United Kingdom VAT & Duties Tribunals (Excise) Decisions

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Cite as: [2005] UKVAT(Excise) E850, [2005] UKVAT(Excise) E00850

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Duell v Customs and Excise [2005] UKVAT(Excise) E00850 (17 February 2005)

E00850

RESTORATION – Seizure of excise goods and vehicle – Large quantity of goods – Restoration sought on ground of exceptional hardship – Evidence of inconvenience and hardship resulting from seizure of vehicle – Whether hardship exceptional – No – Appeal dismissed

LONDON TRIBUNAL CENTRE

WILLIAM DUELL Appellant

and –

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: ANGUS NICOL (Chairman)

MR K S GODDARD MBE

Sitting in public in London on 10 January 2005

The Appellant in person

Mr David Manknell, counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2005

DECISION

This is an appeal against the refusal of the Commissioners to restore to the Appellant certain excise goods imported by him and a Ford Focus Estate vehicle, all of which were seized by the Commissioners on 22 April 2004 at Coquelles in France. The excise goods comprised 50 kg of Golden Virginia tobacco and 20,400 Superkings cigarettes, together with various quantities of sprits, wine, and beer.
In a letter (undated) received by the Commissioners on 30 April 2004 the Appellant requested the restoration of his car, on the ground that it was essential to him as he worked away from home, and without his car he would get no work. He described his car as his lifeline. In a reply dated 10 may 2004, the Commissioners refused restoration, on the ground that there was no evidence of exceptional circumstances which would justify departing from their policy not to restore vehicles used for the improper importation of excise goods. The Appellant wrote asking for a review of the decision, and the review letter, dated 1 July 2004 upheld the decision to refuse restoration (we refer more fully to both letters below).
The Appellant appealed. In his notice of appeal he gave the following ground:

"That the decision against me not to restore my vehicle was that of a very harsh nature, and would like the opportunity personally to reiterate the repercussions of not having the vehicle restored and the consequences/effects this would have on my family life."

The facts
Unusually in this type of case, the facts are not in dispute. Evidence was given by the Appellant and by the review officer, Miss Helen Perkins. There were also statements made by the intercepting officers, none of whom was called to give oral evidence. The facts as set out in the statement of case were as follows.
On 22 April 2004 the Appellant was stopped at the United Kingdom Controlled Zone at Coquelles in France. He told the officers that he had been to Holland and Calais for the day for the purpose of buying tobacco. He said that it was a one off trip, the goods were all his and would last him for a year and a half. He produced receipts for the goods. The "commerciality statement" was read to him. After that, he was interviewed. In his vehicle there were found: 50 kg of tobacco, 20,400 cigarettes, 94 litres of beer, 21 litres of wine, 1.4 litres of spirits, and 150 cigarillos.
In the interview he said that all the goods belonged to him, and were intended for his own personal use and would last him a year and a half. He said that he smoked about 200 roll-ups a week, using a machine to roll his own, using 2 to 3 pouches a week from each of which he got 30 to 40 cigarettes.. He had spent about £4,500 that day. He had bought no cigarette papers, since he had a large amount of them at home. His take-home pay was about £1,500 a week for a seven-day week, and his outgoings were about £500 a week. He had received and would receive no money for any of the goods. The cigarettes were for him and his fiancée, who smoked ready-made cigarettes when they went out to the pub. He said that he had packed as much goods into his vehicle as he could. He had booked the trip the day before. The cigarettes had been bought in Holland and the tobacco in Adinkerke in Belgium. He had paid in cash, which had come from his current account. He was asked when he had drawn the money out, and said that he always had money with him as he drew a lot of his wages every Friday and always kept a lot of money at his accommodation. He stayed in a rented house shared with others, and kept the cash in his room. When stopped he had no smoking materials on his person and no lighter, though there was a lighter in the car. He had made no previous trips to buy tobacco, and a friend had told him exactly where to go and what to do. He said that he had gone with a set amount of money and had bought as much as he could so that he would not need to go again. He had no need to sell the goods; he agreed that the officer had not mentioned selling the goods. The tobacco would be stored at his home, in Sunderland, not in any special conditions, but just somewhere cool and dry, probably in his garage. At the end of the interview the Appellant signed the officer's notebook to the effect that the account was true.
The officer then seized the goods, and recorded the following reasons for not being satisfied that the goods were for the Appellant's own use:

"1. Amount of goods purchased.

