England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th October 2003

Mr Justice Peter Smith :

Introduction

1. This is an appeal by the Commissioners of the Customs and Excise ("C & E") against the decision of the VAT and Duties Tribunal indicated on 23^rd October 2002, but delivered in writing on 20^th February 2003.
2. The Tribunal allowed the appeal of the Respondent ("Mr Dickinson") against the review decision of Mr Martin Hulbert a Review Officer of C & E dated 5^th September 2001. Mr Dickinson's appeal was under section 16 Finance Act 1994.
3. Mr Hulbert's review ("the Review") affirmed the previous decision (contained in a letter dated 19^th July 2001) not to restore a Rover 820 vehicle and 3boxes of Golden Virginia tobacco (weighing a total of 18 kilograms) and 4 cases of Fosters Larger. These had been seized by H M Customs Officers at Dover Eastern Docks on 1^st July 2001. Mr Dickinson was the driver of the vehicle, which was stopped and seized, and the owner of the tobacco and beer.
4. The Tribunal's decision took place therefore some fifteen months after the seizure. The appeal before me took place some twenty-eight months after the seizure (although I accept four months of that period is attributable to the period between the oral communication of the decision of the Tribunal and its written decision).
5. The case is therefore extremely stale.
6. Mr Dickinson said that the total amount spent on his purchases was approximately £800.00 (Eight Hundred Pounds). The vehicle (a 1992 Rover 800) was disposed of by the C & E after its sale and seizure for £1,800.00 (One Thousand, Eight Hundred Pounds). In addition Mr Dickinson told the Tribunal there were some personal items in the car, which also apparently were disposed of or otherwise not accounted for.
7. At the outset of the hearing I expressed the strong view that I could not see the proportionality of the appeal. I was told by Miss Shaw, who represents C & E, that there were great issues of importance upon which guidance should be provided by the Court as to future hearings before the Tribunal. I confess, that I have been unable to find any great principles in this case, which could so categorise the importance of the appeal. The appeal, bearing in mind the low value of the goods, appeared to me at the time (and still remains) a wholly disproportionate exercise in relation to the values concerned, the period that has elapsed since the seizure and the undoubted distress the seizure caused Mr Dickinson and the further distress that all litigants suffer in matters being strung out over an unreasonably long period of time.
8. The costs incurred in this appeal are to my mind wholly disproportionate to the values and issues involved. This is further compounded when I discovered at the outset of the appeal, that the C & E had arranged to fund Mr Dickinson as a Respondent to the appeal. Thus the costs of this whole exercise is being born at State expense via the C & E. This to my mind is completely unacceptable. I appreciate that the C & E are regularly drawn into the Courts by appeals against decisions that are made, but by the time the case reached the Tribunal the C & E having lost before the Tribunal ought in my view, simply not to have proceeded further. Unlike in other jurisdictions of course, the C & E have a right of appeal to the Judge, so that there is no bar on it appealing to this level of judicial appellate court.

APPLICATION TO AMEND APPEAL NOTICE

9. On 3^rd October 2003 C & E issued an application to amend their Grounds of Appeal filed on 16^th April 2003, to include an additional Ground of Appeal. The basis for the application was stated to be:-

"The recent case of Gora –v- CCE [2003] EWCA 525 has opened up a new Ground of Appeal"

10. One can of course debate the use of the word "recent". Gora was actually delivered as a Judgment as long ago as 11^th April 2003, that is to say, before the Ground of Appeal in this case was lodged by C & E.
11. The significance of Gora I should set out a little shortly at this stage in the Judgment. The goods were seized by C & E and forfeited. Under Schedule 3 of Customs and Excise Management Act 1979 ("CEMA 79") the C & E are obliged to give notice of a seizure of anything that is liable to forfeiture to the owners. Under paragraph 3 of that Schedule any person claiming that anything seized as liable to forfeiture is not so liable is obliged within one month of the date of notice of seizure to give notice of his claim in writing to the Commissioners at any office of Customs and Excise.
12. Paragraph 5 provides:-

"5 If on the expiration of the relevant period under paragraph 3 above for the giving of the notice of claim in respect of any thing no such notice has been given to the Commissioners, or if, in the case of any such notice given, any requirement of paragraph 4 is not complied with, the thing in question shall be deemed to have been duly condemned as forfeited"

13. Paragraph 6 provides:-

"6 Where notice of claim in respect of any thing is duly given in accordance with paragraphs 3 and 4 above, the Commissioners shall take proceedings for the condemnation of that thing by the court, and if the court finds that the thing was at the time of seizure liable to forfeiture the court shall condemn it as forfeited."

