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United Kingdom VAT & Duties Tribunals (Excise) Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Hill v Customs and Excise [2003] UKVAT(Excise) E00381 (20 January 2003)
URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2003/E00381.html
Cite as: [2003] UKVAT(Excise) E00381, [2003] UKVAT(Excise) E381
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- This is an appeal against a decision contained in a letter dated 14 November 2001 to uphold on review an earlier decision not to restore a seized vehicle to the Appellant.
- Prior to the hearing the Respondents had asked for the case to be adjourned until judgment in the case of Hoverspeed was released. That application was refused, but it was renewed before the present Tribunal who again refused it, the Appellant having objected to the proposed adjournment.
- On 31 July 2001 the car in question, a Toyota Corina vehicle with an H registration number, was stopped by an officer of Customs and Excise at Dover docks while being driven by the Appellant. There was a passenger in the car, a Mr William Kessler.
- The Appellant and Mr Kessler were questioned about their trip. They told the officer that they had been to Calais and Mr Kessler said the purpose of his visit was to do some shopping "to treat the club". Both understood that it was illegal to import certain prohibited and restricted goods and claimed they had none. Mr Kessler stated that he had bought back his allowance of 1200 cigarettes and 1 kilo of hand-rolling tobacco. The Appellant confirmed that she was the owner of the car.
- The Appellant was asked to open the boot of the car and the Customs officer found therein three wine boxes sealed with brown tape which, when opened, were found to contain over 10,000 cigarettes.
- Mr Kessler was further questioned and stated that he had been `caught out', that he had used wine boxes because he had been told this was the best way to get them through. He also said that the Appellant did not know about the cigarettes and that she was the driver because he had a bad leg.
- In total the car contained 12,000 cigarettes, 200 cigars, 1 kilo of hand-rolling tobacco, 12 litres of spirits, 94.5 litres of still wine, 9 litres of sparkling wine and 276 litres of beer. All these were seized together with the car.
- The Appellant and Mr Kessler were each issued with a Notice 1, giving information on allowances and prohibited goods, and a "Warning Letter" which gave the statutory basis of the seizure and warned of the consequences of future detection. They were also issued a form C156, a Seizure Information sheet, and the Appellant was issued with a Seizure of Vehicle Form SEE 004C. Both parties signed the C156 and Miss Hill signed the Seizure of Vehicle Notice. They both signed the officer's notebook confirming the accuracy of its contents.
- By a letter dated 31 July 2001 the Appellant wrote to Customs and Excise asking for restoration of her vehicle. She stated that she had been asked to drive Mr Kessler to buy beer, wine and spirits for an outing he was holding at Goodwood races. In addition she said she had no knowledge of there being any cigarettes in the boot of her car other than the 1,600 cigarettes which had been bought on the ferry. She had only driven Mr Kessler because he had a bad foot and leg and could not walk very far. She lived on her own with a two year old child and was a college student. She needed her car to get to college and to take her daughter to nursery. She could not afford another car.
- By a further letter dated 30 September 2001 to Customs and Excise the Appellant stated the following inter alia:
- Customs and Excise replied by a letter dated 11 September 2001 explaining the statutory basis for the seizure and confirming that the policy was not to restore seized vehicles in cases such as hers. In addition she was informed that if she wished to have the decision not to restore the vehicle reviewed, then she should write to Customs and Excise. In that letter there was no mention about the possibility of going to the Magistrates Court.
- A review was conducted by officer Brenton and by a letter dated 14 January 2002 he informed the Appellant of his decision not to restore the vehicle.
- In the review letter Mr Brenton makes no mention of the basis for stopping the Appellant's car. He set out the fact of the car having been stopped, the finding of the cigarettes and alcohol and some of the answers given by the Appellant and Mr Kessler.
- After setting out the applicable legislation and the restoration policy, Mr Brenton set down the matters that he had considered. The first paragraph under the heading "consideration" states: "It is for me to determine whether or not the decision you are contesting is one that a reasonable body of commissioners could not have reached." His concluding sentence under that section was: "I cannot conclude that it was a decision which a reasonable body of commissioners could not have reached."
