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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 >> Shatwell v Customs and Excise [2004] UKVAT(Excise) E00711 (10 May 2004)
URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00711.html
Cite as: [2004] UKVAT(Excise) E00711, [2004] UKVAT(Excise) E711
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Gail Shatwell v Customs and Excise [2004] UKVAT(Excise) E00711 (10 May 2004)

    Excise duties — red diesel fuel in road vehicle — whether Customs decision not to restore vehicle to owner was unreasonable — appeal allowed

    MANCHESTER TRIBUNAL CENTRE

    GAIL SHATWELL Appellant

    - and -

    THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

    Tribunal: Mr I E Vellins (Chairman)

    Mr P Whitehead (Member)

    Sitting in public in Manchester on 20 April 2004

    The Appellant represented herself

    Mr A Vinson of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

    © CROWN COPYRIGHT 2004


     

    DECISION

  1. In this appeal the appellant is Miss Gail Shatwell who resides in Buxton, Derbyshire. She appeals against the decision of the Commissioners dated 19 January 2003 which was a deemed review, upholding a decision of the Commissioners dated 10 October 2002 not to offer to the appellant restoration of a Isuzu Trooper Estate vehicle registration number K1 GLS which had been seized by the Commissioners on 28 August 2002. She had claimed to have been the owner of that vehicle which had been stopped by officers of the Commissioners on 25 August 2002 when it had been driven by her former partner Mr Richard Salt and had been running on rebated fuel gas oil namely red diesel.

  2. At the hearing of this appeal the appellant represented herself, and the Commissioners were represented by Mr A Vinson of Counsel.

    3. The Background
  3. The background to this appeal and the history of the matter is as follows.

  4. The appellant Miss Gail Shatwell was the partner of Mr Richard Salt who was the father of her children and with whom she cohabited at her address at Buxton, Derbyshire until the early summer of 2002 when he left her. The appellant is the daughter of Mr George Graham Shatwell. George Shatwell and Richard Salt were involved in the running of two companies Moss Rake Calcite Limited ("Moss Rake"), and Harpur Hill Industrial Estates Limited ("Harpur Hill"). Various members of Mr Shatwell's family were from time to time registered as officers of those companies. The appellant herself had been registered as the secretary of Moss Rake from 2 June 1997 to 9 July 2001, and as a director of Moss Rake from 13 May 2002 to 31 May 2002. She had also been registered as a director of Harpur Hill from 8 September 1998 to 31 May 2002.

  5. In 1999 two heavy goods vehicles owned and used by those companies were stopped by officers of the Commissioners and found to have been driven on the public highway containing red diesel fuel, and the vehicles had then been seized.

  6. Again on 9 May 2001 officers of the Commissioners found that two tipper vehicles involved in those two companies were being driven on the public highway, running on red diesel fuel and those vehicles were then seized.

  7. Finally on 25 August 2002 in Derbyshire officers of the Commissioners observed two commercial vehicles parked near Buxton in Derbyshire. One was a tipper F558 STP belonging to Moss Rake, and the other was a heavy goods vehicle M278 VPT hired to Moss Rake from Harpur Hill. Both vehicles were found to contain red diesel fuel in their tanks. Later that day the officers observed the Isuzu Trooper vehicle registration K1 GLS parked on the driveway of the appellant's home. Mr Richard Salt confirmed that he had been driving the vehicle. The officers ascertained that the vehicle had in its fuel tank red diesel fuel, and that vehicle was seized.

  8. When Richard Salt was interviewed in relation to the seizures he told officers that he could not explain the red diesel in the Isuzu Trooper vehicle K1 GLS but told the officers that the appellant would deal with that herself. He told officers that that vehicle had originally been registered to Moss Rake and had been a company vehicle but that from 1 October 2001 he had been the registered keeper of the vehicle.