14. That is a procedure whereby the forfeiture is sought to be challenged. The notice has to be given and if notice is given C & E are advised to institute proceedings (within 6 months in the Magistrates Court or subject to no time limits in the High Court). Under paragraph 3, if the notice is not given the goods are deemed to have been duly forfeited.
15. Under Section 49 CEMA 79, where goods are imported without payment of duty they are liable to forfeiture and where anything becomes liable to forfeiture the vehicle used to carry the thing is also liable to forfeiture: Sections 141 (1) CEMA 79. How that power is exercised however, is subject to Judicial Review in particular in the case of Lindsay –v- Customs and Excise Commissioners [2002] EWCA 267 a case to which I shall make reference further in this Judgment.
16. A Community traveller entering the United Kingdom is relieved from paying any duty of excise on excise goods, which he has obtained for his own use (which includes goods brought as gifts). However, the exception does not apply where goods are held or used for commercial purpose.
17. Thus as I shall set out further in this Judgment, when reviewing the facts of the case, the C & E sought to seize and forfeit the goods and the vehicle in which they were carried.
18. Separate from the right to challenge the forfeiture, is a right to seek restoration of the goods under Section 152 (b) CEMA 79. That power is a discretionary power and may be subject to such conditions as they think proper.
19. Prior to the Gora decision, it was considered that it was possible for a person seeking restoration to adduce evidence in support of that application tending to show that the goods were for a "private use" purpose and thus exempt from duty. As will be seen further in this Judgment, the entire proceedings, proceeded on that basis until the issue of the correctness of that approach was raised by the application to amend the Appellant's Notice. Gora determines that there is a clear division between the Tribunal jurisdiction to determine whether anything forfeited was to be restored, and that of the court in condemnation proceedings, and that if the goods' owner failed to give notice of claim that the goods seized were not liable to forfeiture and sought restoration the effect of the deeming provision prevented him from challenging the forfeiture by providing that the goods were to be treated as forfeited.
20. This is a question of law, which has arisen after the Tribunal's decision. Although the effect might adversely impact on the Respondents case, it did not seem to me right (and not withstanding the significant delay that occurred between the Gora decision and the intimation of the notice of intention to amend) that the C & E should be deprived of arguing the law before me as it is at the time of this appeal. There is a possible prejudice to Mr Dickinson.
21. He is now deprived of arguing the goods were for private use on this appeal. Further, if, (on an analysis) he has not served the requisite notice challenging forfeiture on the Gora case he is unable to raise that issue in condemnation proceedings either, because there is no obligation (absent a notice within the 1 month period) on C & E to commence condemnation proceedings. There is of course no power on the part of the Court to extend a statutory time limit.
22. During the course of argument for permission to amend the Appellant's Notice, I invited the C & E to offer an undertaking as a condition of being permitted to raise the extra ground that they would not take that point. This they refused to do. I accordingly granted C & E with extreme reluctance permission to argue this extra point. This added to the length of the arguments, but did not in any way magically transform the non-significance of these proceedings as regards matters of general principle.

THE SEIZURE

23. Mr Dickinson gave evidence before the Tribunal. It is summarised in paragraphs 13-22 of the Tribunal's decision. That evidence was not challenged in somewhat unusual circumstances. The essence of his evidence was that his car, with about 4 or 5 others were waived into a slip road and the search sought was simply random. He also said that the Customs Officers were abusive and would not listen to him and their attitude was hostile and unbelieving. He attempted to telephone for advice, he said, and an Officer put his face right up against him and told him if he did not put the phone away it would be confiscated. The Officer refused to give his name when Mr Dickinson intimated that he wanted to make a formal complaint about his treatment. None of this evidence was challenged. The Tribunal formed the view that Mr Dickinson was an honest and cooperative witness and that his description of what had happened was broadly accurate. The Tribunal came to that conclusion, without having had Mr Dickinson cross examined (because C & E had instructed Miss Shaw not to cross examine). There were witness statements, which were provided to the Tribunal (as set out in paragraph 21 of their decision), but those witness statements do not in any detailed way deal with the circumstances of the stopping, whilst the differences had been the subject matter of correspondence between the parties.
24. Two paragraphs of the Tribunal's decision are relevant to the appeal before me. In paragraph 12 the Tribunal said:-

"In the light of this (the lack of witnesses available to C & E) we discussed with Miss Shaw, and Mr and Mrs Dickinson [they acting in person] how the hearing would proceed. We decided that we would hear evidence as to the circumstances in which Mr Dickinson's vehicle was stopped and its contents seized"

25. Miss Shaw submits that that demonstrates that the Tribunal only concentrated with the manner of seizure. I do not accept that. It is clear from the Judgment that the Tribunal also considered as part of the "circumstances" into which Mr Dickinson's vehicle was stopped and "it and its contents seized" Mr Dickinson's evidence as to his private purchase contentions. That is inevitable in my view because the goods can only be seized if the Customs are of the opinion that they are not for private use. Miss Shaw's construction is too narrow. It is quite plain in my mind that he Tribunal therefore considered what Mr Dickinson said in his evidence about the actual purchase of the goods.
26. I have already observed that they considered him to be an honest and truthful witness. In paragraph 24 the Tribunal said this:-

"24. As to the goods themselves, we do not consider it inherently improbable that the tobacco belonging to Mr Dickinson had been purchased by him for his own use and to give as a gift to a member or members of his family. Certainly the quantity is large (9 times larger than the guide level or Minimum Indicative Level…) however, we are prepared to accept Mr Dickinson's explanation having regard to his clear evidence to this effect and in particular to the manner in which he gave it "

27. Of course in the light of the Gora case it is not open to the Tribunal to receive evidence as to private use unless Mr Dickinson had served a notice challenging the forfeiture. Equally of course it is to be appreciated that there is a two-track process. The question as to whether or not the goods should have been forfeited goes by way of the condemnation proceedings either in the Magistrates or the High Court. The decision before the Tribunal was a decision challenging Mr Hulbert's decision of 5^th September 2001 not to review the earlier decision made on the 18^th July 2001 not to restore the goods to Mr Dickinson.
28. It is therefore clear that the Tribunal posed the wrong question in relation to the goods. They concluded that the goods were for his private use. That was not the question they should have asked. However, to my mind this does not make a significant difference for reasons which will appear later in this Judgment.
29. Following the decision to seize, Mr Dickinson was given a notice to that effect on 1^st July 2001. He was also on the same day given a warning that any further attempt by him to smuggle goods would render him liable to prosecution.

