United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01136.html
Cite as: [2008] UKVAT(Excise) E1136, [2008] UKVAT(Excise) E01136

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Veronica Cleary v Revenue & Customs [2008] UKVAT(Excise) E01136 (01 September 2008)

E01136

EXCISE DUTY- hand rolling tobacco hidden in vehicle – Appellant not owner of vehicle – husband as owner smuggling - not right of restoration for husband - restoration for Appellant as wife of owner only in exceptional circumstances – Appellant asthmatic – vehicle needed on medical grounds – second car available – no exceptional circumstances - case dismissed

MANCHESTER TRIBUNAL CENTRE

VERONICA CLEARY Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: David S Porter Chairman

Miss K Ramm Member

Sitting in public in North Shields on 23 July 2008

Mr Kenneth Boxall (a friend) appearing for the Appellant

Mr Andrew Bird of counsel instructed by the acting solicitor for the Commissioners for

H M Revenue and Customs, for the Commissioners

DECISION

Mrs Veronica Cleary appeals against the review by Mrs Deborah Carole Gillespie (now Hodge) contained in a letter dated 15 December 2006 refusing to return a Seat Alhambra registration FH 02 GWM. The Appellant claims that she owns the vehicle and she needs it because she suffers from ill-health and the car can accommodate her wheel chair. The Respondents say that the goods had been declared forfeit under section 139(6) and Schedule 3 of The Customs and Excise Management Act 1979 and the Crown Court, on appeal from the Magistrates Court in Dover, had decided that the car was not hers but belonged to her husband. As her husband had been smuggling, the car could only be returned under exceptional circumstances and the Appellant, as his wife, was not sufficiently ill to justify its return. In any event her husband had access to other vehicles which she could use.

Mr Andrew Bird of counsel instructed by the acting solicitor for the Commissioners for H M Revenue and Customs appeared for the Respondents and produced a bundle of documents to the tribunal. Mr Kenneth Boxall appeared for the Appellant to assist her as she can neither read nor write and was suffering from chronic ill health. He produced two bundles of documents consisting of 568 pages which contained several cases some of which are referred to below.

Preliminary issue.

Mr Boxall asked that the case be adjourned because an application he had made on the Appellant's behalf to the Court of Appeal was still to be heard. That application related to a refusal by His Honour Judge Hickinbottom to allow a judicial review of the decision of the Crown Court, by way of an appeal from the Magistrates Court in Dover, refusing to restore the Appellant's car. We refused the adjournment. It is, however, helpful at this stage to record how the case has progressed so far and to explain why we have allowed Mr Colin Cleary (husband of the

Appellant) to give evidence as to why he considers the goods were purchased for his own use. We accept that his right to do so is at best tenuous, but we believe that this case has become complicated and expensive and at some stage there will be a requirement for this tribunal to hear Mr Cleary's evidence. It was only after the first half hour of the address by Mr Boxall requesting the adjournment that it became apparent that Mr Cleary was at the tribunal, albeit outside the room. As he was present we felt it was prudent to hear his evidence.

To put the matter into historical perspective we were told that Mr Cleary and his friend David Malcolm (David Malcolm lives in Sunderland and Mr Cleary lives in Peterlee) were stopped at customs in the Seat Alhambra car on their return from Eastenders in Calais where they had bought beer and wine for a friend's wedding. They had 10 cases of beer and 4 boxes of wine each. When questioned by Customs and Excise Mr Cleary denied that they had any tobacco and Mr Malcolm said that he had 200 Lambert and Butler Cigarettes. The Officer asked to look in the boot of the car and discovered a large quantity of hand-rolling tobacco in wine boxes under the beer. Mr Cleary and Mr Malcom said they had denied having the tobacco because they did not know their legal limit and they were concerned in case they had to forfeit the tobacco and were thereby in deficit in monetary terms. The full detail of the facts will appear in Mr Cleary's evidence. At this point Mr Cleary had refused to be interviewed by Customs and Excise. Mr Malcolm was interviewed by Customs and Excise but he has taken no further part in the case. It is at this point that the matter becomes complex. And it is probably simplest to explain the relative positions of Mr Cleary and the Appellant separately

