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Cite as: [2009] UKFTT 134 (TC)

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[2009] UKFTT 134 (TC)

TC00102

Appeal number LON/2008/8124

EXCISE DUTY – 8.5 kgs of hand-rolling tobacco seized by Commissioners on grounds imported for commercial use – condemnation proceedings commenced in magistrates' court – Commissioners decision not to restore goods – appellant failed to attend magistrates' court hearing and goods condemned – restoration proceedings commenced – whether appellant entitled to challenge legality of seizure of goods in restoration proceedings – no, on grounds it would be abuse of process – whether decision not to restore was reasonable – yes – appeal dismissed – Council Directive (EEC) No 92/12 Arts 7 to 9; The Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002 SI 2002 No. 2691; Customs and Excise Management Act 1979 Ss 49(1) and 152(b); Finance Act 1994 Ss 14 to 16

FIRST-TIER TRIBUNAL

TAX

JOHN MORGAN Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY'S

REVENUE AND CUSTOMS (Excise Duty) Respondents

TRIBUNAL: EDWARD SADLER (Judge)

SHEILA WONG CHONG FRICS

Sitting in public in Southampton on 14 May 2009

The Appellant appeared in person

Rupert Jones, counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2009

DECISION

Introduction

This is an appeal by John Morgan ("Mr Morgan") against a decision by The Commissioners for Her Majesty's Revenue and Customs ("the Commissioners") not to restore to Mr Morgan 8.5 kilograms of hand-rolling tobacco which the Commissioners had seized on 27 February 2008 when those goods were imported into the UK by Mr Morgan on his arrival by ferry in Portsmouth. The Commissioners wrote to Mr Morgan on 17 July 2008 informing him of their decision not to restore the goods.

Background and issues

The background and issues in this case can be summarised as follows. An officer of the Commissioners seized the tobacco after a short interview with Mr Morgan following his disembarkation from the ferry from Bilbao. Her grounds for seizing the goods were that she was satisfied that the tobacco was held for a commercial purpose which, under the relevant excise duty provisions, made the tobacco liable to forfeiture. The officer considered this to be the case since she understood Mr Morgan to say that one or more members of his family had made a contribution towards the cost of the tobacco. In pursuit of the procedures explained in the Commissioners' notices, Mr Morgan challenged the legality of the seizure, and the Commissioners instituted condemnation proceedings in the Portsmouth Magistrates' Court. In correspondence with the Commissioners Mr Morgan consistently asserted that the tobacco was for his own use in that it was purchased from his own funds, it was to be gifted to his children, and that no-one had funded him for the purchase, nor was it the intention that they would subsequently do so.

Mr Morgan's letter challenging seizure of the goods was also treated by the Commissioners as a request by him for restoration of the tobacco. The Commissioners refused to restore the tobacco: their decision took account of the officer's notes of the interview with Mr Morgan and of Mr Morgan's assertions in his correspondence with the Commissioners. Mr Morgan asked for a review of that decision, but no review was completed within the prescribed time, so that, in accordance with the relevant rules, the original decision was deemed to be upheld. Mr Morgan appealed against that decision to the tribunal.

Subsequently the condemnation proceedings were listed for hearing at Portsmouth Magistrates' Court. Immediately before that hearing Mr Morgan wrote to the Magistrates' Court seeking to withdraw from the condemnation proceedings, saying that he was in the process of taking his dispute to the tribunal. He did not attend the hearing, and offered no evidence of his case. The Portsmouth Magistrates' Court proceeded to deal with the matter, ordering that the tobacco be condemned as forfeit on the grounds that it was held by Mr Morgan for a commercial purpose. The Portsmouth Magistrates' Court awarded costs of £4,272.50 against Mr Morgan.

In this appeal the Commissioners argue that Mr Morgan challenged the seizure of the tobacco, and that the lawfulness of the seizure was conclusively determined by the relevant forum, a magistrates' court. They say that Mr Morgan had the opportunity to argue his case before the magistrates' court, and he failed to do that. They argue that it would, in these circumstances, be an abuse of the legal process if he were permitted to raise before the tribunal the legality of the seizure of the tobacco. In any event, the review decision not to restore the goods was reasonable and cannot be impugned. Mr Morgan argues that his case that the tobacco was for his own use has at no time been heard, and that the tribunal therefore should take it into account when considering the reasonableness of the restoration review decision.

The abuse of process issue – is Mr Morgan entitled to challenge in the tribunal the legality of the seizure of the tobacco?

In deciding Mr Morgan's appeal against the decision of the Commissioners not to restore the tobacco they seized we need to consider first whether we are entitled to consider the question of the legality of the seizure of the tobacco by the Commissioners, having regard to the decision of the Portsmouth Magistrates' Court on 28 November 2008 that the goods be condemned as forfeit. The goods were so condemned on the grounds that, when they were imported into the UK, they were held for a commercial purpose, and that the relevant excise duty had not been paid. Mr Morgan's argument that we should decide on the evidence whether in fact the tobacco was held for a commercial purpose, or, as he asserts, for his own use, is, in effect, a request that we determine the legality of the seizure.

The abuse of process issue – the facts and events and the relevant statutory provisions

The facts and the sequence of events relevant to this issue are as follows:

(1) On the evening of 27 February 2008 Mr Morgan was stopped by Customs officers at UK Customs controls at Portsmouth. Mr Morgan had travelled as a foot passenger by ferry from Bilbao. He was then aged 70. He was carrying 5.5 kilograms of Golden Virginia tobacco, 3 kilograms of Old Holborn tobacco, 1,520 Fortuna cigarettes and 100 cigars or cigarillos.