SUBSEQUENT CHALLENGES

30. On or around 2^nd July Mrs Dickinson wrote on behalf of Mr Dickinson. She explained that her husband was dyslexic and unable to write the letter himself. She recounted, no doubt, what she had been told about the attitude of the Customs Officers. She indicated that they were a family of four and that they needed the car desperately in that they lived out in the country, the car was a necessity for the children's schooling, weekly shopping. She indicated that their son was also dyslexic and had private tuition weekly, which was 6 miles away, and would like advice regarding the next step to take to get the car and goods back. She concluded by saying that whilst she realised the Customs and Excise had a job to do this had been an innocent visit and any proof required regarding his character and honesty could be provided and further proof could provided regarding wages, earnings, wedding dates and savings.
31. On 7^th July 2001, Miss Butcher replied on behalf of the C & E. This letter said (inter alia) as follows:-

"It is not clear whether or not you wish to lodge a formal appeal against the legality of the seizure under Schedule 3 of the Customs and Excise Management Act 97.

A claim against forfeiture must be received by us within 1 month of the date of the seizure. If a valid claim is received, the Commissioners are then obliged to institute proceedings for the condemnation of the seized goods. This will involve Court proceedings, normally at Dover Magistrates Court, for which you will receive a summons, this may take as long as six months before the matter is placed before the Courts.

Alternatively, you have the option of requesting the restoration of the seized goods and/or vehicle, a decision in writing will be made whether or not to restore the goods and/or vehicle to you.

Although you may formally appeal against the seizure AND request restoration of the goods and/or vehicle, please be aware that the restoration request will not be considered by Customs and Excise until such time as the Court proceedings have concluded or been withdrawn".

32. This letter to my mind is an obscure letter and fails to explain properly the differing types of procedure. It should be noted that the first paragraph refers to a formal appeal as against the legality of seizure, whereas the next paragraph talks about a claim against forfeiture, when the item referred to is the same. The letter encourages the recipient to believe that anything is going to take a long time and that therefore if speed is essential restoration can be requested. In the light of the Gora case the letter is seriously deficient, because it fails to draw to the attention that some aspects of Mr Dickinson's arguments will not be capable of being argued on a restoration case for the reasons that I have already said.
33. Mrs Dickinson replied on 10^th July 2001, where she said:-

"This is my second letter to you, the first you say being unclear, as it was misunderstood if we wanted to deal with this through court or ask for restoration.

So this is to confirm that we do wish to request restoration of our car and goods. I understand that my husband travelled with a friend, and obviously we are not requesting the return of HIS goods (as apparently he was buying for a friend) but just to claim back our own".

