United Kingdom VAT & Duties Tribunals (Excise) Decisions

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Cite as: [2004] UKVAT(Excise) E00758, [2004] UKVAT(Excise) E758

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Doniec & Anor v Customs and Excise [2004] UKVAT(Excise) E00758 (09 July 2004)

E00758

RESTORATION – Vehicle – Appellants co-owners of vehicle with a third – Third co-owner attempting to import excise goods in concealed cavity in vehicle – Appellants not concerned in import of the goods – Refusal of restoration – Whether reasonable – Yes – Appeal dismissed

LONDON TRIBUNAL CENTRE

ADAM DONIEC AND WITOLD DONIEC Appellants

and –

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: ANGUS NICOL (Chairman)

SHEILA WONG CHONG FRICS

Sitting in public in London on 17 June 2004

The Appellants were neither present nor represented

Takis Tridimas, counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004

DECISION

The two Appellants were the co-owners of a Mercedes Camper, which, on 15 September 2002, while being driven by the third co-owner, Andrzej Doniec, was seized at Coquelles. The two Appellants were not present. The vehicle was found to contain 142,000 cigarettes, which were also seized. The Appellants, not including Andrzej Doniec, appeal against the decision of the Commissioners, on review under section 15 of the Finance Act 1994, not to offer the vehicle for restoration.

The Appellants had, in a letter dated 16 July 2003, addressed to the Tribunal, expressed their intention of not attending the hearing of their appeal, on the ground that the costs of travel, accommodation, and an interpreter would be too high. Consequently, they were neither present nor represented at the hearing. Accordingly, the appeal was heard in their absence under rule 26(2) of the Value Added Tax Tribunals Rules 1986. Rule 26(3) provides that in such a case an appellant may apply to the Tribunal to have the decision set aside and the appeal reinstated. If the Appellants wish to do this they must do so within 14 days after the date of release of this decision.

We heard evidence from Mr Simon Polatch, the review officer, and read the statements of three other officers, Mr James Ling, Mr David Baker (who intercepted the vehicle at Coquelles) and Mr Leslie Smith (who dealt with the Commissioners' policy relating to restoration of vehicles). We also read a statement, headed "Appeal" submitted in translation by the Appellants, and the correspondence which passed between the Appellants and the Commissioners.

The evidence

Mr Ling's statement said that he had intercepted the vehicle, though no reason for so doing was given.. A conversation ensued. Andrzej Doniec told him that he was going to Birmingham to a flower show, and that he was a lorry driver by occupation. He produced a copy of a Polish magazine called Kwietnik and shewed Mr Ling where there was an advertisement for the flower show. He said that the vehicle had been bought in Holland, and produced the appropriate papers relating to it. The vehicle was then searched by Mr Baker. He discovered that there was a space behind the wardrobe in the back of the vehicle, behind some wooden panelling. He removed the panelling and found the 710 cartons of Marlboro Light cigarettes. A further conversation with Mr Ling ensued, assisted by another Customs officer who spoke some German, which Andrzej Doniec apparently understood. He said that he knew about the cavity behind the wardrobe, and had in fact made it. Asked why the cigarettes were there, he replied that he had intended to smuggle them. The vehicle and the cigarettes were then seized.

A certificate of ownership of the vehicle was produced, confirming that it belonged to Andrzej Doniec and the two Appellants. A set of photographs of the interior and exterior of the vehicle were produced. The back of the interior was shewn with the wardrobe doors closed, then with the doors open and garments visible hanging in it. The next photograph shewed the garments removed and the back panel ajar, and the last shewed the back panel removed and the cartons of cigarettes visible.

The Appellants wrote to the Commissioners on 2 October 2002. (All the correspondence from the Appellants was in Polish, and translations were provided.) They stated that the vehicle was the property of them and Andrzej Doniec, and enclosed the certificate of ownership. The translation of the letter continued:

"We would like to explain that a hiding-place at the rear of the car was made by removing the insulation layer (foamed polystyrene).

We declare that we, Adam Doniec and Witold Doniec, have never used it for illegal purposes. It served as a hiding-place for more valuable things, such as a camcorder, a camera, binoculars, leather clothes, money and documents while we stayed at car parks, campsites and other parking places, in order to secure those valuable things against thieves. We would like to add that our car has been broken into several times and the hiding-place secured some more valuable things. We declare that we were not aware that Andrzej Doniec used this hiding-place for an illegal purpose.

