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Cite as: [2003] UKVAT(Excise) E00509

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    Williams & Anor v Customs & Excise [2003] UKVAT(Excise) E00509 (20 October 2003)

    EXCISE DUTY – Import of tobacco – Seizure of goods and vehicle – Reasonableness of Commissioners deemed decision to refuse to restore vehicle – Review out of time – Proportionality – Lindsay & Hoverspeed considered – Appeal allowed
    LONDON TRIBUNAL CENTRE
    MS S E WILLIAMS & MR J R WHITTAL Appellants
    - and -
    THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
    Tribunal: PAUL HEIM CMG (Chairman)
    MR D CORKE FCA
    MRS A WEST FCA
    Sitting in public in Cardiff on 6 March 2003
    Miss Sandercock, counsel, for the Appellants
    Mr Mitrophanous, counsel, for the Respondents
    © CROWN COPYRIGHT 2003

     
    DECISION
  1. The Appellants appeal against a deemed decision of the Commissioners confirming an original decision contained in a letter dated 1 February 2002 by which the Commissioners informed the Appellants that excise goods and a Volvo vehicle registration number P393 CVJ which had been seized at Dover Eastern Docks on 20 November 2001 would not be offered for restoration.
  2. At the hearing of this appeal the Appellants were represented by Miss Sandercock of counsel and the Commissioners by Mr Mitrophanous, also of counsel.
  3. The facts of the matter are not in dispute. The Appellants were travelling in the vehicle in question, which belong to the Appellants, when, on their way back from France, they were stopped by an officer of Customs and Excise. They were questioned, and the answers they gave were recorded by the officer. There is no dispute that their answers were correctly recorded, but said that they were tired at interview. They said that their journey had been disrupted because on their way to Dover the second Appellant's vehicle in which they were originally travelling had broken down, and it was necessary to telephone his father to bring down the Appellant's vehicle in exchange.
  4. The Appellants told the officer that they had been to France for the day, that they had purchased four boxes of tobacco and 200 cigarettes. According to the Statement of Case, "they confirmed that they knew it was illegal to bring certain prohibited/restricted goods into the UK". This last conclusion presumably refers to the question "Do you know its an offence to sell excise goods without first paying duty or tax"? put to Ms Williams, to which the answer received was "Yes" and the question "Do you understand prohibitions and restrictions"? put to the Appellants, to which they are recorded as having replied "Yes".
  5. The Appellants said in answer to questions that they lived together, the first Appellant owned and operated a petrol station, the second Appellant worked as a mechanic. The petrol station had a shop. It sold cigarettes. They did not expect to receive any money or favours for the goods. Ms Williams said that they would be given away as Christmas presents. She smoked cigarettes and hand-rolling tobacco, although she did not have any rolling papers on her at present. She did not know how much of the hand-rolling tobacco she would keep but she would give some away to her two brothers, to her partner's sister, her father and her partner's father. Asked how much they would each receive she replied two pouches each and some wine. She said that the hand-rolling tobacco would last a year, that her partner smoked more than she did. She explained her income from the garage and her commitments. They had funded the purchase from their savings on an equal basis. She was asked if she was aware of the MILs [Minimum Indicative Levels] and replied:
  6. "No, I am not going to jeopardise my business by selling HRT, but I thought you could bring in as much as you wanted".

    She also said that they came over once a year just to get Christmas things.

  7. The second Appellant also admitted having four boxes of tobacco and 200 cigarettes. He said that his income was £1000 a month approximately and that he was getting by. Asked whether he had purchased four boxes of tobacco for himself he replied "Yes" and asked what he was going to do with the tobacco he said "Smoke it and give away as Christmas presents". He did not know how much he would keep himself. He did not know how long the tobacco would last. He travelled once a year or maybe twice. Last time was at the same time in the previous year when he had bought Christmas presents. Asked "So you don't know how much you are giving away"? He replied "Not really, we might give a couple of boxes to her brothers or dad, my sister smokes". Asked "You know that goods have to be for personal use"? He replied "Yes". And asked "Why so much today"? He answered "Because I smoke, its Christmas and I would give some away".
  8. It is not in dispute that the officer seized 1,360 cigarettes, 22 kilos of hand-rolling tobacco, 13.92 litres of beer, 4.5 litres of wine and 25 cigars, as well as the vehicle. The revenue on the goods totalled £2,350. The reason given for the seizure of the goods was the following:
  9. "I seized the goods due to factors indicating the probability of goods held for a commercial purpose due to the following reasons.
    1. Excessive amount of excise goods held in Mr Whittal and Ms Williams' possession.
    2. Income and expenditure.
    3. Inconsistent stories.
    4. Mr Whittal is not aware of how long goods will last.
    5. Consumption rate taken into account for both, the goods will last approximately three years.
    6. It is unreasonable to give away 2-3 boxes of tobacco as gifts".
  10. While the Commissioners' statement of case gives these reasons in a slightly similar way, including the statement "he will give away 1-2 boxes; she 1-2 pouches per person;" the officer's reason for seizure seemed to be clear.
  11. Following the seizure on 20 November, the first Appellant wrote to the Commissioners on 22 November 2001 with a request for restoration. She explained that the purpose of the trip was to spend the day buying Christmas presents predominantly for her and her partner's families including her four children. They purchased four boxes of tobacco and six packs of 200 cigarettes. On the trip back they purchased one pack of 200 cigarettes and some cigars. The goods were entirely for their own use. The cigarettes were Christmas gifts for her personal friends, the cigars were for her partner's father and the tobacco was intended to be split between several family members again as Christmas gifts. He father and two brothers smoked tobacco as did her partner's father, his sister and her fiancι. She had the impression that there was no problem as long as the goods were intended for their own use. The interviewing officer had said that they needed to convince her of the fact that the goods were intended for own use and did not believe them, stating the reason that there were two inconsistencies in their statements the first was that when asked how much tobacco they would be giving as presents she referred to the tobacco as pouches and her partner referred to them as boxes. The second reason was that the officer found a ferry ticket in the car, but this was explained by the fact that she had lent the car to somebody else for a trip to Ireland. She said that when interviewed they were extremely tired and oblivious to the fact that they might have done something against the law. They were both in business and had no money difficulties. They would never consider buying tobacco to make a profit. They did sell tobacco products in their service station but would never be stupid enough to risk the business for the sake of a few boxes of tobacco. Everything that they had bought including the cigarettes, tobacco and cigars had been purchased with money saved for Christmas presents for families and friends. The car was a vital part in the business as it was used twice weekly to collect goods from wholesalers and was also used to take children to and from school everyday. One of the schools was 14 miles away and the other 6 miles away.
  12. On 1 February 2002 the Commissioners, in the person of Miss Wheeler, team leader at HM Customs Law Enforcement Plymouth replied. Her letter states:
  13. "The Excise Duties (Personal Reliefs) Order 1992 sets out the circumstances and conditions under which a traveller may be afforded relief from payment of UK excise duty when transporting excise goods.
    The Schedule to the above-mentioned Order lays down the guidance levels for these goods. Goods in excess of the guide levels are deemed to be for commercial purpose unless, if required to do so, the traveller satisfies Customs and Excise to the contrary. This means that if you fail to satisfy Customs and Excise that the goods in your possession are not solely for your own use, then there is a legal presumption that the goods are intended for a commercial purpose, and the goods become liable to forfeiture and can be seized.
    In your case you were intercepted at Dover Eastern Docks on 20 November 2001, where 22 kg of hand rolling tobacco, 1,360 cigarettes, 25 cigars, 4.5 ltrs of wine and 13.92 ltrs of beer were seized.
    You were then interviewed regarding your intentions for the goods transported. The goods and vehicle were seized for the following reasons:
    1. The vehicle was used for the transportation of excise goods that were in excess of the guidelines as per article 5 of the Excise Duties (Personal Reliefs) Order 1992.
    2. Inconsistencies within your story over who the goods were intended for failed to satisfy the officer that the goods were for personal use.
    3. The officer was not satisfied that your income supported the quantity of purchases made or that it was reasonable to give away such quantities as gifts.
    The Customs and Excise Management Act 1979 section 141(1) follows that if a vehicle has been used for the carriage of goods liable to forfeiture then that vehicle becomes liable to forfeiture.
    Therefore in your case both the goods and the vehicle were seized.
    I have considered the facts in this case and in conclusion I am unable to offer the goods and vehicle for restoration as the seizure was made in accordance with Departmental policy as stated above. There are no exceptional circumstances in this case, which would justify a departure from this policy.
    If you wish to have the decision not to restore the goods and vehicle reviewed, then please write to the following address:
    The Review Officer
    HM Customs & Excise
    Crownhill Court
    Plymouth
    Devon PL6 5BZ
    A Departmental Review Officer impartially carries out all reviews.
    You have 45 days from the date of this letter to ask for a Review to be conducted."