- The main matters taken into consideration by Mr Brenton were that the cigarettes were concealed and Mr Kessel (sic) had told the officer that he had been told "that this was the best way to get through". In addition Mr Brenton had satisfied himself that the goods were liable to forfeiture under the Customs and Excise Management Act 1979, and he had considered the correspondence. Mr Brenton did not accept the claim made by the Appellant in her letter of 31 July that she had no knowledge of any cigarettes in the boot of her car. He considered that because of his declared disability Mr Kessel would have required assistance to complete all the tasks needed to conceal 10,000 cigarettes in the boot of the Appellant's car. He did not accept that the Appellant was unaware of Mr Kessel's actions nor of the goods concealed in the boot. Finally he recorded that although she lived on her own with a two year old child and was a college student, the fact that she required the vehicle to get to college and to take her daughter to nursery were not factors which indicated that restoration was appropriate. He therefore confirmed the contested decision not to offer restoration of the vehicle.
- Following the review letter the Appellant had written to Mr Brenton on 26 November 2001. In that letter she set out the grounds for her appeal "against the confiscation of my car". She repeated that she had known nothing about Mr Kessler's intention to import goods without paying duty, she had driven him as a favour, he had friends in Calais and had expressed a wish to see them, and could not possibly drive that distance due to his disability. She repeated that the purchases had been made without her knowledge. On 31 July she had driven Mr Kessler to a café in Calais where he introduced her to his friend, after joining them in a coffee she decided to do some window shopping. Her car was parked at the rear of the café and, as the car may have had to be moved, she left the keys with Mr Kessler. She was away in less than an hour.
- Following the Appellant's lodging of her appeal against the decision not to restore, a different Tribunal had made a direction on 25 June 2002 to the effect that Mr Brenton should attend to give evidence. The direction was headed: "Whereas the review officer did not apply a correct legal test".
- Article 3 of the Excise Duties (Personal Reliefs) Order 1992, SI 1992 No.3155 (as amended by the Excise Duties (Personal Reliefs) (Amendment) Order 1999, SI 1999 No.1617 and by The Channel Tunnel (Alcoholic, Liquor and Tobacco Products) Order 2000, SI 2000 No.426) ("the Order") made pursuant to s.17 of the Customs and Excise Duties (General Reliefs) Act 1979 states the following:
- The term `own use' is defined in Article 2 of the Order as follows:
- Article 5 of the Order sets out the conditions for relief from duty of excise stating that if the condition that the goods be held other than for a commercial purpose is not complied with, then the excise goods are liable to forfeiture:
- The Schedule to the Order referred to in Article 5(3) above specifies the following quantities of excise goods:
- Under section 49(1)(f) of the Customs and Excise Management Act 1979 ("CEMA"), where
- Under section 139 CEMA, any thing liable to forfeiture under the Customs and Excise Acts may be seized by the Commissioners.
- Section 141(1) CEMA provides as follows:
- Schedule 3 of CEMA makes certain provisions relation to forfeiture:
- Pursuant to section 152 CEMA, the Commissioners may, as they see fit -
- Section 14(1)(d) of the Finance Act 1994 ("FA") provides that any decision by
- Under section 15 FA, following review of any decision, the Commissioners may confirm, withdraw or vary the decision. Where the Commissioners do not give notice of their determination of a review within 45 days, they shall be assumed to have confirmed the decision (section 15(2) FA).
- Under section 16(1)(a) FA, an appeal lies to an appeal tribunal with respect to any decision on a review under section 15 FA including a deemed confirmation under s.15(2) FA.
- We were referred to the following cases:
- The Respondents produced a bundle of documents including all the relevant correspondence and the notes of interview made by officer Bond who had stopped the Appellant at Dover. There was a witness statement from Mr Bond in which was set out the contents of his notebook, a photocopy of which was exhibited. There was also a written statement from Mr Brenton, following the direction of the Tribunal, and from Mr Gerry Dolan of Customs and Excise setting out the current seizure policy and the background to it. The Appellant produced a witness statement from Mr Kessler, having understood that it was not necessary to call him as a witness.
