United Kingdom VAT & Duties Tribunals (Excise) Decisions

Barker v Revenue and Customs [2005] UKVAT(Excise) E00884 (24 May 2005)

E00884

EXCISE DUTIES — seizure of goods and car — refusal to restore car — evidence of previous trips and purchase of substantial quantities — traveller's claims about consumption and purpose rejected — whether disproportionate to refuse to restore car — no — appeal dismissed.

MANCHESTER TRIBUNAL CENTRE

CARL BARKER Appellant

- and -

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Colin Bishopp (Chairman)

Marjorie Kostick BA FCA CTA

Sitting in public in Birmingham on 6 April 2005

The Appellant in person

Ian Speed, counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2005

DECISION
1. In this appeal, Carl Barker challenges the Respondents' refusal to restore to him a Vauxhall Frontera car which was seized from him, together with various excise goods, at the French entrance to the Channel Tunnel at Coquelles, on 14 February 2004. Mr Barker has not challenged the Respondents' refusal to restore the excise goods to him; they consisted of 22 kilograms of hand rolling tobacco and 150 litres of beer.
2. Mr Barker represented himself at the hearing and we heard evidence from him. The Respondents were represented by Ian Speed of counsel, who provided us with a bundle of relevant documents and called two witnesses to give oral evidence: Andrea Smith, the officer who interviewed Mr Barker at Coquelles, and Graham Crouch, the officer who carried out the review of the refusal to restore Mr Barker's car. It is Mr Crouch's decision which is the subject matter of the appeal.
3. Mr Barker's case is that he was in the habit of making between six and eight trips a year to the continent, in order to buy tobacco and alcoholic drink. His practice was to travel across the channel, and then drive immediately to Belgium to buy tobacco, returning to France to buy the drink before crossing the channel back to England. In the past he had bought relatively modest quantities, but on this occasion, he told us, he decided to buy a more substantial amount, with a view to reducing the frequency of his trips. Mr Barker was accompanied by two of his children, Kylie, then aged 16 and, Jake, whom Mr Barker described as aged 10 although such evidence as we have in fact indicates that he was 12.
4. Mr Barker told us that as he left the passport control, making his way towards the embarkation point, he was stopped by a Customs officer who, after asking him a few questions, directed him to a garage where he stopped and was approached by another officer, Mrs Smith. Mrs Smith, he said, asked him the same questions as the first officer had asked, and then requested that he and his children leave the car while it was searched. He was asked, Mr Barker said, for the third time what goods he had and on this occasion he merely replied (since the car was about to be searched) that he had bought the goods which Mrs Smith and her colleague who was assisting her would find in the car. The search was carried out and then Mrs Smith approached him again to say what she had found which, Mr Barker confirmed, was what he had bought. He produced the receipts.
5. There then followed what Mr Barker described as an "off record" interview in which, he said, he told Mrs Smith that he smoked 40 to 50 cigarettes per day, so that the tobacco he had bought would last him between 12 and 18 months, and that the drink had been bought for a family party to celebrate the eighteenth birthday of his wife's nephew. At the end of that interview, he said, he was asked if he wanted to drive his car away, without the goods, or he wished instead to stay to be interviewed. He asked whether he had done anything wrong and, he said, Mrs Smith told me he had not; and on that footing he elected to stay for the interview. There followed a formal interview, recorded in Mrs Smith's notebook, at the end of which Mrs Smith and her colleagues seized not only the goods but also the car. Mr Barker agreed that he had written in Mrs Smith's notebook, at the end of the record of the interview, "The above statement is correct", after which he had signed his name but, he told us, he had done so in haste and without reading the notebook since he was concerned about his son who had only light clothing, was feeling very cold and was distressed. For this reason and because he had only 40 pence in cash with him, Mr Barker protested when told that his vehicle was to be seized but, he said, his protests were simply rejected; he and his children were returned to Folkestone and left to make their own way home.
6. Mrs Smith's evidence was largely confined to the contents of her notebook since, understandably, she had little fresh recollection of events which, from her point of view, were merely incidents in a normal working day. Her notebook shows that when she first asked Mr Barker about the goods he had purchased he replied that he had bought "just some bottles of beer". She then asked whether he had bought anything else and his recorded reply is "No, just some beer for my wife, we are having a party and some Persil". The notebook then shows that, after requesting permission to open the boot, Mrs Smith asked "Are you sure you have not bought any cigarettes or tobacco?" to which the recorded reply is "Yes". Mr Barker then produced a receipt for the beer, and Mrs Smith asked "Are you sure you have nothing else in the vehicle?" to which the recorded reply is "Just Persil and some free chocolates". It was at that point that Mr Barker was asked to drive into the garage so that the vehicle could be searched; during the search the tobacco was found, almost all of it underneath the beer.
