United Kingdom VAT & Duties Tribunals (Excise) Decisions

Clarke & Anor v Customs and Excise [2002] UKVAT(Excise) E00373 (28 November 2002)

E00373

EXCISE DUTIES – Non-restoration of seized car, alcohol and tobacco – Car owned by passenger's wife – Whether reviewing officer arrived at reasonable decision – Burden of proof considered – Hoverspeed and Lindsay applied – Appeal allowed

LONDON TRIBUNAL CENTRE

MR IAIN CLARKE First Appellant

MRS L CLARKE Second Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: MISS J C GORT (Chairman)

MR R D CORKE

Sitting in public in Bristol on 15 and 16 October 2002

The Appellants appeared in person

Mr B Collins of counsel, instructed by the Solicitors for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2002

DECISION

1. This is an appeal against a decision of the Respondents contained in a letter dated 25 October 2001 to uphold a decision not to offer for restoration Mrs Clarke's vehicle and 46.5 kg of hand-rolling tobacco and 48 litres of beer seized by the Respondents on 4 August 2001.

The background

2. On 4 August 2001 Mr Iain Clarke and Mr Roger Napper were stopped by Customs officers at Eastern Docks Dover at about 4.30pm. They were travelling in Mrs Clarke's car. Both men were spoken to and subsequently were both formally interviewed.
3. Following the interview the car and the tobacco and lager belonging to Mr Clarke were seized, Mr Napper had purchased a case of wine which he was allowed to keep.
4. Correspondence followed between the parties and Mr Clarke requested restoration of his goods and Mrs Clarke requested restoration of the vehicle.
5. By a letter dated 17 August 2001 the Respondents informed Mrs Clarke that the vehicle was not going to be offered for restoration and by a letter of the same date Mr Clarke was informed that the seized goods would not be offered for restoration. A review of both decisions was requested by a letter dated 12 September 2001 written by solicitors acting for the Appellants.
6. The matter was reviewed by a Mrs Florence who upheld the original seizure of both the goods and vehicle.

The law

7. The Excise Duties (Personal Reliefs) Order 1992 (S.I. 1992/3155) provides among other things:

"2 Interpretation

(1) IN THIS Order –

"own use" includes use as a personal gift provided that if the person making the gift receives in consequence any money or money's worth (including any reimbursement of expenses incurred in connection with obtaining the goods in question) his use shall not be regarded as own use for the purpose of this Order.

3. Relief from duty of excise – cross-border shopping

Subject to the provisions of this Order a Community traveller entering the United Kingdom shall be relieved from payment of any duty of excise on excise goods which he has obtained for his own use in the course of cross-border shopping and which he has transported himself.

5. Relief from duty of excise – conditions

(1) The reliefs afforded under this Order are subject to the condition that the excise goods in question are not held or used for a commercial purpose whether by the Community traveller who imported them or by some other person who has possession or control of them; and if that condition is not complied with in relation to any excise goods, those goods shall, without prejudice to article 6 below, be liable to forfeiture.

(2) In determining whether or not the condition imposed under paragraph (1) above has been complied with, regard shall be taken of –

(a) his reason for having possession or control of those goods;

(b) whether or not he is a revenue trader;

(c) his conduct in relation to those goods and, for the purposes of this sub-paragraph, conduct includes his intentions at any time in relation to those goods;

(d) the location of the goods;

(e) the mode of transport used to convey those goods;

(f) any document or other information whatsoever relating to those goods;

(g) the nature of those goods including the nature and condition of any package or container;

(h) the quantity of those goods;

(i) whether he has personally financed the purchase of those goods; and

(j) any other circumstance which appears to be relevant

(3) Paragraphs (3A) to (3C) below apply to a person who has in his possession or control any excise goods afforded relief under this Order in excess of any of the quantities shown in the Schedule to this Order.

(3A) The Commissioners may require a person to whom this paragraph applies to satisfy them that the excise goods afforded relief under this Order are not being held or used for a commercial purpose.

(3B) Where a person fails to satisfy the Commissioners that the excise goods in question are not being held or used for a commercial purpose the condition imposed by paragraph (1) above shall, subject to paragraph (3C) below, be treated as not being complied with.

(3C) Paragraph (3B) above shall not apply where a court or tribunal is satisfied that the conditions imposed by paragraph (1) have been complied with.

6. Non-compliance with conditions

(1) Where at any time any person who has possession or control of any excise goods which have been afforded relief under this Order forms an intention or takes any steps to hold or use them for any commercial purpose, save as the Commissioners may otherwise allow, he shall –

(a) notify the Commissioners of his intention forthwith; and

(b) on demand pay to the Commissioners the duty of excise charged on them.

SCHEDULE

Article 5

QUANTITIES OF EXCISE GOODS SPECIFIED

FOR THE PURPOSE OF

PARAGRAPH (3) OF ARTICLE 5

Tobacco products

(a) 800 cigarettes;

(b) 400 cigarillos (that is to say cigars weighing not more than 3 grammes each);

( c) 200 cigars;

(d) 1 kilogramme of tobacco products other than in a form mentioned in paragraph (a), (b) or (c) above;

Alcoholic beverages

(e) 10 litres of spirits;

(b) 20 litres of intermediate products (that is to say products defined as intermediate products in Article 17(1) of the Council Directive 92/83/EEC);

(g) 90 litres of wines (but only 60 litres may be sparkling wines);

(h) 110 litres of beer.

2.2 Section 49 of the Customs and Excise Management Act 1979 provides:

(1) Where –

(a) except as provided for under the Customs and Excise Acts 1979 any imported goods, being goods chargeable on their importation with customs or excise duty, are, without payment of that duty –

(i) unshipped in any port,

(ii) unloaded from any aircraft in the United Kingdom,

(iii) unloaded from any vehicle in or otherwise brought across the boundary into, Northern Ireland, or

(iv) removed from their place of importation or from any approved wharf, examination station or transit shed …

those goods, subject to subsection (2) below, be liable to forfeiture.

2.3 Section 139 of CEMA provides:

(1) Any thing liable to forfeiture under Customs and Excise Acts may be seized or detained by any officer or constable or any member of Her Majesty's armed forces or coastguard.

