United Kingdom VAT & Duties Tribunals (Excise) Decisions

EO00941

EXCISE – Restoration refusal – Commercial vehicle – Polish haulier – Tractor and trailer seized with 2 million cigarettes concealed in cargo of steel girders from Poland – Finding that neither haulier nor driver aware of smuggling – New review directed on basis of findings – Duty of Commissioners to list all documents relied on in review – Need for original documents at appeal – Trib Rules 1986 r.20(1A) – FA 1994 s.16(4)(b)

LONDON TRIBUNAL CENTRE

SZUKALA TRANS PTHU EXPORT-IMPORT Appellant

and –

THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: THEODORE WALLACE (Chairman)

MRS CAROLINE DE ALBUQUERQUE

Sitting in public in London on 26 and 27 January 2006

Mrs Jane George, of Rothera Dowson, solicitors, for the Appellant

Sarabjit Singh, counsel, instructed by the Acting Solicitor for the Respondents

© CROWN COPYRIGHT 2006


 


DECISION

1. This was an appeal by a Polish haulier against the refusal to restore a Scania tractor unit and trailer which had been seized at Dover on 16 December 2004 following the discovery by Customs of nearly two million cigarettes concealed in the cargo of steel girders.

2. The Review Decision upholding the refusal to restore was made on the basis that the haulier was knowingly involved.

3. The basic issue for the Tribunal under section 16(4) of the Finance Act 1994 was whether it has been shown that the decision was unreasonable applying the test in Customs and Excise Commissioners v J H Corbitt Numismatists Ltd [1981] AC 22, see per Lord Phillips in Customs and Excise Commissioners v Lindsay [2002] STC 588 at [40]. It is clear that the facts are for the Tribunal, see Lord Phillips at [45]. If a decision is based on wrong facts it is unreasonable. The fact-finding function of the Tribunal has more recently been confirmed in the unanimous Court of Appeal decision in Golobiewska v Customs and Excise Commissioners [2006] EWCA Civ 607 at [16-17].

4. It was common ground that if the Tribunal concluded that the Appellant was not knowingly involved the decision could not stand and that a new review must be directed. After a hearing occupying two full days we accepted the evidence of Jacek Szukala, the proprietor of the Appellant company, that he and his company were not in any way involved in the smuggling. We also accepted that his driver was not involved. The decision was therefore made on facts found to be wrong and the appeal was therefore allowed.

   The evidence

5. We heard three witnesses: Mr Szukala, the proprietor of the Appellant which is an unlimited company; Wieslaw Fligiel, the driver; and David Harris, the Review Officer. The evidence of both Mr Szukala and Mr Fligiel was very ably interpreted by Eva Dabrowska, who is a professional interpreter familiar with interpreting in court.

6. There was a substantial bundle of documents which included transcripts of a tape recorded interview with the driver with an official interpreter, photocopies of entries in three officers' notebooks, a brief e-mail from the case officer, the seizure information for the cab and trailer, the CMR international consignment form, an invoice for steel girders with specifications, a series of certificates relating to the driver's education and previous employments and an employment contract between the Appellant and the driver dated 1 October 2004, all of which were produced by Customs.

7. The Appellant produced an order form for the transport of the steel girders from Poland to Edinburgh, a certificate of registration of Mataltech, the consignor of the steel girders, a VAT registration certificate for Mataltech and a certificate from the national statistical office in Poland.

8. On the second morning the Appellant produced a further CMR for a consignment of steel goods to Rolls-Royce, at Dunfermline, and a packing list and invoice dated 7 December 2004.

9. A most unsatisfactory feature of the case was that Customs did not have any of the original documents available at the Tribunal, which were apparently retained by the Case Officer at Dover, and which had not been seen by the Review Officer. The extracts from notebooks only covered part of the events on 16 December 2004 and contained no information as to the discovery of the cigarettes and how they were concealed and no material as to the quantity of goods. There was no photograph of the load. Mr Fligiel was arrested but was released without charge after several hours. There was no record of his release. It was necessary for the Tribunal to infer or assume a number of important facts.

