London Tribunal Centre

E00754

Commercial vehicle – tractor unit and tanker trailer – found upon examination to contain concealed load of cigarettes – tanker specifically adapted for smuggling purposes – seizure of tractor unit and tanker – Appellant haulier and driver claim to be unaware of presence of consignment – Customs and Excise Management Act 1979 ss 49(1)(a)(i), 141(a) & (b), 152(b) – Finance Act 1994 ss 14, 16(4) – request for restoration – refused – whether refusal reasonably arrived at – whether Appellant and driver complicit or reckless – review – appeal from decision taken upon review

LONDON TRIBUNAL CENTRE

SEAN DORAN HAULAGE LTDAppellant

-and –

THE COMMISSIONERS OF CUSTOMS AND EXCISERespondents

Tribunal:ALISTAIR F W DEVLIN (Chairman)

MR MAURICE MCCLOY

Sitting in public in Belfast on 19 March 2003 and 17 February 2004

Mr R Dowd for the Appellant

Mr Puzey for the Respondents

© CROWN COPYRIGHT 2004

1

DECISION

1.This is an appeal by Sean Doran Haulage Limited [“the Appellant”] against the decision of the Commissioners taken upon review contained in a letter dated 30 October 2001 confirming the earlier decision not to offer to the Appellant restoration of a seized vehicle, the property of the Appellant. The vehicle in question was a Scania tractor unit, Registration No.95 MN 1738. Previously, the Appellant had sought restoration of the seized vehicle by letter dated 23 August 2001; a decision to refuse restoration had thereafter been arrived at by the Commissioners on 12 September 2001. The Appellant’s solicitors followed up this refusal by means of the request for a review, which was communicated by letter dated 17 September 2001. In their review dated 30 October 2002 the Commissioners confirmed the earlier decision not to effect or offer restoration.

The undisputed facts

2.From the evidence adduced before it at hearing, the Tribunal found the following facts to be undisputed. The Appellant is a limited liability company, with address at 3, New Houses, Tyholland, County Monaghan, Republic of Ireland. The Appellant has since 1998 carried on in business as a haulage firm. In the period prior to August 2001, the Appellant operated only on a relatively limited basis, the firm owning at that time only 4 tractor units. On 23 August 2001, at approximately 23.30 hours, a Scania tractor unit, Registration No.95 MN 1738 the property of the Appellant [“the vehicle”] was stopped by Customs officials at the port of Dover. The vehicle was towing a tanker, and was being driven by a certain Mr Patrick Gormley, an employee of the Appellant.

3.Upon being stopped and spoken to by Customs officials, Mr Gormley informed the officials that he was transporting a consignment of wax in the tanker. He confirmed that he was a regular driver through the port of Dover. Upon being asked what load he had taken out on his outward trip, Mr Gormley replied that he had gone out empty. Upon being asked to produce a CMR for the load, Mr Gormley did so; the CMR was handwritten, and showed the load to consist of 22,000 litres of Impermax WSK, a paraffin based wax. Upon being asked where he had loaded the vehicle, Mr Gormley replied Ghent in Belgium. Upon being asked if he had in his possession any prohibited goods, wines, spirits or tobacco, Mr Gormley replied that he had just 800 cigarettes and an open carton. The vehicle was driven up to the scanner, and having been scanned, at approximately 00.00 hours on 24 August 2001 the vehicle was then directed into a covert examination bay. Detailed physical examination of the vehicle established it as containing 2,787,600 cigarettes which were concealed inside the tanker. The internal arrangements within the tanker had been specifically adapted in such a manner as to facilitate the concealment of goods. The tanker had been divided up into three compartments; the two rearmost compartments were accessible only via the front compartment. At the top of each compartment was a false container or pot, into which had been placed a small amount of paraffin type liquid. The presence of these pots meant that any person simply lifting the lids on the top of the tanker trailer would have been presented with a depth of paraffin immediately underneath the lids. Only upon dipping of the depth of liquid in the containers would the falsity of the containers have become apparent. The front compartment of the tanker was empty, save for the false pot of paraffin immediately underneath its lid.

4.Mr Gormley was arrested on suspicion of having been involved in the importation of a large commercial quantity of excise goods. He was cautioned, escorted to a private room and questioned. Subsequently, at approximately 02.00 hours Mr Gormley was informed that he was not any longer under arrest, and that he was free to go. He agreed to remain and answer further questions. He was asked who owned the tanker and replied that he was not sure. He was asked how long he had been driving this particular vehicle; he replied two weeks. He was asked who he worked for and replied that he worked for the Appellant.

5.At some stage of the questioning of Mr Gormley, upon being asked how to access the tank internally, informed the Customs Officers that it would be necessary for them to pump out the wax from the front compartment of the tanker. There was a dispute as between the parties as to precisely when and in what circumstances this was said by Mr Gormley. Upon being asked further if he had taken this tanker out empty and was now returning with it full, Mr Gormley replied that he had gone out pulling 2824 empty, and that he was now bringing back 2826 full. The tanker and trailer were seized.