2.4 Section 141 of CEMA provides:

(1) Without prejudice to any other provision of the Customs and Excise Acts 1979, where any thing has become liable to forfeiture under the Customs and Excise Acts –

(a) any ship, aircraft, vehicle, animal, container (including any article of passenger's baggage) or other thing whatsoever which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture, either at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and

(b) any other thing mixed, packed or found with the thing so liable.

Shall also be liable to forfeiture.

2.5 Schedule 3 of CEMA provides

PROVISIONS RELATING TO FORFEITURE

Notice of Seizure

1-(1) The Commissioners shall, except as provided in sub-paragraph (2) below, give notice of the seizure of any things as liable to forfeiture and of the grounds therefor to any person who to their knowledge was at the time of the seizure the owner or one of the owners thereof.

(2) Notice need not be given under this paragraph if the seizure was made in the presence of –

(a) the person whose offence or suspected offence occasioned seizure; or

(b) the owner or any of the owners of the thing seized or any servant or agent of his; or

(c) in the case of anything seized in any ship or aircraft, the master or commander.

2-(2) Notice under paragraph 1 above shall be given in writing and shall be deemed to have been duly served on the person concerned –

(a) if delivered to him personally; or

(b) if addressed to him or left or forwarded by post to him at his usual or last known place of abode or business or, in the case of a body corporate, at their registered or principal office; or

(c) where he has no address within the United Kingdom or the Isle of Man, or his address is unknown, by publication of notice of the seizure in the London, Edinburgh or Belfast Gazette.

Notice of Claim

3. Any person claiming that any thing seized as liable to forfeiture is not so liable shall, within one month of the date of the notice of seizure or, where no such notice has been served on him, within one of the date of the seizure, give notice of his claim in writing to the Commissioners at any office of Customs and Excise.

4-(1) Any notice under paragraph 3 above shall specify the name and address of the claimant and, in the case of a claimant who is outside the United Kingdom and the Isle of Man, shall specify the name and address of a solicitor in the United Kingdom who is authorised to accept service of process and to act on behalf of the claimant.

(2) Service of process upon a solicitor so specified shall be deemed to be proper service upon the claimant.

Condemnation

5. If on the expiration of the relevant period under paragraph 3 above for the giving of 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 above is not complied with, the thing in question shall be deemed to have been duly condemned as forfeit.

2.6 Under section 152 of CEMA, the Commissioners have the power to mitigate penalties.

152 Power of the Commissioners to mitigate penalties, etc

The Commissioners may, as they see fit –

(a) stay, sist or compound any proceedings for an offence or for the condemnation of any thing as being forfeited under the Customs and Excise Acts; or

(b) restore, subject to such conditions (if any) as they think proper, any thing forfeited or seized under those Acts.

SCHEDULE 5

DECISIONS SUBJECT TO REVIEW AND APPEAL

The Management Act

2-(1) The following decisions under or for the purposes of the Management Act, that is to say –

( r) any decision under section 152(b) as to whether or not any thing forfeited or seized under the Customs and Excise Acts is to be restored to any person or as to the conditions subject to which any such thing is so restored.

2.7 Under section 15(1) of the Finance Act 1994 where the Respondents are required to review any decision, it shall be their duty to do so.

Section 15 FA, Review procedure

(1) Where the Commissioners are required in accordance with this Chapter to review any decision, it shall be their duty to do so and they may, on that review, either –

(a) confirm that decision; or

(b) withdraw or vary the decision and take such further steps (if any) in consequence of the withdrawal or variation as they may consider appropriate.

2.8 Section 16 FA, Appeals to a tribunal, provides:

(1) Subject to the following provisions of this section, an appeal shall lie to an appeal tribunal with respect to any of the following decisions, that is to say –

(a) any decision of the Commissioners on a review under section 15 above (including a deemed confirmation under subsection (2) of that section; …

(4) In relation to any decision as to an ancillary matter, or any decision on review of such a decision, the powers of an appeal tribunal on an appeal under this section shall be confined to a power, where the tribunal are satisfied that the Commissioners or other person 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 further review, to declare the decision to have been unreasonable and to given directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not recur when comparable circumstances arise in future.

8. Article 1 of the 1^st Protocol of the ECHR provides as follows:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding revisions shall not, however, in any way impair the right of a statement to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