- The interview conducted by Mr Bond starts as follows:
- Mr Brenton gave oral evidence to the Tribunal, as did the Appellant.
- Mr Brenton gave evidence confirming that Mr Bond had not said why he stopped the Appellant, but there was no requirement to record under what part of the Act she had been stopped. The initial question asked by Mr Bond had been about prohibitions and restrictions and under section 78 of the Customs and Excise Management Act 1979 he was not required to have reasonable grounds to stop a person. It was also Mr Brenton's opinion that officer Bond was entitled to continue questioning the Appellant about the purpose of the trip under section 78, the response by Mr Kessler then gave the officer reasonable grounds to continue questioning under section 163A of the 1979 Act.
- It was further Mr Brenton's opinion that a commercial quantity of cigarettes was involved, so he did not need to apply the principle set out in the case of Lindsay with regard to non-commercial importations. At the time he made his review decision he would have had the case of Lindsay in front of him He had considered the question of hardship but did not consider that in her case there was evidence of exceptional hardship.
- The revenue evaded was £867.10, the value of the car from the trade guide was £1,000.
- In Mr Brenton's opinion it was not credible that Mr Kessler, with his bad leg and being unable to drive, could have purchased and loaded the large quantity of goods in the way done. In particular the spirits, wine and beer would have been of a great weight and the car would be very loaded. Furthermore there was a large volume of goods which would have been obvious. It was his opinion that the weight of goods in the car would have been obvious to the officer at the docks.
- In her evidence the Appellant told the Tribunal that she had now finished her course at college in hairdressing. She had needed a car at the time to get to the college because of the infrequency of the buses and the difficulty of travelling by bus with her books, her hairdressing case and her child's buggy
- The car itself had cost £1,800, and she had only had it for two months at the time of the seizure. She disputed that officer Bond's notes contained all of the matters which he had recorded because when she had seen his notes at the time and they had contained the statement made in her letter of 30 September that she knew nothing about the extra cigarettes in the wine boxes. In addition Mr Kessler had asked if he could pay back the money for the duty and keep the car, but this was declined.
- She described Mr Kessler as an old family friend who had been very supportive to her after she had lost her father. Her life was circumscribed by the child and she did not get out much. Later in her evidence it came out that she had in fact travelled over to France with Mr Kessler on about 16 different occasions over a period of two years. On the occasion when the car was seized Mr Kessler had asked if she wanted to go to France because he wanted to get a few drinks for taking to the races. Mr Kessler paid for the petrol and for the ferry, she would drive and buy 200 cigarettes for herself. Mr Kessler would pay for lunch.
- On a couple of previous occasions she had taken her daughter with her and had had a picnic, and on some occasions her mother had gone too.
- She had previously been to France some two to three months before this occasion, and she thought that that had probably been in Mr Kessler's own car, which was an automatic drive. Mr Kessler's disability was an inflexion of both his wrists and of one ankle which made it difficult for him to drive for any great distance.
- In Calais they had parked the car outside a café which also sold tobacco. It was a café they had been to on previous occasions and where they were known to the proprietor. She had had a coffee there and then left the keys with Mr Kessler, which was her habit in case the car should need to be moved at any stage. She had been window shopping and had returned after about three quarters of an hour when she and Mr Kessler drove to the warehouse to buy the alcohol. This was loaded into a trolley, and when it was paid for by Mr Kessler an assistant was paid to load it into the car. She had not been present when the alcohol was loaded into the car. They had then driven to the boat and had been stopped at Dover. She herself had paid for the 200 cigarettes which she had bought on the ferry on the way over.
- She described Mr Bond as being very polite and kind. She herself was very upset at the time. The questioning by Mr Bond had taken half an hour, and afterwards they had had to take a cab home which had cost £125.
- She had wanted to set in motion the process for restoration of the vehicle on the same day that they were stopped, but she was told that she should write once she was home. She had not understood from the notices which she had been given that she could have applied to the Magistrates court to prevent the car from being disposed of. The seizure note was not explained at any time. If she had been aware that she could apply to the court in that way she would have done so.