   The basic facts

10. Mr Fligiel was intercepted at 10.25am on 16 December 2004 in the freight transport lane driving a Scania tractor with a trailer. The trailer was carrying a cargo of 10 steel girders each 7.1 metres long, the other dimensions being 45 cms by 87 cms; the cargo weighed 23.8 kgs. Each girder therefore weighed over 2 tons. The girders were in a double "T" or "H" shape and around 2.5 cms thick. They were stowed in two rows of five end-to-end and projected over the end of the trailer which was 13.6 metres long. The load was secured with chains and had a cover.

11. Mr Fligiel produced his passport and the CMR and invoice. The CMR showed the sender as Mataltech, Zielona Gora, Poland, and the consignee as Land M Survey Services, 24 Canning Street, Edinburgh, with the place of delivery also as 24 Canning Street; the place of taking over the goods was Wloclawek, Poland, and the date was 14 December; it was stamped by Mataltech and the Appellant. The invoice to Land M Survey Services showed the weight and the price of £37,500. The accompanying specification showed the size.

12. The driver said that he did not understand English but spoke a little German. He was directed to the examination bay.

13. Apparently the load was X-rayed, presumably while it was still on the trailer. The examination evidently revealed either the presence of a cavity or of something other than the steel in the part of the girders forming the bottom part of the "H". The middle part of the "H" was the longer with the sides being 45 cms; half of 45 cms indicates that there was just over 20 cms in the cross-section of the bottom part.

14. Having found that there appeared to be something in the girders, Customs officers tried to drill a hole or holes into the girders with help from Mr Fligiel. He helped the officers to lift the load and saw something behind the bottom edge.

15. The girders had been welded to create compartments in the middle 5 metres of each. They were not visible when the vehicle was loaded because they were on the under side and did not extend to the part of the girders projecting over the end. It is not clear whether all ten girders contained cigarettes.

16. At 11.50am Mr Fligiel was arrested on suspicion of being involved in smuggling cigarettes and was cautioned. The arresting officer said "cigarettes" and pointed to the back of the trailer. He was taken to the Freight Anti-Smuggling office interview room. A protective search was carried out and at 12.25pm he was strip-searched. At 12.55pm he was taken in handcuffs to Priory Court, Dover, 10 minutes away where the handcuffs were removed.

17. Between 2.06pm and 2.32pm, an interpreter translated the notes of the intercepting and arresting officer to Mr Fligiel and he signed them as accurate.

18. From 3.05pm to 4.38pm he was interviewed by two officers not apparently involved hitherto, with an official interpreter, Voidik Jaszriscz. The interview was tape-recorded. He was cautioned again. He declined an offer of legal advice, saying that he knew nothing about the cigarettes. He said that he was tired but could carry on. He had 2 hours sleep on Wednesday night around 50 kilometres from Calais.

19. He told the officers that he had been sent from Poznan to Wloclawek to collect a load. After a delay ten steel constructions had been loaded by a crane. He was standing on the trailer helping as they were being loaded and he could not see the bottom of each item. He said that when he got back to Poznan his boss said that the load was expected in Scotland on Friday morning.

20. He told the officers that his boss was Jacsk Szukala of Szukala Trans. He said that his first assignment was on 28 October. He said that formally he was still not employed by the company. He had been a driver since 1983. Earlier he said that he was a welder and fitter by trade and so knew that the Customs officer was not using the right drill.

21. He told them that he was to call his boss 50 kilometres before Edinburgh and someone would come out and fetch him because he would not be able to find the destination. He said that his boss had given him the CMR and invoice. He was not concerned with the exact address because someone would pick him up.

22. He said that he thought he had met his boss for the first time on 26 October two days before he started working.

23. He told them that he thought that another of the Appellant's vehicles was in the UK going back that day. They had communicated by text; the messages might still be on his phone. The driver mentioned that he was in the capital, London. He thought that he was carrying the same kind of stuff but was not sure. He thought that he went to the same place; the driver had said something about 40 kilometres away from Edinburgh. He had come in through Dover two or three days ago.

24. He said that he had never been to the UK before and did not feel like coming back again.

25. He had asked his boss about a return load but his boss had said that he would be going back empty to Germany.

26. There were over 20 points in the transcript where either the interpreter or a Customs officer said something inaudible to the transcriber. There was no statement that the interpreter had heard it played through. Mrs George was only given a copy of the tapes at the hearing.