2. Consumption rates - 6½ years supply on tobacco alone.

3. Inconsistency in the funding of the purchases (from current account/money from digs).

4. No open smoking material on person/no evidence of smoking in vehicle.

5. Consumption of 2-3 pouches a week, smoking 200 a week getting 30-40 from a pouch.

6. Becomes nervous/stuttering when asked about tobacco goods. Not when other questions asked."

The Appellant's vehicle was also then seized.
There followed correspondence between the Appellant and the Commissioners with regard in particular to the restoration of the car. This began with an undated letter (received by the Commissioners on 30 April 2004). In that letter the Appellant stated that the goods which he had imported were for his own personal use and none of it, he stressed, was for commercial use. He explained that the trip to buy the goods had been a cost-saving exercise, in buying goods which would last him for a year and a half. He felt that he had been badly treated, since his car was his lifeline: "no car - no work", especially since he was working away from home. He said that the amounts of beer, wine, and spirits were well within the limits. He would willingly sacrifice all the goods in order to get his car back. He had fully co-operated with Customs. The reply to that letter, dated 10 May 2004, made a brief mention of the Commissioners' policy as to restoration of goods and vehicles, and stated the decision that the goods and vehicle would not be offered for restoration. The letter informed the Appellant what to do if he wished that decision to be reviewed.
The Appellants request for a review, also undated, was received by the Commissioners on 19 May 2004. It was a long letter, in which the Appellant sought to set out his case. He repeated that he had been to Holland, Belgium and France, and that he was stopped at Coquelles, where, he said, he gladly offered to assist the officers. Then there started what he referred to as "a nightmare scenario". He was told, he said, that he had not proved conclusively that the goods were for his personal use, one of the reasons for this being that he had hesitated or stuttered when asked about the goods. Another reason, he said, was that there was a question as to where the money that he had spent on the goods had come from. He said that he had been interviewed for over two hours in a very intimidating and airy atmosphere, so that he felt as though he was being treated as a criminal. In those circumstances, he said, it was not surprising that he was hesitant and nervous. He had never had any trouble with the law before, and now he was being accused of smuggling. As to the money, he said that he was earning some £1,500 a week, and could well afford the excursion; the officers implied that they did not believe him and that the money came from other sources. He went on to say that the result of his car having been confiscated was that his livelihood had been taken from him. He said also that he had been misled as to the quantity of excise goods which he was allowed to import. He produced a "Notice to passengers" published by Hoverspeed as a guideline. That notice asked the question, "are there any limits to the amount of excise goods individuals can bring back to the UK?" The notice gives the following answer: "None. Under EU law individuals can bring into the UK unlimited amounts of ... cigarettes and tobacco provided it is for their own use...." (The bold type is in the notice.) It also explains that "own use" includes free gifts to other people. The Appellant said that he had filled his car, which was the point of the trip, and had no intention of selling the goods, only to save money. He implied that had he been smuggling he would not have risked a £7,000 car with the risk of its being seized. He repeated that he had been unfairly treated, singled out, and made an example of, and his name was badly tarnished. He stated his intention of appealing. (We pause to mention, not for the first time, that such notices, published by commercial bodies who stand to gain from expenditure on excise goods, are misleading and do not reflect the reality of importing excise goods.)