- Insofar as the value of the car was concerned, it was worth a lot to her because it gave her freedom and it enabled her to take her daughter out. She had since purchased a new car for £700 which she had borrowed from her brother, prior to that purchase, Mr Kessler had hired a car for six weeks for her. She had not asked Mr Kessler for money in respect of the value of the car which had been seized. The car was essential to her in case the child should be sick and she needed to get the child to hospital. She also needed it for her own security and for the child's.
- In cross-examination Miss Hill said she had not asked Mr Kessler why he was buying such a large quantity of cigarettes. She insisted that she had been quite unaware of what he was doing. The reference to "friends" was a reference to the proprietor of the café whom she had met before.
- She did not believe that Mr Kessler would have needed help putting the boxes of cigarettes into the car, the cigarettes did not weigh a lot and he was able to lift boxes. He was able to walk a fair distance. After he was handicapped, his handicap was not total. She had not explained to the officer at Customs and Excise the matter she set out later in her letter because she was very shocked and upset at the time. She lived on income support, and accepted that she had not told the reviewing this.
- In his affidavit Mr Kessler had said as follows:
- Miss Hill maintained from the outset that she had no idea what Mr Kessler was doing, she would never have believed that a friend would act like that. She had suffered hardship as a consequence of being without the car.
- We were referred to the case of Hoverspeed at page 960 paragraph 177 where Brooke L J said as follows:
- It was conceded that the Commissioners did not know which power was used in the present case, but the questions asked initially could be taken to suggest that Mr Bond was acting under section 78.
- Whilst the exercise of the powers under section 163A, which was specific to excise goods, depended on reasonable grounds, it was a matter of common sense that, having started questioning under section 78, and having discovered excise goods hidden in the boot, the officer would not be stopped from questioning further by the decision in Hoverspeed.
- The decision taken by Mr Brenton was reasonable and proportionate, and it was for the Appellant show that the contested decision was one that no reasonable body of commissioners could have reached.
- There was sufficient evidence to find that Mr Kessler was importing cigarettes for commercial profit. Mr Kessler had never given any information as to why he had bought the cigarettes and his credibility was to be doubted in the light of his actions. In particular he had travelled eight times in one year and, taking account of the matters set out in the case of Lindsay regarding in particular the quantity of the goods and their location, there was clear evidence of commerciality. In the present case the matter of proportionality was satisfied, given the rate of duty evaded and the value of the car.
- There was no exceptional hardship in the present case: anybody who loses a car suffers some degree of hardship.
- With regard to the Appellant's knowledge, she had given no credible explanation as to why she had not pressed Mr Kessler on what he had done or what his plans were for the cigarettes, where it would have been natural to ask those questions. She had not asked him to repay the cost of the car. It had reasonably not been believed that Mr Kessler could not have bought and concealed cigarettes in the manner described without the Appellant's knowledge, in the light of his disability. Furthermore, prior to the making of the review decision, the Appellant had offered no explanation of how the cigarettes could have been placed in her vehicle without her knowledge. It was highly unlikely that Mr Kessler had acted "on the spur of the moment" as he had claimed. His actions showed a degree of planning, and if they were planned, then he must have been relying on the Appellant going window shopping and leaving him the vehicle keys in order to carry out the plan. This was not credible.
- We do not accept the Respondents' argument as to there being reasonable grounds for officer Bond stopping the Appellant's car in the first place. The question he asked as to whether or not they were aware it was illegal to import drugs and firearms in the United Kingdom is not, in our view, sufficient to import the suggestion that it was a search for such items that caused them to stop the car in the first place. This is a standard question which the Tribunal has come across in almost all cases of restoration. However, the fact that there may have been no reasonable grounds to stop the car in the first place does not render the seizure unlawful.
- The fact that the car may have been unlawfully stopped in the first place is not a basis for allowing this appeal. Given that the appeal in Hoverspeed has now been heard, the parties may wish to address us further in relation to the impact on this case of that further decision, we will allow liberty to apply to both parties to do so.