27. After the interview Mr Fligiel was taken back to the terminal and after some delay was released without charge and his personal property was returned to him.

28. On 17 December the Appellant wrote to Customs asking for the vehicles back and asking Customs to explain the situation. Customs replied asking for a copy of the driver's contract, copies of references, evidence of enquiries to establish that the driver had had no previous dealings with Customs, proof of ownership of the vehicles and details of checks as to the consignment.

29. On 7 January 2005 Mr Szukala replied with a number of documents. The contract of employment was dated 1 October 2004, being for a trial period to 31 December. The employment was as a driver in Poland and Europe at 1000 zlotys per month starting 1 October. It was signed by Mr Fligiel. There was a certificate of completion of basic vocational training in plumbing and welding in June 1980. Certificates from employees showed that he worked as a lathe operator until 1983, that he worked as a driver up to 1988, that he had his own company from 1989 to 2001 and that since then had worked as a driver for three other companies, including Pol-Trans Krzysztof Masurek.

30. Mr Szukala's letter stated that he had spoken to former employers and Mr Fligiel had very good references. He wrote that the procedure with Mataltech was as with any other client: he was given details of the shipment over the telephone and agreed a fee; he received an order by fax and sent the transport to the loading place at the agreed time. He did not take any steps to check the cargo's details.

31. On 20 January Mr Szukala wrote that the client which gave the transport order to Edinburgh had disappeared without paying. He pressed for return of the vehicle.

32. Meanwhile on 20 December 2004 Emma Howell, who Mr Harris told us was the Case officer at Dover, sent an e-mail to another officer about the matter. It stated that the driver had been released without charge and that Land M Surveys had stated that they had never heard of "the company", were not expecting the load and would not require those goods at all; the address was in a busy part of Edinburgh.

33. On 26 January 2005 an officer at the Post Seizure Unit at Plymouth refused restoration because he was not satisfied that the Appellant was not involved in the smuggling operation because (1) the load of steel was of no great value and (2) there was no return load which was not economical.

34. The Appellant asked for a review. The request was followed up with a detailed letter by a London barrister setting out the Appellant's case in some detail on a basis which was consistent with the case put to the Tribunal. This was followed by another letter.

35. The Review by Mr Harris dated 6 April 2005 refused restoration. He stated that the excise goods involved were 1,991,640 cigarettes, 12,000 grammes of hand-rolling tobacco and 100 cigars on which the revenue evaded was £337,543. The Review also stated that no owner came forward to claim ownership of the steel and it was disposed of for a scrap value of £1,088.64. No evidence was produced to support these statements, however they were not disputed and we proceed on the basis that they were correct. The review concluded with the following,

    "It is plain to me that there are a number of inconsistencies in this case. During the interview the driver stated that he had met Mr Szulaka for the first time on 26 October and did his first driving job on 28 October. However in support of their restoration request Szukala Trans have supplied to the Commissioners a document which purports to show Mr Fligiel's employment beginning on 1 October. In addition, I am particularly drawn to the fact that the driver was to contact Szukala Trans as he approached Edinburgh so that he could be met and told where to deliver the cargo. Plainly, he was never going to take the goods to the address on the documentation. So this fact, in my view, manifestly shows the involvement of Szukala Trans in the illicit importation.

    Also, I am drawn to the evident low value of the load, the lack of a return load and the apparent high price to be paid to Szukala Trans for the movement of the steel from a company they had never dealt with before. Such indicators would have alerted a vigilant haulier that all was not well with this movement of goods.

    For the reasons set out above I conclude that the original decision should be upheld."

    The witnesses

36. Mr Szukala said that he had run his company since 1991, specialising in transport of outsize goods; the steel girders were a typical load. Apart from Poland, normal journeys were to Western and Eastern Europe, Russia and Ukraine. Apart from a load to Rolls Royce there had been no other load to the UK.

37. He said that Mr Fligiel had contacted him at his office and asked for a job. He obtained references including from one Mr Mazurek whom he knew; Mr Mazurek told him that he had been satisfied with his work. Mr Szukala asked for a medical examination and contacted the national insurance office to register him. After the seizure Mr Szukala obtained a certificate from the Ministry of Justice that Mr Fligiel had no criminal record. He signed a contract to employ him from 1 October 2004. He had 8 vehicles at the time.