  9. On 9 September 2002 the appellant was interviewed in relation to the seizure of that vehicle. She told the officers that the vehicle belonged to her although it was registered in the name of Richard Salt for insurance purposes as he had a full no claims bonus. She said that she had been the keeper of the vehicle for a couple of years before it had been changed to Richard Salt as keeper for insurance purposes. She told the officers that she had been a director of the companies until June or July 2002. Her role at Moss Rake involved chasing monies owed which she did from home, but that she had no longer anything to do with either company. She was not involved in the ordering of fuel, and no fuel for this vehicle had been put through the business as the vehicle was not used in the business. She stated that Richard Salt borrowed the vehicle occasionally at the weekend, not more than once per fortnight. She herself fuelled the vehicle with fuel from local filling stations. She stated that on 24 August 2002 she had gone to pick up some hay from Mr Lowndes' Farm. At that time there was very little fuel in the vehicle and she did not know if she would be able to get home on the fuel in the vehicle. She stated that Mr Lowndes offered to put a drop of fuel into her vehicle to enable her to get home. She had been occupied with her 3 children and accepted the fuel but could not remember how Mr Lowndes had put the fuel in her vehicle or how much fuel he had put into it. She had not had to pay for the fuel.

  10. The appellant told the officers that she had never put red diesel in the vehicle either then or previously. She knew that it was an offence to put red diesel in her vehicle. She purchased fuel from local filing stations usually putting in approximately £10 to £20 worth of fuel and did not actually fill up the whole of the tank of the vehicle. She said that Richard Salt would not normally put fuel in the vehicle but she herself would have to give him the money if he needed to put fuel into the vehicle while he was driving it, as he borrowed the vehicle when he took the children out as it had child seats fitted. She told the officer that she was now separated from Richard Salt.

  11. On 25 September 2002 an officer of the Commissioners Mr Gallagher wrote to Moss Rake pointing out that this was the third occasion where offences were committed by Moss Rake vehicles, and notifying Moss Rake that excise assessments would be issued for arrears of duty plus penalties, and two of the vehicles including the Isuzu were not to be restored. On 10 October 2002 Mr Gallagher wrote to Moss Rake sending an assessment of duty calculated at £7,196 and penalties due of £1,500 pounds and confirming that the vehicle M278 VPT, and the Isuzu vehicle would not be restored.

  12. On 24 October 2002 the appellant wrote to the Commissioners concerning the decision not to restore her car. She confirmed she had not been aware that there was red diesel in her vehicle. She had been with her children to buy some hay from Lowndes Farm on Saturday 24 August 2002 and on the way there had noticed that her car was in danger of running out of diesel because it was threatening to cut out on her. She told Mr Lowndes of this and he offered to put some fuel in for her to get her home. She stated that she accepted this offer totally unaware that he was going to put red diesel into her vehicle. She had remained in the car with the children whilst Mr Lowndes had put in the diesel. She stated that if she had known that he intended to put red diesel she would have refused and would haveasked him to use his phone to ask a friend to meet her with diesel purchased from the filling station. She had given Mr Gallagher the receipts for her diesel fuel along with her last MOT certificate and the logbook of the vehicle. She confirmed that her receipts did not show any shortfall of fuel and she had put into her vehicle £30 worth of fuel on 21 August 2002. She confirmed that she was no longer connected with Moss Rake. She confirmed that her car had nothing to do with Moss Rake. She stated that her car had her own number plate on it, K1 GLS, (the GLS being her initials), and that the car was used by her for her own use and to take her 3 children to school and to fetch hay for her horses. She stated that the vehicle had never been used for the business of Moss Rake or any other company. She stated that although it had been Moss Rake's third detection, the other detections had not been hers. She had resigned from both Moss Rake and Harpur Hill at the end of May 2002 and whilst she was with the companies she had had no involvement with the running of any vehicles. She stated that on 25 August 2002 Richard Salt had arranged to pick up their eldest daughter to take her to some stables with her youngest son whilst the appellant was working in her field with hay. She had insisted that he took her motor vehicle because it was fitted with safety belts for the youngest 2 children. She confirmed that she was the owner of the vehicle and that she had been the registered keeper until recently until it was put into Richard Salt's name because he had a full no claims bonus for insurance and that that it was significantly cheaper in his name. She claimed that she should not be held responsible for the actions of any other persons or companies. She stated that the failure to restore her car was causing her great hardship, not only the financial implications, but because she lived in a semi-rural area and had to struggle to get the children to and from school. She also needed the vehicle for her work as a community tutor. She claimed that the Commissioners were using the previous offences of Moss Rake as a lever to punish herself and her children.