The review decision
The review letter was dated 1 July 2004. The review officer, Miss Helen Perkins, set out the background facts of the case and the salient points of the interview, which corresponded with the facts as set out above. She also referred in some detail to the correspondence which had passed after seizure. She then pointed out to the Appellant that since he had not within 30 days after the seizure contested the legality of the seizure in condemnation proceedings in the magistrates; court, the goods and vehicle were condemned as forfeit to the Crown by the passage of time. Having also set out the relevant legislation and the Commissioners' policy on restoration, Miss Perkins concluded with her consideration and decision. She said that she had begun by considering the decision afresh, and had considered the circumstances of seizure and all the material that was before the Commissioners at the time of making the decision. She also considered any representations that had been made since the decision. She did not consider the legality of the seizure, since that should have been contested in the magistrates' court. She quoted a short passage from a decision of the Tribunal in Hardie v Customs and Excise Commissioners, in which the chairman had commented that "...on any view, 36 kilos is a commercial quantity of tobacco."
Miss Perkins took the following matters into consideration in reaching her decision. First, the Appellant's stated consumption. She pointed out that if he used 2 to 3 pouches a week, and got 30 to 40 cigarettes from each, that would amount to between 90 and 120 a week instead of the 200 roll-ups that he said he smoked, If he smoked three pouches a week, the tobacco would last him in excess of six years, rather than 18 months, and to use it all in 18 months would involve smoking over 200 a day. She also said that tobacco manufacturers have informed Customs that the shelf-life of tobacco in proper conditions was 12 to 18 months. She also said that it was widely accepted that a 50g pouch would give 70 to 80 cigarettes, and that could be increased to 120 if a machine were used. From these facts, Miss Perkins was led to conclude either that the Appellant was not a smoker, or that he had given a lower number of cigarettes per pouch so as to shew that the tobacco would have lasted a shorter time. Secondly, Miss Perkins said that it would be extremely unusual for a smoker to have no smoking materials on him at all. Thirdly, the Appellant had said that he paid £5 to £7 a pouch in shops, clubs and pubs; the retail price of a pouch was in excess of £9. From that she inferred that either the Appellant was not a smoker, or that he purchased from illegitimate sources. Fourthly, Miss Perkins pointed out that , but even if the Appellant and his fiancée went daily to the pub and consumed between them a packet of the ready-made cigarettes, they would last something over three years. That would be in addition to the tobacco. Fifthly, Miss Perkins accepted that the Appellant had a sufficient income to be able to afford the goods, but considered that there was an inconsistency in his account of where the cash came from. He had not in fact provided copies of bank statements. She did not believe that he would keep substantial amounts of cash in a rented room in shared accommodation. Those factors led Miss Perkins to the conclusion that the goods were not intended for the Appellant's personal use. She added that a prudent traveller would have tried to inform himself about the Customs regulations before travelling, and perhaps obtained a copy of Notice 1, which is available from Customs or on the Internet.
Turning to the matter of restoration, Miss Perkins referred to the Court of Appeal decision in Lindsay v Customs and Excise Commissioners. She mentioned that the amount of revenue involved was £8,351.82. She gave consideration to the matters which the Appellant had raised in correspondence relating to the consequences to him of having had his car confiscated. She said, on this topic:

"However I have paid particular attention to the issues that you have raised concerning the consequences in relation to your employment if the vehicle is not restored to you. You have emphasised that it is needed to get you to work and without it you are unable to work. Whilst I sympathise with this, one must expect a considerable inconvenience as a result of having a car seized by Customs, and perhaps a large expense of making other transport arrangements or even in replacing the car. I do not regard either the inconvenience or expense as exceptional hardships over and above what one should expect. In the circumstances I do not consider that you have suffered exceptional hardship by the loss of the car. I therefore conclude that there is no reason to disapply the Commissioners' policy of not offering restoration of the car in all the circumstances." (Miss Perkins's own emphasis.)
Miss Perkins, in her witness statement, said that she was satisfied that she had considered every matter that was relevant and disregarded everything that was irrelevant. In her oral evidence, she said that tobacco manufacturers had informed her, or the Commissioners, as to the shelf life of tobacco if kept in proper conditions. However, no evidence was produced, either by a witness or a witness statement on that subject. Since the Appellant was in effect challenging the length of time for which it could be kept, we did not think it proper to give a great deal of weight to what Miss Perkins said about it. She also said that she had received information as to the number of cigarettes obtainable from a pouch of tobacco from other officers. That, too, was not accepted by the Appellant. In any event, we considered that the figures cannot be very accurate, because the thickness of a cigarette may vary very considerably. What was of more importance was what the Appellant himself said, and the amount which he would have to have smoked if the goods were to last only 18 months.
In cross-examination, on the subject of exceptional hardship, the Appellant put to Miss Perkins that she was in the happy position of being able to see her children every day, while he, being without a car, could only see his for a week-end once in about four weeks. She said that she had been unaware that the car was on hire-purchase to the Appellant at the time of seizure. She said also that the Appellant had produced to the Commissioners no evidence, such as financial documentation, which would demonstrate hardship. She said also that she was aware that in April 2004 a pouch of tobacco would have cost between £9.00 and £9.50, depending on the brand and where it was purchased.

The Appellant's evidence
The Appellant said that he was a foreman electrician, and had been working night shifts on the Eurostar rail link at St Pancras. He lived in Sunderland, with his fiancée, her two daughters and his son. At the time he had been earning take-home pay of about £1,500 a week, all of which was paid straight into his bank account. In April 2004 a contract had come to an end and he had found himself with a spare day. He had therefore taken the opportunity of driving across in order to buy cigarettes, tobacco, and beer, wine and spirits. He was earning what he described as "half decent money", and could well afford to do this. It was the first time he had ever gone abroad with the car. He said that he would draw varying sums from his bank account, depending upon whether it was a week for paying bills or not. If it was, he would draw about £500 to £600; if not he might draw up to £1,000 or more. He kept money in his room at his lodgings in Goodmayes. He had on that occasion about £6,000 in cash, and went across the Channel and bought the goods. He said that he had felt like a child in a sweet-shop, and bought enough to fill the back of his car. He had been under the impression that he was allowed to bring in as much as he liked if it was for his own use.
In the interview, the Appellant said, the figures which he gave were just figures, with no particular thought behind them. He knew nothing of consumption rates, and had never worked out how many cigarettes he got from one pouch. He was, he said, a heavy smoker and had been smoking for about two years, though he has now given up. He said that he was very nervous in the interview, and that he was a nervous person by nature. We did notice that he had a very slight occasional stutter, but whether that was normal or was due to nervousness we were unable to say. He had not thought that he was breaking any rules in bringing the excise goods in, though, with hindsight, he realised that it was rather a lot. He said that he would not have risked a car which had cost him £7,000 on a smuggling trip; he could not afford such a loss, let alone the combined loss of £12,000 for the car and the goods together. He could have bought an old car for about £400 for such a purpose Also the car was on a hire-purchase agreement, which was not yet paid off..
The effect of the loss of his car on his life was, he said, catastrophic. Having no car, he was obliged to use public transport, which was expensive and inconvenient. He had to stay working in London, and could not get up to Sunderland as often as he wished or needed. His son needed him to be at home, he said. The purchase of a new car would be a considerable expense; he mentioned the figure of £20,000, which we understood to be the combined cost of the goods, the car which was seized, and £8,000 or so for a new car, which he said that he could not afford. His car, he said, was his livelihood. He contended that the penalty outweighed his "crime". He stressed more than once that the tobacco had been all for his personal use.
He had not thought about storage before he was asked, and had not thought about tobacco having a shelf life. He thought that simply a cool dry place would be sufficient. It had not occurred to him that the tobacco would last over six years. In any case, it was vacuum packed. He said that when his fiancée and he had a night out they would take a box of 20 cigarettes between them. He would have left the tobacco and cigarettes in Sunderland, for which he was heading when stopped, and his fiancée could have smoked them at any time while he was in London. He agreed that he had not mentioned that in the interview, as he was intimidated.
The Appellant said that he had left St Pancras at about 8.0 that morning, as soon as his shift had ended. He had left France at about 5.0 that afternoon, and was going to drive straight to Sunderland. He agreed that the ashtray in the car had not been used, and said that he never smoked in the car. That was why he had no smoking materials on him. Although he was a heavy smoker, he could manage without smoking. He accepted that a pouch of tobacco would cost something over £9. The figure that he had mentioned in interview was what you paid in pubs and clubs, where people were selling it for that price. He had paid sterling for the goods, as he had been told that the shops would accept sterling. He had not drawn the £6,000 out that day, it had accumulated from other drawings. He had no money that did not come out of his current account. It was as safe at his lodgings as it would have been anywhere, he said. He also said that his parents and his brothers smoked. He said that he had not mentioned that in the interview, because if he had his credibility would have been blown.