38. Mr Szukala said that Mataltech had contacted his office by telephone and asked for a quotation for a transport from Wloclawek to Edinburgh. After two or three days Mataltech telephoned again and a price of £1,950 sterling was agreed. He asked for Mataltech's tax number, VAT number and company registration certificate, all of which were provided by fax. He had forwarded those to Customs in April and produced all of those to the Tribunal. He had looked at those himself.

39. He asked Mr Fligiel to collect the load because his trailer had an extension. Mr Fligiel had taken similar cargoes to Germany. His first individual haulage job had been at the end of October. Before then he had worked in the workshop on maintenance and had been a co-driver. Mr Fligiel collected the load and returned to Poznan to collect the CMR. Mataltech had completed the CMR and sent it to Szukala Trans to be stamped. Mr Fligiel's departure was delayed because of faulty indicators.

40. Mr Szukala had told Mr Fligiel to call the office as he approached Edinburgh and someone would call him back to direct him to the site. The arrangement with Mataltech was that Szukala Trans would tell them when the driver was approaching Edinburgh and they would contact the driver. This was done frequently, particularly with deliveries to building sites.

41. He said that the price of £1,950 was based on a cost per kilometre, plus ferry fares and the driver's wages. The profit would have been about £900. He said that there was no chance of a return load from the UK but he hoped to get a load from Holland on the return journey to Poland.

42. Mr Fligiel had called twice after the seizure. The coordinator at his office in Poznan phoned Mataltech to ask whether they knew about something being hidden in the cargo and they had said that they were very much surprised. Mr Fligiel called again after the interview and said that Customs had drilled through the girders and found cigarettes concealed by metal welded to the bottom. Mr Szukala said that he had not seen this himself.

43. Mr Szukala tried to contact Mataltech again by telephone and mobile phone and fax but there was no answer. The mobile phone was not connected. Two letters, one by recorded delivery had been returned in January. He said that he was not involved in trying to smuggle the cigarettes.

44. Cross-examined, he said that Mr Fligiel was employed from 1 October 2004. He knew that Mr Fligiel was a welder from his certificate but that was not why he employed him. He denied a suggestion by Mr Singh that Mr Fligiel had concealed the cigarettes. He said that he wanted him to get experience loading and unloading open trailers rather than containers before giving him individual jobs; he also helped in the workshop. Mr Fligiel must have got the month wrong when interviewed.

45. He said that Mataltech had filled in the CMR, he had only stamped it. He had no knowledge that there was no genuine consignment to Land M Survey. He denied that diversion was only possible with his involvement. Mataltech had said that the load was going to a building site and that the driver would not be able to find it. He denied that he wanted the goods to go to people at the other end of a smuggling operation.

46. He said that the consignment seized was the only consignment from Mataltech. There had been another consignment of steel for the UK at the same time to Rolls Royce in Scotland or the north of England. That was his first load to the UK. He denied a suggestion by Mr Singh that he had managed to smuggle goods in that lorry. He said that he could find out where it went from the CMR. The other load was not from Mataltech.

47. Mr Szukala said that he had visited the loading site in Wloclawek a few months later without success and had visited Mataltech's address last summer which was 120 kilometres away in another direction. He had not reported the matter to the Police in Poland; it would not have helped him get his transport back.

48. He told the Tribunal that the driver had a credit card to pay for the ferry and for fuel.

49. He said that he could not remember whether the driver knew that he hoped that he would pick up a load in Holland. The Rolls Royce vehicle had a different type of trailer and could not take that load.

50. Mr Fligiel said that he started working for Mr Szukala on 1 October 2004 and did his first individual assignment on 28 October, Meanwhile he was awaiting a medical. He had helped in the workshop and as a co-driver.

51. He said that when he went to Wloclawek to load there was a considerable delay waiting for a crane. He was standing on the trailer when the girders were being loaded and did not see the underside. He would not have taken the load if he had seen that there was a compartment.

52. He knew that there was another vehicle in the UK and supposed that it was for the same company. His boss had mentioned a possible return load from Holland, but there was no return load from the UK.