  13. On 27 November 2002 the appellant wrote to the Commissioners in similar terms, enclosing a letter from Mr Derrick Lowndes of Bank Top Cottage, New Haven, Biggin near Buxton. In that letter Mr Lowndes stated that on 24 August the appellant and her children had come to buy hay from him. She had noticed that she had no diesel in her motor so he put her a drop of tractor diesel in to get her to the filling station as he did not wish to see her stuck with the children. On 3 December 2002 the appellant again wrote to the Commissioners. The appellant's letter dated 3 December 2002 was treated as a request for a review of the decision not to restore the vehicle. However the review was not completed in time and the original decision was deemed to be upheld on 19 January 2003.

  14. On 12 February 2003 the Commissioners wrote to the appellant apologising to her that due to the volume of reviews they had been unable to complete her review within the prescribed time limit and as such the original decision was deemed to be upheld. The Commissioners pointed out that the appellant could if she wished appeal further to the VAT and Duties Tribunal.

  15. On 5 February 2003 the appellant sent notice of appeal to the tribunal.

  16. In their Statement of Case the Commissioners contended that the vehicle was properly seized and was liable to forfeiture. They contended that this was the third seizure for a road fuel offences involving the appellant and that the appellant must have been aware of the previous offences. They contended that the appellant was not a innocent third party owner of this vehicle due to her connections with the companies. They contended that the appellant had been aware of road fuel offences but had allowed a farmer to give her some diesel because she was running out of fuel. They submitted that it was unreasonable in the circumstances to believe that the appellant was unaware of the fuel put into the vehicle or of the likelihood that it might be red diesel as this what farmers used. She had not asked the farmer what fuel the farmer was putting into her vehicle. They contended that the appellant was responsible for the fuel that was put in and used in her vehicle, and contended that the decision not to restore the vehicle was a proper exercise of their discretion.

  17. Prior to the hearing of the appeal the Commissioners had served on the appellant 3 witness statements of officers of the Commissioners namely a statement of an officer Mr Hill referring to the May 2001 incidents, a statement by the officer Mr Hill relating to the testing and seizure of the 3 vehicles on 25 August 2002, and a statement by the officer Mr Gallagher who had interviewed the appellant and who was the case officer concerned. The appellant had not objected to those witness statements, and accordingly the 3 officers did not attend to give evidence at the hearing.

  18. The appellant herself attended at the hearing of the appeal and gave evidence

    19. Evidence of the Appellant at hearing
  19. The appellant gave evidence at the hearing of the appeal that she lived in a semi-rural district at Buxton, Derbyshire with her 3 children. She confirmed that her vehicle on 25 August 2002 had contained a small amount of red diesel. She said however that she had been unaware of this. She had been visiting Mr Derek Lowndes farm to buy hay with her children and felt that she was running out of diesel fuel and was afraid that the vehicle would run out of fuel before she reached a garage. Mr Lowndes had offered to put into her vehicle some diesel which he did but she was not aware that he had put in red diesel rather than ordinary white diesel. She had submitted the letter from Mr Lowndes confirming this.

  20. She said that the Commissioners initially claimed that she had been using red diesel in her vehicle for a considerable length of time, and had issued her with a claim for back duty based on their assumptions, but she had provided Mr Gallagher with all her receipts, which had been scheduled by Mr Gallagher and which showed in fact all the normal white fuel purchased by her from local garages without any shortfall. Accordingly the Commissioners were not pursuing a claim for back duty against her.

  21. The appellant confirmed that the Isuzu vehicle K1 GLS was owned by her. She produced a letter from the finance company First Nation Wagon Finance dated 3 October 1997 showing the cash price of the vehicle as £14,074, a deposit of £1,799 as a trade in for her previous vehicle, and finance from the finance company for the balance of £12,285 which she had been paying monthly by standing order. The number plate contained her initials and had been bought separately at a cost of £500 by Richard Salt as a present who had been her partner at the time. She stated that Moss Rake had therefore not paid for the vehicle. She stated that her enquires at Moss Rake had shown that the vehicle had never been claimed by Moss Rake in its accounts as being owned by Moss Rake. The accountants of Moss Rake had confirmed that the vehicle had not been an asset of Moss Rake.