9. The Tribunal was referred to the following cases:

Goldsmith v Customs and Excise Commissioners [2001] WLR 1673

Lindsay v Customs and Excise Commissioners [2001] V&DR 219

Hoverspeed Ltd v Customs and Excise Commissioners [2002] 3 CMLR 17

Bowd v Customs and Excise Commissioners [1995] V&DR 212

Berry v Customs and Excise Commissioners [1995] V&DR 204

Sporrong & Lonroth v Sweden (1982) 5 EHRR 35

Dereczenik v Customs and Excise Commissioners Tribunal Dec No C00138

The evidence

10. Both parties produced bundles of documents to the Tribunal. We heard oral evidence from Mr and Mrs Clarke and from Mr Trevor Alan Clarke (Mr Clarke's brother) and Mr Roger Napper on behalf of the Appellants. We heard from the following on behalf of the Respondents: Mr I McKenzie, Ms J Harvey, Miss E Florence and Mr G Dolan. The first two named officers called on behalf of the Commissioners produced their notebooks to the Tribunal.
11. The facts of this case were, by and large, not in dispute. Mr Clarke and Mr Napper had arrived at Eastern Docks, Dover, at around 4.30pm in Mrs Clarke's car which was being driven by Mr Napper. They had been on a week's fishing trip to France which had cost in the region of £300 for each man. They had, by and large, had an unsuccessful week's fishing save in except that on the last day Mr Clarke had succeeded in catching a fish far larger than any he had caught before, which gave him much pleasure. However, in the course of the week he had become both sun burnt and bitten by mosquitoes, and on 4 August the men had had to get up at 5 o'clock in the morning in order to catch their ferry back to England.
12. Mrs Clarke's car was being used because of the quantity of fishing gear which both men needed to take, and Mr Napper's car was too small to accommodate it. Mr Clarke himself did not drive. The value of the fishing equipment was some £10,000. Mrs Clarke had given her permission for the car to be used for the fishing trip and was aware that Mr Clarke intended to buy some tobacco both for their own personal use and for members of the family. Both Mr and Mrs Clarke were reasonably heavy smokers. Mr Napper was not a smoker.
13. Mr Clarke's evidence, which on this aspect was unchallenged, was that on arrival at the crossing point he had seen a large sign saying "Eastenders". He and Mr Napper had gone in there and purchased the lager and wine. He had asked about the purchase of tobacco and had been directed to another Eastenders' outlet just over the border in Belgium. He had described that outlet as being no more than a shed. At the check out in the first Eastenders store he had been given a piece of paper which said he was allowed to get as much alcohol as he wanted if it was for personal use and for his family, and not for resale. At the second Eastenders store he said to the assistant that he wanted some tobacco and asked how much he was allowed. He was told by the woman serving that he could take as much as he liked as long as it was for himself and was not for resale. He was in an exhilarated state because of his success in catching such a large fish the previous day, and he was therefore feeling extra generous. He used his credit card to make the purchase, having a limit on that card of £5,500. He had no outstanding charges on that card. He purchase £1,700 worth of hand-rolling Golden Virginia tobacco.
14. Mr Clarke was not challenged either when he said that he had had in mind tobacco for his family, including himself and his wife, his three brothers and their partners, and his three eldest children, all of whom smoked.
15. Because the back of the car was filled with fishing tackle, the boxes of tobacco would not fit in. Mr Clarke and Mr Napper therefore unpacked the boxes and packed the tobacco which was contained in pouches around the fishing tackle in full view of anybody looking through the car windows. At the rear of the car was the lager and wine, also in full view.
16. When they arrived at Dover they were stopped by Customs officers and questioned by Miss Harvey. She was told inter alia that it was Mr Clarke's first visit abroad and that his wife owned the car and had owned it for about three months. She asked the following question "Do you have any alcohol or tobacco in the vehicle?" Mr Clarke is recorded as replying: "Yes, about four cases of beer and five boxes of tobacco." At the hearing Mr Clarke challenged that the conversation had taken place in that form. His evidence was that he had been asked how many boxes of tobacco he had and he had replied that he did not know, whereupon Miss Harvey had asked him if it was about four or five boxes to which he had agreed. He in fact had not taken account of how many actual boxes of tobacco there were but he knew that he had spent £1,700. We prefer Mr Clarke's evidence on this point.
17. Neither Mr Napper nor Mr Clarke were aware of the Customs guidelines as to the amount of alcohol and tobacco they could bring in.
18. The Tribunal was not given clear evidence as to the exact sequence of events, but at some point the Customs officers unloaded the car and Mr Clarke and Mr Napper became concerned about their rough handling of the fishing equipment and took over the unloading themselves. Formal interviews were at some point conducted with each of them, these interviews being called "A-J" interviews. Mr Clarke in his interview said the tobacco belonged to his family and probably about 14 people would be smoking it. He had not been assisted financially with the purchase and intended giving it away as presents. He himself smoked two to three pouches a week and his wife smoked three to four pouches a week. He intended to keep as much tobacco as he and his wife needed to last a year or 18 months.
19. Mr Clarke gave his employment as being a supervisor/forklift driver and his income as being about £197 a week. He said he had no savings. He was unable to answer a question about his outgoings, saying that his wife did all the finances and that she worked in the employment service but he did not know what she earned.
20. Mr Napper was also interviewed and in the course of that interview he told Mr McKenzie that Mr Clarke had purchased the tobacco for himself and his family. Mr McKenzie introduced the interview in the following terms:

"You have in your possession excise goods in excess of the guidance levels, which for tobacco is 1 kg and cigarettes as 800. Relief from payment of UK excise duty is afforded subject to the condition that these goods are not held or used for a commercial purpose. I require you to satisfy me that these goods are not being used or held for a commercial purpose. If you fail to do so, then these goods and vehicle will be seized as liable to forfeiture. Do you understand?"

There is no record of any such words being used by Miss Harvey when she conducted the interview with Mr Clarke. At the end of the interview she asked him whether he had seen a Public Notice 1 before, to which he replied that he had not. He was then issued with a copy.

21. At some stage Mr Clarke and Mr Napper were asked to repack the car. As they started to do this they were stopped by a man Mr Clarke described as Miss Harvey's boss, a man he maintained had been present throughout. Miss Harvey disputed this and said that the man had only appeared later on. This is not an issue we feel it is necessary to resolve. This man, who did not give evidence before the Tribunal, told Mr Clarke that he was seizing the vehicle as it had been used for smuggling. Mr Clarke, and again his evidence was unchallenged on this point, said that he asked how he could be accused of "smuggling" when all the goods were on show? The man would not speak to him and Mr Clarke started to ring his wife to inform her what was happening when the man tried to remove his mobile phone, telling him he was confiscating it. It was common ground that by this time Mr Clarke was extremely angry. He at some stage asked for the Police to be called, and a Police officer did in fact arrive. The officer persuaded the senior Customs officer to let Mr Clarke use his phone to speak to his wife.
22. It was not disputed by Mr Clarke that he had become extremely angry and threatened to pour fuel over the vehicle. He did not dispute that he had used offensive and threatening language. However he said that he had been kept for many hours by the Customs officers, he was tired because of the early start, he was exhausted and he was very upset. He considered he had done nothing wrong in making the purchases.
23. Mr Napper and Mr Clarke were not able to leave the Docks until approximately 19.15 hours.
24. The following day, 5 August, Mr Clarke wrote to Customs and Excise a lengthy letter in which he set out various matters including the fact that it was the first time he had every been abroad, that he had been given a map at Eastenders which told him that he could take as much tobacco home for personal use as he wanted, he had bought enough for himself, his wife, his three brothers and their wives, his father and three of his four children and their respective partners, no money would have changed hands. He re-iterated that the tobacco was in full view, and that there had been no attempt to conceal anything. He stated that the car was his wife's and she would not be able to get to work without it because they lived in a rural area with poor or non-existent public transport. His wife worked 18 miles away. He stated that he had told this to the officers at the time and had been told "tough". He stated that he had brought back the amount he did because of the information he was given by Eastenders. His wife was a civil servant and he would not do anything illegal because that could rebound on her and she could lose her job. He gave the value of his wife's car as approximately £4,000 and re-iterated that she would probably lose her job because she could not get to work, and she earned approximately £15,000 per year. His wife had had to take unpaid leave in the meanwhile because she could not get to work. Loss of the car would cause them severe hardship and worry and they were not a rich family. He had been trying to save money by buying enough to last for a year or so. He pointed out that if he had in fact been bringing goods in for resale he could have said that half the tobacco belonged to Mr Napper and his family, but this had not been said. Finally he said that the information from Eastenders had been left in the glove box if they wished to check it.
25. HM Customs and Excise replied to this letter by a letter dated 7 August 2001 and in that letter they asked for proof of ownership of the vehicle. The final paragraph of that letter states:

"It is fair to advise you that the policy of HM Customs and Excise is not to restore excise goods unless you can establish exceptional circumstances."

No reference was made to the advisability of the Clarkes setting out their finances in detail. Both Mr and Mrs Clarke wrote letters dated 9 August 2001, and Mrs Clarke enclosed the relevant documents relating to her ownership of the car which showed that she had paid some £3,800 for it. In her letter she said that she needed the car back as soon as possible because she was unable to get to work as she lived in a rural area and public transport was almost non-existent. She worked 18 miles away in Yeovil and had been unable to get to work since the car was seized and would need to let her employer know when or if she was able to return to work. On the insurance document which she enclosed the approximate value of the car was given as £4,000.

26. By letter dated 17 August 2001 Customs and Excise wrote to Mrs Clarke saying inter alia that Mr Clarke had failed to satisfy the officer dealing with him that the goods were not being imported for a commercial purpose. A similar letter was sent to Mr Clarke.
27. By letter dated 20 August 2001 Mrs Clarke informed Customs and Excise that she had purchased the car by means of a loan and was unable to get a further loan. She had lost two weeks' wages through no fault of her own and was therefore having to hire a car at a cost of £105 per week.
28. Messrs Broomhead & Saul, solicitors acting on behalf of the Appellants, wrote to Customs and Excise on 12 September 2001. In that letter they stated that they wished for a review of the seizure on the basis that the tobacco and beer were not being imported for commercial purposes but for personal consumption by the Clarke family. They enclosed letters from Mr Trevor Clarke, Mr Nigel Clarke, Mrs Clarke, Mr G Clarke, Mr Roger Napper, Mr David Laws MP and a further letter from Mrs Clarke. That letter re-iterated the facts as seen by Mr Clarke and in addition stated that Mrs Clarke owned the car and was employed as a civil servant. If she were implicated in smuggling tobacco she would lose her job and this could cause great problems to Mr Clarke and the family. The solicitors did not see fit to set out the Clarkes' financial position.
29. The reviewing officer, Mrs Florence, gave evidence that she had taken account of all the above correspondence when reviewing the matter as well as both officers' records of interview, and various documents relating to the seizure.
30. In her review letter Mrs Florence wrote under a heading "consideration" as follows:

"It is for me to determine whether or not the contested decisions are ones which a reasonable body of commissioners could not have reached."

In her evidence she said that this did not reflect what she had in fact done, and that at a tribunal hearing earlier in the year she had been told that this was not the proper rôle of a reviewing officer. She said that she had in fact looked at all matters afresh relating to the goods and the vehicle. She had included that sentence because "we drew this up as a form of words to demonstrate what we did in the way we conducted the review. It had never been drawn to our attention before the Tribunal that it was an inappropriate form of words because it did not reflect what I as a reviewing officer was doing."

31. In her review letter Mrs Florence had referred to the information from Mr Clarke that he was unable at interview to provide details of his financial commitments as his wife dealt with those matters, and also that she worked. There is no reference in the review letter to Mrs Clarke's income, which was contained in Mr Clarke's letter of 5 August.
32. Mrs Florence recorded that Mr Clarke had said that the tobacco was for his family and that about 14 people would be smoking it, and that he had not been assisted financially in the purchase and he would give it away as presents.
33. In the course of her review letter Mrs Florence set out at length Mr Clarke's wild behaviour after being told the car and goods would be seized. In evidence she confirmed that she had taken this into account.
34. Under a heading "restoration policies" Mrs Florence had recorded that it was the department's general policy that seized excise goods should not be restored. She continued:

"However, each case is determined on its merits to determine whether or not restoration may be exceptionally offered. In conducting this examination the presence of any of the following factors will militate against restoration :

any evidence of previous instances of smuggling or failure to comply with legal requirements;

any evidence that the person involved knew that they were doing something wrong;

any evidence that they were paid to undertake the journey;

large quantity of goods which would damage legitimate trade;

any evidence that the goods were for a commercial purpose."

Mrs Florence accepted in evidence that the only one of those matters which was present in this particular case was the last one.

35. Mrs Florence stated as one of her reasons for confirming the officer's decision that Mr Clarke had "clearly misled" the officer over the amount of tobacco he was importing. He had "declared" five boxes, which would be in the region of 25 kilos, when in fact he was importing 46.5 kilos. We note that Miss Harvey had previously told the Tribunal that the tobacco had been imported in boxes containing 6 kilos of tobacco, and her record shows that Mr Clarke had said "about five boxes".
36. Under the heading "consideration" Mrs Florence also refers to Mr Clarke's behaviour following seizure of the car. She then continued as follows:

"As evidence of commerciality is one of the reasons under the Customs policies which preclude restoration, I am satisfied that the decision is in line with that policy and is correct. I can find no evidence which would support deviation from this policy. I have read the correspondence that was enclosed with your letter. However, I am of the view that Mr Clarke could not justify that level of spending on excise goods nor could he afford to give some of it away."

