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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gascoyne v Customs and Excise & Anor  EWCA Civ 1162 (28 July 2004)
Cite as:  Ch 215,  EWCA Civ 1162,  2 WLR 222
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(MR JUSTICE NEUBERGER)
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE BUXTON
LORD JUSTICE CARNWATH
|(1) HM CUSTOMS AND EXCISE|
|(2) THE CHAIRMAN OF THE VAT AND DUTIES TRIBUNAL||Defendants/Respondents|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR D ANDERSON QC and MR J PUZEY (instructed by Solicitor for HM Customs and Excise) appeared on behalf of the First Respondent
MS I SIMLER (instructed by Treasury Solicitor) appeared as an Advocate to the Court
Crown Copyright ©
"1-(1) The Commissioners shall... give notice of the seizure of any thing as liable to forfeiture and of the grounds therefor to any person who to their knowledge was at the time of the seizure the owner or one of the owners thereof.
"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, [that lays down certain limited requirements for the content of a notice of claim] the thing in question shall be deemed to have been duly condemned as forfeited.
"8. Proceedings for condemnation shall be civil proceedings and may be instituted -
(a) in England or Wales either in the High Court or in a magistrates' court;
[that relates back to paragraph 6 which provides that such procedures shall be taken by the Commissioner when a notice of claim is duly given to them]"
"On 15th April 2001 the Appellant and his partner Miss Gifford were stopped by officers of the Commissioners at Eastern Docks, Dover. They did not initially disclose to the officers the considerable amount of excise goods that were contained in the vehicle. Officers discovered in the vehicle a large quantity of excise goods, some of which were in a box mixed among clothing and a large part of the tobacco was found hidden in a compartment in the boot of the vehicle. In the vehicle the officers found 10,000 cigarettes and 32 kilograms of hand-rolling tobacco (640 pouches). This quantity was considerably in excess of the guidelines which were 800 cigarettes per person and 1kg of hand-rolling tobacco per person for each person's own use. The smoking habits revealed by the Appellant and Miss Gifford to the officers indicated that it would have taken them far more than one year to smoke the tobacco themselves. Indeed at the hearing the Appellant admitted that in fact he had only smoked at the time about 1 pouch of tobacco per week and Miss Gifford a few cigarettes. On that basis the Appellant had been purchasing almost twelve years' supply of tobacco. Even if he had smoked 2 pouches a week, he would have been purchasing almost six years' supply. We find that it is not credible that the Appellant and Miss Gifford had purchased tobacco and cigarettes solely for their own use. There was no suggestion by either of them that they were purchasing the goods for anyone else. We find that the explanation that they gave as to the purpose of their journey and their intentions concerning where they were visiting was not credible. We did not believe that they had intended to travel to Bruges and changed their mind after they had been to Adinkerke. We did not believe the Appellant's contention that he had travelled to Adinkerke to buy chocolates for a neighbour. In fact he never purchased any chocolates and we did not believe his explanation. We did not believe his assertion that he was not aware of the guidelines. Neither he nor Miss Gifford were able to demonstrate to the officers that they knew how to roll tobacco. We did not believe the explanation of the Appellant that he used a machine to roll tobacco, but that he had lost the machine on the previous day in France, and that he had not been experienced in rolling tobacco without a machine nor did we believe his explanation that he felt unwell and embarrassed by the officers and that this inhibited his ability to roll the cigarettes. We bear in mind that there is no evidence that the Appellant had previously imported excise goods in excess of the guidelines or that he was a frequent traveller. We find that the appellant at his interview did attempt to mislead the officers and that his actions were not those of a shopper who was purchasing goods for his own use in good faith. The Appellant admitted in evidence that his previous habit was to purchase hand-rolling tobacco at a price considerably less than the retail price in the United Kingdom from people in public houses. The Appellant had contended that the tobacco was for his own use and that he was not intending to sell it for a profit. He denied that he intended to give any of it to friends or family. He denied that he was purchasing the tobacco for anyone else. We find however that on all the evidence the amount of hand-rolling tobacco some 32 kilograms was so large a quantity that bearing in mind the smoking habits of the Appellant and his partner we conclude that the Appellant was a commercial smuggler. We did not believe his evidence that the tobacco was for the own use of himself and his partner."