7. Mrs Smith and Mr Barker then discussed his tobacco consumption, the frequency of his trips and the quantities which he had bought. At this stage, Mr Barker claimed – according to the notebook – that all of the tobacco was his, apart from 3 kilograms which were for his father, and that he smoked no more than 20 per day which equated to two or three pouches per week; he guessed that he managed to make 75 to 100 cigarettes per pouch. Mr Barker is recorded as having told Mrs Smith that the beer was for a party to be attended by 12 people, including women and children.
8. Towards the conclusion of the interview, Mrs Smith asked Mr Barker about a receipt she had found in the car, dated 10 January 2004 (that is about five weeks previously) for 20.5 kilograms of tobacco. She also informed Mr Barker that Customs were aware that a trip across the Channel had been booked on that day, in his name. He replied that the trip had been undertaken by his wife.
9. Mr Barker told us that he did not accept the accuracy of what had been recorded by Mrs Smith in her notebook although, as the evidence emerged, it became clear that the only points of significance which he challenged were the chronology and the record that he said he smoked no more than 20 cigarettes per day; the truth, he said, was that he smoked 40 to 50 per day, although his estimated consumption of two to three pouches of tobacco per week was correct.
10. Mrs Smith's evidence was that she was sure Mr Barker had read her notebook before signing it, because if he had not done so, she would have made a note to that effect in the notebook itself, immediately underneath Mr Barker's signature if he had signed it, or immediately following the record of the interview if he had refused to sign at all. On this issue, we prefer Mrs Smith's evidence. First, we are satisfied that her evidence about her normal practice was truthful. Second, Mr Barker's claim that he did not read the notebook seems to us to make little sense. He told us, in his own evidence, that he was asked to read and sign the notebook when the interview had been concluded but before he had been told that his car, as well as his goods, were to be seized. We can well understand why a person who had been told that his property had been seized might be reluctant to co-operate further with Customs, by reading and signing a notebook, but the reverse would be the case if, as Mr Barker himself suggested, he was apprehensive and willing to co-operate. Even if his son was cold – and Mrs Smith's evidence was that adequate heating had been provided – it is difficult to understand how that fact would have caused Mr Barker to refuse to read and then sign the notebook, still less why he would write in words that the record was correct before signing.
11. Mr Barker was able to point to one obvious error in the notebook. When asked about the journey on 10 January 2004 his answer, as recorded, is "No it was me, my wife came over with four friends on that date". The two halves of the recorded answer are incompatible and we are satisfied that Mr Barker is right in saying that he said "No it wasn't me". That obvious error aside, however, we take the view that the notebook, though not a verbatim record, faithfully records the gist of Mrs Smith's discussion with Mr Barker. We are satisfied in particular that the chronology is correct, and Mr Barker's recollection mistaken, and that it accurately records Mr Barker's claimed ownership of all the tobacco, except for the 1.5 kilograms he was to give to his father and his statements that none was for his wife and that he smoked no more than 20 cigarettes per day. We are also, and perhaps most importantly, satisfied that Mr Barker did not disclose to Mrs Smith, despite her repeated questions, that he had bought tobacco until the fact of its discovery had been made known to him.
12. By the time Mr Crouch came to conduct his review, Mr Barker had instructed solicitors, who undertook some correspondence on his behalf, although they were no longer representing him by the time of the hearing. The solicitors provided a statement, by Mr Barker, which was consistent with the evidence we heard, though it says nothing about Mr Barker's having been asked to sign Mrs Smith's notebook. The statement contains the contention that 5 kg of the tobacco was in fact purchased by Mr Barker's daughter, a claim which was supported by a letter written by her. We agree with Mr Speed that the truth of this claim is, at the least, doubtful. There is no evident reason why the claim was not made at Coquelles, either by Mr Barker or by his daughter, and Mr Barker was unable to offer us any explanation of his failure to make the claim at that time.