53. He said that when they went to the X-ray machines an officer was using the wrong drill. The officer got another drill and he helped push it. Once the hole was drilled he could see that they had found something but did not know what it was. He did not do any welding when loading, he was a driver.

54. He said that when arrested he was handcuffed and taken to a small room with no windows and later was strip-searched. After about 30 minutes he was taken to what he thought was a police station. The interviews took six hours in all. It was dark when he was released. At the police station his treatment was fine but it was very unpleasant back at the port.

55. Cross-examined, he said that he signed the contract on 1 October. That was the legal contract but Mr Szukala also wanted an additional medical to check that he was fit to drive. He told Mr Singh that the reference to 26 October at the interview was a misunderstanding, perhaps he said 26 September. Maybe he had got the month wrong, he had been very nervous.

56. He said that he had not been welding for 25 years. He could use a drill but only had basic training. Asked whether he would have been able to weld the girders, he said that he did not think that it would have looked very smooth. He denied that he had been employed for his welding skills; he had not spoken to Mr Szukala about welding.

57. Mr Fligiel told Mr Singh that he did not know that Canning Street was not a building site. He did not know what Mr Szukala knew. He was told that he might find the site difficult to find.

58. He said that another colleague had sent a text message that he was on his way back. Initially Mr Fligiel thought that they were carrying the same sort of items but this proved to be wrong. He thought he was going to the same address but this had been a guess. He said that he did not think he had said that he was sure he came through Dover : an answer in the interview had been mis-interpreted. The other driver came in a few days before he did. He thought that it would take up to 3 days to drive from Dover to Scotland and back.

59. On the morning of the second day the Appellant produced to Customs a CMR with packing list and invoice for transport of Neptun stabiliser construction elements weighing 21.9 kgs to Rolls Royce at Hillend Industrial Park, Dunfermline, Fife. The loading date in Poland was 7 December 2004. The consignor was Fabrika Urzadzen Gornictwa in Poland. The invoice price was 48,664.80 Euros. Mr Harris made enquiries during the morning and told Mrs George that the vehicle came through Immingham Docks near Hull on 10 December and that the consignment had been booked in by Rolls Royce on 20 December although it might have arrived earlier.

60. Over the lunch adjournment, Mrs George listened to part of the tapes with an interpreter this being the first chance to do so. There was no evidence that Mr Fligiel had been offered a copy of the tape. The transcript stated "I had a feeling that I was not supposed to see what was confined in the bottom part of the items." Miss Dabrowska said that she would have translated "I had a feeling" as "I suspect."

61. Mr Harris told the Tribunal that the bundle (listed at paragraph 5 above) contained all the material which he had for the Review. He had no statement or notes from the arresting officer. There were no photographs although he had stressed the importance of photographs to officers. He did not have any of the original documents; Emma Howell the case officer had them. He had not seen them.

62. Cross-examined, he said that the CMR from Mataltech looked perfectly ordinary. It was normal for the consignor to complete it and for the carrier to stamp it.

63. He said that the steel seized would normally be sold at auction, which would be no indication of the value of the girders to a construction company.

64. He said that he considered the discrepancy in dates as to when Mr Fligiel's employment started to be relevant because it was not unusual for hauliers to use particular drivers who would be prepared to engage in smuggling. If perfectly bona fide there would have been no discrepancy. He told Mrs George that it is not unusual for hauliers to backdate contracts of employment, he had seen this done three or four times. Asked about his experience with freight companies, he said that he had dealt with several restoration requests by hauliers transporting all types of goods. He said that there are cases where hauliers are entirely innocent. He said that this particular driver seemed to have a skill with regard to welding which was relevant to the concealment.

65. He said that it was economic not to have a return load provided the haulier was paid over the odds. Here the haulier was paid double the scrap value. He said that he had not taken account of the invoice for £37,500.

66. He told Mrs George that it was not customary to give interviews before reviews. He did not know why the case officers did not prosecute the driver.

    Submissions

67. Mr Singh, for Customs, said that there was one issue for the Tribunal, whether the Appellant was knowingly involved in smuggling. If the Appellant did know the decision was reasonable; if the Appellant did not know then the Tribunal should direct a new review.