34. On 19^th July 2001 Mr Daynes wrote declining to restore the goods. It is quite clear that he too considered the private use argument when on the Gora case he should not have done so.
35. On 20^th July 2001, Mrs Dickinson wrote back reiterating her unhappiness as to the way her husband had been treated at the time of the seizure and on 29^th July 2001 she wrote further seeking a review of the decision and in that letter she also asked whether or not her husband could "verbally give his account". Going back to her undated letter of early July, it is quite clear that part of that exercise involved Mr Dickinson's desire to contend that the goods were for private use.
36. That letter was responded to by a letter dated 30^th July 2001, setting out the review procedure.
37. Mr Dickinson heard no more until Mr Hulbert's decision of 5^th September 2001. He made that decision without giving Mr Dickinson an opportunity to make oral representations as set out in Mrs Dickinson's letter of 29^th July. He also made it by reference to material, which he had obtained from other sources. (I can see for example his analysis of journeys made by the vehicle on other days and who accompanied). He also conducted the review on the basis of information clearly provided to him by the Officers, which Mr Dickinson had not seen either. He never asked Mr Dickinson for any comments on any of these matters, this despite him making express reference to Mrs Dickinson's letter of 29^th July where she requested the verbal evidence opportunity and complained that everything was one-sided.
38. He set out the restoration policy that excise goods that are seized are not restored nor will vehicles used for their improper importation. As part of that exercise he considered whether the goods were appropriately seized in the first instance. He concluded that they were. For the reason that I have set out above that was not the correct exercise in the light of the Gora decision. He concluded that Mr Dickinson had been treated correctly by the Officers, although it is difficult to see how that conclusion could be made on the basis only of written statements.
39. Not surprisingly, Mr Dickinson did not accept this decision and sought a review. This was the decision considered by the Tribunal.
40. Miss Shaw accepted that the decision of 19^th July and the review decision of September 2001 were fatally flawed because of the inadequate analysis of "commercial purpose" for the purposes of the restoration discretion. This arises from the Court of Appeal decision of Lindsay –v- Customs and Excise Commissioners [2002] EWCA 267. The decision was delivered after the decision of Mr Hulbert of 5^th September 2001, but before the Tribunal decision. It was referred to in Miss Shaw's skeleton argument before the Tribunal, although it is not referred to in their decision.
41. The Lindsay decision requires a more detailed investigation as to the purposes for which the goods are being brought into the Country. It rejected the submissions that goods were either for own use or commercial purpose, and, if the latter, that the blanket policy of the C & E in refusing to order restoration was applicable. This is highlighted by paragraph 17 of the Judgment of Lord Phillips MR. The court indicated that if the goods are not for own use then they fall to be considered as imported for commercial purpose. Commercial purpose however, can involve a number of possibilities, the primary distinction between the professional smuggler who imports for the purpose of a profit and someone else who imports for the purposes of redistributing the goods to friends or members of the family upon reimbursement of the costs, but without taking profit. In the latter circumstances Lindsay requires a distinction to be drawn between the commercial smuggler and the driver importing goods for social distribution where there is no attempt to make a profit (paragraph 64). In the latter case the principle of proportionality is required to be applied so that the case should be considered on its particular facts, which will include the scale of importation, whether it is a first offence, whether it was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship. None of these factors were considered by the initial officer nor by Mr Hulbert self evidently. Like those in the Lindsay case (see paragraph 66) no distinction was made between the true commercial smuggler and the driver importing goods for family and friends without profit.
42. It follows from the Lindsay decision that it is open to the Customs and Excise to consider restoration even if the goods have been forfeited on the basis that the commercial purpose did not include a profit. Now that is easy enough to consider in the context of somebody who imports for the purpose of redistribution to others on a non-profit making basis. That is not actually what Mr Dickinson says. His evidence was that it was for his use only. That of course is a non-profit basis, but is he precluded from raising that argument, because of the deemed forfeiture, because he has failed to challenge that? Also it must be borne in mind that it was always clear that was the basis upon which Mr Dickinson was going to act, and the C & E did not challenge his ability to do it, but rather challenged the factual assertions that he made.
43. In Gora the Court of Appeal considered (obiter) the question of the impact of the deemed forfeiture under Schedule 3. Pill LJ (with whom the other members of the Court, Chadwick and Longmore LJJs agreed) said this:-

"54 What is described as a cross-appeal arises by reason of a finding of the tribunal in the Gora cases that in certain circumstances the tribunal has a jurisdiction in relation to forfeiture. These appeals are in relation to findings on preliminary points upon which this issue did not arise. That being so, the court cannot pass judgment upon it but it is, in my view, appropriate that the court should express a view on what is a fundamental point for the guidance of the tribunal. For the applicants, Mr Cordara sought to uphold the finding of the tribunal on the basis that it must be able to find facts on the question whether duty on the goods has been paid.

55 Section 139(6) of the 1979 Act provides that Schedule 3 shall have effect "for the purpose of forfeitures, and of proceedings for the condemnation of any thing as being forfeited" under the Acts. Paragraph 3 of the Schedule provides that any person claiming that any thing seized or liable to forfeiture is not so liable may give notice, within the period specified in the paragraph, of his claim in writing to the respondents. Paragraph 6 provides that, where such notice of claim is duly given, the Commissioners shall take proceedings for the condemnation of that thing by the court and if the court finds that the thing was at the time of the seizure liable to forfeiture the court shall condemn it as forfeit. Paragraph 5 provides that, in the absence of a notice under paragraphs 3 and 4, "the thing in question shall be deemed to have been duly condemned as forfeited". The proceedings for condemnation may be instituted in the High Court or in a magistrates court.

56 The Tribunal accepted that where liability to forfeiture has been determined by a court in condemnation proceedings, "there is no further room for fact finding by the Tribunal" and it has no jurisdiction. However, the Tribunal went on to hold that Mr Gora did not give a notice under paragraph 3 "and as a result the law took its course and the goods were treated as properly seized and so liable to forfeiture. No finding of fact resulted. A deemed fact is not a real fact. It cannot consequently rank as a consideration relevant to the subsequent decision on restoration until determined by the Tribunal or conceded to exist". It was held to be open to the Tribunal to determine the question of fact whether the goods were seized.

57 I do not agree with that conclusion. Jurisdiction to decide whether any thing forfeited is to be restored under section 152(b) is with the Tribunal. The jurisdiction in condemnation proceedings is, by virtue of Schedule 3, with the courts. If the deeming provision in paragraph 5 of the Schedule operates, the thing in question shall be deemed to have been duly condemned as forfeited. The effect of this deeming provision is to provide that the thing is to be treated as forfeited. The purpose of the provision is to treat the deemed fact as a fact and I cannot accept that it can be treated as "not a real fact".

58 While the division of jurisdiction between the courts and the Tribunal may arguably be curious, and is probably retained because of the long standing jurisdiction of the courts in proceedings for condemnation, the division is clear and it is not intended that the Tribunal should have jurisdiction to reconsider the condemnation of goods as forfeited. Mr Cordara's submission that the Tribunal should have jurisdiction to consider whether duty has been paid is no more than another way of claiming that the court's findings should be re-opened. The Tribunal's view would produce the surprising result that the person whose goods had been seized could make a choice of fact-finding tribunal. If he wanted the court to determine the issue he would serve a notice under paragraphs 3 and 4; if he wanted the Tribunal he would do nothing. In my judgment, the statutory scheme does not produce that result. The application to the Tribunal is for restoration under section 152. There is no breach of Article 6 because the owner has recourse to the courts in the condemnation proceedings".