    Although this letter refers to "Departmental policy stated above", it does not in fact set out the policy.

  14. On 6 March 2002 the Appellants' solicitors wrote to the Commissioners asking for details of the inconsistencies alleged, why the officers involved were not satisfied that the goods were for personal use and why it was not reasonable for such quantities to be given as gifts.
  15. The Commissioners reply dated 13 March did not deal with these matters but merely said that the letter had been passed to the review team.
  16. On 8 May 2002 Mr G A Murray, review officer, replied to the Appellants' solicitors' letter of 6 March 2002 stating that he had treated that letter as a valid requirement to conduct a review of the decision. It is relevant to say that his letter was not in fact a reply to the solicitor's request for information.
  17. Mr Murray made it clear that he had been unable to complete a review of the Appellants' case within the 45 day limit prescribed, so that the original decision not to offer the goods and vehicle for restoration was deemed upheld under the provisions of section 15(2) of the Finance Act 1994. However he had completed the review and gave his conclusions.
  18. He introduced them by the following considerations:
  19. "Subsequent to the events of 20 November 2001 Ms Williams wrote a three page letter to our Post Seizure Unit requesting restoration of the excise goods and vehicle, in considering matters as described below I have taken into account the contents of this letter."
  20. Mr Murray set out the Commissioners' policy regarding vehicles in the following way:
  21. "Restoration policies
    Vehicles
    With effect from 14 July 2000 the Commissioners' policy regarding privately owned vehicles used for the improper importation of excise goods is that they will not be restored, even on the first occasion they are so used. That policy applied at the time of the seizure of the vehicle. However, each case is considered to determine whether the affected party has substantiated that restoration should exceptionally be allowed.
    April 2002 update – vehicle restoration policy
    With effect from 18 April 2002 the Commissioners' policy in respect of restoration of seized vehicles has been amended as follows:-
    (a) Private vehicles seized where alcohol or tobacco goods are detected and Customs are satisfied that the excise goods are intended for a commercial use, i.e. for profit:-
    in such cases Customs policy is that both the goods and vehicle seized will not be restored unless there are exceptional and/or humanitarian circumstances.
    (b) Private vehicles seized where alcohol or tobacco goods are detected and Customs are satisfied that the excise goods are intended not for own use but for sale at cost, i.e. not for profit:-
    in such cases where it is a first detection the vehicle seized may be restored upon payment of 100% of the revenue due on the value of the excise goods or the value of the vehicle whichever is the lower."
  22. Mr Murray goes on to say that it was the department's general policy that seized excise goods were not restored. However, each case was examined on its merits to determine whether or not restoration might exceptionally be offered. "In conducting this examination the presence of any one of the following factors will mitigate against restoration:
  23. •    Any evidence of previous smuggling or failure to comply with legal requirements;
    •    Any evidence that the person involved knew what they were doing was wrong;
    •    Any evidence that the person was paid to make the journey;
    •    Large quantities of goods which might damage legitimate trade;
    •    Any evidence that the goods were for a commercial purpose."
  24. Mr Murray went on to say that he had first examined whether the goods and the vehicle were properly seized in the first instance. His considerations were the following:
  25. "The guide level for tobacco is 1 kilo per person, jointly your clients had in their possession 22 kilos which is 11 times the guide level. This is a substantial quantity of tobacco and they were required under the legislation, when asked to do so, to satisfy Customs that the tobacco was for own use and rebut the statutory presumption of commerciality.
    The two travellers had 22 kilos of tobacco and the excise goods in total cost approximately £800, much of this would have been for the tobacco. This is a substantial sum of money, with regard to Mr Whittal it is evident that he was generally vague as to how much tobacco they would give away and how long his tobacco would last. Considering the sum spent I would have thought that if the tobacco was for use as described he would have calculated and planned the amounts to be purchased and would have a much more precise idea of the associated quantities.
    Secondly, reading the interview with Mr Whittal I am left with the impression that Ms Williams mainly smokes cigarettes, only sometimes did she smoke roll up cigarettes, the tobacco was essentially for Mr Whittal with some to be given away as presents. In contrast to this Ms Williams said that she did smoke roll ups, she consumed 1½ pouches per week. On another point, I find it somewhat implausible that if Ms Williams smoked as she said, she would not also have the means to make roll up cigarettes, namely roll up papers. I am of the view that there are clear inconsistencies in the two accounts.
    Thirdly, a pouch of tobacco equates to 50 grams, 20 pouches per kilo, 22 kilos of tobacco is equivalent to 440 pouches. Mr Whittal said he consumed 1 pouch every 2-3 days, say 2½ pouches per week, Ms Williams consumed 1½ pouches per week, total 4 pouches per week. In her interview Ms Williams effectively said that 12 pouches (2 pouches each for 6 people) would be given away as presents. Hence, 440 less 12 equals 428 pouches, divide by 4 equals 107, that is, at a consumption rate of 4 pouches per week the tobacco would last 107 weeks or just over 2 years. Information from tobacco manufacturers advises that in ideal storage conditions tobacco has a shelf-life of 14-18 months. I consider it highly implausible that your clients would wish to buy such a quantity of tobacco for consumption so far ahead, even more so when one considers that tobacco is a perishable commodity.
    Fourthly, I am also guided by decisions of the VAT and Duties Tribunals, in this context I refer to the case of the Commissioners versus Mr Gordon Boyd (case EDN/96/8006). The Appellant had 9.6 kilos of hand rolling tobacco, in relation to this quantity, the Chairman, Mr T Gordon Coutts, QC, in his decision of 7 April 1997 commented as follows:-
    "The Tribunal came to the view that even half the quantities involved would have raised a justifiable suspicion but where 9.6 kilos of hand rolling tobacco are imported it strains credulity beyond acceptable levels that this could be for one man's own use. The importation of twenty odd pounds of tobacco of the hand rolling variety is sufficient justification in itself for the Respondents not being satisfied that this was for personal use."
    Your clients effectively had 11 kilos each, I consider that the above decision has relevance, I concur with the thoughts of Mr T Gordon Coutts, QC, that it strains credulity beyond acceptable levels that the tobacco was for the personal use of Mr Whittal and Ms Williams.
    Fifthly, it is evident that Ms Williams sells cigarettes/tobacco in her petrol station, clearly there exists the opportunity to sell the tobacco through this outlet and I submit that it would not be unreasonable to suggest that this was the intention of Ms Williams. On a minor point I note from the Officers notebook that the list of other items in the vehicle included one bag containing 2 boxes of lighters. It appears to me not unreasonable to surmise that the lighters may well have been purchased for sale in the petrol station, if this was the case then why not also the tobacco?
    Taking all of the above analysis collectively I consider that your clients had a significant quantity of tobacco and they did not satisfy Customs that the excise goods were held for other than a commercial purpose. Therefore, the goods were liable to forfeiture pursuant to Article 5(1) of the Excise Duties (Personal Reliefs) Order 1992. the other excise goods were liable to forfeiture pursuant to Section 141(1)(b) of the Customs and Excise Management Act 1979.
    In respect of the Volvo vehicle used to transport the excise goods, I am satisfied that this was also liable to forfeiture in accordance with Section 141(1)(a) of the Customs and Excise Management Act 1979. I consider that both the excise goods and vehicle were properly seized as liable to forfeiture under Section 139 of the same Act."
  26. Mr Murray then concluded that with regard to the issue of restoration of the excise goods he was of the view that it was a large quantity which might damage legitimate UK trade and that on "balance there is evidence that the excise goods were destined for a commercial purpose. These factors militate against restoration and I conclude that the goods should not be offered for restoration.
  27. With regard to the vehicle he said:-
  28. "I understand the vehicle belongs to Ms Williams and I have reviewed her case in the context of this amended policy. The policy is designed to prevent illicit trade in excise goods as well as protect legitimate UK trade and revenue.
    Overall, on the balance of probability, I consider that the tobacco was intended not for own use but for a commercial purpose, that is, for profit. Following on from this in accordance with policy I consider that the vehicle should not be restored to Ms Williams. I consider that there are no exceptional circumstances in her case which would warrant a departure from this general policy. I consider the refusal to offer the vehicle for restoration is a reasonable and proportionate exercise of discretion bearing in mind the general public interest in protecting the revenue generated by excise duty."