Dealing with the position with regard to Mr Cleary first. On 2 November 2006 Mr Cleary wrote to H M Customs and Excise in Dover to appeal against the decision seizing their goods and the car. He stated in the letter that he did not want the matter heard by the magistrates court as he did not believe he would receive a fair hearing, as had been his experience in the past there was, therefore, no point in incurring substantial costs. On the 17^th November 2006 H M Customs and Excise replied that they were treating his letter as a request for them to institute condemnation proceedings under Schedule 3 of the Customs and Excise Management Act 1979. On 27 November 2006 H M Customs and Excise wrote to Mr Cleary and confirmed that the condemnation proceedings had been withdrawn, at his request, and that no Court hearing would take place. On 28 December 2006 Mr Cleary sent a cheque (on Mr Boxall's advice) to H M Customs and Excise for £211.92 for the duty outstanding and asked them to review their decision not to return the goods. On 5 January 2007 H M Customs and Excise replied by way of review and commented that as he had withdrawn his request for condemnation proceedings in the magistrates court his goods were held in the UK for commercial purposes and condemned as forfeit to the crown by the passage of time under paragraph 5 of the Customs and Excise Management Act 1979. As the goods had been smuggled they would not be returned. Mr Cleary took no further part in the case.

Dealing with the Appellant's position: on 5 October 2006 Mr Boxall wrote a letter on behalf of the Appellant, which she signed, asking for her car to be returned to her. The letter is specific, in that regard, as she sent a copy of the report from the Appeals Service (to which we refer later) for her mobility allowance arising from her chronic asthma and indicating that she required her car to get around. She indicated that the car had been bought with her benefit award money. The Respondents replied on 10 October 2006 in what appears to be a standard letter indicating that she had asked for a return of her goods, which she clearly had not, nor could she as they were not her goods. The letter went on to say that because the basis of her request appeared to be that the excise goods were for her own use, or seized illegally, they were treating her request as a claim of Appeal against Seizure as in Part A Notice 12A and that they would refer the matter to the Magistrates' Court for condemnation proceedings. They indicated that if she did not reply they would proceed accordingly. We considered the Notice produced by Mr Boxall and cannot accept that the Appellant's letter was anything more than a request for the restoration of her car. In her letter of the 14 October 2006, in response to the Respondents request that she should reply, she reiterated that all she wanted was her car back. She also commented that they had not replied to her letter at all. The Respondents responded on 17 October 2006, accepted her request as a notice of claim against forfeiture and confirmed that the matter would be referred to the Magistrates Court. We consider that the Respondents were incorrect in allowing the matter to proceed to the Magistrates Court. They should have realised that she wished to appeal to this tribunal. We are bound to say that the Notice is less than precise for a lay person to understand, a comment that the tribunals and courts have made in the past.

In spite of the fact that the matter was to be referred to the Magistrates Court Mr W Mee of the Falmouth Post Seizure Unit wrote on 6 November 2006 to the Appellant in response to the Appellant's request for the restoration of her car. He set out the respondents policy in that regard :

"the Commissioners' general policy is that private vehicles should not normally be restored. The policy is intended to be robust so as to protect legitimate UK trade and revenue and prevent illicit trade in excise goods. However vehicles may be restored at the discretion of the Commissioners subject to such conditions (if any) as they think proper (eg fees) in circumstances such as the following:

If the excise goods were destined for supply on a " not for profit" basis, for example, for re-imbursement

If the seized goods were destined for supply for profit, the quantity of excise goods is small, and it is a first occurrence

If the vehicle was owned by a third party who was not present at the time of the seizure, and can show that they were both innocent of and blameless for the smuggling attempt, then consideration m ay be given for restoring the vehicle for a fee: if in addition to being both innocent and blameless the third party demonstrates that they have taken reasonable steps to prevent the smuggling in the vehicle then consideration may be given to restoring it free of charge."

His decision appears to be in a standard form as he added:-

" I have taken into account the degree of hardship caused by the loss of this car. I sympathise with your difficulties however one must expect considerable inconvenience as a result of having a car seized by Customs and perhaps considerable expense in making other transport arrangements . Hardship is a natural consequence of having vehicles seized and I would consider exceptional hardship as a reason not to follow the Commissioners policy of non-restoration. I do not consider there to be exceptional hardship in your case; furthermore additional official records indicate you have access to other vehicles."