44. There the judgment appears firmly to require the issue as to forfeiture to be determined in the condemnation proceedings and the issue not to be determined in the Tribunal. Otherwise, it is said (paragraph 58) the court could be chosen by the person in question.
45. Does that mean that Mr Dickinson is unable in the restoration proceedings to adduce evidence of own use to seek the restoration remedy? It would be very odd if every non-profit commercial case was capable of being received on the restoration proceedings except the one based entirely on his own use. Take this example. Mr Dickinson said he bought the goods entirely for the purposes of redistribution between friends and relatives at no profit, he would undoubtedly be able to invoke the procedure even if the forfeiture notice had not been challenged, conversely, if some were for his use and others for friends he could only challenge pro tanto presumably.
46. It is unfortunate that the Lindsay case was not cited to the Court of Appeal. Nor was the comprehensive review of the interrelation between the two procedures of Neuberger J in Gascoyne –v- Customs and Excise Commissioners [2003] 2 WLR 1311 cited to it.
47. Further the Gora decision in this respect is obiter.
48. In Gascoyne (paragraph 117) Neuberger J made it clear that as far as he was concerned, whether there was an election for condemnation proceedings or the review procedure there would be a judicial determination as to whether or not the goods concerned were for own use or held for commercial purposes. Accordingly one starts with the proposition that there is ample and full protection for a person whose goods have been seized in relation to his primary liability and one is therefore considering the powers of the tribunal in circumstances where the primary liability has been or at least can be judicially determined. Lindsay was cited to him and he referred to the judgment of Lord Phillips MR.
49. I have come to the conclusion that it is open to Mr Dickinson in the restoration proceedings to raise the issue of private use for the purposes of seeking to invoke the discretionary procedure of restoration. That does not involve a challenge to the forfeiture, which cannot be done per Gora save in condemnation proceedings. I see nothing difficult in that. First it enables the matters to be dealt with whichever course of action is taken by the person seeking restoration of his goods. Otherwise there would be an injustice. The failure to issue the notice would preclude C & E and the Tribunal on review from considering restoration when evidence is later produced which shows that it was an own use purchase. Second of course the procedures are different. The forfeiture results in the deemed findings that the goods were commercial. I do not see why it should not be possible within the ambit of the required explanation of the nature of the commercial transaction that Mr Dickinson could not bring the matters in. The restoration procedure is discretionary, whereas the challenge to the forfeiture is not. In the former case Mr Dickinson would be seeking a review of the decision of the C & E, and one factor in that exercise would be the fact that the transaction he establishes was not for profit. By way of contrast, in the condemnation proceedings, if he establishes it, he establishes that the forfeiture was not valid.
50. This reflects Neuberger J's analysis of the differing functions, when he said in paragraph 119 (with which I respectfully agree):-

"119 In the present case, if balancing is appropriate, it seems to me appropriate that the tribunal's function is limited on the issue of restoration to that of a review based on Wednesbury principles. The applicant will have been found to be a smuggler, the policy of the commissioners, as approved in Lindsay's case, is very restrictive, the commissioners are best able to apply it, and to apply it consistently, bearing in mind their day-to-day involvement. The purpose of forfeiture of a vehicle is to prevent its use for subsequent smuggling, not to punish the smuggler "

51. It seems to me that if Mr Dickinson would not be allowed to raise by way of mitigation and in seeking to invoke the discretionary restoration procedure the fact that the goods were purchased for own use that would punish him and be disproportionate.
52. This is reflected by the differing powers. The Tribunal cannot order restoration; it can only order a review: see Gora and Gascoyne. In condemnation proceedings he will, if he establishes his case, be entitled to the return of his goods (or compensation) as of right.
53. I do not see this exercise as involving a party being able to forum shop. The differing remedies preclude that.

