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 >> Dickinson v Customs and Excise [2003] UKVAT(Excise) E00387 (20 February 2003)
URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2003/E00387.html
Cite as: [2003] UKVAT(Excise) E00387, [2003] UKVAT(Excise) E387

[New search] [Printable RTF version] [Help]

Dickinson v Customs and Excise [2003] UKVAT(Excise) E00387 (20 February 2003)

E00387

Appeal under s.16 FA 1994 – Stopping vehicle and seizing it and tobacco – Whether stopping lawful – Whether seizure lawful – Hoverspeed (Administrative Court) – Whether adjournment should be granted – Intimidatory behaviour – Full compensation

LONDON TRIBUNAL CENTRE

DARREN LEE DICKINSON Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: MR GRAHAM AARONSON QC (Chairman)

MR R K BATTERSBY

MS D M WILSON

Sitting in public in London on 23 October 2002

Mrs L Dickinson for the Appellant

Ms N Shaw, counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2003

DECISION

Nature of the proceedings

This is an appeal under Section 16 Finance Act 1994. The appeal is against the decision of Mr Martin Hulbert, a Review Officer of HM Customs and Excise, given in a letter dated 5 September 2001. That review, which was carried out under the requirements of Section 14 of that Act, reaffirmed the previous decision (contained in a letter dated 19 July 2001) not to restore a Rover 820 vehicle and three boxes of Golden Virginia tobacco (weighing in total 18kg) and four cases of Fosters lager. These had been seized by HM Customs officers at Dover Eastern Docks on 1 July 2001. Mr Dickinson was the driver of the vehicle which was stopped and seized, and the owner of the tobacco and beer.

Application to adjourn the hearing

The appeal against the review decision was served on 18 September 2001. It was originally listed for 22 April 2002, but was subsequently postponed until 23 October.

On 1 October 2002 the solicitor for HM Customs and Excise sent a written notice of application, applying for a Direction that the hearing be vacated to enable the Commissioners to conduct a re-review no later than six weeks following the judgment of the Court of Appeal in the case of Commissioners of Customs and Excise v Hoverspeed and Others ("Hoverspeed"). The Court of Appeal hearing in that case had been listed for hearing on 5 and 6 November. The subject matter of that appeal was the decision of the Queen's Bench Division (Administrative Court) given on 31 July 2002: [2002] EWHC 1630 (Admin).

In a letter dated 14 October (which was received by the Tribunal Centre on 15 October) Mr Dickinson objected to the application for an adjournment. The brief letter ends by stating that:-

"We [that is Mr and Mrs Dickinson] would like this episode in our lives over and done with as soon as possible."

The proceedings before us

At 10.30am on Wednesday 23 October we opened the proceedings by inviting Miss Nicola Shaw, Counsel for HM Customs and Excise, to address us on the application to adjourn the hearing. She was not accompanied by any HM Customs and Excise official, nor by anyone from their Solicitor's Office.

She told us that the Hoverspeed case had important implications for the present proceedings, and for that reason HM Customs and Excise wanted to defer the final decision until they had the opportunity of considering the Court of Appeal judgment in that case. She acknowledged that the Hoverspeed decision in the Administrative Court had been given nearly three months previously, and that the application for an adjournment was not made until 1 October. As to the Appellant's objection to an adjournment, this had apparently not been communicated to HM Customs and Excise until Monday 21 October (i.e. two days before the hearing). She had no instructions as to whether anyone in the Solicitor's Office had contacted the Tribunal Centre to find out whether the application was being opposed.

Mr Dickinson told us that he definitely wanted the hearing to go ahead as, to put it colloquially, the matter was a complete nightmare, and was affecting his health and work. We should mention that it was apparent to us that Mr Dickinson was under considerable strain and that the proceedings were clearly something of an ordeal for him. Because of Mr Dickinson's stressed condition, we were happy to hear submissions from his wife who acted as his representative for the purpose of the hearing.

Having heard the respective submissions of Miss Shaw and Mr and Mrs Dickinson on the question of adjournment, we decided to retire to consider the matter.

After a retirement of approximately 20 minutes we returned to give our decision on the application. This was that we rejected the application. We were prepared, however, to adjourn proceedings for a few hours (until 2.00pm) to enable Miss Shaw to summon her witnesses and any other Customs and Excise officials needed to assist her in presenting their case.