(2) The Customs officer who stopped and questioned Mr Morgan, Officer Karen Rogers, made a notebook entry of her stopping and questioning of Mr Morgan (and her notebook entries subsequently were the basis of her witness statement produced to the Portsmouth Magistrates' Court in relation to the condemnation proceedings). The following appears from Officer Rogers's notebook and witness statement:

(a) Mr Morgan said that he had travelled with a Mr Cutler, who had already gone through Customs controls.

(b) When Officer Rogers asked Mr Morgan if he had made any purchases during his trip to Spain he produced from his suitcase the hand-rolling tobacco, cigarettes and cigars referred to above. Mr Morgan stated that the cigarettes were for himself, the cigars for his friend, and the tobacco for his family. He was not able (or was not prepared) to specify for whom in his family the tobacco was intended as a gift. He was not able to produce receipts for any of the goods.

(c) Officer Rogers asked Mr Morgan if his family had given him money for the tobacco, and he replied, "Look, I am not making any profit in fact I am losing money. I only asked for £30 a pack." (As will appear, and as is at the centre of this case, Mr Morgan denies that he said this – he asserts that he said only that his son had given him £30 when he dropped him off at Portsmouth for the outward journey, his son telling him to "treat himself" on the ferry trip.)

(d) Officer Rogers was satisfied that Mr Morgan intended to smoke the cigarettes himself and to make a gift of the cigars, and those goods were returned to him. She intended to question Mr Morgan further about the tobacco, but Mr Morgan refused to be interviewed further (he was offered an interview on another day). Officer Rogers then seized the hand-rolling tobacco (totalling 8.5 kilos) on the grounds that Mr Morgan had admitted that they were imported for commercial use.

(3) The approximate retail value of the seized tobacco was £590, and if the tobacco were dutiable on the basis that it was imported for commercial use the excise duty payable would be approximately £965.

(4) Mr Morgan was issued with a Seizure Information Notice in relation to the seized goods and he was also given a copy of Customs Notice 12A "Goods and/or vehicles seized by Customs". This Notice sets out the condemnation process (through the Magistrates' Court) and also the restoration process (with the right to appeal to the tribunal). The Notice explains that if a person wishes to challenge the legality of the seizure of the goods in question in the Magistrates' Court he must serve a notice of claim on the Commissioners within a specified period.

(5) Officer Rogers subsequently made enquiries which showed that in the period from 31 July 2007 up to and including 24 February 2008 Mr Morgan had made nine return journeys to Bilbao from Portsmouth.

(6) On 6 March 2008 (and within the specified period) Mr Morgan wrote to the Commissioners at the address given in Notice 12A stating:

(a) That he believed the Commissioners had unlawfully seized 8.5 kilograms of tobacco which he had purchased and paid tax on;

(b) That he was in a poor state of mind when he was stopped on leaving the ferry as he had not taken his prescribed anti-depressant tablets (he had forgotten to take them on his trip);

(c) That his son had given him £30 as a gift for him to spend on his trip, but that Officer Rogers had taken this to mean that he had held the tobacco for commercial use;

(d) That he had received over £700 from his gas and electricity supplier by way of a repayment of overpaid direct debit payments, and he had spent this on the tobacco by way of a treat for his children; and

(e) That he had been advised in the duty free shop on the ferry that he could take into the UK any amount of tobacco provided that it was for his own use.

(7) The Commissioners treated this letter as a notice of claim in relation to the seizure of the tobacco, and began condemnation proceedings. There was further correspondence between Mr Morgan and the Commissioners, in the course of which Mr Morgan asserted that he had refused a full interview on 27 February 2008 as he was very tired that evening, and that when he had called to arrange an interview his call was transferred to the office of the Commissioners at Dover dealing with seizures, and they had advised him to begin the process to challenge the legality of the seizure of the goods – he had not therefore properly explained his position in the interview which Officer Rogers had said would take place. For their part the Commissioners emphasised that the Magistrates' Court was the only forum in which Mr Morgan was able to challenge the legality of the seizure by claiming that the goods were for his own use, and that such a challenge could not be made through any restoration proceedings. They also mentioned that should the Magistrates' Court condemn the tobacco as liable to forfeiture, the Commissioners would seek an order towards their costs "which are likely to be not less than £1,500". Thus Mrs H Shaw of the Commissioners wrote to Mr Morgan on 8 April 2008 (in response to Mr Morgan's letter of 6 March 2008) in these terms:

"If you decide that you do not wish to proceed with your appeal, you must inform this office in writing within 14 days of the date of this letter, otherwise condemnation proceedings will be instigated and you may become liable to costs.

Please note that if your client [sic] withdraws from these proceedings after they have been commenced or does not attend court when notified to do so, she [sic] may have costs awarded against her. You should also be aware that the Magistrates Court is the only forum in which you are able to challenge the legality of the seizure (this includes claiming the goods were for your own use) – you cannot do this through any restoration or complaints process."

(8) In the course of the correspondence Mr Morgan expressed concerns about the "criminal" nature of the proceedings if they were conducted before a magistrates' court; his concern about having to pay the Commissioners' costs when he was unable to claim legal aid to enable him to have legal representation; the quicker and cheaper process of appealing to the tribunal; and his intention to pursue his case to the European Court of Human Rights if necessary.