  22. The appellant stated that she had not been aware of any previous offences by Moss Rake. She had not been involved in the running of Moss Rake or any other company. Her partner Richard Salt had worked with her father at Moss Rake, and occasionally had asked her to telephone from her home to customers of Moss Rake who had owed money to chase up payment. She had also carried out a health and safety report for Moss Rake. She had no other involvement with that company. Her own qualifications were as a hairdresser. In 2000 to 2001 she had worked on the night shifts for a dairy company packing goods and then from May 2001 to December 2001 she had done a course at college and then from March 2002 to May 2002 had worked for the county council as a tutor of hairdressing. During all this period she had been working as a mobile hairdresser and she also kept sheep. She produced wage slips and letters confirming her employments. She confirmed therefore that her career was not with Moss Rake and that she had had no involvement in the running of that company.

  23. The appellant said that both companies had basically been run by her father. Her father had left her mother when the appellant was a small child and she had been brought up by her mother who had died when the appellant was 12. Thereafter the appellant had continued to live separately from her father and was not on good terms with him. Her father had left her mother for another woman. Her father had registered the appellant and various other members of his family as officers of his companies without the appellant being aware of these appointments. When she found out about this she insisted that he must arrange for her to resign from all registrations as officers in his companies. Her partner Richard Salt had gone to work with her father in the companies. She had lived with Richard Salt for some 16 years but in June to July 2002 she had asked him to leave her. He was the father of her 3 children. Her father lived near by but she had little contact with her father. She contended that the Commissioners were wrong in holding her in any way responsible for the actions of the companies or the previous seizures of vehicles. She confirmed that his was her own first offence, and no blame should be attached to her for the companies use of red diesel in their vehicles. She confirmed that she had been unaware that her own vehicle had contained red diesel put in by the farmer, and that she had never previously had red diesel in her vehicle.

  24. She stated that she had only been aware that she had been appointed as an officer her father's companies when she received a bundle of documents from Companies House. There was then a row between herself and her father and she had insisted that he removed her from any positions with the companies. She believed that her father had put her down as a shadow director of his companies without her knowledge, as he had done with various other members of the family. She confirmed that when she had been living with Richard Salt he had not discussed with her the activities of the companies and that neither Richard Salt or her father had ever told her that the companies had previously used red diesel oil in their vehicles or had had any previous complaints from the commissioners.

  25. The appellant said that when she put fuel in her vehicles this was from normal filling stations and she sometimes put in £15 or £20 or £30 worth of fuel. How long this lasted depended on what sort of journeys that she made day by day. She had previously put in £30 worth of normal diesel fuel on 21 August 2002. Mr Lowndes farm had been situated about 14 miles away from her home. She had not bought fuel on the way back home but had given Richard Salt £10 to put some more fuel into the vehicle on 25 August 2002. She did not know if he had done so.

  26. The appellant had sent a letter from Richard Salt to the tribunal dated 20 November 2003 confirming that he had never been the owner of the vehicle. He had bought her number plate for her as a gift. His name appeared on the registration document because he had transferred an insurance policy from his own vehicle to the Isuzu to save her money. He confirmed that the appellant had always previously used normal diesel fuel from a filling station and he was not aware that the vehicle had contained red diesel on 25 August 2002. He confirmed that the appellant's involvement with Moss Rake did not involve any activities with the day to day running of the company. He confirmed that she had never been aware of any previous use by the company of red diesel fuel in the company's vehicles.

  27. The appellant stated that at the time of the seizure of her vehicle the vehicle had a mileage of over 100,000 miles and was in good condition. Its value was about £5000 at the time of seizure. She claimed that it was unreasonable for the Commissioners to refuse to restore her vehicle to her merely for a small amount of red diesel put into her vehicle by the farmer without her knowledge. Since the seizure of the vehicle she has had to borrow vehicles from various neighbours or family members in order to take her children to school and to work in a rural area which has caused her hardship.