Our reasons for rejecting the application for a substantial adjournment were as follows:-

(i) It was unlikely that the Court of Appeal's decision in Hoverspeed would be known until December at the earliest, and quite possibly in January 2003;

(ii) Given the importance of the issues under appeal in Hoverspeed, there was a substantial possibility of a further appeal by either or both parties to the House of Lords;

(iii) There was also a distinct possibility that some of those issues maybe referred to the European Court of Justice in Luxembourg;

(iv) Further appeals to the House of Lords or the ECJ would involve long delays before the final outcome was known;

(v) Customs and Excise had notice of Mr Dickinson's objection to a postponement. Even if this was only communicated by the Tribunal Centre to them in writing on Monday 21 October, that still left them Monday and Tuesday to organise the attendance of those officials who might be needed to give evidence if the application for adjournment were rejected. Not to bother to get the appropriate team together (or tentatively arrange their availability) seemed to us to indicate either that Customs and Excise took for granted that we would accede to their request for an adjournment or, alternatively, simply gambled that we would do so;

(vi) Given the foregoing considerations, we thought that it would not be right to take a step which would prolong the ordeal for Mr Dickinson, who was ready and willing to put his case to us.

Customs and Excise response to our decision to refuse an adjournment

We adjourned for a short while to allow Miss Shaw to take further instructions. Having done so, she informed us that no witnesses or other officials would be available for a substantive hearing that afternoon.

In the light of this we discussed with Miss Shaw and Mr and Mrs Dickinson how the hearing would proceed. We decided that we would hear evidence as to the circumstances in which Mr Dickinson's vehicle was stopped and it and its contents seized.

The evidence

The hearing reconvened for this purpose at 12 o'clock when Mr Dickinson was sworn and gave evidence. He said that as he was driving from the ferry he was waved into a slip road by two Customs and Excise officers. His vehicle was one of about four or five cars which were waved into the slip road. There appeared to be no particular reason why he or the other vehicles were treated in this way; it just seemed to be a random or routine process. He noticed that some cars were just waved on while others, like his, were stopped. He noticed in particular that one very heavily laden car was simply waved through.

In his case a female Customs and Excise officer came up and asked him if he had anything to declare. He said he had tobacco, cigarettes and beer. These were all for consumption by himself and his family or friends and not for sale. One box of tobacco was behind his seat, others were in the boot and two were in the locked roof rack. He said that while he was trying to get the key to open the roof rack (the key being kept in a glove compartment) the female officer accused him of trying to hide the fact that he was carrying excise goods in the roof rack. This, he told us, was completely untrue, as he was about to open the roof rack.

He said that the officer's attitude was hostile and unbelieving, treating him as though he were a smuggler virtually from the word go.

One particular point, not directly relevant to the issue but nonetheless indicative of the circumstances of the stopping and seizure, related to Mr Dickinson's attempt to telephone a friend for help or advice. According to Mr Dickinson another officer put his face right up against Mr Dickinson's and told him that if he did not put the phone away it would be confiscated just like the car would be. The officer refused to give his name to Mr Dickinson, who wanted to make a formal complaint about his treatment.

Miss Shaw, in the absence of any supporting witnesses of her own, very understandably and properly decided not to cross-examine Mr Dickinson. She accepted that if we believed his evidence then the appeal would have to be allowed.

We formed the view that Mr Dickinson was an honest and cooperative witness. Although we consider that he was most probably traumatised by the events of the evening, we thought it likely that his description of what happened was broadly accurate. We also have little doubt that the incident about the telephone occurred broadly as Mr Dickinson described it; he was clearly extremely upset and affected by this. We feel it appropriate to add that we too were shocked to hear that someone in the position of Mr Dickinson would be bullied and intimidated in this way. We expect Customs and Excise to investigate this properly.

Mr Dickinson stated that his passenger was a gentleman called Jason Elliott, and that roughly half of the excise goods had been purchased by Mr Elliott. Mr Elliott was present in the Tribunal and agreed to give evidence, again on oath. Mr Elliott said that as they drove off the ferry a Customs officer standing approximately 35 yards away was waving cars into a slip road. He did not notice how many cars were waved in together with Mr Dickinson's, but he saw five or six cars in the bay where they were approached by a Customs officer who asked them whether they had anything to declare. He opened the boot to show her what was in it, while at the same time Mr Dickinson was trying to get the key to open the roof box. During this time he heard the officer say something like "Why haven't you declared this" – referring to the tobacco in the roof rack. He heard Mr Dickinson say something to the effect of "I am declaring this". Mr Elliott did not hear all of the discussion between Mr Dickinson and the officer because of loud background noise.

Again, Miss Shaw did not consider it appropriate to cross-examine Mr Elliott. Like Mr Dickinson, we considered him to be a truthful witness, with a reasonable recollection of what had happened.

We observe, from documents in the file, that the narrative of events as given by HM Customs and Excise (in the form of written notes from the interviewing officer and also the review letter) differs in a number of respects from the description of events given by Mr Dickinson and Mr Elliott. However, none of HM Customs and Excise's material deals in any detail at all with the circumstances of the stopping of Mr Dickinson's vehicle; while the differences between the two versions of the questioning session have previously been the subject of correspondence.