37. In conclusion Mrs Florence says "for the reasons above I exercise my option to confirm the officer's decision, the goods and vehicle will not be restored."
38. In her evidence to the Tribunal Mrs Florence said that she had considered that the amount of 45 kilos warranted consideration of whether the importation was commercial or not. From the information she had about Mr Clarke's financial situation it appeared to her that he could not afford to give this amount away for gifts and to keep for personal use. She calculated that the amount to be given away would approximate to about £1000 worth. Given that his income was only £197 per week and that he had in one letter made reference to not being a rich family she found this unreasonable. The value of the duty on the hand-rolling tobacco was £4,501.67. She told the Tribunal that at the time she made her review decision she had no information as to the value of the vehicle, and so she did not take this into consideration as it was the Commissioners' position that the policy was proportionate in its application. (This was not in fact the case, as a value of £4,000 had been referred to by Mr Clarke in his letter of 5 August 2001.)
39. At the time of the review she had not considered the distinction between commercial and "not for profit" smuggling. She considered that in the present case the smuggling was commercial and was for a profit, given the quantity, the level of Mr Clarke's income and the amount to be given away. In cross-examination she confirmed that she had not taken account of the fact that Mrs Clarke earned £15,000 per annum (this also had been mentioned in Mr Clarke's letter of 5 August 2001). She confirmed that she had given weight to the fact that Mr Clarke had in her view misled the officer, and she maintained that view. She had concluded that he had done so deliberately. She said she had drawn the conclusion that the boxes contained 5 kilos of tobacco but in fact she did know that there could be either 5 or 6 kilos per box.
40. Mr Dolan was the Senior Policy Adviser to Customs and Excise based in London. He gave evidence of the amount of revenue lost through smuggling each year. He set out the history of the different policies applied by Customs and Excise and of the present policy which was instituted in July 2000. Inter alia that policy was said to be:

"Vehicles which belonged to owners who are not present at the time of detection will also not have their vehicles restored, unless they can demonstrate that the decision not to offer the vehicle for restoration is unreasonable."

41. He also stated:

"Where vehicles are seized and not restored individual applications for restoration are considered on their merits and officers bear in mind the need for proportionality. It is not our intention to penalise the genuinely honest traveller or to dissuade travellers from shopping in other EU countries when making purchases for their own use, but to deter those who are intent on regularly smuggling tobacco and alcohol into the UK."

42. In his evidence to the Tribunal Mr Clarke stated inter alia that his salary was £20,000 for the previous year. His salary was paid into a joint account but his wife handled all the money and he did not himself go to the bank but asked her for money. He had about £197 spending money each week. There was a joint cheque book. He did not know whether or not there were any savings. He admitted that he had expensive hobbies, and that he was not good with money. He had been previously married, and had four children from that marriage, but was only paying in respect of the youngest of those children in the sum of £25 per week. He knew that the limit on his credit card was £5,500.
43. In cross-examination he said that he knew that what he had bought would be paid for by his wife, that he never knew how much money he had, but he knew that there were saving somewhere. He knew that there was money left each month after paying the bill. He also said that the debt on the credit card for the tobacco had been paid off not long after he returned from France.
44. Mr Napper confirmed that Mr Clarke had been buying tobacco for himself and his family, and he knew of his own personal knowledge that Mr Clarke's brother and his wife both smoked. They all three worked at the same place. He confirmed Mr Clarke's evidence that they had been told by Customs that if they left the Customs hall they would not be allowed to return to collect their fishing tackle. This had occasioned a lot of difficulty. He confirmed that he had not read through Miss Harvey's interview notes when he signed them in respect of the first interview. He considered that they were not being treated as human beings, they were considered to be guilty from the outset.
45. Mr Trevor Clarke confirmed that he had said it would be nice if Mr Clarke could bring back some tobacco for him and his fiancé as they both smoked . It was normal for people in the family to bring back presents when they went away.
46. Mrs Clarke told the Tribunal that she was an executive officer in the Department of Work and Pensions with a salary of £15,947 per annum approximately basic. She received expenses on top of that. She confirmed that she worked 18 miles from home in Yeovil. It was her evidence that Mr Clarke had telephoned her when he had arrived at Eastenders and asked whether it would be alright for him to get more tobacco on the credit card for themselves and for the family as it was so cheap. She had told him that he could spend up to £2,000. She did not know how much lager he intended to buy. She agreed that she managed all their finances and that Mr Clarke always liked to buy the best fishing equipment and the best equipment for his falconry, which was a hobby of his. Normally the family had £2,000 in one account as an emergency fund, and there were two other accounts which usually had about £2,500 in them. Regular savings were made both from her and Mr Clarke's incomes. She confirmed Mr Clarke's evidence that the figure of £197 was what Mr Clarke had left after money had been taken for savings and for the Child Support Agency.
47. When Mr Clarke telephoned her from Dover she had overheard somebody shouting that they were confiscating his telephone.

The Respondents' case

48. On behalf of the Respondents it was submitted that the evidence as to what happened at the Port was useful background but was of limited assistance to the Tribunal in deciding the matter. The Tribunal's jurisdiction was limited to considering whether or not the Commissioners could not reasonably have arrived at the decision on review, reasonableness in this context having the same meaning as "Wednesbury reasonableness". The Commissioners' decision could only be found to be unreasonable if the Appellant could show that the reviewing officer acted in a way in which no reasonable officer could have acted, that she took into account some irrelevant matter or disregarded something to which she should have given weight or made some other error of law.
49. Because relatively serious allegations had been made against the officers, the Tribunal was invited to find that Miss Harvey had done nothing improper and that the officer's account was supported by the notebooks which had been signed by both Mr Clarke and Mr Napper.
50. There had been a picture of ill-treatment by the officers painted, but there was significant evidence as to Mr Clarke's actions and he had been seriously threatening.
51. Following the decision in Hoverspeed that an officer must have reasonable grounds to suspect the presence of chargeable goods before conducting a search (see page 180 of that decision), it was submitted:

(i) That the Commissioners' primary contention was that Hoverspeed is wrongly decided. However it was accepted that the Tribunal was bound by the decision and accordingly they made the following alternative submission.

(ii) Reasonable grounds did exist in this case since the officers were able to see a large amount of chargeable goods before stopping the vehicle.

