United Kingdom VAT & Duties Tribunals (Customs) Decisions

Mackay v Revenue & Customs [2008] UKVAT(Customs) C00263 (27 August 2008)

C00263

Import of offensive weapon by post: postal packet intercepted and goods seized; restoration refused; refusal reasonable; Appeal refused.

EDINBURGH TRIBUNAL CENTRE

IAN GEORGE MACKAY Appellant

- and - THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents Tribunal: (Chairman): Mrs G Pritchard, BL., MBA., WS
Sitting in Edinburgh on Wednesday 13 August 2008

for the Appellant Heard on Papers Only

for the Respondents Mr Nick Brown, Barrister

© CROWN COPYRIGHT 2008.
 


DECISION

This is an appeal against a decision by Customs to refuse to exercise their discretion to restore seized goods under S152(b) of the Customs & Excise Management Act 1979 (CEMA) made on 28 March 2008.

Mr Mackay did not appear but had made a written submission to the Tribunal acknowledging the terms of the Customs Statement of Case but requesting the Tribunal:

(a) to restore the goods;

(b) to restore at least the handle of the goods; or

(c) to ask Customs to send the goods back to the supplier in the United States of America so he could get his money back.

His grounds were:

(1) that he was low-risk and not a criminal;

(2) that other folk had military regalia, and that;

(3) if at least the handle was returned, he could since he held the successfully imported umbrella element associated with the seized goods, have a useful umbrella.

Customs was represented by Mr Nick Brown, Barrister. Mrs Lynn Witham (formerly Weavers) was available to give verbal evidence. She simply confirmed her identity and the terms of the letter of 28 March 2008 upholding the decision not to restore. This is the appeal decision.

The written evidence consisted of the correspondence between the Appellant and Customs which both parties held. A bundle of documents including the correspondence had been prepared by Customs and was numbered 1-8. A list of these was appended to their Statement of Case which had also been sent to the Appellant as well as provided for the Tribunal. It consisted of the said correspondence and also a copy of information from the internet about swordsticks, and about the American supplier of the seized goods. Where reference is made to any of these items they shall be treated as repeated here. A first preliminary matter arose about whether Mr Mackay had the opportunity and access to the website material. It was established that he had by virtue of the final paragraph of the Customs Statement of Case which had been sent to the Appellant on 22 May 2008.

A second preliminary issue arose which is clarification for the Appellant of the Tribunal's function in excise restoration appeals.

This is set out in Section 16(4) of the Finance Act 1994, which states:-

where the tribunal are satisfied that the Commissioners or other persons making that decision could not reasonably have arrived at it, to do one or more of the following, that is to say-

(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 taken effect and cannot be remedied by a further review, to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future.

The Appellant's grounds of appeal do not reflect the Tribunal's role so I am dealing with this as a request to test the reasonableness of Customs decision of 28 March 2008 to see if it is open to the Tribunal to request a further review.

From the evidence provided I find the following facts:

1. The Appellant lives in Unst, the most northerly island in the United Kingdom. One of his interests is collecting memorabilia of the television series "The Avengers" which starred Patrick McNee as John Steed in the 1960s. He has many bowler hats and umbrellas which were the signature items worn by the actor in that role.
2. When browsing the internet he found advertised a sword-umbrella which was a Fayet sword-gadget Stick Umbrella which he purchased over the internet from a source in the United States of America (USA).
3. The goods arrived at Coventry International Hub Post Office from the USA on 11 January 2008 and were intercepted by HM Revenue & Customs (Customs) as the USA Customs Declaration and Dispatch Note indicated the contents as "Fayet sword-gadget Stick Umbre" (sic). It was also noted on this declaration that the contents of the parcel were a gift to the Appellant, which was untrue, and not therefore a proper description. The supplier's website declares such a practice as having the purpose of avoiding duty.
4. Customs seized the sword element, called the swordstick, on 11 January 2008 (the seized goods) as the goods they had found on opening the parcel met the criteria of an offensive weapon as described in The Criminal Justice Act 1988 (Offensive Weapons) Order 1988. Importation of such an offensive weapon is prohibited.

In particular the concern was that these seized goods were part of an object designed to conceal the knife element, so that the object had the appearance of an everyday object in this case an umbrella. Section 16 of the Postal Packets (Customs & Excise) Regulations 1986 applied as they had not been accurately described. This also gave grounds for seizure.