  29. On 21 May 2002 the Appellants' solicitors lodged an appeal aimed at obtaining the restoration of the vehicle. The following grounds were given:
  30. "The Appellants were not frequent travellers abroad and had only gone over to France in this manner once before. This was a first offence. They were not aware of the precise amounts of tobacco they were allowed to bring into the country. The offence was committed in the run up to Christmas. The Appellants maintained that they went to buy presents for family and friends and also for themselves. They had done exactly the same last year for the same purpose. The inconsistencies in their stories were mainly down to the fact that they were not expecting to be stopped and questioned about each individual item. They submit that if they were taking risks they would have had a cast iron story. They did not perceive the amounts they brought back to be disproportionate. It was only the tobacco quantities that seemed excessive and even then it was justified for a once a year purchase. They have great hardship without the vehicle."
  31. The Commissioners' case is more complicated, in that it is advanced in three versions. The first is the original refusal to restore the goods and vehicle made by Miss Wheeler on 1 February 2002. This is in fact the decision which is deemed upheld on review as the Commissioners did not complete their review within the 45 days allowed them by section 15(2) of the Finance Act 1994. Nevertheless the second part of the Commissioners' case is Mr Murray's detailed letter of 8 May 2002 in which, even though the original refusal for restoration was deemed upheld, he said that he had given full consideration to the facts of the case and had completed the review and set out his conclusions.
  32. The third version of the Commissioners' case is that set out in the statement of case where the Commissioners rely on Miss Wheeler's grounds for refusing restoration, and also some of Mr Murray's grounds for refusing restoration.
  33. Mr Murray's letter of refusal relies on six grounds, which he took collectively. These were the amount of tobacco, that Mr Whittal was vague about how much tobacco they would give away and that Mr Murray "would have thought that if the tobacco was for use as described he would have calculated and planned the amounts to be purchased and would have a much more precise idea of the associated quantities"; next, that he was left with the impression that Ms Williams mainly smokes cigarettes, only sometimes did she smoke roll-up cigarettes so that the tobacco was essentially for Mr Whittal, some to be given away as presents. By contrast Ms Williams said that she did smoke tobacco roll-ups, one and a half pouches per week. On another point he found "it somewhat implausible that if Ms Williams smoked as she said, she would not also have the means to make roll-up cigarettes, namely roll-up papers." His third point was that if as Ms Williams said 12 pouches would be given away as presents there remained two years supply of roll-up tobacco which he considered highly implausible. Fourth Mr Murray was guided by a decision in the case of Commissioners v Mr Gordon Boyd, quoted in his letter, that the importation of 9.6 kilos of hand-rolling tobacco strained beyond acceptable levels of credulity that this could be for one man's own use. The fifth point was that Ms Williams sold cigarettes and tobacco in her petrol station so that there existed the opportunity to sell the tobacco through this outlet and he submitted "that it would not be unreasonable to suggest that this was the intention of Ms Williams". On the sixth point he noted from the officer's notebook that the list of other items in the vehicle included "one bag containing two boxes of lighters. It appears to me not unreasonable to surmise that the lighters may well have been purchased for sale in the petrol station, if this was the case then why not also the tobacco?"
  34. Of these six detailed grounds, together with the reasoning which Mr Murray advanced in support of them, the Commissioners rely on Mr Whittal's vagueness about how much tobacco was for the Appellants and how much would be given away and how long it would last, on the second Appellant's suggestion that the first Appellant mostly smoked cigarettes, while she herself had said that she smoked 1½ pouches of tobacco per week but that she did not have roll-up papers with her, thirdly that on the basis that only 12 pouches would be given away the tobacco would last over two years and fifthly that the first Appellant sells cigarettes and tobacco at her petrol station. There is no reference in the Commissioners' case to the reliance by Mr Murray on the case of Commissioners v Gordon Boyd, or on the reasoning related to the presence of two boxes of lighters.
  35. A difficulty arises for the Tribunal as the Commissioners rely on only a part, although the major part, of Mr Murray's grounds and reasoning. However, he said that he took an overall view, so that his conclusions were the result of taking all the grounds which he mentioned into account. The Commissioners abandon some of that, so that his overall view is not shared by the Commissioners.
  36. The Commissioners incorporate into their argument the out of time review carried out by Mr Murray. It is of course not open to them under the terms of section 15(2) of the Finance Act 1994 to carry out a review out of time. On the other hand nothing prevents them from carrying out such a subsequent review merely for the purpose of preparing their own case and then incorporating whatever arguments arise from that review in their case before the Tribunal. It follows of course that simple fairness requires that the Appellant should have the same opportunity. However, the Commissioners simply ignored the matters raised in the Appellant's solicitor's letter of 8 March 2002, and the evident disagreement with Miss Wheeler's conclusions, and the desire to contest them. That was not fair.
  37. It is clear to the Tribunal that the present appeal is against the deemed refusal to restore following on Miss Wheeler's letter dated 1 February 2002 and the reasons she gave. That decision has to be seen in the light of the Commissioners' policy as set out by both Miss Wheeler and Mr Murray, and in a written witness statement put in by the Commissioners from Mr G Dolan, dated 4 September 2002 regarding the Commissioners' policy.
  38. There is no dispute about the legal provisions which governe this appeal.
  39. Article 3 of the Excise Duties (Personal Reliefs) Order 1992, S.I. 1992 No.3155 (as amended by the Excise Duties (Personal Reliefs) (Amendment) Order 1999, SI 1999 No.1617 and by The Channel Tunnel (Alcoholic, Liquor and Tobacco Products) Order 2000, SI 2000 No.426) ("the Order") made pursuant to s.17 of the Customs and Excise Duties (General Reliefs) Act 1979 states the following:
  40. "Subject to the provisions of this Order a Community traveller entering a control zone or the United Kingdom shall be relieved from payment of any duty of excise on excise goods which he has obtained for his own use in the course of cross-border shopping and which he has transported.
    The term `own use' is defined in Article 2 of the Order as follows:
    Own use includes use as a personal gift provided that if the person making the gift receives in consequence any money or money's worth (including any reimbursement of expenses incurred in connection with obtaining the goods in question) his use shall not be regarded as own use for the purpose of this Order.
    Article 5 of the Order sets out the conditions for relief from duty of excise stating that if the condition that the goods be held other than for a commercial purpose is not complied with, then the excise goods are liable to forfeiture:
    (1) The reliefs afforded under this Order are subject to the condition that the excise goods in question are not … held or used for a commercial purpose whether by the Community traveller who imported them or by some other person who has possession or control of them; and if that condition is not complied with in relation to any excise goods, those goods shall, without prejudice to article 6 below, be liable to forfeiture.
    (2) In determining whether or not the condition imposed under paragraph (1) above has been complied with, regard shall be taken of-
    (a) his reasons for having possession or control of those goods;
    (b) whether or not he is a revenue trader;
    (c) his conduct in relation to those goods and, for the purposes of this sub-paragraph, conduct includes his intentions at any time in relation to those goods;
    (d) the location of those goods;
    (e) the mode of transport used to convey those goods;
    (f) any document or other information whatsoever relating to those goods;
    (g) the nature of those goods including the nature and condition of any package or container;
    (h) the quantity of those goods;
    (i) whether he has personally financed the purchase of those goods; and
    (j) any other circumstance which appears to be relevant.
    (3) Paragraphs (3A) to (3C) below apply to a person who has in his possession or control any excise goods afforded relief under this Order in excess of any of the quantities shown in the Schedule to this Order.
    (3A) The Commissioners may require a person to whom this paragraph applies to satisfy them that the excise goods afforded relief under this Order are not being held or used for a commercial purpose.
    (3B) Where a person fails to satisfy the Commissioners that the excise goods in question are not being held or used for a commercial purpose the condition imposed by paragraph (1) above shall, subject to paragraph (3C) below, be treated as not being complied with.
    (3C) Paragraph (3B) above shall not apply where a court or tribunal is satisfied that the condition imposed by paragraph (1) has been complied with.