Therefore, since we do not feel guilty of the incident that took place, we believe that we should not be punished with taking away our property. We request the return of our car once again. We did not commit any crime."

That letter was answered two months later, on 10 December 2002. Having stated that the vehicle was liable to forfeiture under section 141(1)(a) of the Customs and Excise Management Act 1979, the letter set out the Commissioners' policy with regard to restoration of vehicles used for illegal importation of excise goods:

"The Commissioners' policy regarding private vehicles seized as a result of their use in the improper importation of excise goods is that they will not be restored even on the first occasion they are so used unless you can clearly demonstrate exceptional circumstances that would warrant a departure from the policy. That policy applied at the time of seizure of the vehicle."

The letter then set out the facts referred to above, adding that such large quantities of goods were likely to damage legitimate trade. The admission by Andrzej Doniec that he had wanted to smuggle the goods, the Commissioners said, indicated that the goods were imported for a commercial purpose and that he knew that what he was doing was wrong. (The letter contained a mistake, in that it attributed to Adam Doniec the admission made by Andrzej Doniec.) The letter observed that the vehicle had been purposely adapted for smuggling, and therefore restoration was not offered. The letter also said that there was no evidence of any exceptional circumstance which would justify a departure from the Commissioners' policy. It invited the Appellants, if they wished, to apply for a review of the decision.

The Appellants replied in a letter dated 7 January 2003, stating that they wished to appeal against the decision. They said:

"We appeal against the above mentioned decision and we ask to review our request of 2 October 2002 again. At the same time, we would like to explain that as the co-owners we had nothing in common with the incident that took place on 16 September 2002 in Coquelles. Mr Andrzej Doniec had informed us neither of his trip, its destination nor of transporting any illegal goods. We use this vehicle once a year when we go as tourists for summer holidays. As we have already declared in our letter of 2 October 2002, the hiding-place in the vehicle served as a place to secure more valuable things against thieves while we stayed on campsites and car parks and we were away from our car for a longer time (several hours).

The letter pointed out the mistake in the Commissioners' letter, which stated erroneously that Adam Doniec was interviewed in German. That was clearly wrong. The Appellants' letter stated that at the time Adam Doniec was in Poland.

That was answered by the review letter from Mr Simon Polatch, dated 20 February 2003. In that letter he set out the facts as then known to the Commissioners, in terms similar to those in the original decision letter, and the relevant United Kingdom legislation. A very brief statement of policy relating to restoration of private vehicles was included the following terms:

"With effect from 14 July 2000 the Commissioners' normal policy regarding privately owned vehicles used for the improper importation of excise goods is that they will not be restored. However, as from the 16th April 2002, restoration of vehicles will be considered where the traveller can demonstrate that the goods were to be supplied at purchase price. Every case is considered individually to determine whether the affected party has substantiated that restoration should exceptionally be allowed."

As we understand it, it is not contended by the Appellant that in this case it was intended to supply the cigarettes to anyone at purchase price. (That statement of the policy does not quite accord with the judgment of the Court of Appeal in Lindsay v Customs and Excise Commissioners [2002] 1WLR 1760, CA, in which the court was considering not just the supply of the goods at cost, but the supply by the importer to his family and friends at cost.)

Mr Polatch's consideration of the matter consisted, as he said, in taking a fresh look at the information available. He pointed out, first, that the cigarettes originated in Poland, and that there was no evidence that excise duty had been paid in any European Union Member State, which, at that date, Poland was not. Andrzej Doniec had admitted concealing the cigarettes in the vehicle, because he wished to smuggle them, in a vehicle which had been adapted for the purpose. The space made in the back of the vehicle was considerably larger than would be necessary for the secure concealment of the valuable items suggested by the Appellants, and he did not accept that so large an amount of insulation would have been removed for such a purpose. Mr Polatch said that he had read all the Appellants' letters as well, in order to see whether they had made a case for disapplying the policy not to restore. The amount of goods imported was such as would damage legitimate trade. Mr Polatch said that he did not believe that a lorry driver would spend £335 on cross-channel travel just to attend a flower show unless it was a planned trip for the purpose of selling the cigarettes for a profit. He also took the view that as part-owners of the vehicle, the Appellants would have known of the circumstances of the trip and the illegal purpose for which the vehicle was being used, and that in any event the Appellants took a considerable risk in allowing Andrzej Doniec to use the vehicle. Lastly, he made the point that to restore the vehicle to the Appellants would be tantamount to restoring it to Andrzej Doniec. He said that the application of the Commissioners' policy treated the Appellants neither more nor less harshly than it would anyone else, and he could find no reason to vary or disapply the Commissioners' policy of non-restoration.