(9) There was a preliminary hearing in the condemnation proceedings at Portsmouth Magistrates' Court on 16 September 2008. Mr Morgan asked for the condemnation proceedings to be adjourned as he was pursuing an application to the Attorney-General for him to take up the matter in the High Court. The Portsmouth Magistrates refused to adjourn the proceedings, and the case was listed for a full hearing on 28 November 2008. Due notice of this hearing was served on Mr Morgan.

(10) On 26 November 2008 Mr Morgan wrote to each of the Portsmouth Magistrates' Court, the Commissioners and the tribunal in these terms: "I've elected to take my dispute with H M Revenue and Customs to the VAT and Duties Tribunal. It has taken eight months of requesting HMRC for permission for the tribunal and now granted, I will take this option….I therefore forego suing HMRC on the civil charge of Condemnation at Portsmouth Magistrates' Court on the 28^th November 2008. The VAT and Duties Tribunal can be the only way without a lawyer for justice to be done."

(11) Mr Morgan did not attend the hearing of the condemnation proceedings at Portsmouth Magistrates' Court on 28 November 2008.

(12) Before us Mr Morgan's daughter, Mrs Elizabeth McGuire, gave evidence that at that time Mr Morgan was in an agitated mental state about the hearing, that he was receiving treatment from his doctor for this, and that in these circumstances, and for his well-being, his family persuaded him not to attend the hearing of the condemnation proceedings.

(13) That hearing was attended by Susan Frances Pritchard, a barrister employed in the Solicitor's Office of the Commissioners, who was also in attendance at the tribunal appeal hearing. Miss Pritchard gave evidence to us as to the proceedings in the Portsmouth Magistrates' Court, as follows:

(a) The Commissioners were represented by counsel, and Officer Rogers attended;

(b) The hearing was listed for 9.30 a.m. and when it was called Mr Morgan was not present and the bench adjourned until 10.15 a.m.;

(c) At about 10.20 a.m. a court clerk brought into the court Mr Morgan's letter of 26 November 2008. It was the first intimation which the bench had had that Mr Morgan would not be present. The letter was read out to the court, and the chairman decided to proceed with the hearing;

(d) In advance of the hearing the Commissioners had prepared and served on the Magistrates' Court and on Mr Morgan a Case Summary (a copy of this was in the bundle of documents before us). This set out in summary the relevant law; the role of the court in condemnation proceedings; the burden on the Commissioners to satisfy the court that the goods were brought into the UK for a commercial purpose rather than for own use; what does and what does not comprise a "commercial purpose"; and the facts.

(e) As to the facts in the Case Summary, these were drawn exclusively from the account prepared by Officer Rogers, in particular that Mr Morgan had stated at the time of seizure that the tobacco was for his family and that he "only asked for £30 a pack" for the tobacco. There was no reference to any of Mr Morgan's assertions as to the way the purchase of the tobacco was funded or his intentions to make a gift of the tobacco to his various children.

(f) The magistrates were also given a copy of the witness statement of Officer Rogers relating to her interview with Mr Morgan and the seizure of the tobacco.

(g) At the hearing the Case Summary was read out to the court. Officer Rogers was not called to give evidence.

(14) The Portsmouth Magistrates' Court proceeded to order the tobacco goods to be condemned as forfeit on the grounds that at importation into the UK they were held for a commercial purpose and that the excise duty to which they were chargeable on importation had not been paid. They ordered Mr Morgan to pay the Commissioners £4,272.50 by way of costs.

(15) Alongside the condemnation proceedings Mr Morgan and the Commissioners were engaged in restoration proceedings. The Commissioners treated Mr Morgan's letter of 6 March 2008 as a request for restoration of the seized tobacco, advising him of that by letter on 30 May 2008.

(16) The restoration request was dealt with by Mr Gregory Arthur Wood, an officer of the Commissioners employed in their Post Seizure Unit. Mr Wood gave evidence to us at the hearing. His decision was not to restore the goods to Mr Morgan since there were no exceptional circumstances that would justify a departure from the Commissioners' general policy, which is not normally to restore seized goods where there has been an attempt to evade payment of duty. In reaching his decision Mr Wood took account of the note of the interview and seizure on 27 February 2008 prepared by Officer Rogers, and of two letters of Mr Morgan to the Commissioners (both dated 16 May 2008) where he referred to his son giving him £30, but in terms which were ambiguous as to the purpose of that payment.

(17) Mr Wood wrote to Mr Morgan on 17 July 2008 with his decision not to restore the tobacco. His letter set out the grounds for his decision and made it clear that he had not considered the legality or the correctness of the seizure of the goods, which was a matter which would be dealt with in a magistrates' court. He also set out the process whereby Mr Morgan could apply for his decision to be reviewed.

(18) On 2 August 2008 Mr Morgan wrote to the Commissioners requesting a review of Mr Wood's decision not to restore the goods. No such review was carried out by the Commissioners within the statutory period, and accordingly the Commissioners wrote to Mr Morgan on 7 October 2008 to explain that Mr Wood's original decision not to restore the goods would therefore be deemed to be upheld, and setting out Mr Morgan's rights to appeal to the VAT and Duties Tribunal.

(19) On 22 October 2008 Mr Morgan served his Notice of Appeal on the tribunal centre, stating as his grounds of appeal, "Unlawful seizure of 8.5 kgs of rollup tobacco". On 19 November 2008 the Commissioners applied to the tribunal for the restoration proceedings to be stood over until after the condemnation proceedings had been completed.

(20) For completeness (although they are not matters which affect in any way the issues we have to decide) we mention that concurrently with the condemnation and the restoration proceedings Mr Morgan has brought his case to the attention of his Member of Parliament and also to the office of the Tax Adjudicator.

