United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2005/E00868.html
Cite as: [2005] UKVAT(Excise) E868, [2005] UKVAT(Excise) E00868

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Brealey v Customs and Excise [2005] UKVAT(Excise) E00868 (22 March 2005)

E00868

EXCISE DUTIES — traveller arriving at Coquelles with excise goods — Customs detecting lies about date of last trip and quantity then imported — whether refusal to restore goods reasonable — yes — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

MICHAEL ROBERT BREALEY Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Colin Bishopp (Chairman)

Robert Grice

Sitting in public in Birmingham on 16 February 2005

The Appellant in person

William Baker, counsel, instructed by the Solicitor's office for HM Customs and Excise for the Respondents

© CROWN COPYRIGHT 2005


 


DECISION
1. In this appeal, Michael Brealey challenges the Respondents' refusal, upheld on a review undertaken by Gregory Wood, to restore to him 2200 cigarettes and 2.5 kg of hand rolling tobacco, seized from him on 19 June 2004 at Coquelles. Mr Brealey had arrived at Coquelles on a coach which had taken him and others, including his wife, to Luxembourg for the purpose of buying excise goods.
2. Mr Brealey represented himself at the hearing, while the Respondents were represented by William Baker of counsel. We heard oral evidence from Mr Brealey and from Mr Wood, and were provided with a number of documents.
3. Mr Brealey told us that when the coach arrived at Coquelles, at the French entrance to the Channel Tunnel, all the passengers were asked to alight, which they did. They then boarded the coach again, but a Customs officer asked a few passengers to alight again, calling out their names. Mr Brealey's name was called out, but his wife's was not. He duly left the coach, carrying with him (as he had been asked to do) the purchases he had made. By mistake, he said, he had picked up one of his wife's bags instead of his own, and what he had with him did not represent his half share of the goods they had bought between them.
4. Mr Brealey was then interviewed by a female Customs Officer, whose name we were not given. Although the officer was very pleasant, Mr Brealey said, she made a number of mistakes, in particular about his income and expenditure. We accept that there is merit in that observation, and in Mr Brealey's further complaint that the paperwork given to him following the seizure was incomplete. He produced the originals to us and it was quite clear that the forms used by the officer had not been completed properly, or in some respects at all. Mr Brealey was not given the information which, as we know from other cases, people in his position are usually given, setting out the means by which the seizure may be challenged and the goods recovered, and it is only by his own persistence that he has managed to get as far as this tribunal. Although, thinking he had brought with him exactly half of the goods he and his wife had bought, Mr Brealey told the officer – as her notes record – that he had 3200 cigarettes and 3 kg of tobacco, it is evident that the officer did not trouble to check but simply entered the quantities Mr Brealey had mentioned on the seizure form. Only later did it emerge that the quantities actually seized were less. It is understandable that officers do not count a very large consignment before seizure, but the quantities in this case were modest in the extreme, and checking what Mr Brealey had said would have taken no more than moments. We find these various lapses extraordinary and can only express the hope that they are isolated and will not recur.
5. However, and unfortunately for Mr Brealey, some other matters did emerge during the course of the interview. He was asked when he had last travelled to the continent to buy cigarettes or tobacco and answered that his last trip had been a month previously. He said, too, that on that occasion he had bought 800 cigarettes and 3 kg of tobacco. The officer had information available to her that Mr Brealey had in fact travelled only two weeks previously when he had been stopped by Customs and found to have 3200 cigarettes and 3 kg of tobacco. When she put those facts to Mr Brealey, he admitted immediately that they were correct and it is right to say in his favour that he has not sought since to excuse his lies, as he acknowledged them to be, save to tell us that he was confused because the officer repeatedly left the interview room (he thought to obtain guidance from a senior officer) while other people came into and left the room. While we can understand that Mr Brealey was apprehensive, we do not accept that the factors he described could have caused him to tell these untruths.
6. It emerged as Mr Brealey gave his evidence that he had told another lie, during the course of his interview, which the officer had not detected. He told her that, of the goods he had bought on his previous trip (he had travelled alone) only about 400 cigarettes remained. Before us, however, Mr Brealey said he still had a lot of those goods at his home. He did not tell us the exact quantity but it was clear that it was considerably more than 400 cigarettes. Mr Brealey's explanation of his travelling to Luxembourg only two weeks after his previous trip was that he wanted to have a sufficient supply at his home to last for some time, as he did not wish to travel during the winter. Since the trip with which we are concerned was made in mid-June, we find that an unconvincing explanation.
7. It was apparent to us from Mr Wood's letter, setting out the outcome of his review, and from his evidence that he had accepted what Mr Brealey said in his correspondence about his income, and had discarded the view of the officer at Coquelles that Mr Brealey had spent more than he could properly afford. He had been under the impression, when he wrote the letter, that Mr and Mrs Brealey had gone through Customs controls separately, a possible indication of an attempt to deceive Customs about the total quantity of goods being brought into the United Kingdom. Mr Wood accepted, having heard Mr Brealey's evidence, that his impression was misplaced, although the procedure described by Mr Brealey was, he said, unusual. We should add in this context that the interview notes indicate that Mr Brealey told the officer, unprompted, that he was travelling with his wife, and that he made no attempt to hide the total quantity of goods they had bought. We do not ourselves think there ever were any grounds to suspect that Mr and Mrs Brealey were attempting to conceal what they had bought, together, on this occasion.
8. Despite acknowledging that his belief that Mr and Mrs Brealey had separated before passing through Customs controls was incorrect, Mr Wood said that he would come to the same conclusion that the goods should not be restored, if he were conducting the review now after hearing Mr Brealey's evidence because of the two lies of which he was aware when he carried out the review and, now, of the third which emerged from Mr Brealey's evidence. He was sceptical, too, of Mr Brealey's claim that he was buying goods not only for himself and his wife but also for his adult children. Although he accepted that Mr Brealey had an ample income he thought his claimed generosity was too great to be credible. He had detected nothing unusual in this case which should lead him to the view that the Commissioners' usual policy of not restoring excise goods brought improperly into the country should not be restored, and for that reason would still uphold the original refusal.
9. This tribunal has a very limited jurisdiction. We may allow the appeal only if Mr Brealey satisfies us that Mr Wood's decision was one at which he could not reasonably arrive: see Finance Act 1994 section 16(4). We cannot allow the appeal because we might ourselves think the goods should be restored, or even if we reach the conclusion that the goods seized were for Mr and Mrs Brealey's own use. Mr Brealey must persuade us that Mr Wood could not reasonably decide, on the available evidence in the case, that the goods should not be returned.
10. It is impossible for us to reach that conclusion. If travellers lie to Customs about the frequency of their trips, the quantities of goods they have bought or the quantities they already have at their house, they cannot be surprised, nor can they complain, if Customs doubt everything else they say. It may be that if Mr Brealey had told the truth at Coquelles, he would have been allowed to keep his goods – we obviously do not know – but it cannot, in our view, be regarded as unreasonable if Customs officers, having detected lies, conclude that a traveller's purposes are not as innocent as he claims. Whether the conclusion of the officer at Coquelles that this was a commercial importation was right or wrong is not the issue; it is sufficient that it was not an unreasonable conclusion. Mr Wood's similar conclusion is likewise not unreasonable and, like him, we see no special circumstances in this case which might properly cause the Commissioners to depart from their normal policy, approved by courts, that goods seized in those circumstances should not be restored.
11. The appeal is, therefore, dismissed.

COLIN BISHOPP

CHAIRMAN
Release Date: 22 March 2005

MAN/04/8096