6.By letter dated 23 August the Appellant’s solicitors requested restoration of the vehicle. By letter in reply dated 12 September 2001 Customs refused restoration. In that letter, reliance was placed upon section 88 of the Customs and Excise Management Act 1979, which provides as follows:

‘Where … [c] a vehicle is or has been within the limits of any port or at any aerodrome or, while in Northern Ireland, within the prescribed area,

while constructed, adapted, altered or fitted in any manner for the purpose of concealing goods, that vehicle shall be liable to forfeiture’.

The grounds for refusal of restoration were stated to be as follows:

‘The above tanker was found to have approximately 2 million cigarettes which were found concealed in a manner to suggest that the tanker had been specifically adapted for a smuggling attempt. It is not our policy to restore vehicles that have been seized under section 88 of the Customs and Excise Management Act. There are no exceptional circumstances in this case which would justify a departure from this policy’.

By further letter dated 17 September 2001 the Appellant’s solicitors asked for a review of the decision to restore restoration. Further information in support of this review was provided by them on foot of a letter dated 19 September 2001. The Appellant’s solicitors provided testimonials in respect of Mr Doran of the Appellant, and demonstrated that the vehicle had been the subject of a finance agreement.

Decision on review

7.In their review letter dated 30 October 2001 prepared by Mr Harris, Review Officer, Customs relied specifically upon each of the following. Reliance was placed upon the fact that Mr Gormley had carried out no checks as to the validity of the consignment note, nor to verify the details contained on its face. Reliance was also placed upon the fact that the Appellant had carried out no checks so as to ensure that the specified consignee was indeed expecting the goods. Reliance was additionally placed upon the fact that the purported consignee was Deeside Paper Limited of Deeside Industrial Estate, Deeside, Flint, and that Mr Harris had been unable to locate a company of that name at that address. The reviewing officer concluded that Mr Gormley had known that the cigarettes were in the tanker.

8.By Notice of Appeal dated 21 November 2001 the Appellant contended as follows:

‘An order was placed to the appellant company by Robert Kelly. The appellant company correctly followed all procedures and the driver and the appellant company were unaware that any cigarettes were concealed within the tanker which was collected. The appellant company did not know and could not have known that any such contraband was concealed in the vehicle’.

Evidence on behalf of the Appellant

9.Mr Doran of the Appellant gave evidence to the Tribunal. He claimed to have received a telephone call from a man identifying himself as a certain Robert Kelly. This man it was claimed said that he had been speaking to one of the Appellant’s drivers, who had told him that the Appellant might be interested in some regular work, and enquired how much he would want for the round trip. Mr Doran gave evidence that Kelly gave him a trailer number, together with a collection address in Ghent, Belgium, where the trailer was to be picked up. Kelly said the full load was to go to Deeside Paper. Mr Doran claimed that there was nothing particularly unusual in this type of arrangement. When asked if in these circumstances, the Appellant would have considered it necessary or appropriate for the intended consignee to be contacted, Mr Doran replied that in the majority of cases, that would not have been allowed, and that it would have been forbidden for him to have made contact with the consignee.

10.This was the second such consignment which the Appellant had collected and delivered for Robert Kelly in this same manner. The first consignment had passed off without incident. Mr Doran went on to explain that whereas the original delivery address was to be Deeside, it was subsequently altered by Kelly to be the Abax yard in Liverpool. The reason given for this was twofold: firstly to facilitate the Appellant since he did not have unloading equipment, and secondly due it was claimed to a lack of storage space at the Deeside factory. Kelly it was claimed had told the Appellant not to worry about unloading, and that the tanker trailer could simply be left in the Abax yard at Liverpool, a trailer parking area.

11.Mr Doran in his evidence rejected any suggestion made to him that the circumstances of the order, of the consignment and of its delivery were unusual and suspicious. He stated that he had obtained and one work this way before. On this second occasion, Mr Doran stated that he had passed the necessary details on to one of his drivers, Mr Gormley. Upon being informed by Mr Gormley that he had been stopped, and that the load upon inspection having been found to contain cigarettes, he tried to phone Robert Kelly immediately that same evening, but with no success. When Mr Doran did manage to speak to Kelly the next morning, it was claimed, Kelly hung up the phone or switched it off.

12.Mr Doran in his evidence went on to explain how the tanker trailer was not the property of the Appellant, and that the company had purchased the vehicle in early April or May of 2001 for £13,500. The vehicle had been a 1995 model, which the Appellant had been financing on foot of a hire purchase agreement. Mr Doran went on in his evidence to explain the financial difficulties which seizure and loss of the vehicle had caused to him.