The relevant statutory provisions are complex. They relate to the payment of excise duty on the importation of goods; the liability of goods to forfeiture where duty is not paid; the rights of a Customs officer to seize goods liable to forfeiture; the process for goods to be condemned as forfeit by a magistrates' court or the High Court; the discretion which the Commissioners have to restore seized or forfeit goods; and the role of the tribunal and the extent of its powers in an appeal against a decision by the Commissioners not to restore goods. For ease of reference they are summarised in the Annex to this decision, (drawing largely on the helpful summary set out in the tribunal case of McCullim and others v The Commissioners of Customs and Excise). There is no point between the parties as to the interpretation of those provisions.

The abuse of process issue – the parties' submissions

The Commissioners' case in this appeal is based on the principle of law that it is an abuse of process to raise in one tribunal or court a matter that has been (or could have been) raised in another tribunal or court which properly has the jurisdiction to decide that matter. They argue that Mr Morgan is abusing the process of law and that therefore the tribunal must dismiss his appeal. This is so, they say, because Mr Morgan's case before the tribunal is that the tobacco was held by him for personal use and for gifts (and not for commercial purposes) so that it was unlawfully seized by the Commissioners. Since, as Mr Morgan further argues, the tobacco was unlawfully seized, the decision of the Commissioners not to restore it is flawed and should be set aside or reviewed. However, in the submission of the Commissioners, the question as to the legality of the seizure of the tobacco is properly a question for determination exclusively by the magistrates' court by means of the condemnation proceedings, and in this case those proceedings were duly followed and the question was properly and conclusively determined by the Portsmouth Magistrates' Court. In these circumstances, the Commissioners argue, the courts have held in a series of recent decisions that it would be an abuse of the legal process for the tribunal to look into the question of the legality of the seizure when considering whether the Commissioners had acted reasonably in exercising their discretion by deciding not to restore the goods seized and condemned as forfeit.

Mr Morgan's case on this issue is that he thought that by withdrawing from the condemnation proceedings before the Portsmouth Magistrates' Court he could instead raise the legality of the seizure (arguing that the tobacco was intended as a gift for his children, and therefore not held for a commercial purpose) before the tribunal in the restoration proceedings which were happening in parallel to the condemnation proceedings; that the Portsmouth Magistrates' Court reached their decision to condemn the tobacco without hearing his side of the story and without any challenge to the evidence or case presented to them by the Commissioners; and that if he is now shut out of the tribunal he has not had a fair opportunity to present his case before any court, which he considers to be a denial of justice.

Mr Jones presented the case for the Commissioners. He pointed out that the Commissioners had consistently, and on a number of occasions, explained to Mr Morgan that if he wished to challenge the legality of the seizure of the tobacco on 27 February 2008 by arguing that it was held for his own use and as a gift for his children, then the only place he could do so was in the magistrates' court: this is made clear in Notice 12A, which also makes it clear that legality of seizure is not a ground for seeking restoration of the goods. Subsequent letters from the Commissioners to Mr Morgan repeated the point. If Mr Morgan was of the view that he had a choice, on this question of the legality of the seizure of the goods, between arguing the point before a magistrates' court and arguing it before the tribunal, then he was under a misapprehension, but it was not a misapprehension which in any way could reasonably be said to have arisen from the actions or statements of the Commissioners.

Mr Jones also pointed out that Mr Morgan had taken the appropriate steps to begin the condemnation proceedings in the Portsmouth Magistrates' Court, where he would have had the opportunity to argue his case as to the use he intended for the tobacco and thus challenge the legality of the seizure. When it came to the hearing of those proceedings Mr Morgan, for whatever reason, drew back, and the magistrates made the condemnation order on the basis of the evidence presented to them by the Commissioners. That decision was not appealed. Mr Morgan had chosen to forego his opportunity to make out his case before the court which has the responsibility to determine this particular matter, and it would be an abuse of the legal process if he were now allowed to challenge the decision not to restore the tobacco on those self-same grounds.

In support of his case Mr Jones referred us to the following cases: Gora and others v Customs & Excise Commissioners (2004) QB 93 (Court of Appeal); Dickinson v Customs & Excise Commissioners (2004) 1 WLR 1160 (High Court); Gascoyne v Customs & Excise Commissioners (2005) Ch 215 (Court of Appeal); Commissioners of Revenue and Customs v Albert Charles Smith (17 November 2005, unreported) (High Court); Customs & Excise Commissioners v Weller [2006] EWHC 237 (High Court); and The Commissioners of Her Majesty's Revenue and Customs v David Mansel Dawkin [2008] EWHC 1972 (High Court).

The abuse of process issue – the principles to be derived from the cases

We have given careful consideration to the cases to which Mr Jones referred us to see the principles which may be derived from them. Most of those cases are concerned with the situation where there has been a deemed condemnation of the imported goods which have been seized (that is, where the importer has not challenged the legality of the seizure, and, under the relevant provisions, the goods are deemed to be condemned without the matter being taken before a magistrates' court). The Gascoyne case considered whether, in this situation, the importer had the right under domestic law or the European Convention on Human Rights to raise the issue of the legality of the seizure of the goods before the tribunal in restoration proceedings – the Gora case had already decided that, under domestic law, if the importer let the condemnation proceedings go by default (so that the goods were condemned as forfeit) he was not entitled to raise before the tribunal the question of the legality of the seizure of the goods. The Court of Appeal held in Gascoyne that there could be circumstances where, having regard to the importer's rights under the Convention, it would be right for the tribunal to reopen the question of the legality of the seizure of the goods notwithstanding that there had been a deemed condemnation of the goods. However, the mere fact that the importer has failed to invoke the condemnation process (and thus the deemed condemnation has occurred) is in itself not sufficient grounds to permit the question of the legality of the seizure to be reopened by the tribunal (see the judgment of Buxton LJ at paragraphs 54 to 56).