  28. Mr Vinson submitted on behalf of the Commissioners that the appellant had admitted and accepted that when her vehicle had been stopped it had contained red diesel. He submitted that she must have known that farmers were in the habit of using red diesel for their farm vehicles on their farms, and that Mr Lowndes may be putting red diesel into her vehicle. She had not made enquiries of Mr Lowndes as to what type of fuel he was putting into her vehicle, although it was her responsibility to do so. He submitted that the records from the Companies Register had shown that she had been a director and secretary of the companies operated by her father and her partner and that it was not credible that she denied any knowledge of the companys' history of using red diesel fuel in their vehicles on the two previous occasions. He submitted that her partner would have discussed these previous incidents with her as events that were out of the ordinary at work. He submitted that the appellant was not an innocent third party. He submitted that it was not credible that she did not check what fuel was put into her vehicle by the farmer on 24 August 2002. Furthermore it was not credible that she would not have gone straight to a filling station after leaving the farm to put more fuel into her vehicle if her vehicle had been low on fuel. He submitted that she was responsible for the fuel that was put into her vehicle and had not taken adequate steps to ensure that the vehicle did not receive red diesel fuel. He submitted that the decision of the Commissioners was reasonable, that it was reasonable for the Commissioners to refuse restoration, and he submitted that it would not be reasonable to request the Commissioners to re-review their decision.

    29. Legislation
  29. There is no dispute as to the legislation which covers these events.

  30. Under section 6 of the Hydrocarbon Oil Duties Act 1979 a duty is imposed on hydrocarbon oil. Under section 11 there is an entitlement to rebate of duty on diesel delivered for home use and such fuel is identified by a red dye, and we have referred to such fuel in this decision as "red diesel". Such oil may not be used a fuel for a road vehicle unless conditions are met (which do not apply here). There are penalties set out for misuse of such oil. The Customs and Excise Management Act 1979 states in section 139 that anything liable to forfeiture under the Customs and Excise Act may be seized by an officer. Section 141(1) of the same Act says that anything which had been used for the carriage of something liable to forfeiture is also liable to forfeiture. The applies to the vehicle in which the oil was carried. The appellant does not dispute that red diesel oil had been carried and used in her vehicle which had been driven on the road. The vehicle was seized and notice thereof was given by the Commissioners.

  31. The appellant has requested recourse to the powers of the Commissioners to restore the vehicles seized and forfeited as set out in section 152(b) of the Customs and Excise Management Act 1979 which states that the Commissioners may as they see fit "(b) restore subject to such conditions if any as they think proper anything forfeited or seized under this Act". Any such decision can be reviewed in accordance with the provisions of section 14 of the Finance Act 1994, this being a decision specifically set out as being so reviewable in accordance with the terms of Schedule 5 to that Act.

  32. The appellant required the Commissioners to review the decision not to restore the vehicle to her by her letters. Under section 15 of the Finance Act the Commissioners could confirm the decision under review or withdraw or vary it. The Commissioners did not carry out a review within the time limits. Accordingly there was a deemed review not to restore made by the Commissioners which they communicated to the appellant.

  33. Against that review there is appeal to the Tribunal under section 16 of the Finance Act 1994, and this appeal is such an appeal. However the powers of the Tribunal are limited under sub-section (4) of that section. By that sub-section the Tribunal must be satisfied that the Commissioners could not reasonably have arrived at the decision made and in those circumstances the Tribunal may direct that a decision cease to have effect, require further review of that original decision, or in certain circumstances declare a decision taken to have been unreasonable and to give directions to the Commissioners as to steps to be taken to ensure that repetitions of the unreasonableness would not recur.

  34. Accordingly the power of the Tribunal in this matter is limited to a review in its supervisory category of the decision appeal against and we have no power to review the exercise of the power of forfeiture. The Tribunal must be satisfied that the Commissioners could not reasonably have arrived at the review decision. We look at "reasonably" in accordance with the definition in Associated Provincial Houses Limited v Wednesbury Corporation [1948] IKB 223, namely that the person making the decision must call to his attention matters which are bound to be considered and exclude those which are irrelevant.