    The Schedule to the Order referred to in Article 5(3) above specifies the following quantities of excise goods:

    Tobacco products
    (a) 800 cigarettes;
    (b) 400 cigarillos (that is to say cigars weighing not more than 3 grammes each);
    (c) 200 cigars;
    (d) 1 kilogramme of tobacco products other than in a form mentioned in paragraphs (a), (b) or (c) above.
    Alcoholic beverages
    (e) 10 litres of spirits;
    (f) 20 litres of intermediate products (that is to say products defined as intermediate products in Article 17(1) of the Council Directive 92/83/EEC);
    (g) 90 litres of wines (but only 60 litres may be sparkling wines)
    (h) 110 litres of beer.

    Section 78(4) of that Act provides that:

    any thing chargeable with any duty which is found concealed or is not declared, and any thing which is being taken into or out of the United Kingdom contrary to any prohibition or restriction for the time being in force with respect thereto under or by virtue of any enactment shall be liable to forfeiture.

    Under section 139 of the same Act, any thing liable to forfeiture under the Customs and Excise Acts could be seized by the Commissioners.

    Section 141(1) of that Act provides as follows:

    Without prejudice to any other provision of the Customs and Excise Acts 1979, where any thing has become liable to forfeiture under the customs and excise Acts-
    (a) any ship, aircraft, vehicle, animal, container (including any article of passengers' baggage) or other thing whatsoever which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture, either at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and
    (b) any other thing mixed, packed or found with the thing so liable, shall also be liable to forfeiture.

    Schedule 3 of the Act makes certain provisions relation to forfeiture:

    Notice of seizure
    1. (1) The Commissioners shall, except as provided in sub-paragraph (2) below, give notice of the seizure of any thing as liable to forfeiture and of the grounds therefore to any person who to their knowledge was at the time of the seizure the owner or one of the owners thereof.
    (2) Notice need not be given under this paragraph if the seizure was made in the presence of –
    (a) the person whose offence or suspected offence occasioned the seizure; or
    (b) the owner or any of the owners of the thing seized or any servant or agent of his; or
    ( c) in the case of anything seized in any ship or aircraft, the master or commander …
    Notice of claim
    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.
    4. (1) Any notice under paragraph 3 above shall specify the name and address of the claimant and, in the case of a claimant who is outside the United Kingdom [and the Isle of Man], shall specify the name and address of a solicitor in the United Kingdom who is authorised to accept service of process and to act on behalf of the claimant.
    (2) Service of process upon a solicitor so specified shall be deemed to be proper service upon the claimant.
    Condemnation
    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 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.
    Pursuant to section 152 of the Act, the Commissioner may, as they see fit –
    (a) Stay, sist or compound any proceedings for an offence or for the condemnation of any thing as being forfeited under the customs and excise Acts; or
    (b) restore, subject to such conditions (if any) as they think proper, any thing forfeited or seized under those Acts; or …

    Section 14(1)(d) of the Finance Act 1994 provides that any decision by the Commissioners of a description specified in Schedule 5 to that Act may be subject to the review and appeals provisions contained in sections 14 to 16 FA. Paragraph 2(1)(r) of Schedule 5 specifies that one of the decisions subject to such a procedure is:

    any decision under section 152(b) of the Customs and Management Act 1976 as to whether or not anything forfeited or seized under the customs and excise Acts is to be restored to any person or as to the conditions subject to which any such thing is so restored.

    Under section 15 of the Finance Act 1994, following review of any decision, the Commissioners may confirm, withdraw or vary the decision. Where the Commissioners do not give notice of their determination of a review within 45 days, they shall be assumed to have confirmed the decision (section 15(2)FA).

    Under section 16(1)(a) of that Act, an appeal lies to an appeal tribunal with respect to any decision on a review under section 15 FA including a deemed confirmation under section 15(2).