The decision in the Gascoyne case has been applied in the subsequent Smith and Dawkin cases. The Smith case was, like Gascoyne, a case where the importer had not challenged the legality of the seizure by making the necessary claim to the Commissioners, so that the goods (and the car in which they were packed) were deemed to be condemned. In such a case the approach which the tribunal must take, if the importer then wishes to raise before the tribunal in the restoration proceedings the question of whether the goods were lawfully seized, was described as follows, in the judgment of Lewison J (at paragraph 23):

"Lord Justice Buxton's reference [in the Gascoyne case] to abuse of process or to considerations analogous to abuse of process are, in my view, references to the well-known principle that it may be an abuse of process to raise in one tribunal matters that could and should have been raised in another. So the relevant questions will always be, first, could the applicant have raised the question of lawfulness of forfeiture in other proceedings and, if the answer to that question is yes, why did he not do so? In the light of his reasons for not raising the matter in condemnation proceedings the Tribunal can then answer the question should he have done so and if they answer that question 'yes', then it will be, in most cases, an abuse of process for him to raise the question before the Tribunal."

This approach was affirmed in the Dawkin case in the High Court. That case was not one of deemed condemnation since the importer began the process of challenging the legality of the seizure of the goods in the magistrates' court, but then, on taking legal advice, decided not to proceed with that challenge. It was held that it was an abuse of process for the importer to seek to raise the legality of the seizure when he appealed to the tribunal in restoration proceedings. The tribunal itself had considered that it was not an abuse of process for the importer to challenge the legality of the seizure in the restoration proceedings, giving a number of factors which it considered justified such an approach (including the fact that the importer was deterred from taking the matter to the magistrates' court by reason of the risks of a costs' order being made against him if he lost; the costs and inconvenience to the importer of attending the magistrates' court in the particular circumstances of the importer, who lived abroad; and the fact that the decision not to restore was taken on the assumption that the seizure was legal, without any regard to the importer's side of the story). In the High Court it was held that these factors were not such as "could take Mr Dawkin's case out of the usual run of cases where it is an abuse of process to raise the facts of seizure in the Tribunal."

Before turning to Mr Morgan's case there is one further point to draw from these recent cases on the question of whether it is an abuse of process to raise the legality of the seizure in restoration proceedings before the tribunal. Reverting to the Gascoyne case, Buxton LJ had this to say when referring to the situation where there were actual condemnation proceedings resulting in a magistrates' court order condemning the seized goods (rather than deemed condemnation proceedings) (at paragraph 51):

"…in my view there is no Convention objection to holding that an actual finding in condemnation proceedings binds in a tribunal application, be it binding as to the decision as to lawfulness of seizure, or binding as to the underlying facts….If the importer has actually been in court, first of all he has had his day in court in front of a judicial body, and, secondly, as is well known, Convention jurisprudence permits a proportionate restriction on access to a court, provided the essential rights that are in contest from a Convention point of view are not thereby rendered nugatory."

The abuse of process issue – applying the case law to Mr Morgan's case

In Mr Morgan's case we are not concerned with deemed condemnation proceedings, but with an actual order of condemnation of the goods by the Portsmouth Magistrates' Court in proceedings which were begun by Mr Morgan in response to the Notice 12A he received from the Commissioners following their seizure of the goods. It was made clear to Mr Morgan at that time (and the point was repeated in clear language on several occasions in subsequent correspondence from the Commissioners – see, for example, the letter of 8 April 2008 from Mrs Shaw referred to at paragraph 7(7) above) that if he wished to challenge the seizure of the goods by arguing that they were for his own use and as gifts (and therefore not imported for a commercial purpose) then he must make that challenge in the condemnation proceedings before the magistrates' court, and not before the tribunal in any restoration proceedings. Mr Morgan continued with the condemnation proceedings at a preliminary hearing (where he tried to have the matter adjourned), but he failed to attend the hearing on 28 November when the matter was determined in his absence by the Portsmouth Magistrates' Court, which ordered the condemnation of the tobacco on the basis of the evidence put forward by the Commissioners to the effect that the tobacco was held for a commercial purpose and the relevant excise duty had not been paid.

Therefore, if we ask the first of what Lewison J described as the relevant questions for the tribunal (see paragraph 15 above), namely, could Mr Morgan have raised the question of lawfulness of the seizure of the goods in other proceedings, then the answer has to be yes, not only could Mr Morgan have done so, but he did actually take the appropriate steps – right up to the door of the court – to raise that question in the proper forum (the Portsmouth Magistrates' Court) for deciding that question.

This takes us to the second of the relevant questions as formulated by Lewison J: if Mr Morgan could have raised the issue of the lawfulness of the seizure before Portsmouth Magistrates' Court, why did he not do so? From the written evidence before us, and from the evidence we heard from Mr Morgan himself and from his daughter, Mrs McGuire, at the hearing, Mr Morgan's reasons for not putting his case to the Portsmouth Magistrates' Court can be summarised as follows:

(1) He understood that he had the option to have the issue heard and decided by the tribunal at proceedings challenging the decision not to restore the tobacco – see his letter to Portsmouth Magistrates' Court of 26 November 2008 (paragraph 7(1) above).