13. Mr Crouch told us – and his letter written following his review itself indicates – that the factors which weighed on his mind were the quantity of goods in Mr Barker's possession, his attempt, as Mr Crouch perceived it, to mislead Mrs Smith about his having bought tobacco, the evidence of the importation made five weeks previously in January 2004, the inconsistencies in Mr Barker's claims about his tobacco consumption and the implausibility, as Mr Crouch saw it, of his claims relating to the importation of the beer. He was also surprised, he said, that Mr Barker should have spent so much money on beer and tobacco when, as Mr Barker had also indicated, he had only just returned from a holiday in the United States. Mr Crouch told us that even if he had thought, when he carried out his review, that Mr Barker's true consumption was 40 to 50 cigarettes per day, his decision would have been the same, because of the substantial purchase which had been made in January. He was not made aware, until after he had undertaken his review, of Mr Barker's claim that the January receipt found in the car was not evidence of a purchase made by Mrs Barker but had been borrowed by her from a friend, as an indication to her husband of the quantities which others were buying in Belgium and transporting to the United Kingdom; but even if he had been aware of that claim, he said, he would have rejected it as implausible.
14. The solicitors then acting for Mr Barker had raised also the argument that the seizure, and refusal to restore, Mr Barker's car were disproportionate to the offence, if such it was, he had committed. During the course of the correspondence, an offer had been made to pay the United Kingdom duty on the goods, if the car were restored, an offer which the Respondents had rejected. Mr Speed suggested that the fact that the offer was made at all represented a recognition by Mr Barker that he was in fact in the wrong but we do not ourselves think the offer can be so regarded. Mr Barker's vehicle was comparatively new and we can well understand why, even if he thought himself to be innocent of any wrongdoing, he would offer the duty rather than lose a much more valuable car. Mr Crouch's conclusion, he told us, was that it was not disproportionate in the circumstances of this case to refuse to restore the car.
15. We can allow Mr Barker's appeal only if he is able to satisfy us that Mr Crouch's decision that the car should not be restored is one at which he could not reasonably have arrived: see section 16(4) and (6) of the Finance Act 1994. In this particular case, we are, instead, entirely satisfied that Mr Crouch's decision was reasonable.
16. We have already indicated that we have concluded that Mr Barker did set out to mislead Mrs Smith, and that he attempted to conceal the fact that he had bought a substantial quantity of tobacco. We reject the claim that some of the tobacco had been bought by, or at least for, his daughter. The claim, if genuine, would have been made at Coquelles; Mr Barker did not forget to say that some of the tobacco was for his father and, had it been the case, we cannot believe that he would have forgotten that some of it was for his daughter. Even if the trip in January 2004 had indeed been undertaken by Mrs Barker, it is quite implausible that she would feel it necessary to borrow a receipt as evidence of the quantities that other travellers were buying but, again, this claim was not advanced at Coquelles when there is no evident reason why it should not have been. We are satisfied that Mrs Smith's notebook accurately recorded Mr Barker's claim to smoke 20 cigarettes per day and that his later, more inflated, claim has been advanced in an attempt to justify the size of his purchase. We share Mr Crouch's view, too, that the purchase of 150 litres of beer, allegedly to be consumed by 12 people at a single event, is incredible. We observe in passing that the January receipt also records the purchase of a similar quantity of beer.
17. Although Mr Crouch did not say as much in his letter, or indeed in his evidence, it was clear to us that he was of the view that Mr Barker was making importations of excise goods for commercial sale. That is our own view; it seems to us the only rational conclusion to be drawn from the facts of this case as we find them.
18. As the Courts have indicated, particularly in Lindsay v Customs and Excise Commissioners [2002] STC 588, it is not disproportionate to seize and to refuse to restore the vehicles of those who use them to make illicit importations of excise goods. This is not a small, first illicit importation; there are large quantities involved and, as we are satisfied, this was not the first occasion on which Mr Barker had brought large quantities into the country. We reject his contention that the January trip was undertaken by his wife, and we doubt his claims that on his previous trips he had bought only small quantities.
19. The appeal is dismissed. We make no direction in respect of costs.

COLIN BISHOPP

CHAIRMAN
Release Date: 24 May 2005

MAN/04/8067