52. With regard to Mrs Florence' decision where she stated that it was for her to determine whether or not that the contested decisions were ones which a reasonable body of commissioners could not have reached, if this were the approach that she had adopted then her decision would be flawed. However it was her evidence that this did not reflect what she had done. Furthermore the appeal had not been taken on the basis that this was the wrong approach. It was not sufficient for the Tribunal to analyse that paragraph alone.
53. It was submitted that Mrs Florence' evidence was clearly credible. She had said that she had considered all the matters afresh, including a number of materials put in by the Appellants' solicitors. Whilst it was possible to argue the merits of the decision that it was not for personal use, this was nonetheless clearly a conclusion which it was open to Mrs Florence to reach. She had relied on the very large quantity of tobacco, compared with the Personal Reliefs Order which gave an allowance of 1 kilo. She had also relied on Mr Clarke's evidence of his financial circumstances. This had been expanded at the Tribunal, but the only relevant matter was whether Mrs Florence should have found out more about them. On the information she had, £1000 to be spent on gifts was unlikely to be either reasonable or credible and this was a conclusion she was entitled to reach. She was not obliged to undertake an exhaustive investigation. The Appellant had given straightforward answers and he was represented by a solicitor who could have put forward further information about his financial circumstances.
54. Given the information she had Mrs Florence was entitled to conclude that the tobacco was not for personal use. She had looked at the seizure, not at restoration, and she was entitled to conclude that this was a commercial importation. Even if in the present case the importation was properly looked at as "not-for-profit" smuggling, it had not been said by the Court of Appeal in the case of Lindsay that in all circumstances the items should be restored.
55. Mrs Florence had taken into account the Commissioners' policy on restoration of vehicles used in the improper importation of excise goods. The Commissioners were entitled to have such a policy, and she was entitled to take it into account. That policy pursued the legitimate aim of deterring the importation of goods without proper payment of duty and encouraged compliance. The Commissioners had acted properly, provided that they did not allow the existence of the policy to prevent them from going through a proper decision-making process (see Dereczenik). It was submitted that they had not done so in the present case.
56. Given the amount of tobacco imported in the present case it was difficult, if not impossible, to place the Appellant in the category of a not-for-profit smuggler. If the Tribunal concluded that the importation must have been on a not-for-profit basis, only then did the issue of proportionality arise. It was submitted that the relative values of the revenue and the vehicle were not disproportionate. The policy itself was not a disproportionate response to a legitimate need to ensure payment. The case of Lindsay could be distinguished because in that case the car was worth far more than the duty evaded.
57. With regard to the fact that it was Mrs Clarke's car, Mrs Florence had this information before her and had considered the representations which had been made. Mrs Clarke had sanctioned the car's use, and it was clear from the outset that tobacco would be brought back. Mrs Clarke had in fact been able to continue in her job.
58. With regard to the Human Rights aspect of the case, it was submitted that these proceedings did not constitute criminal proceedings and therefore article 6(2) and 6(3) had no application. Furthermore the Appellants had had access to an independent court for a decision on the merits; they were not restricted merely to a review of the Commissioners' decision that the goods imported were not for their own use.
59. With regard to article 1 of the 1^st Protocol of the ECHR, that contained three rules that were not distinct but connected in the sense that the second and third rules must be construed in the light of the first rule. The Tribunal was referred to the case of Sporrong at paragraph 61 where the European Court said:

"The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deemed necessary for the purpose: it is contained in the second paragraph. The Court must determine, before considering whether the first rule was complied with, whether the last two are applicable."

60. The proper test to be applied when considering whether the Appellant's rights under article 1 of the 1^st Protocol have been breached is the "fair balance test" applied in Sporrong at paragraph 69:

"… the court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of article 1."

61. In Derecznik the Tribunal addressed the question of whether the interference with the Appellant's property rights was in conformity with the rights given to the UK under the second paragraph of article 1 of the 1^st Protocol.
62. The Tribunal referred to the decision of the European Court in the Air Canada case and found that the Commissioners had "taken the steps to achieve the necessary balance in the present circumstances".
63. It was submitted that in all the circumstances of the present case any interference the Appellants may show with their property rights was reasonable and proportionate to the legitimate aim of the Commissioners to adopt a consistent approach to the deterrence and prevention of the improper importation of excise goods and compliance with importation rules.
64. In conclusion it was submitted by Mr Collins that:

(i) there had been no interference with the Appellants' community law rights;

(ii) there had been no breach of the Appellants' rights under article 6 of article 1 of the 1^st Protocol of the ECHR;

(iii) the decision not to restore the second Appellant's vehicle was reasonably arrived at by the Commissioners.

The Appellants' case

65. By their notice of appeal the Appellants referred to the letter from the solicitor dated 12 September 2001.
66. The Tribunal was asked to consider that Mr Clarke was completely innocent of any intention to smuggle. He had bought the tobacco with the intention of supplying it to some 14 to15 people.
67. Customs and Excise had been able to see the tobacco through the window, nothing had been hidden, and since smuggling implied that goods had been hidden, there could have been no smuggling in the present case.
68. There had been no intention to mislead Customs and Excise as to the number of boxes. The tobacco had been taken out of the boxes and the exact number was unknown.
69. Mrs Florence had not taken account of Mrs Clarke's earnings which were in the sum of £15,000, as had been said in the letter of 5 August. She admitted she had not taken this into consideration when she made her decision and had made it on Mr Clarke's earnings only. This was apparently the only evidence she used to decide that the tobacco was brought in for a commercial purpose. She had specifically stated that four other factors within the policy had not applied in the present case.
70. The credit card bill had been paid off when the next statement arrived.
71. It had not been denied that the first Appellant had behaved badly. It had been his first trip abroad and he did not admit having done anything wrong. He had had in his possession information and a leaflet from the Eastenders store to the effect that there was no duty where goods were for personal use, or were for the family or gifts. Mr Napper, who was a seasoned traveller, had also confirmed that they had been told there were no limits because there was a single market.
72. The second Appellant had suffered great hardship occasioned by the loss of her car.
73. Finally it was submitted that the A-J interview conducted by Miss Harvey did imply that a traveller was guilty before the interview took place, although Miss Harvey had denied that. The Tribunal was referred to paragraph 15 in the case of Hoverspeed where guidance issued to anti-smuggling teams was set out under seven bullet points, one of which is said:

"When A-J interviews are conducted the expectation is that a seizure will be made."