(2) He considered that proceedings before the tribunal provided a more acceptable – perhaps user-friendly – forum than a magistrates' court for an unrepresented layman to make his case in circumstances where legal aid was not available to him – again, see his letter of 26 November 2008.

(3) He was aware that if he failed in his case before the magistrates' court he would be ordered to pay the Commissioners' costs, whereas if he failed in his case before the tribunal the Commissioners were likely to adhere to their normal policy not to ask for their costs – in this respect the tribunal was again a more acceptable forum, especially in a case where costs were likely to exceed the value of the goods seized.

(4) In his mind Mr Morgan associated magistrates' court proceedings with criminal proceedings, so that to fail in the condemnation proceedings would result in his having something of the stigma of a criminal – by contrast, tribunal proceedings were civil proceedings where failure carried no such stigma.

(5) In the evidence of Mrs McGuire, in the days leading up to the hearing at the Portsmouth Magistrates' Court Mr Morgan was in a state of considerable mental agitation about his case, such that he was attending his doctor, and in consequence his family urged him not to attend the hearing for the good of his health, and he acceded to their requests.

We now have to ask ourselves whether these reasons for not challenging the lawfulness of the seizure in the condemnation proceedings which he had begun justify Mr Morgan's decision not to put his case to the Portsmouth Magistrates' Court. We have reached the conclusion that Mr Morgan had the opportunity to put his case to the Portsmouth Magistrates' Court and that he should have done so – his reasons for not doing so, although significant no doubt to Mr Morgan, do not, when viewed objectively, provide grounds for us to say that he was placed in a position where he reasonably could not or should not have put his case as to the legality of the seizure of the goods to the magistrates' court.

Taking in turn each of his reasons:

(1) Mr Morgan's understanding that he had the option to choose to put the matter before the tribunal once his appeal to the tribunal had been lodged was not an understanding based on the position as it was explained to him by the Commissioners. We wholly understand that for the layman caught up in the intricacies of the law relating to the seizure of goods and the Commissioners' discretion to restore, these are legal matters which are highly technical and complex, which even the Court of Appeal has struggled to apply. Nevertheless, we are of the view that in Mr Morgan's case the Commissioners took care to set out the position as clearly as they could, and did so on several occasions, so that he should have understood that it was before the magistrates' court, and not before the tribunal, where he had to argue his case that the tobacco was held by him for his own use and for gifts for his children.

(2) The magistrates' court has the jurisdiction to hear condemnation proceedings and is well used to hearing importers argue their own case without legal representation. There is no basis for any claim that Mr Morgan would have had less of a fair or considerate hearing of his case before the magistrates' court than before the tribunal.

(3) There might well be a difference in the policy of the Commissioners with regard to costs in the magistrates' court and in the tribunal, but that issue was examined in the Dawkin case, as mentioned above (see paragraph 16). In that case the costs factor was held not to be a matter which entitled the importer to withdraw from condemnation proceedings and instead argue the legality of the seizure of the goods before the tribunal. In Mr Morgan's case we note that the amount of the costs (estimated in their initial letter at £1,500, but the costs awarded appear to be £4,272.50) significantly exceeded the value of the goods seized (estimated at £590), but we do not see that as a factor which enables us to depart from the decision in the Dawkin case on this point.

(4) Mr Morgan told us that he had had, prior to this case, no entanglement with the law, so that his concerns about the risk of being found "guilty" by a magistrates' court were real to him. He thought that result would affect adversely his esteem and standing. We do not doubt the reality of this concern to Mr Morgan. But this, of course, arises from a misunderstanding of the nature of the proceedings before the magistrates' court, and cannot, objectively, be a good ground for claiming that he was effectively precluded from putting his case before the magistrates' court when the law has specified that the magistrates' court is the forum for hearing and determining that question.

(5) The question of Mr Morgan's mental state in anticipation of the hearing before the Portsmouth Magistrates' Court was a factor to which we gave particular attention. Having seen the extent and vigour of Mr Morgan's correspondence with the Commissioners and others before the hearing, having heard him present his case to us, and having heard the evidence of Mrs McGuire on the point, which we accepted, we have little doubt that Mr Morgan was very agitated at the prospect of the proceedings at the Portsmouth Magistrates' Court and can fully understand if his family urged him not to attend. But we have to look at this matter objectively in applying the law. For any person deeply involved in a case which has caused him much anguish it will be an ordeal to go before a court to have that case heard, not least in circumstances where the opponent is a government body whose officers are expert in the field and which is represented by experienced lawyers. We cannot see that there is, so to speak, any special ordeal or stress in appearing before a magistrates' court rather than before a tribunal when the question to be decided is the purpose for which the seized goods were held. Mr Morgan was well supported by his family at the tribunal hearing (in particular by Mrs McGuire, who gave good and clear evidence) and no doubt with such support could have given a good account of his case had he presented it to the Portsmouth Magistrates. The law, as appears from the recent cases we refer to above, requires that we ask ourselves whether this was such a factor that, looking at the matter objectively, it was unreasonable to expect Mr Morgan to have to put his case before the magistrates' court in the condemnation proceedings. Our decision is that it is not such a factor – he could have put his case in those proceedings, and he should have done so if he wanted to challenge the legality of the seizure of the tobacco by the Commissioners.