  41. The Tribunal was referred to the appeal of John Richard Lindsay v Commissioners of Customs and Excise, (2002) EWCA Civ 267. The Tribunal was specifically referred to paragraphs 63-69 and paragraphs 71-72 of the Report.
  42. Similar issues were considered in the appeal of Customs and Excise Commissioners v The Queen on the application of Hoverspeed Ltd & Others (judgment of 10 December 2002) where the Court of Appeal's view on "own use" was summarised in the following way:
  43. "Having considered the scope of the directive with the benefit of the full submissions that we have had on this topic, we can summarise the position as follows:
    (i) The concepts of "products acquired by private individuals for their own use" in article 8 and "products held for commercial purposes" in article 9 of the directive are antithetical, in the sense that, if an individual acquires (or, having acquired for his own use subsequently decides to hold) products for a purpose other than his own use such products are to be regarded as held for commercial purposes (paragraph 64).
    (ii) The divisional court's reasoning and conclusions regarding the scope of articles 8 and 9 were therefore correct; there is no room for a conclusion that United Kingdom excise duty was not chargeable in respect of goods, because, although the individual(s) importing them was or were not doing so "for their own use", they still were, or may have been, holding the goods for supply to others on a non-commercial basis (paragraph 60).
    (iii) We record that we are not concerned with the precise scope of the concept "for his own use". The commissioners accept that it must receive a sensible interpretation. They accept, in particular, that it is not confined to situations where the private individual himself intends to consume the goods. So, for example, they accept that a private individual who travels abroad in order to stock up for his or her dinner table or a party which he or she is giving is acquiring for his own use. Likewise, we would suppose, in the case of an acquisition destined as a present for a relative or friend".
  44. The Tribunal was further referred to the appeal of Customs and Excise Commissioners v Alzitrans SL in the High Court of Justice, Chancery Division, judgment being dated on 29 January 2003, but although similar considerations were examined, that was a case concerning unwitting evasion of excise duty in that the appellant was not the smuggler, merely the unwitting means by which the smuggling was to be achieved. That seems to oblige the tribunal to distinguish between the facts of that case and that of the present appeal.
  45. It is necessary further to consider the reference made by Mr Murray to the case of the Commissioners v Gordon Boyd case EDN 96/8006 where reliance is placed on the finding that 9.6 kilos of hand-rolling tobacco could not credibly be assumed to be for one man's own use. That case appears not to help the Commissioners in that there is no suggestion that the hand-rolling tobacco in the present appeal was entirely imported for consumption by the Appellants. It is accepted that some was for gifts.. This is not to say that the amount that can be imported as gifts is unlimited whereas that which can be imported for own consumption is limited, it is only to say that there is no warranty for extending a reasonable assessment of one person's consumption to the consumption of the number of persons for whom gifts are intended. The Commissioners' analogy fails in the present appeal, insofar as it is based on the quotation from the appeal of Boyd.
  46. The issue in this case is whether the Commissioners' deemed refusal to restore the motor vehicle to the first Appellant taken under the review procedure provided for in section 15 of the Finance Act 1994 can be invalidated under section 16 of the same enactment by an appeal to this Tribunal. The powers of the Tribunal in a decision on such a review are limited to the powers there specified, "where the tribunal are satisfied that the commissioners or other persons making that decision could not reasonably have arrived at it". In those circumstances the tribunal can do one or more of the following:
  47. "16 (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."
  48. The Tribunal takes the examination required of the Commissioners' decision to be that quoted in the appeal of Lindsay by the Master of the Rolls, that is to say the tests set out in Customs and Excise Commissioners v J H Corbitt (Numismatists) Ltd, that the Commissioners have not arrived reasonably at a decision if they take into account irrelevant matters, or fail to take account all relevant matters, or make a mistake of law.
  49. The relevant matters which require to be taken into consideration include the distinctions drawn in the appeals of Lindsay and Hoverspeed between different categories of importations, and the questions of proportionality linked to human rights in relation to the right to property set out in article 1 of Protocol 1 to the European Convention of Human Rights and Fundamental Freedoms.
  50. It is necessary to examine the grounds for the Commissioners' decision to see whether they or the reasoning on which they are based come within the definition of unreasonableness set out in the appeal of the Commissioners v J H Corbitt, as referred to in the appeals of Lindsay and Hoverspeed, and indeed in that of Alzitrans SL to which the Tribunal was referred.
  51. It is relevant that under section 16(6) of the Finance Act 1994 the burden of proof is specified as follows:
  52. "(6) On an appeal under this section the burden of proof … shall lie upon the Commissioners; but it shall otherwise be for the Appellant to show that the grounds on which any such appeal is brought had been established."
  53. Before proceeding to consider these matters it is in the Tribunal's view relevant to say that the passage in Mr Murray's letter which relates to "the statutory presumption of commerciality" is perhaps more sweeping than the detailed provisions of the legislation warrant, but the Tribunal takes no further point on this.
  54. The Commissioners make the point that there was sufficient evidence to find that the goods were not intended for the Appellants' own use, including as gifts for family and friends and that as they did not claim that they were providing the goods to family and friends at cost price the inference was that the goods were being imported for commercial purpose. It was clearly open to the officers seizing the goods and the vehicle to reject the Appellants' explanation that the goods were partly for own use, in the sense of own consumption and partly for use as gifts for family and friends, but it is difficult to see how the inference that goods were being imported for a commercial purpose can be maintained as such on review when the Appellants clearly state with their request for restoration that the goods were not intended for sale, either at cost or at profit.
  55. Taking first the arguments included in Miss Wheeler's refusal to restore on 1 February 2002, which amounts to the decision deemed upheld under the provisions of section 15(2) of the Finance Act 1994 the Tribunal notes that she relies on the arguments advanced for seizure as grounds for refusal to restore the vehicle. There is no reference to the arguments advanced by the first Appellant in her letter of 22 November 2001. There is no reference to the argument that the goods were partly for own consumption and partly as Christmas gifts, with the destination of the gifts specified, there was no reference to the explanation of alleged inconsistencies, there was no reference to the fact that the Appellants had no money difficulties, there was no reference to the argument that they would not be stupid enough to risk their business for the sake of a few boxes of tobacco, nor to the fact that the car was a vital part of the Appellants' business and was used to take the children to and from school everyday, necessary journeys because the Appellants live in the countryside.
  56. It is difficult from that letter to reach the conclusion that the refusal considered the facts advanced. It is clear that the refusal to offer the vehicle for restoration, based on the ground that "the seizure was made in accordance with departmental policy" and "there are no exceptional circumstances in this case which would justify a departure from this policy", does not take into account the precise counter arguments which the Appellants advanced in relation to the Commissioners' arguments justifying seizure and which the Appellants wished to be taken into account in their consideration of their request for restoration.
  57. Of the arguments on which Miss Wheeler relied for non-restoration it is without doubt that the vehicle was used for the transportation of excise goods in excess of the guidelines, and that at the moment of seizure the officers were not satisfied that the goods were intended for personal use. However it is difficult to see how on review the doubt about the Appellants joint incomes could be maintained. The argument that it was not reasonable to give away these quantities of goods as gifts was not further explained. If Miss Murray's decision on restoration was limited to the question of exceptional circumstances, that neglected the requirement to examine each case on its merits.
  58. The Commissioners based their case also on the grounds and arguments advanced by Mr Murray. It is relevant that he referred the passage of his letter relating to goods to the restoration of seized excise goods to five specific points, that is to say evidence of previous smuggling or failure to comply with legal requirements, evidence that the person involved knew that what they were doing was wrong, evidence that the person was paid to make the journey, large quantities of goods which might damage legitimate trade, and any evidence of the goods were for a commercial purpose.
  59. There was no evidence of previous smuggling or failure to comply with legal requirements nor any evidence that the person involved knew that what they were doing was wrong. It is true that Ms Williams was asked whether she knew that it was an offence to sell excise goods without first paying tax or duty and that excise goods were liable for duty to both of which she replied "yes", but as it was both Appellants' constant case that they would not be selling these goods, those two answers are not evidence that they knew that what they were doing was wrong. On the third of the five points there was no evidence that anyone was paid to make the journey, on the fourth there were clearly large quantities of goods, and on the fifth, any evidence that the goods were for a commercial purpose, there appears to have been none, apart from the quantity, except the finding of a past ticket to Ireland, explained by the Appellants, and the inference drawn by Mr Murray from the presence of cigarettes lighters, and by Miss Wheeler from the fact that the first Appellant had a service station shop.
  60. Both Miss Wheeler and Mr Murray gave evidence to the Tribunal.
  61. Miss Wheeler said that she took account of the fact that Ms Williams owned a petrol station and she took that to be a risk regarding the possibility of sale of the goods. She was not satisfied that the hand-rolling tobacco was for personal use but she believed that some of it was for gifts. She admitted that it was not so much who the goods were intended for but the quantity of goods. She accepted that they were going to give some of the tobacco away but she did not accept that they would not know how much they would give away. Ms Williams said that the amount to be given away was denominated in pouches but Mr Whittal spoke of boxes. This matter was not followed up. She agreed that there was no question of payment. She agreed that she had not mentioned the risk of sale at the garage in her decision. She was asked whether the question about smoking habits to "you" might not have meant "you" in the plural and said that if it related to a partner's smoking habits one would be expected to say so. She said that she was satisfied that both Appellants would smoke some of the hand-rolling tobacco and that the First Appellant would smoke cigarettes. She was satisfied that some of the tobacco was to be gifts to the family. In her view that did not cover all of the tobacco products. She thought that there was a probability that the rest would be sold, perhaps at the petrol station. By risk she meant that they had a garage so there was a risk of sale to others. By risk she meant a high probability.