THE DECISION OF TRIBUNAL

54. The initial hearing of the appeal was listed for 22^nd April 2002. The case did not proceed on that day and directions were given for the provision of further statements by Mr Dickinson and fresh statements of case by the Commissioners and statements by relevant Officers. Miss Shaw attended that hearing. On 2^nd August 2002 the C & E provided a list of available dates, which in effect allowed the case only to be fixed in a window of opportunity between 22^nd and 27^th October 2002, up until 1^st December. Mr and Mrs Dickinson complained about that and complained about the further delays and complained about the failure on the part of the C & E to respond to letters. On 12^th September 2002, both parties were notified of the hearing being fixed for 23^rd October 2002.
55. I should say that of course the evidence of both parties addressed not only the question of the nature of the purchase, but also (more heavily) on the circumstances of the seizure.
56. On 1^st October 2002, C & E wrote to the Tribunal seeking an adjournment and for the appeal to be re-listed not later than six weeks following judgment of the Court of Appeal in the case of C & E –v- Hoverspeed, which was listed for hearing on 5^th and 6^th November 2002.
57. The grounds were said to be that the issues raised in the Court of Appeal played directly on the case. The decision in question (R (Hoverspeed Ltd.) –v- Customs and Excise [2002] 3 WLR 1219 was germane to part of the exercise, but part only of the exercise of the Tribunal. The Divisional Court in that decision had held that if there were no reasonable grounds to suspect an infringement of the duty regulations, any subsequent seizure was invalid.
58. The circumstances of the seizure by C & E of Mr Dickinson's car and goods were disputed, but I am by no means convinced they were disputed in that regard. Mr Dickinson would certainly not address that issue, although it is fair to say that the Tribunal did address it when they delivered their decision.
59. Mr and Mrs Dickinson on 14^th October 2002 wrote objecting to the adjournment stating "we would like this episode in our lives over and done with as soon as possible". I observe that when that letter was written the seizure had taken place some fifteen months before.
60. Unfortunately, the Tribunal did not notify C & E of the objection.
61. On the 18^th October 2002 (not having received any communication whether from Mr and Mrs Dickinson or the Tribunal) the C & E assumed that the hearing would not proceed and stood its witnesses down. On 21^st October 2002 it was informed by the Tribunal that there had been an objection to the adjournment and the C & E's application would be listed to be heard on the morning of the appeal.
62. The Hoverspeed decision had been delivered on 31^st July 2002, so that the decision to seek an adjournment in the light of that decision had taken some 2 months. That to my mind is unacceptable.
63. Miss Shaw, on behalf of the C & E applied for an adjournment. Mr and Mrs Dickinson opposed it and the Tribunal rejected it. They adjourned the matter to 2 o'clock to enable the C & E to gather its witnesses. In fact the C & E concluded that because one witness was unavailable (Mr Gold) they were not going to seek to call any other witnesses. No satisfactory explanation was provided to me, by Miss Shaw as to why the decision was made to stand down the witnesses on the 18^th, nor any satisfactory evidence showing an attempt to re-contact the witnesses and make them available from the 21^st.
64. In the course of the hearing Mr Dickinson and Mr Elliot (who accompanied him on the journey in question) gave evidence. Miss Shaw on instructions did not cross examine. I was not provided with any explanation as to why this decision was made not to cross examine. The Officers' notebooks were in the bundle of documents provided to the Tribunal, as indeed were witness statements provided by them. None of these were put to Mr Dickinson and Mr Elliot and the conduct of the C & E appears to have been one of simply not challenging the evidence put forward by Mr Dickinson for the appeal.
65. At the conclusion of the appeal the Tribunal indicated that the appeal would be allowed and a judgment was delivered later.

GROUND 1 OF THE APPEAL

66. This ground challenges the decision of the Tribunal not to accede to the adjournment. In my judgment, it cannot be said, that no reasonable Tribunal could have come to the conclusion that it did. Their reasons were set out in paragraph 10. I find those reasons compelling. Further, Miss Shaw submitted that the Court of Appeal hearing for 5^th and 6th November 2002 was so close that a short adjournment (6 weeks were contemplated) was not unreasonable. That to my mind is not the full picture. As the Tribunal noted, a decision in Hoverspeed in the Court of Appeal would not necessarily be the end of that case. If C & E lost Hoverspeed in the Court of Appeal (they did not), I have little doubt that they would have challenged the decision in the House of Lords, or even beyond, as it was of importance. If the Court of Appeal decision had been delivered it does not follow that the hearing would not have been further adjourned. If the Tribunal acceded to C & E's application as regards the Court of Appeal decision, it would have been impossible for it properly to refuse an application for an adjournment pending a further appeal against that decision. Second, the way in which the appeal took place (i.e. with the C & E being bereft of witnesses) arose out of the way in which they chose to prepare for it, and their mistaken assumption that they would obtain the adjournment virtually as of right. Third, given the state of Mr Dickinson and the delay (as summarised in paragraph 7 of the decision of the Tribunal), those factors also were properly brought into account by the Tribunal.
67. It is not for me, on a review of the Tribunal's decision to come to a different conclusion, merely because I would have wished to. For my part I would have come to the same conclusion, but I do not see that it can be said that the reasoning of the Tribunal in the context of this small value case, which had been long delayed, could be said to be so unreasonable no Tribunal could have come to it.

GROUND 2 OF THE APPEAL

68. Miss Shaw submits on behalf of C & E that the conclusions reached by the Tribunal were unsafe. This was because it was based on "untested oral evidence" and "did not take account of any of the evidence (including the witnesses statements from Officers of the Commissioners) which the Tribunal had before it".
69. I reject that ground of appeal also. First the reason why the oral evidence was not tested was because C & E chose not to test it. I found Miss Shaw's submission that the Tribunal should therefore have tested it, because they did not, ingenious, but unpersuasive. Second, the Tribunal did consider the other evidence, see paragraph 21.
70. This ground of appeal therefore fails also.