The Appellants wrote again to the Commissioners, in a letter dated 13 February 2003, asking for further particulars of how to go about appealing. That letter appeared not to have been received by the Commissioners until 3 March 2003, by which time the review letter had been sent. The review letter apparently did not reach the Appellants, as they said in a further letter of 17 March 2003. A further copy of the review letter was sent on 28 March 2003.

Later, in a letter of 16 July 2003, the Appellants agreed to any date for the hearing, and said that London would be preferable. They continued:

"We do not intend to take part at the hearing because of the costs, which include: transport, accommodation and an interpreter. Also we cannot abandon work for several days. Everything we had to say was contained in our letters - we were not in England and we did nothing; the fact that we are part owners of the vehicle in question was verified in the document we attached. Please, render a default judgment and send it to us by mail."

Mr Polatch also gave oral evidence at the hearing. He said that there were six matters which persuaded him that the decision not to restore should be upheld. First, that the amount of goods imported was such as was likely to damage legitimate trade. Secondly, that the space in the rear of the vehicle was considerably bigger than that required for the safe stowage of the valuables mentioned by the Appellants. Thirdly, that he did not believe it credible that a lorry driver would spend as much as £335 on transport to visit a flower show unless it was a planned trip for the purpose of importing cigarettes for a commercial purpose. Fourthly, he said also that he believed it probable that the Appellants would have been aware of the circumstances of the trip and the illegal purpose of it, since they would have discussed the use of the vehicle with Andrzej Doniec. He also said that the Appellants had taken a considerable risk in allowing Andrzej Doniec to use the vehicle. He said that his view was not affected by the Appellants' denial that they knew of the purpose. Fifthly, that since Andrzej Doniec was a part owner of the vehicle, restoring the vehicle to the Appellants would be tantamount to restoring it to him. Lastly, that there was no reason to vary the Commissioners' policy of non-restoration.

The last piece of evidence was contained in a statement by Leslie Smith, which sets out in full the policy of the Commissioners relating to restoration of vehicles. It included the following passage:

"Where any vehicle has been adapted to conceal smuggled goods. We rarely restore the vehicle unless the owner was completely unaware of the adaptation. Where the vehicle is restored, a condition of restoration will be that the adaptation is removed."

The law

The law relating to the seizure of goods and vehicles is as outlined in the review letter and in the statement of case, both of which have been served upon the Appellants. We add only that relief from excise duty on imports into the United Kingdom is afforded only to those who import goods for their own use only from other European Union Member States.

The jurisdiction of this Tribunal is set out in section 16(4) of the Finance Act 1994, and provides as follows:

"(4) In relation to any decision as to an ancillary matter, or any decision on a 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 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;

The restoration of goods and vehicles falls within the definition of "ancillary matters" as defined in Schedule 5 to that Act.

In this context, "reasonable" means reasonable in the sense in which that word was used in Associated Provincial picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. In that case, Lord Greene MR said, at page 229,

"A person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to matters which he is bound to consider. He must exclude from consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may be said, and often is said, to be acting unreasonably."

That passage was cited in Customs and Excise Commissioners v J H Corbett (Numismatists) Ltd [1981] AC 22 by Lord Lane, who then said,

"[The Tribunal] could only properly [review the discretion] if it were shown that the Commissioners had acted in a way in which no reasonable panel 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."

For the avoidance of doubt, we should point out that we have no power to come to our own decision as to whether the vehicle should be restored or not, and we cannot order the Commissioners to restore it. We can only examine the review decision made by Mr Polatch, which he made on behalf of the Commissioners, and decide whether that decision was reasonable or not. If we consider that it was a reasonable decision, the result is that that decision is upheld. If we consider that it was unreasonable, in the sense explained in paragraph 16 above, then all that we can do is to direct that the Commissioners carry out a further review, taking into account such matters as we may direct. Such a further review may, of course, either uphold or overturn the original decision.