  62. Mr Murray said that he concluded on his out of time review that the tobacco was imported for a commercial purpose. He took the factors cumulatively, not just one. He reached an overall conclusion. There were no exceptional circumstances to justify restoration. He considered the value of the vehicle but if the importation was intended for commercial sale at a profit then, following the decision in Lindsay, the value of the vehicle was not relevant. There were so many inconsistencies as to how much they had and how much was to be given away. The indication was that they would give a small quantity away. He was asked whether it was not the case that Miss Wheeler had said that two large boxes were to be given away. He said he did his own analysis. That issue was clarified by Ms Williams' reply that it was pouches that were to be given away. There was a clear dichotomy between their explanations, so he decided that the tobacco was not for own use. He was asked why there was no attempt to clarify this and replied that one could always think of better questions, there was never a perfect interview. He said in his experience of these cases when people bought large quantities they budgeted and knew what was for whom. £800 worth of purchases was a large amount and one would expect them to be more precise. This was one of a range of factors. He was asked whether it followed that those who did not plan their purchases were selling for profit and said "no" but vagueness was one of a range of factors in his ultimate conclusion. He felt that the amount they spent was inconsistent with their resources. He said that it struck him that there was an inconsistency, the expenditure seemed somewhat high. His experience was that people budgeted. He considered the ten factors set out in the Personal Reliefs Order such as the quantity, the location, the reasoning, the intended use. He noted that there were two boxes of lighters. It was not beyond the bounds of possibility that the lighters were for sale and if the lighters were for sale why not the tobacco. Asked about their smoking habits he said that each was consistent about his own consumption but not about the consumption of the other. He was asked whether it was not a question of imprecise question for example the answer to one question was "she mainly smokes cigarettes" and replied that it was from the whole interview that each gave a different impression. He was asked whether the replies might not have been affected by an imprecision between the word "you" being used in the singular or the plural and whether the questions were in fact not specific enough and replied that one could not pick out here and there one had to take the interview as a whole and have an overall impression. He agreed that there was no inconsistency in much of the interview of Ms Williams. However he said in his own experience smokers of hand-rolling tobacco always had paper on them. It was an indication. It was reasonable to have the means to smoke. He was asked whether the questions at that interview were not intended to be answered yes or no and replied that this was standard and was then asked whether it was held against the Appellant if she did not give a fuller answer. He said most travellers did. He was asked about the alleged opportunity to sell imported tobacco through the service station and replied that there was not a single determinant factor one had to take all the pieces. He was asked about the significance of lighters and whether they could not be given away as presents with the tobacco. He was also asked whether the question of lighters had ever been put to the Appellants. He was asked whether the goods were not in plain view in an estate car with other Christmas presents. He said he had considered that but in reality when people bought in excise goods for a commercial use they could be concealed or not. The fact that they were not concealed was not an indication that they were not for a commercial purpose. The reality was that one did get commercial smuggling without concealment. Asked whether this was not a simple day trip to buy Christmas presents and there was nothing exceptional except some minor discrepancies the witness said that he stuck to his conclusions. He thought it was the intention of Ms Williams to sell tobacco in her service station shop. Asked whether this was not a simple Christmas shopping expedition he replied that it was difficult to accept that so much was spent on tobacco. Asked whether smokers might not spend a lot of money a year on tobacco he said that he did consider that but not as a detailed argument. He had no answer he said to the suggestion that a smoker might spend more than the Appellants did in a year. He was asked to contrast the purchase of a year's supply of tobacco with the indicative limit of 90 litres of wine which might also last a long time.
  63. The onus is on the Appellants to show that the Commissioners' decision was an unreasonable one. The Commissioners have set out the reasons for their decision at considerable and indeed commendable length. It is not unfair however to say that a number of the reasons advanced relate not to facts but to impressions. Mr Murray said that he would have thought that if the tobacco was for use as described Mr Whittal would have calculated and planned the amounts to be purchased and would have a much more precise idea of the associated quantities. He found it implausible that if Ms Williams smoked tobacco she would not have the means to make roll-up cigarettes on her. The explanation that while driving she preferred to smoke ready made cigarettes was not further explored, but it was not accepted. He considered it highly implausible that if only a few pouches of tobacco were to be given away the Appellants should have year's supply of tobacco between them. He submitted that it would not be unreasonable to suggest that it was the intention of Ms Williams to use the opportunity to sell tobacco through her shop. It appeared to him not unreasonable to surmise that the lighters might well have been purchased for sale in the petrol station and if this was the case then why not also the tobacco?
  64. The Appellants challenge all this reasoning, and clearly suggest that it is unfounded surmise. They say that the minor inconsistency in answers between pouches and boxes, if important, could have been further explored. They say that this was a simple shopping trip and that they had precisely in mind for whom they were buying tobacco goods. The fact that Ms Williams had no roll-up papers with her was explained by the fact that she did not use roll-up cigarettes while travelling in the car. The amount of tobacco for personal consumption was 22 kilos less the number of boxes that would be given away and thus did not amount to as much as two years' supply. Smokers did spend a lot of money on tobacco. Although a year's supply was a considerable amount of tobacco, 90 litres of wine, the minimum indicative level for the imports of wine, might also represent a considerable period of consumption.
  65. The Tribunal's conclusion on the Commissioners' reasoning, on the evidence before them, is that on a number of points that reasoning is open to criticism. There are two undisputed facts on which the Commissioners rely, first the relatively large quantity of hand-rolling tobacco, and second the inconsistency in the replies given relating to pouches and boxes. As to the second, clearly if there was an inconsistency it was not further explored. Further, there is no doubt from the answers given by both Appellants at interview that some of the tobacco was to be given away to friends and family. The family members in question were specified. The Commissioners agree that some of the tobacco would be given away. There was thus a plausible explanation, with details, of why such a large quantity of tobacco was imported. It was of course open to the Commissioners to reject that both at the moment of seizure and in their consideration of restoration. However their rejection must, if it is to stand, come within the definition of what is not unreasonable. Mr Murray took a number of factors into consideration and reached a general conclusion. Some of these factors are matters of pure impression. They are contested.
  66. The Commissioners conclude from the fact that Ms Williams sold cigarettes and tobacco in her petrol station that there was an opportunity to sell tobacco through this outlet and that it would not be unreasonable to suggest that this was her intention. There was a distinction to be made between opportunity and intention. One does not replace the other. Ms Williams explained why she would not sell uncustomed goods in her shop. The risk was too great. Should the fact that she owns a petrol station shop which sells tobacco be held against her? Clearly somebody who owns a retail outlet can use that retail outlet for illicit trade. However does that create a presumption that she would do so or make it reasonable to suggest that this was her intention? The Commissioners have a difficult task in suppressing illicit trade. Mr Dolan's statement indicates the proportions of that trade. Is it possible for the Commissioners to state that the illicit importation and trade in tobacco goods on that scale relates to petrol station shops or other such outlets? They have not done so. It is difficult for the Tribunal to accept a presumption that persons who trade in tobacco goods face a heavier duty in satisfying Customs officers that they intend to import goods for personal consumption than others. They have the same rights to import goods for personal consumption.
  67. It is suggested that the fact that the officer who seized the goods and the vehicle found a bag containing two boxes of lighters in the vehicle means that the lighters may well have been purchased for sale in the petrol station and if this is the case then why not also the tobacco. The Commissioners should have asked themselves the question whether the existence of lighters might not be equally consistent with own consumption of tobacco or the giving away of tobacco. It seems unfair to justify the hypothesis that tobacco goods were imported for illicit sale by the hypothesis that lighters were also imported in order to facilitate that illicit sale. The one does not follow logically from the other, nor vice versa.
  68. The Commissioners refer to the question of concealment of goods. The Appellants suggest that there was no effort to conceal and therefore no indication of an illicit importation. The Commissioners say that those who may engage in illicit importations might wish to conceal their goods or carry them in open view. That may as a matter of fact be true but it does not mean that the corollary is true that it is equally indicative of illicit importation to conceal goods as it is to carry them in open view. The lack of concealment can hardly be held against the Appellants. It is unreasonable to do so.
  69. The Tribunal does not underestimate the difficulties faced by officers endeavouring to suppress illicit importation, nor the fact that the existence of large quantities of tobacco goods may arouse their suspicion. However their powers are considerable, and required to be tempered by the existence of the review and appeal procedures. If the existence of large quantities of goods initially aroused suspicion, the review and appeal procedure are there to allow appellants an opportunity to explain away that suspicion. In this case the Appellants' explanation both at the original interview and in the letters which they wrote and were written on their behalf appear to have been disregarded by the Commissioners in the respects which the Tribunal has mentioned. That vitiates the deemed refusal to restore the vehicle, which, as does Miss Wheeler's decision, neglects those points. The Tribunal finds that this decision is one which no reasonable body for the Commissioners would have taken.
  70. The Tribunal next considers the reasons given by the Commissioners in their out-of-time review.