In a long letter on 13 November 2006 the Appellant insisted that she was ill and needed her car because she could get her wheel chair in it. She stated:

"I have not got any access to other vehicles and the other vehicle is registered in my husband's name is not in use and would not be suitable for my needs."

and she requested a review which resulted in the review letter of 15 December 2007 the subject of this appeal which we will consider in more detail later.

On 12 January 2007 the Appellant appealed to this tribunal on the grounds that:

"the decisions have been made with bias are founded on a misinterpretation of all the applicable law (EU & UK) and are unfair and unreasonable having regard to all the relevant facts and relevant legislation. I have suffered punishment and have done nothing wrong which is unreasonable."

On 19 July 2007 Mr Boxall, on behalf of the Appellant, issued proceedings for Judicial Review against the decision by the Respondents contained in the review letter of 15 December 2007. Prior to Judge Hickinbottom giving his judgement, for reasons which are unclear, the Respondents had applied for an order for condemnation in the East Kent Magistrates Court referred to below. Suffice it to say that Judge Hickinbottom decided in relation to the Judicial Review on 11 March 2008 at paragraph 16:

"This case is consequently late. It involves a car which, as a fact, the Crown Court has found does not belong to the claimant. It seeks relief in circumstances in which not only are there alternative course open to the claimant, but she has in fact pursued those courses. The proper forum for airing the specific issue which Mrs Cleary has sought today to air, is the appropriate tribunal. In respect of each article of the European Convention on Human Rights upon which the claimant relies. The claim is meritless."

In his order he also refused permission to appeal from his decision

The hearing before the East Kent Magistrates Court on the 2 August 2007 was brought by the Respondents. Mr Bird advised us that the hearing was a default hearing as neither Mr nor Mrs Cleary attended. As a result the evidence identified in the Order for Condemnation (see page 52 of the Respondents' bundle) came from the appeal document provide by the Respondents and no evidence was received from the Appellant.

On the 10 October 2007 the Appellant appealed to the Maidstone Crown Court on the basis that she owned the vehicle and it should not have been condemned as forfeit. Mr Recorder Joy sitting with a bench of Justices found that the car did not belong to the Appellant:

" We take the view that it is far more probable than this vehicle is not owned by Mrs Cleary, and we are therefore not satisfied in any shape or form that Mrs Cleary owned the vehicle, and we certainly do not think it is probable that she owned the vehicle; quite the reverse. In the circumstances we find on the preliminary issue that the vehicle is not the property of Mrs Cleary.

Our decision is that the claimant has not established the ownership of the seized goods. She does not have the legal standing to challenge the claim that the seized goods are liable to forfeiture. That judgment does not find any finding that the seized goods are liable to forfeiture, it involves the finding of default of any adverse claim by the owner, and the statutory consequence of such default is, whether or not the goods are liable to forfeiture, this court is required to condemn them as forfeited. Translated, that means that this appeal must be dismissed, and the goods remain condemned."

As stated by the Recorder no evidence was required in the Crown Court in defence of the forfeiture as to the goods having be acquired for Mr Cleary's own use because the Appellant has no standing in either the Magistrates' or the Crown Court, a matter to which we shall return later in this decision. We are bound to accept, and do accept, the decision of the Crown Court that the vehicle does not belong to Mrs Cleary.

This brings us full circle to Mr Boxall's application today to adjourn this matter because he has applied to the Court of Appeal to be allowed to appeal from the decision of Judge Hickinbottom not to grant a Judicial Review. We are mindful that in the Judicial Review proceedings before Judge Hickinbottom, Mr Boxall sought to adjourn that hearing because he said that a bundle of further submissions were not before the court. Judge Hickinbottom did not consider it necessary or appropriate to adjourn the proceedings and nor do we. It is very doubtful in the light of Judge Hickinbottom's robust decision that such an appeal would be allowed. Even it were allowed we consider that it has little prospect of success. If, in the unlikely event it is successful then we have no doubt that the Court will decide that the correct forum for this case to be heard is this one. It would be inappropriate to adjourn this hearing as the Appellant has locus to maintain this appeal but as a non-owner she will not be able to assert before the tribunal any infringement of her property rights. (see section 16(2) Finance Act 1994) Her only interest in the case is that she needs the car because she is suffering from ill health.

