Customs & Excise v VAT & Duties Tribunal & Ors

I have before me three appeals concerned with importation by individuals of dutiable goods, with questions as to the forfeiture to the Commissioners of Customs & Excise of such goods (or, in one of the cases, of a motor car said to have been used in the importation of the goods) and as to restoration to those individuals of whatever had been seized. In two of the appeals, those of Mr Eatock and Mr Speakman, both represented by Mr Vaughan, the VAT and Duties Tribunal (“the Tribunal”) at Manchester held that the Commissioners were to carry out a new review of their decision not to restore their goods to those individuals. In the remaining case, that of Mr Turner (who neither appeared nor was represented before me) the same Tribunal held that the decision not to restore his car to Mr Turner was unreasonable. In all three cases the Commissioners of Customs & Excise (“the Customs”), represented by Mr Puzey, now appeal against the Tribunal’s decision.

A private individual bearing dutiable goods - typically beers, wines, spirits, cigarettes or tobacco - and coming with them into the United Kingdom after having borne duty on them in the Community but then suffering a seizure of them by the Customs, is able to challenge the propriety of his loss of the goods in one or more of two quite separate ways. By one route, which I shall call “the Forfeiture Route”, the validity of the seizure and of any consequential forfeiture to the Customs is, in England and Wales, judicially tested, if at all, before either the Magistrates’ Court or the High Court. By the other route, “the Restoration Route”, the individual, in ways often but not invariably denying him the ability to challenge the validity of the seizure or of any consequential forfeiture, may ask the Customs, in its discretion, to restore the goods to him either unconditionally or subject to some acceptable condition. In the Restoration Route any judicial testing is by the Tribunal. The two routes are not mutually exclusive.

The distinction between the two routes is often misunderstood by the individuals concerned and sometimes also by the Customs; in parrticular, it is often unclear which route an individual is meaning to embark upon. Moreover, although the two routes are separate, a prior Court decision in the Forfeiture Route, as will appear, can have a very significant effect on the scope of the Tribunal’s rôle in a later hearing in the Restoration Route. In what can only have been a benevolent understatement, Pill L.J. in Gora infra at p. 180 described the division of jurisdiction between the Courts and the Tribunal as “curious”. However, before I set out the relevant legislation and the course which the events took I should say a little about the nature of the importations.

On the 18^th November 2000 Mr Eatock and his friend Mr Speakman returned to the United Kingdom after a brief holiday in Spain. They landed at Blackpool Airport. Mrs Eatock went in her car to meet them. Mr Eatock brought in 10,500 Lambert & Butler, 200 Silk Cut and 20 Super King cigarettes. Mr Speakman brought in 10,000 Regal, 400 Silk Cut cigarettes and 1,000 grams of Golden Virginia hand rolling tobacco. All those goods were seized by the Customs as liable to forfeiture. Mrs Eatock’s car was also seized but, for reasons I will explain, I do not need to look into any questions relating to that.

That suffices for the moment on the facts but I need to explain the legislation applicable to each of the Forfeiture and Restoration Routes and what was done or not done in each of them.

I shall, under this heading, first look only at our wholly domestic law, without regard to how far, if at all, it failed in 2000 adequately to reflect Community law.

Duty on dutiable imported goods is required to be paid before those goods are removed – Customs and Excise Management Act (“CEMA”) 1979 section 43 (1). Where the goods are, for example, unloaded from an aircraft “ … without payment of that duty” (my emphasis) the goods are liable to forfeiture – CEMA section 49 (1).

I have not been taken to any provision explaining that “that duty”, where there is some mandatory relief against payment of the duty or of part of it, is such duty as remains net after deduction of such relief. However, unless one introduces such a notion, every single dutiable bottle of spirits or of wine or every cigarette brought here by holiday-makers after bearing duty in the Community would be “liable to forfeiture” within section 49 (1) supra. I shall therefore take it that the effect of section 49 is to make dutiable goods “liable to forfeiture” if they are imported without payment of only the appropriate net duty.