  71. The Tribunal thinks that the Commissioners relied, in their out-of-time review, and held against the Appellants, irrelevant considerations or considerations founded on impression not fact. A number of the Appellants' factual explanations were rejected because of officers' impressions of what might be reasonable or plausible, or what expense might be acceptable for persons in their position. Taking the Commissioners' own calculations, that amount of tobacco imported would last each of the Appellants a year even if reduced by a small amount to be given away, (although the Appellants say that a larger amount was to be given away). This simply indicates that they buying a year's supply each which accords with the fact that they made one shopping trip a year for Christmas shopping. It does not to the Tribunal seem reasonable for the Commissioners to hold that fact against the Appellants. The Commissioners say that tobacco has a shelf life of 14-18 months and consider it implausible therefore that a year's supply should be bought. This seems to the Tribunal to be tendentious and unreasonable.
  72. What a proper review requires is that the Commissioners give the facts and arguments the appellant advances due weight, and not reject them on the basis of impressions, or suppositions. In the Tribunal's view the Appellants have discharged the burden of showing that the Commissioners' decision was unreasonable and therefore their appeal must be allowed.
  73. It follows that the Appellants have shown that the Commissioners conclusion that this was a commercial importation, in other words commercial smuggling cannot stand. It follows then from the authority of Hoverspeed that if this was not an effort of commercial smuggling the deprival of the first Appellant of her motor vehicle falls to be examined under the provisions of article 1 of the 1st Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Tribunal here refers to paragraph 52 of the decision of the Court of Appeal in Lindsay v Commissioners of Customs and Excise (2002) STC 588 and in particular the following passage:
  74. "The Commissioners' policy involves the deprivation of people's possessions. Under article 1 of the 1st Protocol to the Convention such deprivation will only be justified if it is in the public interest. More specifically, the deprivation can be justified if it is "to secure the payment of taxes or other contributions or penalties". The action being taken must, however, strike a fair balance between the rights of the individual and the public interest. There must be a reasonable relationship of proportionality between the means employed and the aim pursued (Sporrong and Lonroth v Sweden (1882) 5 EHRR 35, paragraph 61; Air Canada v United Kingdom (1995) 20 EHRR 150, paragraph 30) I would accept Mr Baker's submission that one must consider the individual case to ensure that the penalty imposed is fair. However strong the public interest, it cannot justify subjecting an individual to an interference with his fundamental rights that is unconscionable".