The Appellants' case

The Appellants' notice of appeal contained the following grounds:

"We, Adam Doniec and Witold Doniec are part owners of the vehicle in question. The hiding-place made by removing the isolation [sic] layer had been never used by us for illegal purposes. We used it to hide valuables (a camera, a camcorder, binoculars, leather clothing, money, documents) while we were staying at car parks, campsites and other parking places, in order to secure these items against thieves. Having such a hiding-place is not forbidden. The seizure of the vehicle means punishing us for the offence we did not commit, it is applying collective responsibility."

In addition, the Appellants submitted a document, dated 11 April 2003, headed "Appeal". Having asked for the appropriate forms and explanatory leaflet, the document continued:

"Reasons of appeal

To begin with, we would like to make a reference to the said decision. It contains some formal and essential mistakes. The incident (offence) under consideration took place on 15th September 2002, not 15 November 2002. Mr Andrzej Doniec is not and has never been a lorry driver. We would like to stress that the conversation was led without an interpreter and Mr Andrzej Doniec does not speak English.

The vehicle whose restoration we claim has three part owners and its seizure concerns all the owners. We, Adam Doniec and Witold Doniec, did not participate in the incident of 16th September 2002. The seizure of the vehicle means taking away our property. We would like to explain that the hiding place at the rear of the car was made by removing the insulation layer (foamed polystyrene). We declare that we, Adam Doniec and Witold Doniec, had never used it for illegal purposes. It was used to hide valuables such as a camcorder, a camera, binoculars, leather clothes, money and documents while we were staying at car parks, campsites and other parking places in order to secure these items against thieves. We would like to add that our vehicle had been broken into several times, especially in the foreign countries, and only thanks to this hiding place we did not lose so many things. We declare we were unaware that Andrzej Doniec used this hiding place for the illegal purpose. We did not commit any offence. For the reasons set out above, we request you to allow our appeal and restore our vehicle."

The Commissioners' contentions

Mr Takis Tridimas appeared for the Commissioners, and provided us with a skeleton argument. He contended that the review decision was reasonable and proportionate, and that the review officer was entitled to take a robust approach. It was for the Appellants to establish that the decision under appeal was on to which no reasonable body of Commissioners could have come. He relied in particular upon the fact that it had been Andrzej Doniec's intention to smuggle the cigarettes and he had concealed them for that purpose, the loss of revenue of some £20,050, and the potential damage to legitimate trade. In particular, he relied upon the fact that the vehicle had been intentionally adapted for the purpose of concealing goods, and the space provided was considerably larger than would have been necessary for the valuables for which the Appellants said that it was intended. As co-owners of the vehicle, the Appellants shared responsibility for the use to which the vehicle was put, particularly because they knew of the adaptation of the vehicle, and because they did not exercise control over the use of the vehicle and thereby facilitated the smuggling of the goods.

Mr Tridimas referred to three Tribunal decisions: Houlton Meats Ltd v Customs and Excise Commissioners (2002) (Decision E233), Keats v Customs and Excise Commissioners (2004) and Anderson Transport Ltd v Customs and Excise Commissioners (2004) (Decision E683). These he put forward as examples of decisions in support of his contention that responsibility was shared. He contended that Mr Polatch's conclusion that the Appellants as co-owners were aware of the trip and of the illegal purpose, and that they had taken a considerable risk in allowing Andrzej Doniec to use the vehicle. There were no exceptional circumstances which would justify not applying the Commissioners' policy.

Conclusions

It was not in dispute, first, that Andrzej Doniec was knowingly importing a large quantity of cigarettes into the United Kingdom, that they were concealed in a cavity in the vehicle concerned which was more than big enough to contain them, and that Andrzej Doniec was one of the owners of the vehicle. The Appellants admitted and averred that they were the other two owners, and that they were aware of the cavity. In our view, it was entirely reasonable for the Commissioners to come to the conclusion that those cigarettes were being imported by Andrzej Doniec improperly and for a commercial purpose. However, it is not Andrzej Doniec who is appealing against the decision not to restore the vehicle, but the Appellants. The Appellants have said, in writing, that they did not know for what purpose Andrzej Doniec was making the trip, and further that they did not know that he was intending to use the vehicle for any illegal purpose. The Commissioners evidently did not believe that, and, indeed, it would be surprising had they said anything else.