Having considered all the matters arising under the preliminary issue we will hear this appeal on the following basis:-

1 That it is an appeal arising from the review of Mrs Gillespie

2 That Mr Cleary will be given the opportunity to give evidence because:-

i. Mrs Cleary asked for the matter to be heard by this tribunal

ii. The hearing at the Maidstone Magistrates Court was a default hearing when no evidence was given by Mr Cleary, although it is accepted that he could have attended. If the Magistrates Court decision had been a deemed decision then because the facts of "own use" would not have been raised this tribunal can hear such facts. Mr Justice Peter Smith in Commissioners of Customs and Excise v Dickinson [2003] EWHC 2358 said:

" I have come to the conclusion that it is open to Mr Dickinson in restoration proceedings to raise the issue of private use for the purpose of seeking to invoke the discretionary procedure of restoration. That does not involve a challenge to forfeiture, which cannot be done (see Gora v Commissions of Customs and Excise [2003] EWCA 525) save in condemnation proceedings. I see nothing difficult in that. First it enables the matters to be dealt with whichever course of action is taken by the person seeking restoration of his goods. Otherwise there would be an injustice. ….. Second of course the procedures are different. The forfeiture results in the deemed findings that the goods were commercial. I do not see why it should not be possible within the ambit of the required explanation of the nature of the commercial transaction that Mr Dickinson could not bring matters in. The restoration procedure is discretionary whereas the challenge to forfeiture is not."

iii The appeal to the East Kent Crown Court was dismissed because the Appellant did not own the car. No decision was therefore needed as to whether the evidence as to "own use" was relevant.

3. The car can only be returned to the Appellant either because:-

i. the goods were acquired by Mr Cleary for his own use or

ii. Mr Cleary requires the car for the Appellant (his wife) in exceptional circumstances.

The Facts

Mr Cleary and Mr David Malcolm were intercepted at Dover Eastern Docks on 4 Octobers 2006. They showed their passports and said that they had been away for a few hours to Eastenders in Calais to purchase beer and wine for friend's wedding. They said they had 10 cases of beer and 4 boxes of wine. When asked if they had any cigarettes Mr Cleary replied "No" and Mr Malcolm said that he had 200 Lambert and Butler cigarettes. Mr Cleary said that it was his first visit to Belgium and that he was unemployed. The officers asked to look in the boot of the car and before doing so asked both of them again to confirm that the only cigarettes that they had were the 200 Lambert and Butler. Mr Cleary replied "Yes". The vehicle was subsequently searched and a large quantity of tobacco was found in wine boxes under the beer. Mr Cleary admitted that there were 3 boxes, which contained 18 Kilograms of hand-rolling tobacco. Mr Malcolm stayed for an interview but Mr Cleary declined and returned home. Mr Cleary took the oath in the tribunal and was taken through his evidence by the Chairman. Mr Cleary said that he did not want to stay for the interview with Customs and Excise because the car belonged to his wife and he wanted to take it home. He confirmed that they had left Sunderland early in the morning and driven down to Dover. He and Mr Malcolm drove to Belgium and bought the tobacco. The shop owner had put the tobacco in plastic bags. As the bags were overfull they had asked the assistant in the wine shop to give them some wine boxes so that they could repack the tobacco. He said they had not been able to put all the tobacco in the boxes and there were some loose bags in the boot. Mr Bird cross-examined and under cross-examination Mr Cleary said that he had taken £1200 with him from money he had saved from his mobility allowance. He had only spent £600 and needed the cash to return home, when he was not allowed to take the car. Mr Cleary accepted that he had signed the note of his interview with Customs and Excise, when he and Mr Malcolm had been stopped and that the officer had read it over to him. The interview notes are in the Respondents bundle at page 39. Mr Bird put it to Mr Cleary that he was lying when he said they had not hidden the tobacco. He also said that the tobacco had been concealed because he was frightened that he would lose the tobacco. When he had asked for condemnation proceedings he decided he did not want to travel to Dover since it was too expensive to do so and he withdrew his request. He also confirmed that on the advice of Mr Boxall he had sent a cheque for £211.92 the duty liable. Mr Bird put it to Mr Cleary that he would only have offered to pay the duty if he knew that the goods had been smuggled. At this point Mr Cleary refused to answer any further questions. We found Mr Cleary's evidence far from satisfactory. He has been abroad before as mentioned in his letter asking for the condemnation proceedings to be stopped. It makes no sense for the tobacco to be taken out of the boxes it is delivered in, to be put in plastic bags, to be then put back in wine boxes. If the tobacco was being brought in legitimately then there was no need to hide it under the beer nor, indeed, to deny that they had any tobacco. We find that the tobacco was not purchased for Mr Cleary's own use but that it was brought in for commercial purposes.