As we have already noted, Miss Shaw did not think it appropriate to cross-examine either Mr Dickinson or Mr Elliott, either generally or specifically as to these discrepancies. Nor, for our part, did we consider there to be anything inherently improbable in the description of events given to us by the two witnesses. We were, accordingly, satisfied that their evidence was an honest attempt to recollect events and was, broadly, accurate.

Our conclusions from the evidence given before us

We find as a fact that the stopping of Mr Dickinson's vehicle by HM Customs officers was carried out on a random basis, without there being any reason for an objective observer to suspect that the vehicle was carrying products on which duty was payable. There is nothing to suggest that the stopping was carried out on the basis of any criteria which would lead a reasonable observer to suspect the presence of dutiable goods.

As to the goods themselves, we do not consider it inherently improbable that the tobacco belonging to Mr Dickinson had been purchased by him for his own use and to give as a gift to a member or members of his family. Certainly the quantity is large (nine times larger than the guide level or Minimum Indicative Level set out in the Excise Duty Personal Relief's Order 1992 and Council Directive 92/12/EEC). However, we are prepared to accept Mr Dickinson's explanation, having regard to his clear evidence to this effect and, in particular, to the manner in which he gave it.

Our conclusions on the law

(1) Stopping Mr Dickinson's vehicle

In Hoverspeed the Queen's bench Division (Administrative Court) summarised the legal position as to the powers of Customs and Excise officers to stop and search in the following terms (at paragraph 180):-

"It follows that the only power available to Customs and Excise officers to stop and search people (or their vehicles) at an internal frontier arises if there are reasonable grounds to suspect one or other of the matters set out in Sections 163 and 163A of CEMA [Customs and Excise Management Act 1979]. They are not entitled to rely on generalities or trends; there must be reasonable grounds to suspect the person(s) whom they are checking. In the absence of such suspicion on an individualised basis, they have no right to impede Community Travellers' movement at the frontier for purposes connected with the collection of excise duty. The powers they use at a frontier must be the same powers as they would use anywhere else within the state for the purpose of ensuring that duties are paid on excise goods chargeable within that territory."

In the light of this, and on the evidence before us, we conclude that the Customs and Excise officers had no power to stop and search Mr Dickinson's vehicle; there were no reasonable grounds to lead an objective observer to suspect that Mr Dickinson's vehicle contained items within Sections 163 and 163A – i.e. so far as is relevant to the present case, excise goods which are held for the purpose of commercial dealing rather than personal use.

Accordingly, we conclude that the stopping and searching of Mr Dickinson's vehicle was unlawful and we so declare.

Seizure

In paragraph 194 of their decision in Hoverspeed, the Administrative Court concluded that:-

"… because the Commissioners have not proved to us that there were reasonable grounds for stopping this car and questioning its occupants, the goods in it should not have been seized nor should the car."

In the light of this we conclude that the seizure of Mr Dickinson's vehicle and its contents was also unlawful.

However, we have noted above our conclusion from the limited evidence before us as to Mr Dickinson's reasons for buying the tobacco. Accordingly we have not been satisfied that the tobacco was held for commercial purposes (as opposed to personal or family use) and on this ground also we conclude that the seizure was unlawful and we so declare.

The result

In the result the appeal succeeds.

In terms of section 16(4) FA 1994, we are satisfied that the review decision set out in Mr Hulbert's letter of 5 September 2001 "could not reasonably have [been] arrived at". This is because the reviewing officer failed to consider adequately the circumstances of the stopping and seizure. He should have determined the review in favour of Mr Dickinson, and ordered the return of the car and the goods within it.

Given, so we are informed, that the vehicle was sold long ago by Customs and Excise it is clearly impossible to require the return of the vehicle and its contents to Mr Dickinson. In these circumstances paragraph (c) of subsection 16(4) FA 1994 comes into play. This gives us the power:-

"… in the case of a decision that 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 give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future."

We see the sense and justice in declaring Mr Hulbert's decision to be unreasonable and, as just stated, we do so. However we see little point in giving directions to the Commissioners for the future except to say that they should observe the law properly (and, we might add, instruct its officials to cease behaving in a bullying and intimidatory way).

To do full justice to Mr Dickinson we consider that he should receive full compensation for the loss of the vehicle and the goods it contained. So far as the vehicle is concerned, this should not be limited to the £1,800 which we are informed was received by the Commissioners for its sale after seizure. A proper inquiry should be made as to its true market value on a non-forced sale basis. As to the contents, either they should be returned or full compensation paid. As a small, but nonetheless significant detail, we were told by Mr Dickinson that the vehicle contained fishing gear as well as a few other small items. Hopefully these will still be in the possession of Customs and Excise, in which case they should be returned. If not, full compensation for their loss should be given to Mr Dickinson.

Finally, we record that immediately following the hearing we informed the parties orally of our conclusions, which would be amplified in a subsequent written decision.

GRAHAM AARONSON QC

CHAIRMAN

RELEASED: 20 February 2003

LON/01/8199