The legislation
The United Kingdom law relating to the importing of tobacco is contained now in the Tobacco Products Regulations 2001. The provisions relevant to the present appeal are the following:

"12. Excise duty points

(1A) In the case of tobacco products acquired by a person in another Member State for his own use and transported by him to the United Kingdom, the excise duty point is the time when those products are held or used for a commercial purpose by any person.

(1B) For the purposes of paragraph (1A) above—

. . .

(b) 'own use' includes use as a personal gift,

. . .

(e) . . .in determining whether tobacco products are held or used for a commercial purpose by any person regard shall be taken of—

. . .

(viii) the quantity of those products, and in particular, whether the quantity exceeds any of the following quantities—

3,200 cigarettes

400 cigarillos. . .

200 cigars

3 kilogrammes of any other tobacco products

. . .

(x) any other circumstance that appears to be relevant."
The Tribunal's jurisdiction is set out in section 16(4) of the Finance Act 1994:

"In relation to any decision as to an ancillary matter, or any decision on the 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 persons making that decision could not reasonably have arrived at it, to do one or more of the following, that is to say—

(a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct;

(b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision, and

(c) . . ."

This case falls within the definition of "ancillary matter" as defined in Schedule 5 to that Act.
In order to determine whether the review decision not to restore the vehicle is reasonable, the Tribunal must look at the evidence, so that if the review decision was based upon evidence which has been erroneously reported to the officer conducting the review, or if that evidence contains significant omissions, that will have a bearing on the "reasonableness" of the decision under appeal. 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 221. 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 his 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."