68. He said that Mr Fligiel had said in the interview that he had not met Mr Szukala until 26 October, whereas Mr Szukala said there was a formal contract from 1 October. Mr Fligiel was very experienced and there was no need for training as a co-driver. He submitted that the reason why Mr Fligiel was employed and instructed to collect and deliver the load was that he was capable of welding the tobacco into the girders.

69. He submitted that Mr Szukala did know that the girders were to be delivered to a building site rather than the CMR address. He said that the load could only have been diverted to another address with the connivance of the Appellant. An honest haulier would be expected to deliver to the address on the CMR; Mr Szukala wanted the driver to contact him so that he could divert the cargo.

70. He submitted that the interview transcript suggested another attempt to smuggle involving a vehicle which had come in two or three days before. The Rolls Royce consignment had come in from Immingham on 10 December, six days before. The driver had mentioned that he was in London as Mr Fligiel entered Calais. Mr Singh suggested that Mr Fligiel was referring to a different vehicle to that used for the Rolls Royce cargo. He said that the irresistible inference was that the other vehicle was carrying smuggled excise goods.

71. Mr Singh said that if Mr Szukala was an innocent party who was a victim of a fraud he would have contacted the police or at least visited Mataltech's address.

72. Finally he relied on the low value of the steel, the fact that it was never claimed and the lack of a return load.

73. Mrs George accepted that if the Appellant knew of the smuggling the restoration refusal was reasonable, but submitted that the Appellant did not know.

74. She accepted that there was some inconsistency as to when Mr Fligiel's employment started but said that when interviewed he was answering questions under pressure and may not have understood their significance. His experience had not been with outsize steel which Szukala transported, Mr Szukala required a specific medical and engaged him for a trial period.

75. She said that it had not been appreciated until yesterday that Customs suspected that another vehicle was involved in smuggling. She submitted that the Rolls Royce CMR made perfect sense. If the vehicle came through Immingham on 10 December, a Friday, the factory at Rolls Royce might well have not been open to unload until the Monday; there was nothing surprising about the vehicle being in London on the Wednesday.

    Conclusions

76. The issue for the Tribunal is whether on the evidence the Appellant has satisfied us that the decision by the review officer was unreasonable. In order to be reasonable a decision must be soundly based factually and must apply the correct law. If the decision was based on facts which the Tribunal finds to be materially incorrect it was unreasonable. In such event the Tribunal can and indeed should direct another review under section 16(4)(b) of the Finance Act 1994.

77. As Mr Singh accepted the basis of the decision was that Mr Szukala was knowingly involved in the smuggling.

78. We do not accept the proposition that because the driver was to contact Szukala on approaching Edinburgh so that he could be met and told where to deliver the cargo it follows that Mr Szukala was knowingly involved in the smuggling operation. The trailer was nearly 45 feet long with a protruding load weighing over 23 tons. By any standards this was a large and unwieldy load. Construction sites are frequently not clearly marked. The driver was in a foreign country and did not speak the language. In our view it made eminent sense not only on grounds of convenience but also road safety for the driver to be guided over the last part of the journey. It would have been very different if the load had been one ton with no trailer going to an established commercial address. Nor do we find it particularly surprising that the CMR did not carry the address of a construction site. The CMR is not a legal requirement but a commercial document under the Convention on the Contract for the International Carriage of goods by road.

79. We regard the submissions by Customs as to low value to be wholly misconceived. Customs adduced no evidence whatsoever as to the disposal of the steel for scrap and no evidence that the value of the girders was not as on the invoice. It is common knowledge that the price of iron ore has risen sharply over recent years. Mr Harris paid no attention to the invoice for £37,500. However that price is not out of line with the Rolls Royce invoice which in sterling was around £33,500 for 1.7 kgs less: the construction was of course different but the steel content was similar. It is clear that the girders as seized would have been useless otherwise than for scrap.

80. We find nothing surprising in the fact that there was no return load from the UK. In December 2004 Poland had not yet joined the EU. No evidence was produced by Customs to disprove the evidence that Szukala had not undertaken transport to the UK before. It is wholly unclear where Szukala would have got a return load from the UK particularly since UK manufacturing costs are much higher than costs in Poland.. If a return load had been obtained in Holland that would have covered approaching half of the return journey.