The Tribunal was also referred to paragraph 5 of the Personal Reliefs Order which sets out the specific questions asked in an A-J interview.

Reasons for decision

74. We accept the Respondents' submission that the Tribunal's role in this appeal is a supervisory one only, conferred by section 16(4) of the 1994 Act. We accept the submission that the Tribunal must consider whether it is satisfied that the Commissioners could not reasonably have arrived at the decision on the review, reasonableness in this context having the same meaning as "Wednesbury reasonableness". In effect this means that we have to consider whether the Appellant has shown that the reviewing officer acted in a way which no reasonable officer could have acted, that she took into account some irrelevant matter or disregarded something to which she should have given weight or made some other error of law.
75. In addition to the facts as set out above, we find that Mr Clarke went to France for the purpose of a holiday, intending to bring back with him some hand-rolling tobacco for himself, his wife and some of his relations. He did not have a planned notion of just how much tobacco he would bring back. He also intended to bring back some lager for himself.
76. We find that, having had a bad week's fishing, Mr Clarke became very elated when he achieved his personal best catch on the last day of the holiday. Mr Clarke is an excitable man. He also has pronounced spendthrift tendencies. When he arrived at the first Eastenders outlet he was told that he could buy an unlimited amount of excise goods provided they were for personal use or gifts only. This information was repeated to him when he went to the second Eastenders outlet. We accept Mrs Clarke's evidence that he telephoned her from one or other outlet and asked how much he could spend on excise goods. She told him there was a limit of £2000. The combination of his excitement at his large catch, the discovery of how very much cheaper hand-rolling tobacco was in Eastenders and the knowledge that he had been licensed, as it were, to spend £2000, induced Mr Clarke to do just that.
77. We accept the evidence that it is common in Mr Clarke's family to give each other presents. We accept that it was intended that the hand-rolling tobacco should be divided between some 14 different members of the family.
78. We accept Mr and Mrs Clarke's evidence about their employment, their wages and their respective earnings. We accept Mrs Clarke's evidence that she makes regular savings from their income, and that the credit card debt occasioned by the tobacco purchase was paid off very shortly after it was incurred. The Clarkes were in a sound financial position, even though they could not be called `rich'..
79. Whilst a large amount of hand-rolling tobacco was purchased, we accept Mr Clarke's evidence that at no point did he intend either to sell any of it, or to take any money in respect of the tobacco.
80. Both Miss Harvey and Mrs Florence treated the matter as if the burden of proof as regards whether goods were for personal or commercial use was upon Mr Clarke. The case of Hoverspeed shows this to have been an erroneous approach. In the Hoverspeed case their Lordships analysed the interpretation of the Excise Directive at pages 437-441. Lord Justice Brooke in his judgment said inter alia as follows:

"So far as proposition 6 is concerned, if the citizen affords no explanation at all about the purpose for which he holds the goods, then Customs and Excise are entitled to use the facts that the quantity is above the prescribed level as strong evidence that he holds them for a commercial purpose. We agree with the tribunal in Hodgson … that the possession of such a quantity raises an evidential presumption which calls for a response from the citizen, but once the citizen has responded, it is for Customs and Excise to be satisfied on all the evidence that the goods are held for a commercial purpose."

81. Lord Justice Brooke went on to accept the proposition of the applicants in that case that if the Customs and Excise finds that the goods are imported for a commercial purpose, they may seize the same as liable to forfeiture, subject to the procedural and substantive requirement of Community law and of the Human Rights Act 1998.
82. In the present case we accept that the Customs officers had reasonable grounds to suspect that Mr Clarke had more than the permitted levels of import goods for his own use, and that he might be importing them for a commercial purpose. The goods were on plain view packed as they were round the fishing equipment in the back of the estate car which had windows all round. The alcohol was visible through the back windows.
83. It is however clear from Hoverspeed that, whilst the effect of there being an abnormally large quantity of excise goods in a traveller's possession gives rise to a presumption that they are being brought in for a commercial purpose, which it is for the traveller to rebut, that is not the same as saying that the presence of an abnormally large quantity of excise goods automatically gives rise to the conclusion that they are for a commercial purpose. In carrying out her review, it was for Mrs Florence to consider those facts which the seizing officer had before her, as well as any further facts which were later brought to her attention by or on behalf of Mr Clarke. It was not for her, as she said in her decision letter that she had done, to consider whether in seizing the excise goods Miss Harvey had made decisions which "a reasonable body of commissioners could not have reached."
84. Mrs Florence said in her evidence that, despite this wording in the letter, this was not the approach she had adopted. We find it extraordinary that an officer with such a heavy responsibility as that upon Mrs Florence should be willing to write in a letter which is of such importance to the recipient that she has conducted herself in a way which she later says she has not. It appears from the letter itself that Mrs Florence adopted a very narrow approach to her task.
85. We find that there are various matters set out in Mrs Florence' decision letter which indicate both that there are matters which she took into account which we do not consider any reasonable officer of Customs and Excise should take into account, and we also find that there are matters of which she was aware which she did not take into account. The matters to which she did not give sufficient weight when considering whether the goods were being brought in for a commercial purpose are, in our opinion, as follows:

1. Mr Clarke had never been abroad before and there was no evidence that he intended to travel again.

2. There was no attempt whatsoever to hide any of the goods in question, indeed on the contrary, they were fully exposed to view.

3. Mr Clarke was not aware of the guidelines covering the importation of excise goods into the UK.

4. There was no attempt by Mr Clarke to pass off any amount of the goods as belonging to Mr Napper.

5. The limit on Mr Clarke's credit card was £5,500. He was therefore clearly considered by the credit card company to be in a position to spend £2000.

6. The very expensive fishing gear in the car, which, whilst its actual value may not have been known, it should have been obvious that it was of some considerable value, or enquiries could have been made.

