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 CLEARYAppellant
- and -
THE COMMISSIONERS FOR
HER MAJESTY’S REVENUE AND CUSTOMSRespondents
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
© CROWN COPYRIGHT 2008
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 forthe 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 17th 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 smugglingin 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
10 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.
11This 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.
12Having 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.”