Mrs Cleary then gave evidence as to her illness. We expressed some surprise that she had not brought any evidence with her as to her current state of health. She indicated that she had chronic asthma and that she was often short of breath and that she used a wheelchair. She confirmed that she had been able to walk from the car park to the tribunal, some 200 yards. She said that she had taken her time and had had to stop. She also said that she thought she had an hiatus hernia and that she was seeing the consultant in that regard. She also suffered from depression and had attempted to take her own life. Mr Boxall confirmed that she was in receipt of a mobility allowance. We note from the bundle that there is a statement of reasons for decision arising from and appeal to the Appeals Service for Social Security, Child Support and Vaccine damage (see pages 50 and 51 in the Respondents Bundle). That Statement is not very satisfactory but is the only contemporaneous medical evidence available to us at the hearing. The statement is dated 21 December 2005 some 10 months before the events leading up to the seizure of the car. It would appear that some of the files had "gone missing" and the only information the tribunal had was a notice in August 1998 in which lower rate Mobility and middle rate Care Component were awarded for a three year period to expire in March 2000. The report states at paragraph:-

" 4. The Appellant ( Mrs Cleary) has been to a number of previous Tribunals all of which have been adjourned in the hope of obtaining further medical evidence. Such medical evidence as has been obtained is not particularly helpful and merely confirms diagnoses of asthma, shortness of breath, cough, backache, skin lesions, migraines and acne together with references to menorrhagia and hiatus hernia.

From what Mrs Cleary tells the Tribunal she has for the last two years experienced extreme shortness of breath and continual asthmatic symptoms relieved by the continual use of inhalers, a nebuliser, and very frequent courses of Prednisolone (oral steroids). She told the Tribunal, however, that investigations have taken place by a Gastroenterologist relating to her hiatus hernia and it is suggested that this may be having some impact upon her breathing and she describes a fold in the windpipe of some description which may be causing difficulties. She is having surgery in the New Year in the hope that it will alleviate the symptoms of her asthma which are to say the least unusual in the Tribunal's experience as they appear to be continual rather than episodic.

At all events it was clear to the Tribunal today that Mrs Cleary had a very significant shortness of breath even at rest and also a very significant cough. It is unfortunate that the Examining Medical Practitioner who visited Mrs Cleary in July 2004 did not take a peak flow reading and the Tribunal has no objective evidence of what her breathing was like at that time. She says (and the Tribunal has no reason to doubt it) that her peak flow readings are routinely 250 and that they have remained unaltered at least since August 2004

As a result of this the Tribunal credit that the evidence strongly suggests that Mrs Cleary would not be able to walk more than short distance without severe discomfort caused by extreme shortness of breath and wheezing coupled with some coughing fits. For that reason the Tribunal rejects the evidence of the Examining Medical Practitioner that she could easily walk "100 yards" and considers that this is inherently unlikely purely because of the asthma problems. The Tribunal has no doubt however that this is a very unusual case of asthma and would fully expect that exhaustive investigations by Dr Sutton (Consultant Chest Physician) and the Consultant Gastroenterologist whom she is seeing would result in some resolution of the difficulties or at least a clear diagnosis as to why the asthma is so persistent and unremitting.