- The substantive issue for this Tribunal is whether the reviewing officer properly conducted the review, taking into account only relevant matters and not taking into account irrelevant matters. We conclude with regard to the review letter that it is evident from the first and last sentences in the section headed "consideration" that, as a matter of law, Mr Brenton was applying the wrong test. This matter was pointed out to the Respondents by the Tribunal at the earlier directions hearing, however no submissions were made on this and nor did Mr Brenton give any evidence that he had carried out the review other than in the manner described in the review letter. In the circumstances therefore we find that, by applying the test of considering whether the contested decision was one that a reasonable body of commissioners could not have reached, Mr Brenton fell into an error of law which is of itself sufficient to cause us to decide that the matter should be sent back for further review, given that it renders the original decision defective.
- On the facts in this case, we do not accept the claim made by Mr Kessler twice in his witness statement that he acted on the spur of the moment. We do not find it credible that he had tape with him to tape up the boxes as claimed. In addition he stated that he had been told that this was the way to do it, which of itself implies some previous intention. We find it completely improbable that he would have bought so many cigarettes on the off-chance that he could have disposed of them. Furthermore he states that the episode cost him his entire savings, and we find it improbable that a pensioner would spend his entire savings on the purchase of cigarettes on which he did not intend to make any sort of profit. Miss Hill was not able to describe any friends which Mr Kessler had met there, beyond the man who owns the café where Mr Kessler had bought cigarettes. Mr Kessler describes meeting "friends", Miss Hill was unable to describe any such friends.
- We do however accept that Mr Kessler was able to purchase the cigarettes and load them into the car without Miss Hill being present. She has described in more detail the nature of his disability, and he would in our view have been able to have carried out his purchases without her being present. We do not however consider it likely that she would have been unaware of his purchases, and are surprised by her having completely failed to ask Mr Kessler what he was going to do with the cigarettes subsequently, or having asked him for the money to purchase a new car, given the hardship that she would undoubtedly have suffered followed its seizure.
- We do not consider that the particular hardship suffered by Miss Hill was exceptional. This was particularly so since Mr Kessler was able to hire a car for her subsequently and she has now been able to borrow money to purchase another vehicle. We consider the seizure of the car was proportionate.
- We are concerned that the forms given to Miss Hill do not in any way make clear the consequences of the two different routes which were available to her. The Notice C156 sets out first of all how a person may get his things back, which involved writing to the Queens Warehouse Keeper within one month of the date of seizure. It continues that if a person thinks that Customs were wrong to seize the things, then there is a right to challenge the decision in court. It does not say which court this will be. The person is told simply to make a claim in writing stating the full name and address, with one month of the date of seizure, and to send it to the Customs office shown overleaf, in this case the Eastern Car Terminal in Dover.
- The notice SWE004C, which relates to the seizure, states that Customs and Excise will retain the vehicle for 30 days from the date of the notice, at the end of the 30 day period the vehicle will be disposed of, or destroyed, unless communication is received from the owner. The procedure stated is that the person should contact the Post Seizure Unit on the numbers below who will advise on the procedure for the return of the vehicle. We note that Miss Hill in evidence said that she had telephoned at least 15 times to ask about the proper procedure. The notice says in capital letters in bold: "This notice does not affect your right to appeal against the seizure". It appears to us that the Appellant has not properly been advised as to the different procedures in the Magistrates court and the Tribunal, and the different powers of each.
- This appeal is allowed and we direct that it is remitted to the Commissioners to carry out a further review on the following basis:
- The Respondents to pay the Appellant's costs of this hearing and the earlier directions hearings which she attended.
- Liberty to both parties to apply and address the tribunal on the decision of the Court of Appeal in Hoverspeed.
E00381
EXCISE - Restoration refusal - Application by Customs for adjournment opposed by Appellant - Refused by Tribunal - No evidence of basis on which car stopped - Wrong test applied by Reviewing Officer - New review directed
LONDON TRIBUNAL CENTRE
MISS B HILL Appellant
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: MISS J C GORT (Chairman)
MR R K BATTERSBY
Sitting in public in London on 29 November 2002
The Appellant in person
Ms Eleni Mitrophanous, counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents
© CROWN COPYRIGHT 2002
DECISION
The Background
(a) She was not aware that she was doing anything illegal and she would not have taken the car if she had been.