  35. The approach adopted in the case of Customs & Excise Commissioners v JH Corbitt (Numistmatists) Limited [1980] 2WLR 653 was that a tribunal could only properly review the discretion of the Commissioners if it was shown that the Commissioners had acted in a way in which no reasonable body of Commissioners could have acted; if they had taken into account some irrelevant matter or had disregarded something to which they should have given weight. In the case of John Dee Limtied v Customs & Excise Commissioners [1995] STC 941 it was indicated that a tribunal should consider whether the Commissioners had erred on a point of law.

  36. We apply those principles to the facts that we find in this appeal.

    37. Findings of fact and conclusions
  37. We find that on 25 August 2002 when officers of the Commissioners seized the Isuzu Trooper vehicle K1 GLS, that vehicle was owned by the appellant. We are satisfied that although the vehicle registration document indicated that her partner Richard Salt was the keeper of the vehicle, in fact and in law the appellant herself was the owner of the vehicle, the vehicle having been purchased by her on 30 September 1997 for a sum of £14,074 with the aid of finance from the First National Wagon Finance, the repayments of which she paid by bank standing order monthly. We are further satisfied that the number plate of the vehicle K1 GLS was owned by her having been given to her as a gift by her partner Richard Salt in March 1998, the cost of the number plate having been £500. The number plate contains her initials GLS.

  38. We find that on 25 August 2002 officers of the Commissioners observed her partner Richard Salt driving the vehicle on a public road. They tested the oil in the vehicle and established that it contained red diesel. We are satisfied that the officers of the Commissioners acted within their powers in seizing the vehicle.

  39. We found the appellant Gail Shatwell to be a credible witness and we believed her evidence. We are satisfied that she did not deliberately or knowingly use or allow to be used red diesel in her vehicle. We are satisfied that on 24 August 2002 she had driven her vehicle to a farm owned by Mr Derek Lowndes to purchase hay. She feared that she did not have enough fuel in her vehicle to return home and did not wish to run out of fuel, particularly when she had her children with her in the vehicle. We are satisfied that the farmer offered to put into her vehicle some fuel to enable her to return home. We are satisfied that Mr Lowndes, without telling the appellant, put into her vehicle some tractor diesel fuel namely red diesel. With hindsight the appellant should have enquired of Mr Lowndes as to what sort of fuel he was putting into the vehicle and should have ensured that Mr Lowdnes did not put red diesel into her vehicle. She was however concerned with her children and did not notice that Mr Lowndes was indeed putting red diesel into her vehicle. As she did not know red diesel had been put in her vehicle she did not tell Richard Salt the next day that her vehicle contained red diesel oil when he was using her vehicle in order to drive her children to their appointments. She did however give Richard Salt £10 with which to buy further fuel for the vehicle.

  40. We are further satisfied that the appellant played not active part in the running of Moss Rake or Harpur Hill. These were limited companies run by her father and by Richard Salt. The appellant herself is a hairdresser and her only participation in the activities Moss Rake was to make some telephone calls for her partner to debtors and to prepare health and safety reports. We are satisfied that she has been estranged from her father, who had left her mother when the appellant was small child. We find however that her father used various members of his family, including the appellant as nominees, when making various appointments of directors and secretary of Moss Rake and Harpur Hill. We are satisfied that the appellant had objected to this and had insisted that her appointments must be terminated, which was done prior to the events which led to the seizure of her vehicle.

  41. We are satisfied that the appellant had no knowledge of the fact that vehicles belonging to Moss Rake and Harpur Hill had been found by officers of the Commissioners as having been driven on the road using red diesel in 1999 and in 2001. We are satisfied that she did not participate in those activities and had had no knowledge of them.

  42. We find that on 25 August 2002 the appellant had no knowledge of two commercial vehicles belonging to Moss Rake or Harpur Hill being driven on the road with red fuel. We find that at that time as previously she was not involved in the activities of either company, she was living apart from Mr Richard Salt and was no longer an officer of either company.

  43. We believed the appellant's evidence that she had been unaware that Mr Lowndes had put red diesel into her vehicle 24 August 2002. We further believed her evidence that she herself had never put red diesel into the vehicle at any time. She produced to the Commissioners her receipts for the purchase of fuel from normal filling stations. We are satisfied that those invoices showed purchases of normal fuel consistent with the number of miles that she had driven during the relevant periods. Accordingly we are satisfied that the appellant had produced evidence to the Commissioners to support her contention that her vehicle had not previously been run on red diesel prior to 24 and 25 August 2002.