81. The next point in the Review was the "apparent high price" for the movement. No evidence was adduced to show that the price was high. The price had to cover the cost of fuel and tolls across Europe as well as the ferry fare, driver's wages and expenses for maybe six days as well as wear and tear, capital and overhead costs and profit.

82. There was no evidence that the presence of the cigarettes in the girders must have been apparent to the driver and to Mr Szukala. Since the originator of the consignment clearly intended to conceal the cigarettes from Customs, it is hardly surprising that their presence and the welding concealing them was not apparent to the driver and to Mr Szukala. If the presence of the cigarettes must or ought to have been apparent to Mr Fligiel, this would clearly have been put to him when interviewed after his arrest. We find it difficult to believe that the officers who found the cigarettes made no notes as to how they were found and how they were concealed. We can think of no good reason why such notes were not provided to Mr Harris and to the Tribunal whether or not they assisted Customs' case. We can only conclude that the cigarettes were effectively concealed by welding which was not visible and was only discovered by X-ray. We are satisfied that the welding was not visible when the girders were on the trailer and was not visible to Mr Szukala. The evidence by Mr Fligiel that when the girders were being loaded he did not see the underside was not challenged by Mr Singh, although it was implied that he was involved in the welding.

83. We conclude that Mr Harris' conclusion that the above factors would have "alerted a vigilant haulier that all was not well with this movement of goods" is not warranted by the evidence.

84. Paragraphs 77 to 82 have been directed to the objective matters relied on by Customs as pointing to the involvement of the Appellant rather than to the direct evidence by Mr Szukala.

85. We have already stated that we accepted the evidence of Mr Szukala that he and his company were not in any way involved in the smuggling. We find as a fact that he had no knowledge of it. He was cross-examined for 80 minutes through an interpreter. His answers were direct and in no way evasive. We had no hesitation in concluding that his evidence was truthful. We accept his evidence that Mr Fligiel was employed from 1 October and was not employed because he was a welder. Mr Singh rightly did not directly accuse him of forging the employment contract. We find that it was genuine. We also find that he made enquiries as to Mataltech before accepting the consignment.

86. We accept Mr Fligiel's evidence at paragraph 54 as to the reference to 24 October on the interview transcript. Although he made no complaint about the conduct of the interview at Priory Court, he had every reason to be nervous having been arrested, handcuffed and strip-searched in a foreign country on suspicion of an offence which could have resulted in a lengthy term of imprisonment. At times a skilled interpreter at the Tribunal had difficulty with his longer answers. There is a strong possibility that some of the questions and answers at the interview were misinterpreted or misunderstood. Furthermore the quality of the tape is unclear with so many inaudible passages.

87. We find that the basic facts on which the Review decision was based were wrong. Facts are not a matter of discretion but of evidence. On the facts that we have found, having heard the evidence, we are satisfied that the review officer could not reasonably have arrived at the decision to refuse restoration.

88. The Tribunal has no power to direct restoration. We direct that the Commissioners conduct a further review of the original decision in accordance with the following directions. The review shall be by an officer not previously involved in this matter and a written review decision shall be notified to the Tribunal and to the Appellant's solicitor within 21 days of the Release of this decision. The review shall be conducted on the basis of the findings of fact and the conclusions in paragraphs 75 to 86 of this decision. If the Appellant is dissatisfied with the decision on such further review there will be a further right of appeal to the Tribunal.

89. Finally we express our concern at two matters which emerged during the hearing. The first is that, not only were the original documents not produced by Customs at the Tribunal having been retained but the Case Officer at Dover who did not attend, but those documents were not before the Review Officer who was based at Plymouth; furthermore we can only assume that they were not before the officer at the Post Seizure Unit also at Plymouth who made the original decision not to restore.

90. The second matter is that it is clear that the evidence of Mr Harris that the bundle contained all the material which he had for the Review was not correct. Apart from the Review itself the bundle contained no indication of the quantity of goods seized or of the disposal of the steel for scrap (see paragraph 34). Rule 20(1A) specifically obliges Customs to list the documents relied upon in reaching the review decision. It is the responsibility of the Solicitor's office when drafting the List of Documents to ensure that this Rule is properly observed. Compliance with this Rule is important to ensure a fair trial.

91. The appeal is allowed with costs.

    THEODORE WALLACE

    CHAIRMAN

    RELEASED:

    LON/05/8056