decision on whether to offer restoration, and, if so, of the amount of restoration fee to require as a condition of restoration.  If the fee expected was low, it might be said that the haulier ought not to be specially blamed for not carrying out reasonable basic checks, because a low fee would not put him on enquiry.  But the purpose of the policy is to encourage hauliers to carry out reasonable basic checks in every case. Further, the amount of the carriage fee expected is no reliable guide to what the amount of a proportionate restoration fee.  The proportionality in issue is that between the sanction sought to be imposed by the Commissioners (seizure of the Vehicle and restoration for a fee) and the purpose of the Commissioners in protecting the revenue from loss through smuggling.  The amount of revenue at risk is clearly a factor which was properly taken into account by Officer Harris.
45.	I accordingly accept the submission of Mr. Jones that the Appellant’s potential profit from the transaction ought not to be considered because the balance to be struck is between the potential loss of revenue to the Commissioners and the deprivation of the Appellant’s property represented by the seizure of the Vehicle.  
46.	I also find that Officer Harris’s approach to the hardship issue in this case was not open to criticism.  He considered the hardship suffered by the Appellant as the result of the seizure, but reasonably decided that as the hardship was not exceptional it ought not to affect his decision on the amount of the restoration fee to be demanded.
47.	I am, however, troubled by one particular aspect of the policy applied in this case – Policy A (see: paragraph 21 above).   Where (as in this case) the Commissioners are satisfied by the evidence that neither the haulier nor the driver were responsible for or complicit in the smuggling attempt, but the Commissioners are not satisfied that the hauler and the driver carried out basic reasonable checks to confirm the legitimacy of the load and to detect any illicit load, then, on the first occasion (which this was) the policy is normally to restore the vehicle for 20% of the revenue involved in the smuggling attempt (or for 100% of the trade value of the vehicle if lower).
48.	In this case, as I am sure in many others, the revenue involved is large enough to make the trade value of the vehicle the relevant indicator for the amount of the restoration fee.
49.	The policy is clearly to give some advantage to the haulier where neither he nor the driver was responsible for or complicit in the smuggling attempt in comparison with a haulier who was so responsible or complicit.  The advantage is to allow restoration at all. This is consistent with the policy that on a second or subsequent occasion of attempted smuggling (for which there was no responsibility or complicity on the part of the haulier or the driver) the vehicle will not normally be restored at all.
50.	I find it difficult to understand how the opportunity to have the vehicle restored for a fee equal to 100% of its trade value is of real advantage to the haulier as compared with a refusal to restore at all.  I can see that a haulier might prefer to have back his own vehicle (which he knows and for which he has insurance etc.) rather than go out into the market to buy a similar vehicle at an equal trade value.  I also recognise that in practice a similar vehicle might be obtainable only at a premium above its trade value.  Nevertheless it seems to me that a reasonable policy giving an advantage to the haulier where neither he nor the driver was responsible for or complicit in the smuggling attempt at the ‘first offence’ ought reasonably to fix a standard restoration fee at an amount less than 100% of the vehicle’s trade value.
51.	This concern is relevant to this case because Officer Harris clearly had Policy A in mind when he gave his decision and he thought it right to make a discount in the restoration fee demanded to recognise the efforts that the Appellant had made to check the legitimacy of the load and to detect any illicit load.  I do not criticise his entirely reasonable decision to make a discount, but, in his calculations, he started from a restoration fee equal to 100% of the trade value of the Vehicle (which was the original decision which he was reviewing) and decided to give a discount of 50% of that amount.
52.	If, as I think, the level of restoration fee fixed by the policy (100% of the trade value of the Vehicle) was unreasonably high, then it follows that the discount actually decided on by Officer Harris by reference to the restoration fee fixed by the policy was unreasonably arrived at.
53.	For all these reasons I hold that Officer Harris’s review decision was unreasonably arrived at I allow the appeal.  I direct that the Commissioners shall conduct, within 6 weeks of the release of this Decision a further review of the original decision within section 16(4)(b) Finance Act 1994, taking this Decision into account. A review officer hitherto unconnected with this case should conduct the further review required.
54.	There will be liberty to the Appellant to apply to a Chairman of these Tribunals sitting alone for a costs direction. 

JOHN WALTERS QC

CHAIRMAN
RELEASE DATE: 22 December 2008

LON/2007/8113