The Commissioners' contentions
Mr Manknell, who appeared for the Commissioners, provided a skeleton argument. He dealt first with the Tribunal's jurisdiction in particular with reference to the legality of seizure. He referred to Gascoyne v Customs and Excise Commissioners [2004] EWCA Civ 1162 CA, and contended that the question whether imported excise goods were for the importer's own use or for a commercial purpose was a matter which fell to be determined in condemnation proceedings in the magistrates' court, under paragraph 3 of Schedule 3 to the Customs and Excise Management Act 1979 ("CEMA") and not in a restoration appeal (see also Gora v Customs and Excise Commissioners [2004] QB 93 CA). However, where the Tribunal accepts that the goods are deemed to have been imported for a commercial purpose, for example, if an appellant has not taken condemnation proceedings, as in the present case, the Tribunal was not prevented from questioning the reasonableness and proportionality of the decision to refuse restoration. The Tribunal always has jurisdiction to consider whether the review decision was reasonable, in the Wednesbury sense, under section 16(4) of the finance Act 1994. The review decision must be based upon the information available to the Commissioners at the time when the decision was made. In the present case, he reminded us, the Appellant had not challenged the legality of the seizure in condemnation proceedings. Consequently, under paragraph 5 of Schedule 3 to CEMA, the goods and vehicle were deemed to have been duly condemned as forfeit. If the Tribunal considered that the res judicata rule and the matter if abuse of process were not enough to prohibit further consideration of the facts leading to seizure, it should give reasons for taking that course.
Mr Manknell contended that the facts demonstrated that the importation was for a commercial purpose. He relied particularly upon the quantity of goods imported, the inconsistency in the Appellant's assertions that he smoked 2 to 3 pouches a week from each of which he obtained 30 to 40 cigarettes, and that he smoked 200 roll-ups a week. Further, the Appellant's stated consumption rate would result in the tobacco lasting over six years and the cigarettes more than three, and he had no particular plans for storage. He contended that it was unlikely that the Appellant, a heavy smoker, would have gone for a whole day without having any smoking materials on him; if he did not smoke in his car, there were other times in the day when he could have smoked. His estimate of tobacco prices in the United Kingdom was clearly based upon unlawful sales, which suggested that he was well aware of such a market. The Appellant had, for the first time, at the hearing, added a new explanation for the consumption of the ready made cigarettes: that his fiancee would smoke them in his absence. Finally, the Appellant had said first that the funds had come from his current account, and then that he had kept large sums of cash in his lodgings, which was implausible. It was therefore reasonable for the Commissioners to have taken the view that the goods had been imported for a commercial purpose.
As to proportionality, Mr Manknell contended that the application of the Commissioners' policy did achieve a fair balance between the deterrence of evasion of duty and the protection of the revenue as against the subject's right to enjoy his own property, under Article 1 of the First Protocol to the European Convention on Human Rights. The amount of goods was very large, the duty would have been £8,351.82. The amount of goods was greater than that which had been described in Gascoyne by Buxton LJ as "enormous" (32 kg).
Finally, it was the Commissioners' case that although there had been inconvenience and possibly some hardship resulting to the Appellant from the loss of his car, there had been no exceptional hardship.

The Appellant's contentions
The Appellant had intervened during Mr Manknell's contentions to say that he had been given a notice several pages long, which had given him two options, one of which was to seek the restoration of his vehicle. Since what he wanted was the return of his car, that was the one which he had taken. The two options appeared to be the filling in and sending to the Commissioners of either Letter A or Letter B. The heading to Letter A was "Use this letter if you want to appeal against the seizure." At the foot there is printed, "Please commence Condemnation Proceedings on my/our behalf." Letter B was headed "Use this letter if you want Customs to restore (return) seized items." Letter B was the one which the Appellant had filled in and sent.
The Appellant said that he had tried every avenue open to him to achieve restoration of his car. He had frequently telephoned the Commissioners, and had many times explained that he needed the car for work. He was advised to fill in Letter B. He said that he had been unaware of breaking any law, and had not brought the goods in to make a profit. He referred again to the fact that he was now unable to get home as often as he would wish, and that he was based in London because there was work there, which was not necessarily what he wanted but which would do until he was on his feet again. He contended that the loss of his car did cause him exceptional hardship.