GROUND 3 OF THE APPEAL

71. The difficulty with ground 3 is that in the light of the Gora decision, Mr Hulbert's decision of 5^th September 2001, cannot stand, as he did not apply the correct test. I do not see, having heard Mr Dickinson, how it can be said that the Tribunal were not entitled to conclude the decision of the Commissioners was one which no reasonable panel of Commissioners would have acted upon. Mr Dickinson's evidence was not challenged. He was not cross examined on his evidence that the purchase was for private use only. I was not provided with any notes of the evidence, but it is quite clear from (for example) paragraph 24 and 30 of their judgment, that they concluded, having heard him that the tobacco was for personal or family use. I accept Mr Smith's (who appeared for Mr Dickinson before me) submission that whilst the Tribunal decision is limited to review, it does have a fact-finding status in view of the Gora decision. Thus whilst it cannot impose its own order it can make findings of fact, which upon remission to the Commissioners for further reconsideration, are binding on the Commissioners. If the C & E wished to have challenged the evidence, they should have done so. They could have called 3 of the 4 Officers, they could have called into question Mr Dickinson and Mr Elliot's evidence by cross examination and by putting the statements. They did none of these things. Given that, and given the fact-finding role to which I have made reference, it is hardly surprising that the Tribunal came to the decision that they did. In this context, I have already observed that Mr Hulbert, quite wrongly, came to conclusions without a proper evaluation of the evidence himself. I do not see how he could come to the conclusions, based on the disputes as to fact as to the nature of the purchase, without hearing the parties. He should in any event have provided Mr Dickinson the opportunity to give further information as indicated in Mrs Dickinson's letter of 29^th July 2001.
72. Accordingly, ground 3 fails also.

GROUND 4 OF THE APPEAL

73. Ground 4 challenges the decision of the Tribunal that in line with the Hoverspeed decision in the Divisional Court, that if the initial stopping was unlawful the subsequent seizure itself was also unlawful. That in the light of the subsequent Court of Appeal decision is not a proper basis for challenging the seizure.
74. I do not however, accept Miss Shaw's submission that that was the sole basis of its decision. I accept it formed a substantial part, but I do not accept the construction put forward at paragraph 12 of the decision and it is clear to me, as I have already observed, that the Tribunal also considered Mr Dickinson's evidence as to own use in coming to the conclusion that it did.
75. The fact that the Tribunal considered an irrelevant factor does not mean that its decision is entirely unsupportable. The decision in my opinion would have been entirely the same if the only evidence upon which it could base it's decision was that of private use.
76. It follows therefore, that whilst ground 4 is made out, it is not a basis for an appeal, because there would have been no different result.

GROUND 5 OF THE APPEAL

77. I do not accept there is any ground for challenging the decision of the Tribunal on this basis. The oral testimony was not limited to stopping and searching, as I have already said. Nor was the evidence an unsatisfactory basis for the Tribunal's decision. It was not insufficient, and it was untested because C & E chose not to test it.
78. Whilst the wording of paragraphs 24 and 30 of the judgment of the decision are not entirely clear (using a negative rather than a positive), the judgment must be considered as a whole. Looking at the judgment as a whole, it is clear that the Tribunal, having heard Mr Dickinson's evidence, seen its lack of challenge, came to the conclusion that in the light of that exercise no reasonable Review Officer could come to the conclusion that Mr Hulbert did on his review. I see no difficulty in that.

GROUND 6 OF THE APPEAL

79. The Tribunal's jurisdiction is limited to the 3 options set out in Section 16 (4) FA 94, namely:-

"(a) to direct that the 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, and

(c) in the case of a decision which has already been acted on or take in effect and cannot be remedied by further review to declare the decision to be unreasonable and give directions to the Commissioners …"

80. As the Court of Appeal determined in Lindsay (paragraph 68 and 69) the Tribunal has no power to substitute its own decision. This is reinforced by a the wording of section 16 (5) in relation to other decisions where it is expressly given that power.
81. I agree that the Tribunal has in effect ordered restoration, something, which it cannot do.
82. My powers also are limited to a review, and I can only consider the decision in the context of whether or not a reasonable Tribunal could have come to the decision that it did. I cannot substitute my own view, merely because I would have come to a different view. I can substitute my own view, if the decision that the Tribunal made was one that no reasonable Tribunal could have done so.
83. It follows self evidently, that as the Tribunal had no power to order restoration, I am free to substitute my own view as to what order should have been made.

GROUND 7 OF THE APPEAL

84. I equally accept Miss Shaw's submission that the direction in effect as to admonishment because of the conduct of the Officers as found by the Tribunal does not fall within sections 16(4)(c), as it is not a necessary direction as regards the proper subject matter of the appeal before it. Nevertheless, I do not see why the Tribunal cannot express disquiet as to the conduct and direct that the C & E have that drawn expressly to its attention in its decision. Given the acceptance of Mr Dickinson's evidence; it was not unreasonable for the Tribunal to comment adversely on the Officers' conduct. The fact that it is a serious matter shows that the C & E really should have done something about it. Mr Dickinson may be able to complain elsewhere about the acts of the Officers.

ADDITIONAL GROUND OF APPEAL

85. I have already observed that the additional ground is based on the Gora decision, namely that it is not open to the Tribunal to consider a question of own use.
86. I do not accept that analysis for the reasons set out earlier in this Judgment. The Tribunal was obliged to consider a detailed analysis as to the nature of the commercial use, which Mr Dickinson intended. Lindsay was referred to it in the skeleton argument of the C & E. It is inconceivable that the Tribunal would not have therefore in reaching its conclusions have evaluated the nature of Mr Dickinson's commercial use. I accept it did not expressly say so, but it could not have found, as it did, that Mr Dickinson intended to use the goods for his own purpose, without thereby concluding that his use was for a not for profit basis. Even if it did not properly address Lindsay, the factual conclusion that they have come to satisfies the Lindsay test. It follows therefore, that even if Lindsay was not applied by it correctly, it has arrived at the right decision through a different route. There is therefore no basis for setting aside the Tribunal's decision on this ground either.