"... once a court in condemnation proceedings determined that goods were liable to forfeiture, there was no jurisdiction in the tribunal to determine what the court had found as a fact in those proceedings, namely that duty had not been paid on the goods; that there was a clear division between the tribunal's jurisdiction to determine whether any thing forfeited was to be restored, and that of the court in condemnation proceedings; that, if the goods-owner failed to give notice of claim that goods seized were not liable to forfeiture and should be restored, the effect of the deeming provision in paragraph 5 of Schedule 3 to the 1979 Act prevented him from challenging the forfeiture by providing that the goods were to be treated as forfeited."
That is a correct recension of what was said by Pill LJ in the leading judgment in this court in paragraphs 57 and 58 of his judgment.
"If the views expressed in Gora are correct, it would seem to follow that once goods are deemed to have been duly condemned and forfeited the owner will not be permitted, in proceedings under section 152, to advance a case that the penalty was disproportionately harsh and that this will emasculate the jurisdiction of the VAT tribunal. The further consequence, so it seems to us, may well be that whenever the owner of goods that have been seized makes a written application to the Commissioners under section 152 that is based on hardship, the Commissioners are bound to treat the applications as a claim that the seizure was unlawful and commence condemnation proceedings."
"... in addition to the procedure described in paragraphs 3ff of Schedule 3 to CEMA, it is agreed that the review and appeal procedures, under section 152 of CEMA and sections 14 to 16 of the 1994 Act [that is the Finance Act], can involve consideration of the question of whether the goods and/or vehicle were validly seized, and are not merely limited to the question of their restoration (whether on terms or otherwise). While I can see an argument to the contrary, it appears to me that that common assumption, which I understand has always represented the view and practice of the commissioners and the tribunal, is correct. I think it would require clear words in a provision such as section 152 of CEMA or sections 14 to 16 of the 1994 Act before the reviewing officer or the tribunal (as the case may be) was precluded from considering the validity of any seizure or forfeiture."
It can be seen that that assumption shared by both parties does not appear to be borne out by the observations in Gora.
"What is described as a cross-appeal arises by reason of a finding of the tribunal in the Gora cases that in certain circumstances the tribunal has a jurisdiction in relation to forfeiture. These appeals are in relation to findings on preliminary points upon which this issue did not arise. That being so, the court cannot pass judgment upon it but it is, in my view, appropriate that the court should express a view on what is a fundamental point for the guidance of the tribunal."
"Dear Sir or Madam,
"On Sunday 15/04/01, I was stopped and searched by Customs and Excise Officers. I had been on an Easter break to France, where we also had a day-trip to Belgium. Whilst re-fuelling at a garage in Belgium, we were offered tobacco and cigarettes by the proprietor, which we accepted, on the understanding that there was now no limit to the amount, which could be brought back into the UK, since Duty-Free has now been abolished. Until presented with 'Notice 1' by Customs and Excise, I have never heard of, or seen it before, there is certainly no information at the dock, or on board the ferry, which I could see, that gives any information about these limits.
"The products were not hidden (only from direct view for vehicle security reasons) due to the fact that I thought that I was perfectly legal. I totally agree with Customs & Excise procedures in aiming to reduce Firearms, Drugs and People Trafficking, into the UK, but I think that the Officers may need a little more training in understanding people with special needs, as I reported that I was a diabetic, and had not eaten for 9 hours, and needed food before I could take medication, but it was three hours later, after I was told that my car was being seized along with the goods which I had purchased, that I was asked to leave. This caused big problems on my journey home, which I will address in a separate letter.
"So, after losing my job, £300 travelling expenses, a deep scratch on the bonnet of my car and panels broken, caused by Customs and Excise Officers, two dizzy spells due to diabetes and a possible doctors fee, thirteen hours of travelling on trains and coaches, and now the expense of returning to Dover if my vehicle is released.
"Would you please advise me whether my vehicle and goods are to be returned to me as soon as possible, so that I can make arrangements to collect them, or alternatively loan a car, as I desperately require transport to seek, and use for work, otherwise my mortgage will also be under threat.
"All goods purchased were solely for our own personal use, not for re-sale. I am totally innocent of not seeing 'Notice 1' and its contents before Sunday, and also the legal amount of items, which may be brought into the UK. Thank you for your time in this matter, and I look forward to hearing from you in the near future."
"The notes overleaf explain how you may be able to get your things back and what to do if you think Customs were wrong to take them."
"In other cases, if you accept that we had the right to seize the things listed overleaf, we may return them to you on certain conditions. These will usually include paying a sum of money."
"2. What if I think Customs were wrong to seize the things?