Conclusions
It is important that we make clear to the Appellant, who was unrepresented, that the function of this Tribunal is exactly that which is set out in section 16(4) of the Finance Act 1994 (see paragraph 20 above) and nothing else. We have no jurisdiction to come to a decision of our own on the evidence, only to consider whether the review decision was a reasonable one in the sense that we have described. In particular, we have no jurisdiction to order the return to the Appellant of his car or any of the goods. We therefore look to see upon what the review decision was founded.
One of the factors upon which the decision was founded was what was described as the inconsistency in describing where the funds came from for the purchase of the goods. Apparently it was considered that there was some inconsistency between money from the Appellant's current account and that which he kept in his lodgings. He made it quite clear that all his pay went into his current account, and that any cash he had came from that account. It seemed to us that there was no inconsistency there at all. It was not suggested that he had any other source of funds. It may be unusual to keep comparatively large sums of cash in a room in lodgings, and perhaps not very wise, but it is, in our view, not so strange as to be incredible. We regarded this as a point of very little weight.
The other matters which Miss Perkins took into consideration when coming to her decision (see paragraph 11 above) were in a different category. The large amount of tobacco and cigarettes by itself would, at first sight, suggest a commercial purpose. That could, of course, be rebutted by evidence of the intended destination of the goods, such as a large social function of which the importer is to be the host, or presents for a number of members of the family. There was no such evidence, and it might be difficult to do so convincingly in respect of such large quantities of hand-rolling tobacco. The large quantity, a hundredweight, was coupled with the Appellant's estimates of how long the tobacco would last him and how many cigarettes he would get from a pouch. These estimates were in our view unlikely, and were regarded so also by Miss Perkins. There was also the length of time which the tobacco would last, on the Appellant's own estimates, and the fact that he had no plans for proper storage of it for a n umber of years. We did not accept the unsupported statement relating to the shelf life of tobacco, but we would find it hard to believe that it would remain in a smokable state for between three and six years. His apparent ignorance in this area suggested to Miss Perkins that the Appellant might not in fact have been a smoker, a suspicion that was supported by the fact that he had no smoking materials on him. That seems also strange to us, when we consider that he had left St Pancras at 8.00 in the morning, at the end of his night shift, and would be driving to France, Holland and Belgium, and then on to Sunderland. That would be most of a long and tiring day, which would be a long time for a heavy smoker. We find it unsurprising that the Appellant should be familiar with cut-price sales of cigarettes and tobacco in pubs and clubs; if it is as common an occurrence as it is said to be, that knowledge does not necessarily have any sinister connotation. However, it is undoubtedly a factor to be taken properly into consideration. We have not forgotten that the Appellant said that he had never had any brush with the law in his life, and that his intentions were not to smuggle. However, taking all the matters into consideration to which Miss Perkins referred, we cannot see that her decision was anything other than reasonable in all the circumstances. All those factors were clearly relevant. We cannot see that she took into consideration any irrelevant matter. The so-called inconsistency as to the source of the funds was clearly relevant and a matter which was properly taken into consideration, even if the Commissioners' view of that matter was a little over-zealous. But even if it had been irrelevant, the other, and relevant, matters were, in our judgment, sufficient by themselves to justify the Commissioners' decision, in their then state of knowledge, even if that alleged inconsistency were disregarded.
Although there was no need, in the circumstances, to consider the facts giving rise to, and the legality of, the seizure, we should add a word about the option given to a person whose goods and vehicle are seized as to what procedure he should adopt if he should wish to try to recover them. We did not see the whole of the document of which pages 15 and 16 were Letters A and B. It is possible that it contains an explanation of what condemnation proceedings involve. Even if it does, it was clear that the Appellant had not understood, nor had he understood the difference between appealing against the seizure on the one hand and seeking restoration on the other. Procedurally they are wholly distinct, although the desired end result is the same. We were not surprised that a layman with no legal advice should not understand the difference. In another case, the want of clarity could lead to still further argument and appellate litigation beyond Gascoyne and Gora.
As to the matter of exceptional hardship, we accept, as Miss Perkins said, that each case is looked at upon its particular facts to determine whether exceptional hardship has been suffered by the person who has had a car confiscated. It is also accepted that the Commissioners are entitled to look for exceptional hardship as part of their policy. It would make no sense if all that was necessary was for an appellant to shew that he had suffered some hardship; that would no doubt be so in every case. Therefore it is reasonable that exceptional hardship should be the criterion. We sympathise with the Appellant in this case in particular because he is not able to get home to see his family as often or as conveniently as before, though we also bear in mind that when he had a car his work, away from Sunderland, restricted his visits home. We have considered all that the Appellant said, both in correspondence and in his oral evidence before us, and we have come to the conclusion that although he has suffered inconvenience and some hardship, that was not exceptional hardship such as to justify the restoration of his vehicle. We consider that Miss Perkins expressed the matter correctly and reasonably in her review letter: see the passage quoted in paragraph 12 above.
For the above reasons, this appeal must be dismissed. The parties indicated that, in the event of success in the appeal, neither would be seeking costs. Accordingly, we give no direction as to costs.

ANGUS NICOL

CHAIRMAN

RELEASED: 17 February 2005

LON/04/8061