CONCLUSIONS

87. Whilst as I have set out in this Judgment certain of the conclusions of the Tribunal, in the light of Hoverspeed and possibly in the light of Gora, could not now be properly entertained, although they could have been entertained at the time. Nevertheless, the Tribunal's decision as to the findings that Mr Dickinson did not intend to sell the products for a profit is a decision, which the Tribunal could reasonably have come to on the basis of the material before it. Further, had the Tribunal considered the law, as it now is, it would have concluded that Mr Hulbert's decision could not stand, because he had not applied the correct tests as required by Lindsay and Gora.
88. However, the Tribunal ought to have remitted the matter back to the C & E, to reconsider the application for restoration in the light of its findings as set out in its decision (disregarding the findings in respect of the lawfulness of the seizure). That is how I propose to dispose of the appeal, and to direct the Review Officer, to consider restoration in the light of the fact that the goods were purchased by Mr Dickinson "not for profit". The Review Officer ought also to have taken into account all the other mitigating factors raised by Mr Dickinson, which were never disputed.

NOTICE TO CHALLENGE FORFEITURE OR NOT

89. It is not strictly necessary for the purpose of this appeal to consider whether or not the letters sent around 2^nd July 2001 by Mrs Dickinson was merely a request for restoration or was a request for relief against forfeiture or both.
90. It may be important if the C & E in their wisdom seek to challenge my decision.
91. I have already adverted to the important difference. Absent condemnation proceedings in the light of Gora (and subject to my reconciliation of that decision with Lindsay and Gascoyne referred to above), if the notice challenging the forfeiture is not served, it is no longer open to Mr Dickinson to challenge the forfeiture and the compulsory restitution of his chattels on the grounds that the importation was for private use.
92. The notice does not require any particular form. If the notice was not a challenge to forfeiture, then on this argument the question of private use cannot be considered on the application for restoration. I have already given reasons why I do not believe that is correct, but in case I am wrong, it would mean that Mr Dickinson if he limited his claim to restoration would have given up any right to seek the return of his vehicle.
93. The notice does not require any particular form. It is quite clear by the letter and the clarification that Mrs Dickinson on behalf of her husband was seeking the return of the car and the grounds for that included the own use defence. The C & E accepted that notice on that basis, because they evaluated the claim for restoration, for example (inter alia) on that basis.
94. I doubt whether Mrs Dickinson understood the subtleties of the distinction between the two avenues of approach. Although Miss Shaw described it as obvious, in her submission, the obvious nature of the distinction escaped the attention of the C & E and Tribunals apparently for many years.
95. What Mr Dickinson wanted, was restoration of his vehicle. If the only way he could do that was by way of serving a notice challenging the forfeiture, Mrs Dickinson's letter should be interpreted as including a notice under schedule 5, paragraph 3. One would then also look at how the recipients of the notice viewed it in the light of Mannai Investment Co. Ltd. –v- Eagle Star Life Assurance Co. Ltd. [1997] AC 749. Like Neuberger J in Gascoyne (see paragraphs 57/58) I do not find the construction of a document written by a layperson in an extremely technical area, without the benefit of legal advice, an easy one. I have in mind also, the criticism of the C & E letter of 7^th July 2001 to which I have already made reference. The C & E did not distinguish between the effects of the different procedures and treated them all as having the same effect as regards restoration of the motor vehicle and goods. I have already observed the C & E followed that non-distinguishment until the amended Notice of Appeal.
96. It seems to me, Mr Dickinson intended to seek the return of his motor vehicle based (inter alia) on his contention that the goods were purchased for his own private use. If the only way in which he could have pursued that was by virtue of the notice challenging the forfeiture, I construe his wife's letter as having the effect of being served under that provision in addition to seeking restoration.
97. This means that in addition to the review, which I have directed, it is open to the C & E to issue condemnation proceedings. I note what Neuberger J says about the delay and the possibility of having such proceedings dismissed for an abuse of the process of the Court. Those proceedings would have to be issued in the High Court. I asked Miss Shaw, whether the C &E would intend to issue such proceedings, if it was necessary as part of my Judgment. On instructions, she indicated that they would be issued. Furthermore, she indicated that, whereas Mr and Mrs Dickinson had the benefit of their costs being paid on this appeal by the C & E, such a gesture would not apply to the High Court proceedings.
98. That statement fills me with dismay. I am not in a position to determine whether or not such proceedings are an abuse because they are not before me. I can only say, given the delays, given the way in which Mr Dickinson was treated and given the way in which the C & E dealt with the applications for review, to my mind, the time has come for the C & E to compensate Mr Dickinson for the loss of his chattels. I cannot force them to do so, but I really wonder whether, further litigation in this case is a proportionate and sensible use of the C & E's limited resources. I am sure its resources can find a better home than further fighting this case.
99. I will hear submissions as to costs, if any, and the form of Order.