The Commissioners operate a policy in relation to private vehicles found to contain excise goods which are being improperly imported. Basically, that policy is that such vehicles will not be restored to their owners, and in particular if the vehicle has been modified for the purpose of smuggling excise goods. The policy statement says also that each case is looked at individually, to see if there are any exceptional circumstances which would justify offering the vehicle for restoration.

The difference between this case and many others is the fact of the Appellants being co-owners of the vehicle with the driver who imported the goods. The Appellants argue, among other things, that not to restore the vehicle "means punishing us for the offence we did not commit, it is applying collective responsibility". It certainly follows from Mr Tridimas's submissions that the Commissioners seek to apply collective responsibility, though that was only a part of their argument. But that submission of the Appellants raises the matter of whether the refusal of restoration may breach Article 1 of Protocol 1 to the European Convention on Human Rights, in that it is the deprivation of a person's property. That Article provides:

"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 provisions shall not, however, in any way impair the right of a State 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."

In the present case, the deprivation of property is the result of an attempt to break the laws of England relating to the importation of excise goods, and is for the purpose of enforcing those laws and encouraging compliance with them. That being so, in our view the deprivation is clearly in the public interest. It is also for the purpose of securing the payment of taxes. We conclude, therefore, that there has been no breach of Article 1 of the First Protocol.

The question of collective responsibility is another matter. Suppose that Andrzej Doniec were the sole owner of the vehicle. We would ask ourselves the question, whether it would be reasonable to refuse to restore the vehicle to him. We might conclude that it was reasonable, and therefore his vehicle would not be restored. As things are, he has an indivisible share in the vehicle, and there would be no reason why he should not be deprived of his share in it. Mr Polatch made also the cogent point, that to restore the vehicle to the Appellants, which would not deprive Andrzej Doniec of his ownership of a share in it, would be tantamount to restoring it to him. We agree with that view. According to the evidence that has been put before us, by the Commissioners and by the Appellants, we are of the view that if Andrzej Doniec were the sole owner, we would conclude that the decision to refuse restoration was reasonable.

The three Tribunal decisions to which Mr Tridimas referred differed from the present case in that in none of them was the driver of the vehicle when it was intercepted and seized an owner of the vehicle. In Houlton Meats the driver, a son of a director of the Appellant, was authorised to drive the car, but not to take it abroad without permission, which in this case he did not have. In paragraph 11 of the decision, the Tribunal said,

". . .The Commissioners have a policy applying to all third party owners of cars, which they depart from only where the car is stolen, or is owned by a hire company, unless there are other exceptional circumstances. The policy requires that those who smuggle lose their cars whoever they belong to. The policy is hard on companies that own cars made available to employees but it is necessary that it should be a tough policy without any exceptions for owners who are not involved in smuggling themselves, unless there are exceptional circumstances."

In Keats, the appellant had not been present when the car was seized, and had said that he knew nothing about the trip made across the Channel by the driver, a Mr Pagett. The appellant said that Mr Pagett was supposed to be carrying out repairs to the car, and had possession of it for that reason only. But although Mr Pagett had sold the car to the appellant, the former used it as much as, if not more than, the appellant. The Tribunal found that the review decision, to withhold restoration, was reasonable. In paragraphs 28 to 30, the Tribunal said,

"28. . . . The picture that emerges is one of the appellant having facilitated the final trip to Belgium, by virtue of his having allowed Mr Pagett sufficient freedom to use the vehicle for that purpose.

. . .We are satisfied that the truth is that [Mr Pagett] was using the vehicle as if he still owned it, wherever the technical ownership of the vehicle might reside.

The upshot is that Mr Pagett was properly treated by Customs as if he were owner of the vehicle, looked at both from the perspective of Mr Pagett and from that of the appellant. The appellant lacks the status of innocent party for which he has contended. He is, in our view, responsible for the consequences of the fatal trip to the continent, because he did not exercise sufficient control over the use of the vehicle to prevent that happening. The case might have resulted differently if we had found that the appellant imposed, and Mr Pagett accepted, strict conditions governing the use of the vehicle, excluding trips to the continent, and if we had found that the appellant had no reason to suppose that Mr Pagett might breach such conditions. But that is not the case."