The abuse of process issue – our decision

For these reasons we decide that Mr Morgan had the opportunity to argue his case in the condemnation proceedings as to the use for which the tobacco was held by him (and hence as to whether the tobacco was legally seized by the Commissioners), and that there are no factors which can reasonably and objectively be regarded as effectively having shut him out from arguing his case in such proceedings. It was Mr Morgan's choice to step back at the eleventh hour from putting his case to the Portsmouth Magistrates' Court, and that court reached its decision to condemn the tobacco on the basis of the only evidence before it. In these circumstances, having regard to the case law as described above, it would therefore be an abuse of the process of law to allow Mr Morgan to seek to challenge the legality of the seizure before the tribunal in restoration proceedings. Following the Gascoyne case, no Convention rights are infringed in Mr Morgan's circumstances by our decision not to allow Mr Morgan to argue before the tribunal that he held the tobacco for his own use and as a gift.

We accept that the position in Mr Morgan's case is not as clear-cut as that identified by Buxton LJ where there are actual condemnation proceedings at which the importer appears to put his case and thereby "has his day in court" (see paragraph 17 above) – Mr Morgan did not have his day in court. He did, however, have his opportunity to have his day in court, and chose to forego that opportunity for a number of reasons which in his mind justified that decision, but which we consider should not be regarded as good grounds for saying that he was in substance put in a position where he had had to forego that opportunity.

Before turning to the remaining matter we have to consider in respect of the restoration proceedings we mention the following. In the course of the tribunal hearing Mr Morgan (with assistance of evidence given by Mrs McGuire) did have the opportunity to put his case that the tobacco was intended for his own use and as a gift for members of his family. He had evidence from his bank statement that he had received, shortly before his trip, a rebate from his gas and electricity supplier of an amount which approximated to the cost of the tobacco, and he told us that he had decided to spend that rebate on buying the tobacco as gifts for his four children who smoke hand-rolled cigarettes, according to the brands they preferred. He told us that he had made frequent "mini-cruise" trips to Bilbao since the death of his wife as he found it difficult to remain in his home and the "mini-cruises" were, in the off-peak season, a cheap way of spending time away from home, and he found the ferry journeys conducive to working on a book he is writing. He told us that he had not, on previous trips, purchased cigarettes or tobacco beyond amounts for his own use. He explained that he had not been able to produce receipts for his purchase of the tobacco to Officer Rogers as he had left them, and a number of personal effects, in his cabin on the ferry. He vigorously contested (as he had done throughout in correspondence) the account recorded by Officer Rogers as to the £30 had had received from his son, asserting that it was a gift for him to treat himself on the ferry rather than payment for, or a contribution towards the cost of, the tobacco.

Since we have concluded that we cannot in these restoration proceedings decide the question of whether the tobacco was lawfully seized by the Commissioners we can make no findings of fact as to the purpose or use for which the tobacco was held by Mr Morgan when it was imported. We do regard it as a matter of regret, however, that Mr Morgan did not pursue his case in these terms before the magistrates' court in the condemnation proceedings which he initiated, since in our view his case had credibility.

The issue as to the Commissioners' discretionary decision not to restore the goods – the factors taken into account in making the decision

We now turn to the remaining question we have to determine: given that the decision of the officer concerned not to restore the tobacco cannot be challenged by reference to the legality of the seizure of the goods, was that officer's decision a reasonable exercise of the discretion vested in him to determine whether or not the tobacco should be restored to Mr Morgan?

The decision we are concerned with is that of Mr Wood set out in his letter of 17 July 2008 to Mr Morgan. In that letter Mr Wood set out the date and place of the seizure of the goods and the details of the seized goods themselves and the amount of excise duty not paid. He summarised the general policy of the Commissioners in relation to restoration (namely, that goods seized because of an attempt to evade payment of duty are not normally restored, but that each case is examined on its merits to determine whether or not restoration should be offered exceptionally). He explained that he had looked at all of the circumstances surrounding the seizure of the goods, but had not considered the legality or the correctness of the seizure itself, which would be a matter to be decided by a magistrates' court. He concluded that there were, in Mr Morgan's case, no exceptional circumstances that would justify a departure from the Commissioners' policy, so that the goods would not be restored.

Mr Wood gave evidence to us. He explained that in reaching his decision he had relied on a number of documents, including the notebook of Officer Rogers (the seizing officer), and correspondence from Mr Morgan to the Commissioners (the letter of 6 March 2008 which was treated as the restoration request and subsequent letters in relation to the condemnation proceedings). In cross-examination by Mr Morgan at the hearing Mr Wood accepted that the papers he had relied on had not set out Mr Morgan's case as it had emerged in subsequent correspondence and in the course of the hearing, but he said that his decision would have remained the same even if he had had the benefit of hearing Mr Morgan in person. What seems clear to us from a reading of the correspondence is that, as at the time Mr Wood reached his decision, Mr Morgan had not clearly articulated the point that the £30 he received from his son was a gift to Mr Morgan for his own benefit, unrelated to Mr Morgan's decision to spend his gas and electricity rebate on purchasing the tobacco.

For the Commissioners Mr Jones submitted that the decision of Mr Wood not to restore the goods was reasonable. Mr Wood was not concerned with the legality of the seizure of the goods, but nevertheless in reaching his decision had taken into account the key factors, as they were then available to him, concerning the goods and the purpose for which they were held. It was reasonable to assume that duty had been evaded, and Mr Wood had applied the stated policy of the Commissioners as to restoration. He had considered whether there were exceptional circumstances which could justify his departing from that general policy, but had concluded that there were none. In view of the amount of duty which Mr Wood considered had been evaded, Mr Wood had concluded that seizure was justified and that the goods should not be restored: his decision was therefore reasonable and proportionate.