(b) She was bringing up a 2½ year old daughter on her own and it had been very hard for her without a car and she had to take the child to nursery and she herself had to get to college.
(c) She was very short of funds.
(d) The officer at the time wrote in his statement that she knew nothing about the extra cigarettes in the wine boxes.
(e) She wanted to have some clarification of what she should do as she felt she was in no way personally involved with the offence.
The law
Subject to the provisions of this Order a Community traveller entering a control zone of 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.
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.
(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 reasons 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 those 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 condition imposed by paragraph (1) has been complied with.
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 paragraphs (a), (b) or (c) above.
Alcoholic beverages
(e) 10 litres of spirits;
(f) 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.
any imported goods are concealed or packed in any manner appearing to be intended to deceive an officer,
those goods shall, subject to subsection (2) below, be liable to forfeiture.
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 passengers' 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.
Notice of seizure
1(1) The Commissioners shall, except as provided in sub-paragraph (2) below, give notice of the seizure of any ting 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 the 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 …
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 month 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 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 forfeited.
(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; or …
the Commissioners of a description specified in Schedule 5 to that Act may be subject to the review and appeals provisions contained in sections 14 to 16 FA. Paragraph 2(1)( r) of Schedule 5 specifies that one of the decisions subject to such a procedure is:
any decision under section 152(b) [CEMA] as to whether or not anything 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.
R (on the application of Hoverspeed Ltd and Others) v Customs and Excise Commissioners [2002] 4 All ER 912
John Richard Lindsay v Commissioners of Customs and Excise [2001] V&DR 219
The evidence
Bond: Where have you been?
Kessler: Calais.
Bond: Are you aware it is illegal to import certain goods into the UK, such as drugs, firearms etc?
Both: No, we've nothing like that. We are against all that.
Bond: Purpose of your trip?
Kessler: Just some shopping, I am going to treat the club.
Bond: Any cigarettes or tobacco?
Kessler: I've got what I am allowed. 800, 800 and I've got 400 over. I've got 1 kilogramme hand-rolling tobacco.
(a) The Appellant had driven him to Calais for a day's outing and to see friends he had there, after meeting up in the café with his friends the Appellant had left them to look at the shops.
(b) "On a spur of the moment impulse I did something I should never have attempted."
(c) Miss Hill had left her keys in the car it case it had to be moved and he took the opportunity of buying cigarettes, and concealing them in some discarded wine boxes. She had no idea at the time of what he had done.
(d) He had not bought the cigarettes to make a profit, many of his friends were OAPs like him and what he did was "an on the spur impulse which I soon learnt to regret, it cost me my entire savings."
(e) He could only drive short distances and some days could not drive at all as he suffered from arthritis in his legs, feet and hands. He had also had a replacement hip joint. This was the only reason Miss Hill had been driving him to Calais that day.
The Appellant's case
The Respondents' case
"The difficulty with this submission is that the provisions of sections 78 and 164 of CEMA … which impose a positive duty on persons entering this country to declare dutiable goods to Customs officers and give Customs officers their familiar powers to ask questions, to direct travellers to produce their baggage for examination, and to search them if the conditions in section 164(1) are fulfilled, are all inapplicable in the cases of people crossing an internal frontier of the Community if the exercise of these powers is likely to delay their movement, except for the purposes set out in section 4(2) of the Finance Act 1992 … none of these exceptions relate to the purpose of securing the collection of excise duty chargeable under national, as opposed to Community, legislation. In order words, Customs officers do not have any relevant powers of intervention under our national legislation other than those conferred by sections 163 and 163A of CEMA, which depend on the existence of reasonable grounds for suspicion on an individualised basis."
Decision
the review carried out by Mr Brenton was done so under a wrong basis in law.
Such review should be by an officer not previously involved, should be on the basis of our findings of fact. We further direct that the Appellant is notified by the Respondents of the decision in Hoverspeed in order that she may make further representations if she so wishes.
MISS J C GORT
CHAIRMAN
RELEASED: 20 January 2003
LON/02/8000