5. On 15 January 2008 Customs wrote to the Appellant (Prod 4) advising him of their action, giving reasons and advising him of his right to challenge the seizure through Condemnation Proceedings and of his separate right to request restoration.
6. The seizure was not challenged. The seized goods are therefore treated as condemned and have been destroyed.
7. The Appellant sought restoration which is a discretionary power granted to Customs for use in exceptional circumstances.

NOTE: It is mainly applied in circumstances where imports are being transported into the UK with the importer. Then, all means of transportation are liable to forfeit with seized goods. So drugs or cigarettes illegally imported may lead to seizure of a wheelchair or car as the means of transportation.

Terms for restoration may be offered in these circumstances when the goods will be restored on payment of duty or a fee. The Appellant was advised the discretion is not applied to restoration of offensive weapons.

8. He did however ask for the matter of restoration to be considered and Customs refused to restore, a decision which was upheld on the review of 28 March 2008 when the Appellant requested a review.
9. The Appellant has only ever asked for rather different solutions to be applied to what he saw as a problem namely requesting the seized goods be returned to the sender and/or to have the sword blunted or just the handle sent on to him. None of these are options open to Customs or this Tribunal.

Decision

I refuse the appeal. I find the decision of Customs to refuse to restore the seized goods to be reasonable.

Reasons

The swordstick is an offensive weapon which may not be imported into the United Kingdom, and which may not be held by the Appellant. It was reasonable for Customs to refuse to restore this since it would have involved Customs officers becoming involved in illegal activities. Once seized goods are condemned they are destroyed or disposed of by Customs. There is no possibility of Customs providing the Appellant with the handle he requested or allowing the swordstick to re-enter the postal system by returning the swordstick to the supplier. It is any importer's responsibility to meet import regulations which clearly the Appellant had not. No-one doubted his genuine collecting habit but that is not a reason to restore. In addition the goods were mis-declared as a gift when in fact they were purchased. From the website printout of the suppliers' details it is clear the Appellant knew or could have known of the likelihood of such a mis-declaration to circumvent import duty. I also consider that is sufficient reason to refuse to restore.

Law used to make this decision

1. S152(b) Customs & Excise Management Act 1979 which provides that Customs may "restore, subject to such conditions (if any) as they think proper any thing forfeited or seized".

2. S16(4) of the Finance Act 1994 which is already quoted at P4.

3. S141 Criminal Justice Act 1988

"Offensive Weapons" …

(2) The Secretary of State may by order made by Statutory Instrument direct that this section shall apply to any description of weapon specified in the order …

(4) The importation of a weapon to which this section applies is hereby prohibited.

(119) The Scottish Ministers may by order made by Statutory Instrument modify the application of this section in relation to any description of weapon specified in the order.

4. The Criminal Justice Act 1998 (Offensive Weapons) Order 1988 SI 1988/2019

(b) a swordstick, that is, a hollow walking stick or case containing a blade which may be used as a sword;

(o) a disguised knife, that is any knife which has a concealed blade or concealed sharp point and is designed to appear to be an everyday object of a kind commonly carried on the person …

5. The Criminal Justice Act 1988 (Offensive Weapons) (Scotland) Order 2005 SI 2005/483 which is in similar terms and would apply if the offensive weapon reached Scotland.

6. Postal Packets (Customs & Excise) Regulations 1986 SI 1986/260

7… every postal packet brought into the United Kingdom containing dutiable goods shall have affixed to it or be accompanied by, a customs declaration fully stating the nature, quantity and quality of the goods which it contains or of which it consists, and such other particulars as the Commissioners or the postal operator may require.

7, 16… If dutiable goods are brought by post into the United Kingdom in any postal packet contrary to Regulation 6 of these Regulations, or if any postal packet or mail bag to which Regulations 7, 8 and 9 of these Regulations or any of them apply does not contain, does not have affixed or attached to it, or is not accompanied by, the declaration, or does not bear the green label, required by those Regulations or any of them, or if the contents of any postal packet do not agree with the green label or customs declaration affixed or attached to the packet, or by which it is accompanied, or if the other requirements of these Regulations or any of them are not complied with in every material respect, then in every such case the postal packet or mail bag and all its contents shall be liable to forfeiture.

MRS G PRITCHARD, BL., MBA., WS CHAIRMAN
RELEASE: 27 AUGUST 2008

EDN/08/7004