    Such considerations seem to have played no part in the Commissioners reasoning.

  75. If this was not a question of commercial smuggling, the Commissioners should have considered fully, and not summarily, the question of proportionality in regard to the decision not to restore the first Appellant's vehicle. The issue of proportionality enters into the Commissioners' reasoning insofar as they say that their non-restoration policy can be tempered where there are exceptional and or humanitarian circumstances. The policy outlined in the statement of Mr Dolan, submitted to the Tribunal contains the passage:
  76. "Where vehicles are seized and not restored, individual applications for restoration are considered on their merits and officers bear in mind the need for proportionality".
  77. The Commissioners admit that the Appellants have claimed that the loss of the vehicle has caused them hardship but suggest that they have not provided evidence on "excessive hardship". What they have done is to express the difficulties which are caused to their business by the absence of the vehicle and the problems created by the fact that they live in the country and have to take the children to school by car a number of miles away. If the Commissioners do not deal with requests for information from the Appellants' solicitors it is difficult to see how they can say that the Appellants should give more information on hardship. They did not consider the information they had. They did not ask for more. It is wholly unreasonable to reject an argument on that basis.
  78. Having found that the Commissioners' decision is unreasonable, in the way in which it was expressed in the appeal of Corbitt, it is open to the Tribunal to direct that the decision insofar as it remains in force is to cease it to have effect, to require the Commissioners to conduct further review, or in a case which 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 the future.
  79. It seems to the Tribunal that to require the Commissioners to conduct further review when they have taken one decision to refuse to restore, a further deemed decision to refuse to restore, and a third out of time review reaching the same conclusion, that even though the issue of proportionality arises which might be dealt with in a further review, the only fair decision to take in the interest of justice is to decide that the Commissioners' refusal to restore is to cease to have effect from the date of the Tribunal's present decision.
  80. This appeal is therefore allowed and the Tribunal directs that the Commissioners' decision to refuse to restore the vehicle in issue to the first Appellant is to cease to have effect from the date of its present decision.
  81. PAUL HEIM CMG
    CHAIRMAN
    RELEASED:
    LON/02/8141


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