…………………It is very clear to the Tribunal that there is a very very significant psychological element to Mrs Cleary's perceived problems. She is clearly very lacking in motivation and describes spending the vast majority of the week in bed getting up for any lengthy period for only two days a week. She described extreme difficulty with even the most basic of functions and said that she could not even clean her teeth, wash her hands and face etc much less get out of bed unaided……"

We were surprise that Mr Boxall had brought no evidence to the tribunal today as to the Appellant's state of health which is necessary if we are to consider that there are exceptional circumstances as to why the Appellant needs the use of the car. We therefore directed that Mr Boxall must provide the Tribunal and the Respondents with :-

A doctor's report as to her present medical condition

A detail of the medication she is taking for that condition

A copy of the Appellant's current entitlement to disability and carers services.

These have been so provided.

Dr Dolores Mansour of Southdene Medical Centre Sutton Colliery advises in a letter dated 24 July 2008 :

" I can confirm that Mrs Cleary has Severe Chronic Asthma and her mobility is severely compromised by her shortness of breath, her medication is only partly effective and she is now under a hospital consultant.

Mrs Cleary also suffers from a long history of:

Depression 1993

Over dose recurrent

Migraine 1994

Chronic low back pain

Mrs Cleary is currently under investigation for abdominal pain, she has a prior history of Diaphragmatic Hernia 2001

Her medication is listed, which is principally for Asthma, osteoporosis, constipation and migraine.

The Department of Works and Pension have confirmed that on 11 July 2008 Mrs Cleary had been awarded a High Rate Mobility component and a middle rate Care Component.

We accept that the medical condition justifying the return of the vehicle must be the one prevalent at the date of the seizure in October 2006. Her present condition does not appear to have changed. Whatever her medical condition might have been, we are satisfied from the medical evidence that on the balance of probabilities she was reasonably immobile and needed the car to get around. However, there could possibly be a query as to whether the Appellant was in a position to leave the house, since her depression was of such severity that she was spending the vast majority of the week in bed and had extreme difficulty with even the most basic functions such as cleaning her teeth and washing her hands and face. Presumably, to leave the house would have been overwhelmingly difficult or impossible for her at this time.

Mr Bird cross-examined the Appellant who confirmed that she had had the use of several cars. At the time of the seizure of the Seat Alhambra her husband had a Peugeot 307; subsequently a Vauxhall Vector and that they currently have an Audi A6. Although the Appellant had said her husband's car could not be used she did not expand on that. She said that her mother was dying on the occasion that her husband borrowed her car to go to Belgium. We are satisfied that she was well aware for what purpose her husband was using the car and that she acquiesced in him using the car to travel to Belgium. We also accept that the car was purchased with money provided by her from her benefits. The car, however, was registered and insured in her husband's name. Therefore the car was owned by her husband as confirmed by the Crown Court.

17 The Law

. Condemnation proceedings

Section 139(6) of the Customs and Excise Management Act 1979

Schedule 3 to this Act shall have effect for the purpose of forfeitures, and of proceedings for the condemnation of any thing as being forfeited, under the Customs and Excise Acts.

Schedule 3

…… 3. Any person claiming that any thing seized as liable to forfeiture is not so liable shall, within one month of the date of the notice of seizure or, where no such notice has been served on him, within one month of the date of the seizure, give notice of his claim in writing to the Commissioners at any office of customs and excise.

………5. If on the expiration of the relevant period under paragraph 3 above for the giving of notice of claim in respect of any thing no such notice has been given to the Commissioners, or if, in the case of any such notice given, any requirement of paragraph 4 above is not complied with, the thing in question shall be deemed to have been duly condemned as forfeited.

………6. Where notice of claim in respect of any thing is duly given in accordance with paragraphs 3 and 4 above, the Commissioners shall take proceedings for the condemnation of that thing by the court, and if the court finds that the thing was at the time of seizure liable to forfeiture the court shall condemn it as forfeited.

……..7. Where any thing is in accordance with either of paragraphs 5 or 6 above condemned or deemed to have been condemned as forfeited, then, without prejudice to any delivery up or sale of the thing by the Commissioners under paragraph 16 below, the forfeiture shall have effect as from the date when the liability to forfeiture arose.

The Tribunal's powers are contained in section 16 Finance Act 1994 subsection 4:-

(4) 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 person 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) in the case of a decision which has already been acted on or taken effect and cannot be remedied by a further review, to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future.