7. It was Mrs Clarke who dealt with the family's financial commitments.

8. The quantity of beer brought in, 48 litres, was under half the "permitted" quantity.

9. The department's own policy, as set out in her letter, sets out the matters which will militate against restoration (see above) and there was no evidence in respect of 4 out of the 5 of those matters.

10. Mrs Clarke's salary.

11. The notice from Eastenders which she was informed was in the glove compartment of the car, but was not retrieved.

12. Any possible impact on Mrs Clarke and the fact that she stood to lose her job as a civil servant if she could not travel to work, combined with the cost to her of hiring a car in the meantime of £105 per week.

13. Mrs Clarke's letter of 20 August 2001 is not referred to; in that letter she had stated that she had been unable to work since the car was seized.

14. There is no evidence that Miss Harvey used the appropriate form of words to Mr Clarke before she conducted the A-J interview, in that he does not appear to have been told that the officer required him to satisfy her that the goods were not being used or held for a commercial purpose and that if he failed to do so, then the goods and vehicle would be seized as liable to forfeiture. These words were used by Mr McKenzie to Mr Napper.

15. No effort was made to determine whether or not, given that the car belonged to a third party, restoration might properly be offered.

86. The matters which we find Mrs Florence took into account but which it was not appropriate for her to do so are as follows:

1. On two occasions she referred to Mr Clarke as having stated that he had "about … 5 boxes of tobacco", and on the second occasion she refers to this she states: "Mr Clarke clearly misled the officer over the amount of tobacco he was importing. He declared five boxes which would be in the region of 25 kilos when in fact he was importing 46.5 kilos." It was Miss Harvey's evidence to us, and Mrs Florence accepted, that tobacco is sometimes packed in boxes containing 5 kilos and sometimes in boxes containing 6 kilos. It was therefore unfair of Mrs Florence to assume in the absence of any evidence that the tobacco had been in 5 kilo boxes. Furthermore, it was unfair of her to conclude, as she stated in evidence that she had, that Mr Clarke deliberately misled the officer. We do not find that he did any such thing. The tobacco had been unpacked hastily from its boxes and stuffed round the fishing tackle in full and obvious view. By the time Mr Clarke was interviewed it was known precisely how much tobacco there was.

2. Mrs Florence gave undue weight to Mr Clarke's intention to give away £1000 worth of tobacco, in the light of the £5,500 limit on his credit card, and his wife's salary of £15,000 per annum.

3. Mr Clarke's threatening behaviour is irrelevant to the decision she has to make. There is no reference to this behaviour in the matters set out under the heading "background" at the start of the letter, but she does refer to them under the heading "consideration". It must therefore be concluded that she gave undue weight to his behaviour. At the same time she does not record that it was Mr Clarke himself who asked for the Police to attend. [No reference is made to Mrs Clarke's letter of 20 August 2001; in that letter she had said that she had been unable to work since the car was seized.]

87. We find that Mrs Florence adopted a biased approach to this case. This is demonstrated by her complete failure to consider Mrs Clarke's position both as regards her income and control of the finances which are of direct relevance to Mr Clarke's ability to afford the purchase he made (a major factor in both Miss Harvey and Mrs Florence arriving at their conclusion that the importation was a commercial one), and by her failing to consider the effect upon Mrs Clarke of the seizure of the vehicle.
88. Mr Collins relied on the fact that the amount of duty evaded closely approximated the value of the car, but both he and Mrs Florence failed to consider that Mrs Clarke was faced with a continuing bill of £105 per week to hire a car if she were to be able to continue her job. Mrs Florence also did not take into account the fact that Mrs Clarke had a responsible job. She lived some 18 miles from her work and there was no suitable public transport. Mr Collins submitted that in the event Mrs Clarke has not lost her job, however this was not a fact known to Mrs Florence at the time, and at the time of her consideration it was a possibility that she might lose that job.
89. We accept that the Commissioners are entitled to have a policy with regard to car seizure, but take due account of the words of Lord Phillips MR in the case of Lindsay where he said at paragraph 64-65:

"The Commissioners' policy does not, however, draw a distinction between the commercial smuggler and the driver importing goods for social distribution to family or friends in circumstances where there is no attempt to make a profit. Of course even in such a case the scale of importation, or other circumstances may be such as to justify the forfeiture of the car. But where the importation is not for the purpose of making a profit, I consider that the principle of proportionality requires that each case should be considered on its particular facts, which will include the scale of importation, whether it is a "first offence", whether there was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship that will be caused by forfeiture. There is open to the Commissioners a wide range of lesser sanctions that will enable them to impose a sanction that is proportionate where forfeiture of the vehicle is not justified.

I do not think that it would be impractical to distinguish between the truly commercial smuggler and others. The current regulation shift the burden to the driver of showing that he does not hold the goods "for commercial purposes" when these exceed the quantity in the schedule. In a case such as the present the driver importing for family or friends should be in a position to demonstrate that this is the case if called upon to do so: see the comments of Lord Woolf CJ in Goldsmith v Customs and Excise Commissioners [2001] 1 WLR 1673, 1679-1680."

90. Mrs Florence took no account of any of the matters set out by Lord Phillips in the first paragraph above. At no point was proper consideration given to the possibility that Mr Clark might not be seeking to make a profit. Having decided, without taking proper account of all relevant matters, that the importation was commercial, she then took no account of the degree of hardship to Mrs Clarke. Whilst it has emerged in evidence before us that Mrs Clarke was in fact well aware of the scale of the importation in this case, at the time of her consideration, Mrs Florence was not aware of this fact.
91. On the basis of the evidence before us we find that Mr Clarke was not bringing in the goods for a commercial purpose. We find that Mrs Florence did not properly conduct the review in that she took account of matters which she should not have taken account, and that she did not take account of matters which she ought to have take into account, and therefore her decision was one which no reasonable reviewing officer could have arrived at. We direct that this appeal is allowed to the extent that the matter is remitted back to the Commissioners for reconsideration.
92. We further direct that the Respondents pay the Appellant's reasonable costs relating to this appeal, including the solicitor's costs incurred at the early stages.

MISS J C GORT

CHAIRMAN

RELEASED: 28 November 2002

LON/01/8264&65-CLA.GORT