The issue as to the Commissioners' discretionary decision not to restore the goods – our decision

In reviewing Mr Wood's decision not to restore the tobacco we are not to substitute the decision which we might have reached, but instead we are to ask whether the Commissioners could reasonably have come to the decision which Mr Wood reached not to restore the goods, taking into account all the relevant information which was (or should have been) available to Mr Wood, and disregarding anything irrelevant.

We see no basis for challenging Mr Wood's decision. He had regard to the evidence of the seizing officer, and he had regard to Mr Morgan's objections to that evidence and to the seizure to the extent that Mr Morgan had set out his side of the story by the time Mr Wood reached his decision. It is true that the underlying assumption on his part was that the seizure was lawful, but he knew that that was an issue which would be determined in due course in the condemnation proceedings which were then underway – and of course if the goods were not condemned in those proceedings the question of restoration would not arise. Mr Wood's decision was fair in that it properly applied to Mr Morgan's circumstances the stated policy of the Commissioners in relation to restoration. We also accept the argument of Mr Jones that, having regard to the case law on the point (and in particular the case of Lindsay v Customs & Excise Commissioners (2002) 1 WLR 1766), Mr Wood's decision not to restore the seized tobacco was proportionate having regard to the duty which Mr Wood considered had been evaded.

Therefore, on the only issue open to us to decide, namely, whether Mr Wood's decision not to restore the seized tobacco was reasonable (a decision we have to take without considering the legality of the seizure or the underlying facts which pertain to the legality of the seizure, those being matters which were conclusively decided by the Portsmouth Magistrates' Court), we decide that Mr Wood reached a reasonable decision.

We therefore dismiss Mr Morgan's appeal to the tribunal.

Costs

We have two observations to make as to the question of costs.

First, in relation to the costs of the Commissioners in this appeal, we note that in their statement of case the Commissioners indicate that they will apply for costs against Mr Morgan if, as is now the case, his appeal is dismissed. At the hearing Mr Jones did not address us on the question of costs.

In our view it would not be appropriate in this case to award costs to the Commissioners should they subsequently decide to apply to the tribunal for a costs order. On 9 June 2008 the Head of Customer Services at the Commissioners wrote to Mr Morgan's Member of Parliament (Mr Morgan had asked his MP to take up his case with the Commissioners). In the course of that letter there is extensive reference to Mr Morgan's case and to the condemnation proceedings then in progress. It is mentioned that should the decision in the condemnation proceedings go against Mr Morgan, "he could face a contribution to costs". The letter then continues to say that Mr Morgan has not availed himself of the opportunity of requesting restoration of the goods (this, merely for the sake of the record, is a mistake, since by this date the Commissioners had decided to treat Mr Morgan's letter of 6 March 2008 as a request for restoration, as they advised him on 30 May 2008), and continues further, "A review or an ultimate appeal to a Tribunal does not require legal representation and HMRC do not normally seek any costs." We note the use of the word "normally", and recognise that qualification, but nevertheless, in the context of a letter written at a senior level by the Commissioners to a Member of Parliament in relation to his constituent, we think that Mr Morgan might reasonably conclude that his particular appeal to the tribunal would be without risk as to costs, and commence his appeal on that understanding.

Our second observation as to costs concerns the order for condemnation made by the Portsmouth Magistrates' Court on 28 November 2008, where Mr Morgan is ordered to pay the Commissioners £4,272.50 which we assume is, or is largely, in respect of their costs. A costs order made in a magistrates' court is, of course, a matter in which we have no jurisdiction whatsoever. However, as the only tribunal which has examined this entire case we do express some surprise at the size of this award, not least since Mr Morgan was advised by the Commissioners in their letter of 8 April 2008 in relation to the condemnation proceedings that should the Commissioners succeed, "We will also ask the Court to order you to make a contribution towards our costs, which are likely to be not less than £1,500." We recognise that this figure is stated as a likely minimum, but it might fairly be regarded as misleading when the actual costs claimed appear to be more than three times that amount – a public body acting responsibly should in these circumstances be expected to give a reasonable estimate of its likely costs so that a litigant preparing to act against it can weigh up the risks – including the risks of costs – before embarking on that litigation. We have no knowledge as to whether Mr Morgan in entitled at this stage to seek to challenge this costs order, but even if he is he may, without proper representation (which is unlikely in practice to be an option for him) find it difficult to do so. In all the circumstances of this case, and having regard also to the value of the goods seized, the Commissioners may wish to consider whether it is appropriate for them to pursue the full extent of the order in their favour.

EDWARD SADLER

TRIBUNAL JUDGE

RELEASE DATE:

Annex – A summary of the legislation about excise duty on tobacco products

The Directive

Article 99 of the Treaty of Rome (now Article 93 EC) provides that the Council of Ministers of the European Community should adopt provisions for the harmonisation of legislation concerning excise duties. The main excise duty directive was adopted on 25 February 1992 and is Council Directive (EEC) No. 92/12 on "the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products". The directive applies to mineral oils, alcohol and tobacco. The principles are set out in the recitals to the Directive and the sixth and seventh recitals provide:

"Whereas in the case of products subject to excise duty acquired by private individuals for their own use and transported by them, the duty must be charged in the country where they were acquired;

Whereas to establish that products subject to excise duty are not held for private but for commercial purposes, Member States must take account of a number of criteria."