The Submissions

Mr Bird submitted that the decision taken by Officer Gillespie was one which she could reasonably have arrived at and the appeal should therefore be dismissed on its merits. He submitted that the findings of fact in the condemnation proceedings are binding on the tribunal. The car had been used for smuggling of a commercial quantity (18kgs) of tobacco which had been concealed, both physically (in wine boxes and under cases of beer) and by denials from each of the 2 occupants (Mr Cleary and Mr Malcolm) when asked questions by the officers. In fact the quantity was 3 times the guideline level for each traveller. In Lindsay v Customs and Excise Commissioners [2002] STC 588 the Court of Appeal upheld as reasonable the Commissioner' then policy of not restoring cars when they had been used for commercial smuggling, particularly in cases when they had been dissimulation or concealment.

Mr Boxall confirmed that he had understood how these proceedings had progressed and he would arrange for the tribunal to have the necessary medical evidence.

The Decision

We have considered all the evidence and the law and find that the Reviewing Officer acted reasonably in refusing to restore the car. The only basis on which the car can be restored is on the application of Mr Cleary. Whilst we accept that Mrs Cleary possibly bought the car, she agreed for it to be put in her husband's name and for the insurance to be in his name also. She believes that the car is hers because she paid for it. However, for the purposes of the law the car belongs to Mr Cleary. We have allowed Mr Cleary to give evidence relating to the circumstances of his acquisition of the goods since we were concerned that he had not given such evidence previously. He had requested that the application to the magistrate's court should be withdrawn and it was with drawn. It would appear that the application to the Magistrates Court was at the behest of the Respondents. We accept that the condemnation arose as a result of an actual hearing at the Magistrates Court but Mr Bird advised that the detail on the order had been taken from the Respondents evidence. Mrs Cleary, we have found, had specifically asked for the matter to be dealt with by this tribunal. It is clear to us that the evidence had not been fully ventilated. At the Judicial Review proceedings the judge made it clear that this matter should be heard by this tribunal. Judge Peter Smith in Commissioners of Customs and Excise v Dickinson [2003] EWHC 2358 suggested that the hearing before this tribunal is discretionary and he could see not difficulty in the matter of "own use" being raised.

Lord Phillips in Lindsay v Customs and Excise Commissioners [2002] STC 588. stated;

"62. Finally it is right to bear in mind that notice is given to travellers that they are only entitled to bring back excise goods duty free if they are for their own use and smuggling can lead to the forfeiture of vessels. Anyone who uses his car for smuggling is likely to be taking a calculated risk.

Having regard to those considerations, I would not have been prepared to condemn the commissioners' policy had it been one that was applied to those who were using their cars for commercial smuggling, giving that phrase the meaning that it naturally bears of smuggling goods in order to sell them at a profit. Those who deliberately use their cars to further fraudulent commercial ventures in the knowledge that if they are caught their cars will be rendered liable to forfeiture cannot reasonably be heard to complain if they lose their vehicles. Nor does it seem to me that, in such circumstances, the value of the car used need be taken into consideration. Those circumstances will normally take place beyond the threshold where that factor can carry any significant weight in the balance. Cases of exceptional hardship must always, of course, be given due consideration."

We are satisfied that Mrs Cleary would have suffered exceptional hardship as a result of her medical condition but we cannot agree that the Reviewing Officer did not act reasonably as there was another car available to her namely the Peugeot. In fact there have been three such cars available since the seizure of the Seat Alhambra. Further the medical evidence is such that Mrs Cleary appears to remain in her home for most of the time. We do not accept her argument that she needed the Seat Alhambra because it would take her wheel chair and that the other vehicles were unsuited to her needs. She stated under cross examination that she only went to her Mother's house. She has made it clear that she is very immobile however we are satisfied that her husband's car would suffice for limited journeys. Nor are we satisfied that his car was out of commission. Given that the family has been able to obtain two further cars we do not think it is unreasonable to have expected that her husband's car could have been repaired. We therefore find that the Reviewing Officer acted reasonably in not restoring the Seat Alhambra to Mr Cleary and we dismiss the appeal. The Respondents did not ask for costs and we award none.

David S. Porter

CHAIRMAN
Release Date: 1 September 2008

MAN/07/8022