  44. We should add that the Commissioners might have had good cause to be suspicious of a claim that it was a "coincidence" that on the very date that her vehicle was found to contain red diesel, two commercial vehicles run by Moss Rake were also found to be running on red diesel. However coincidences sometimes do occur, and we are satisfied on all the evidence in this appeal that it was indeed a coincidence that Mr Lowndes put red diesel into her vehicle, without her knowledge on the day before the two vehicles run by Moss Rake were found to contain red diesel.

  45. The appellant, following the seizure of her vehicle, informed the Commissioners that the red diesel had been put into her vehicle by Mr Lowdnes without her knowledge. Indeed she sent to the Commissioners a written statement from Mr Lowndes to that effect. She confirmed to the Commissioners in her correspondence that she had not otherwise used red diesel in her vehicle. She provided the Commissioners with her receipts for fuel purchase from filling stations in the normal way. She also informed the Commissioners of her lack of involvement in the limited companies and her lack of knowledge of the use by the two limited companies of red diesel in their vehicles either on 25 August 2002 or on the two previous occasions when the companies were found to be running their vehicles on red diesel. She also informed the Commissioners of the hardship caused by the non-restoration of her vehicle to her, as she needed the vehicle to transport her children and herself whilst living in a semi-rural area, and for work purposes as a hairdresser. The Commissioners were aware of the value of her vehicle which she had put at some £5000 together with the value of her personal number plate.

  46. The Commissioners did not undertake a review in time despite her request, and accordingly there was deemed to be a review not to restore the vehicle to her. She had requested the review in October 2002. She had been deprived of the use of her vehicle for some considerable time, pending the review, and pending the hearing of her appeal.

  47. In view of our findings of fact we find that the Commissioners have acted unreasonably.

  48. The Commissioner failed properly to take into account that the red diesel was put into her vehicle by Mr Lowndes without her knowledge on 24 August 2002. They failed to take into account that she had no previous knowledge of vehicles run by Moss Rake and Harpur Hill having been found by the Commissioners to have been running on red diesel in 1999, 2001, and in September 2002. They failed to take into account that she had nothing to do with the running of either of these companies, nor that she was living apart from her former partner Richard Salt at the time of the seizure of the vehicle.

  49. The Commissioners failed to consider the proportionality of their seizure of her vehicle. Her vehicle had only contained a small amount of red diesel fuel put in by Mr Lowndes. The duty chargeable would accordingly have been very small on such fuel. This was totally disproportionate to the value of her vehicle and number plate amounting to approximately £5,500.

  50. We find that the Commissioners unreasonably concluded that this was the third seizure for road fuel offences involving the appellant. They unreasonably concluded that she must have been aware of the previous seizures. We find that the Commissioners erred in their conclusion that the appellant was not an innocent third party owner of the vehicle by placing too much emphasis on her connections with the companies, although her connections had been explained by her to the Commissioners. The Commissioners unreasonably concluded that she had been aware of the likelihood that the fuel put into her vehicle by Mr Lowndes might be red diesel.

  51. The Tribunal asks itself whether the Commissioners reached a decision which no reasonable Commissioners could have reach. We conclude that this was the case and that the Commissioners indeed reached a decision which no reasonable Commissioners could have reached.

  52. The Tribunal asks itself whether the Commissioners took account of all relevant considerations and concludes that they did not. They ignored the considerations put before them by the appellant. They had the information supplied by the appellant and did not take it into account.

  53. The third question which the Tribunal asks is whether the Commissioners left out of account all irrelevant considerations. We conclude that the Commissioners did not leave out of account irrelevant considerations.

  54. The Commissioners did not consider the principle of proportionality.

  55. Accordingly we find there are grounds to interfere with the Commissioners' decision. We allow the appellant's appeal and direct that the Commissioners should carry out a further review taking into account our findings.

  56. The appeal is allowed.

    57. MR I E VELLINS
    CHAIRMAN

    MAN/03/8044

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