In Anderson Transport, the appellant was the employer of a driver who sought to import a significant quantity of tobacco and cigarettes. In paragraph 6 of the decision, the Tribunal said,

"Mr Anderson contends that the Appellant was innocent of any wrongdoing. [The Commissioners] contend that the decision to restore the lorry on payment of the duty evaded was proportionate because the Appellant had done nothing to try to prevent its drivers from smuggling. The Commissioners' policy is that if the haulier can demonstrate that all reasonable steps have been taken to prevent one of its drivers smuggling the tractor unit is restored free of charge, but if the haulier has not taken all reasonable steps restoration is for 100 per cent of the revenue value (or the value of the tractor unit, if lower)."

And later, in paragraph 8,

"While we sympathise with the Appellant finding itself obliged to pay the amount of the duty sought to be evaded by the driver for restoration in order to fulfil its contract when it has done nothing wrong itself, we consider that the policy is entirely reasonable in requiring the taxpayer to take at least some step to prevent drivers from smuggling. Here the only step taken was to emphasise that the Appellant was a law-abiding company. We consider that more is required in the form of something referring to excise goods because there is such an obvious risk for drivers to smuggle...."

Mr Tridimas contended that those decisions illustrated the correct position in law of a person whose vehicle was seized as a result of another person having improperly imported excise goods, and in comparison with the facts of those cases the present case was a stronger example. However, there is one difference between each of those cases and the present. In the present case the driver and the two Appellants were co-owners of the vehicle. In the other three cases the appellants were the owners and the driver was not. The nearest to the present case was that of Keats, in which the appellant apparently owned the car and the driver was given considerable licence to use it. But in each case, the appellant owner was in a position to impose conditions, or rules, upon the use of the vehicle by the driver, and to instruct the driver as to the consequences of smuggling. Of course, no rules will compel a driver who is determined to make the attempt, but the owner will have taken all possible steps. In the present case, the concept of permission to use the vehicle for any particular purpose does not arise. Each of them, Andrzej Doniec and the two Appellants, would appear to have equal rights, to use the vehicle for whatever purpose they might choose, subject only to the use of the vehicle by one or more of the others. One of them is not in a position to compel, or seek to rule, any of the others as to how he may use the vehicle. There would be nothing, other than ordinary good manners and consideration, to prevent one of the owners taking the vehicle without telling the others, and travelling where he wished. For that reason, we did not find that the three examples were of great assistance. However, we respectfully agree with the Tribunal's statement of the Commissioners' policy in Houlton Meats (see paragraph 27 above).

The fact is that in this case the driver, an owner of the vehicle, intentionally attempted to import excise goods, on which duty had not been paid in any of the Member States, into the United Kingdom, using a vehicle which had been so adapted that it was capable of concealing a large quantity of such goods. That was the evidence before the review officer, to put it briefly. The application of the Commissioners' policy had the result that the vehicle was not offered for restoration. In all the circumstances, it appears to us that that was a reasonable decision. The review officer said that he could find no exceptional circumstances which would justify restoration contrary to that policy. Nor can we. The fact that Andrzej Doniec was not the sole owner of the vehicle has unfortunate consequences for the Appellants, with whom we sympathise. But we agree also with the review officer's opinion that to restore the vehicle to the Appellants would be tantamount to restoring it to Andrzej Doniec, the offender. If the Appellants have thereby suffered loss, as appears, their remedy is against Andrzej Doniec, whose actions have placed them in that position.

For the above reasons, this appeal is dismissed. The Commissioners asked for their costs. This appears to be contrary to their usual policy, but perhaps the reason was that the Appellants did not attend the hearing, though it was known to all concerned some months ago that they would not be attending. However, the Commissioners are, in our view, entitled to their costs, and we therefore direct that the Appellants pay the Commissioners' costs of and incidental to this appeal. We give liberty to both parties to apply to the Tribunal if agreement cannot be reached.

ANGUS NICOL

CHAIRMAN

RELEASED:09/07/2004

LON/03/8120