"You have the right to challenge our decision in court. Make your claim in writing, stating your full name and address, within one month of the date of seizure and send it to the Customs Office shown overleaf.
"If you make a proper claim against seizure civil proceedings must follow and a court will decide whether the things are liable to seizure and forfeiture. Since there will be a court hearing we strongly advise you to get legal advice before making a claim."
"60 None the less, even bearing in mind these factors, I have reached the conclusion that the April letter was an application for restoration under section 152(b) of CEMA, rather than a notice of claim under paragraph 3 of Schedule 3. First, it is clear from note I on the back of "Seizure Information" that an application for restoration is to be sent to "The Queen's Warehousekeeper" at Priory Court, whereas, although apparently mutually inconsistent, the information on the back of the "Seizure Information" and of the "Seizure of Vehicle" indicate that an appeal against seizure should be addressed differently (either to the customs office at Priory Court or to the Excise Support Team at the Eastern Car Terminal). The April letter was sent to the Queen's Warehousekeeper, at Priory Court. Quite apart from the terms of the notices, a warehousekeeper would not be expected to decide a dispute as to whether items were properly seized, as opposed to whether they should be returned.
"61 Secondly, reading the April letter as a whole, it appears to me that its message is that Mr Gascoyne believed that he was entitled to bring into this country as much tobacco products as he wished, and that he was unaware of what he called "Notice I", namely the quantities specified in the Schedule to the PRO. The tone and effect of the letter, at least to my mind, is more a mitigation, seeking to invoke the discretion of the commissioners to return the vehicle, rather than a claim that it was improperly seized.
"62 As Miss Simor both conceded and pressed, there is one sentence in the April letter which could be invoked to support the proposition that it was a notice of claim under paragraph 3. That sentence is: "All goods purchased were solely for our own personal use, not for resale". A lawyer, familiar with the legislation then in force, would conclude that, if this allegation was made out, then the items were improperly seized and could not be forfeited. Accordingly, I accept that this sentence does provide a powerful basis for contending that, fairly read, the April letter should be treated as a notice of claim under paragraph 3.
"63 None the less, I do not accept that such a reading would be justified. It seems to me that one sentence cannot be, as it were, lifted from the rest of the April letter, and scrutinised on its own. It must be construed as part of the April letter, in its context. The letter was plainly written by a non-lawyer without the benefit of legal advice, and I do not think it is legitimate to make legally based deductions from the sentence to justify the contention that it is a notice of claim, when that was not spelt out. If, on the other hand, one is entitled to invoke such a subtle approach, then a lawyer would also appreciate that the review and appeal procedures, initiated by a section 152 application, would enable the validity of the seizure to be considered.
"64 I also think this conclusion is reinforced by the informality of the April letter. The "claim in writing" contemplated by note 2 on the back of "Seizure Information" suggests a relatively formal document, or at least a document where the "claim" is spelt out. This is rather supported by the "strong" advice "to get legal advice before making a claim."
"65 While it would be quite wrong to place a heavy burden on an individual seeking to invoke his statutory rights in respect of goods which have been seized by customs officers, the position of the commissioners has to be considered as well. To my mind, reading the April letter as a whole, a reasonable person in the position of the commissioners, knowing the law, and appreciating Mr Gascoyne as a layman, would have thought that it was a request for restoration, and not a notice of claim.
"66 It is not as if construing the April letter as an application for restoration precludes Mr Gascoyne challenging the seizure. The one-month time limit in paragraph 3 would not have prevented Mr Gascoyne from making a claim under that paragraph after restoration had been refused by the commissioners on 3 May. In any event, as the facts of this case show, if the April letter was simply an application for restoration, Mr Gascoyne was still able to maintain a right to argue against the validity of the seizure on the review under sections 14 and 15, and on an appeal to the tribunal under section 16, of the 1994 Act.
"67 Accordingly, albeit with hesitation, I have concluded that the April letter was not a notice of claim under paragraph 3, and was properly treated by the commissioners as an application for review under section 152(b) of CEMA. None the less, particularly as I regard the contrary view as strongly arguable, it is right to consider whether the goods and Land Rover should be returned if that conclusion is wrong, and the April letter was a valid notice of claim."
"In light of what was said by Mr Gascoyne and Ms Gifford to the customs officers, it seems to me that, to put it at its lowest, the customs officers... were plainly entitled to reach the conclusion that they did on this issue simply on the basis that they did not believe Mr Gascoyne."
ORDER: appeal dismissed; no order as to costs.