13.In cross examination, Mr Puzey for the Respondent began by suggesting to Mr Doran that his evidence was no more than a pack of lies. When asked about Robert Kelly in cross examination, Mr Doran stated that he had never met the man, and had never spoken to him in advance of August 2001, but that he had told him that he organised the delivery of loads of wax for the Deeside Paper Mill. Mr Doran was asked to produce the paperwork referable to the first incident free transaction as conducted with Robert Kelly; he replied that he was unable to do so, and admitted that he had available to him no documentation with which to evidence any previous business with Mr Kelly. He also accepted that he had not invoiced Deeside Paper in respect of the first transaction. When asked why Mr Doran replied that it apparently does not exist; he claimed that he had established this from a directory enquiries search. He was asked as to whether anyone had contacted him after the load was seized, to see what had happened to their wax. He admitted not having contacted Ghent, and went on to admit not having made either at the time or subsequently any enquiries of either the consignor or the consignee, other than an unsuccessful directory enquiry in respect of Deeside Paper. He was pressed as to why it would not have been possible for him to have contacted the consignee, and replied so as not to be able to take their work off them. Mr Doran did not accept that in this regard he had a no questions asked policy, but insisted that he had not known what was in the consignment. He was asked about the pick up of the tanker trailer from the Abax yard; no paperwork was needed it was claimed for this collection, since the yard was an open yard, with no security either to get in or out.

14.Mr Gormley also gave evidence on behalf of the Appellant. He confirmed that on the occasion in question he had been working for the Appellant, having previously worked for him the firm off and on for an eighteen month period. His evidence was that on this occasion, he had left Northern Ireland with the vehicle alone, and with no tanker or other trailer attached. On the directions of the Appellant, he travelled to the Abax yard in Liverpool where he picked up a trailer in the yard. He knew the yard, and had been there before. He had a number for the trailer. In the yard, he located the trailer, which turned out to be a tanker, connected it up and travelled via Dover and Calais to Ghent. In Ghent, outside the premises of Govi, he claimed to have left the tanker which he had collected in Liverpool, and to have picked up another one. It was also a tanker, there was a CMR in a container at the back. Mr Gormley said that he checked that the valve on the tanker was properly closed. He said that he understood the load to be wax. He stated that he did not see the load being pumped in or the tanker being otherwise filled up. Having located the filled tanker trailer in Ghent, Mr Gormley connected it up to the vehicle, and travelled homewards via Calais to Dover where he was subsequently stopped. Mr Gormley was asked to confirm if the Customs Officers had enquired of him as to how they could access the tank internally. He initially replied that he did not specifically remember being asked this question. He was asked whether at this stage he knew what the internal structure of the tanker was; he replied that he would have assumed that it would have been similar to any other tanker. He claimed not to have known that the tanker contained three compartments which were accessible only via the first compartment; nor to have known that the tanker in any way had been modified to as to enable goods to be concealed in its interior.

15.Subsequently in his evidence however, Mr Gormley did recall taking the lids off on the top of the tanker whenever he was asked how to access the tanks. He recalled climbing up on top of the tanker with a Customs Officer and being asked to produce a dipstick, which he did. When the tanks were dipped, and found to contain only a small depth of liquid, Mr Gormley stated that he was surprised to say the least. When he was asked if he had made a remark about the front compartment, Mr Gormley stated that he did pass such a remark as he was leaving the premises. He claimed that about an hour into the arrest and seizure operation, he had been asked by Mr Maslen, one of the Customs Officers, ‘how would you get in’? Mr Gormley stated that his reply to Maslen had been ‘if it wee me, I would pump the stuff out of the first compartment’. Mr Gormley stated that no criminal proceedings had ever arisen out of this incident, and he insisted that he had been wholly unaware of the contents of the tanker trailer.

16.In cross examination, Mr Gormley was asked about previous trips which he had made in the period immediately prior to the night of the incident in question. He was asked specifically about a journey on 9 August 2002 whenever he appeared to have gone out empty and also to have returned empty. He was asked who he had dealt with in Ghent. He replied that he had not dealt with anybody, nor spoken to anybody. So far as the first trip to and from Ghent had been concerned, he had not spoken to or dealt with anyone. Mr Doran on that occasion had given him the necessary details; bring out such and such a trailer, bring back such and such a trailer. His evidence was that both on the incident free first occasion, and on the second occasion leading up to the interception, he had left the empty tanker trailer outside the factory, on the roadside, together with a lot of others. Mr Gormley was referred to the CMR Convention; he stated that he had been a lorry driver for 30 years, but had never heard of the Convention. He was referred to the CMR, which stated that the name of the carried was ‘Jones Tankertrans’. Mr Gormley stated that this was who he understood Dorans were working for; he admitted having seen no documentation from Jones Tankertrans.