In order, no doubt, to ascertain, inter alia, what is being imported and what the duty or net duty would be upon it, proper officers of the Customs may put questions to the person bringing in the goods – section 78 (2) CEMA.

Section 139 (1) of CEMA provides:-

“139 (1) Any thing liable to forfeiture under the customs and excise Acts may be seized or detained by any officer or constable or any member of Her Majesty’s armed forces or coastguard.”

There is no definition, for the purposes of the section, of “Any thing liable to forfeiture” but I shall take it that it requires reference back to section 49 and hence, as I have read that section and so far as is here material, to dutiable goods in respect of which the net duty has not been paid. In the cases before me there is, in appropriate circumstances, as will appear, a relief which equals the whole of the duty so that if the relief is available the net duty is reduced to zero. Quite at what point the relief which, expressly or by implication from his conduct, the importer can be taken to be claiming is sufficiently put in question by the Customs so as to indicate that the relief is prima facie refused and that, in turn, the net duty has thus (again prima facie) not been paid, is not, as I see the matter, a question I am required to answer.

No written notice of seizure is required where it is made in the presence of the owner of the goods; the events are presumably taken to speak for themselves – see CEMA section 139 (6) and Schedule 3 paragraph 2. It is open to a person whose goods are seized to claim that the article seized had not been truly liable to forfeiture; that may be done but only within a fixed and unextendible period of 1 month from the seizure. The claim is to be by writing to the Customs – CEMA Schedule 3 paragraph 3. The Customs’ Form C156, generally given out to those whose goods are taken, warns of the period of 1 month for service of a Notice of Claim.

If there is a timely and compliant Notice of Claim then the Customs are themselves required to take proceedings for the “condemnation” of the goods, which involves the goods moving from having been merely “seized” to their being characterised as “forfeited” – Schedule 3 paragraph 6. Such proceedings when launched may then, of course, be resisted in the usual way.

If there is no timely and compliant Notice of Claim:-

“….. the thing in question shall be deemed to have been duly condemned as forfeited” (my emphasis)

– Schedule 3 paragraph 5. The Form C156 does not mention the deemed forfeiture as such though it does say that if a Notice of Claim is not received within the 1 month period “We shall dispose of the seized items”.

When, accordingly, proceedings for forfeiture are begun they are civil proceedings and, in England and Wales, are to be in a Magistrate’s Court or in the High Court – CEMA Schedule 3 paragraph 5 (a). If they are begun in the Magistrate’s Court there can be an appeal to the Crown Court – Schedule 3 paragraph 11. The period for such an appeal ordinarily expires 21 days after the date of the decision appealed from but the Crown Court has a discretion to extend that time – Crown Court Rules 1982 Rule 7 (3), (5) and (6).

As for establishing what the net duty is, relief in the material circumstances is available under paragraph 3 of the Excise Duties (Personal Reliefs) Order 1992 (“the 1992 Order”) which provides:-

“3.

Subject to the provisions of this Order a Community traveller entering a control zone or the United Kingdom shall be relieved from payment or 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 word “shall” indicates that, where it is applicable, the relief cannot be withheld. Paragraph 1 of the 1992 Order defines “Community traveller” and “cross-border shopping” but those provisions give rise to no difficulties in the case before me. Paragraph (1) also defines “own use” as follows:-

“(1)

In this Order –

………..

………..

“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.”

I have not had drawn to my attention (save as I shall come on to) any domestic rules requiring the Magistrates’ Court, in condemnation proceedings, to consider or not to consider any particular subjects but, if I am right as to their being concerned as to whether the net duty has been paid, it must necessarily follow, when any claim to paragraph 3 “own use” relief had been raised by the holder of the goods, that the Court must consider as one possibility, when the goods are imported from another member state where they have borne duty, whether the goods have, indeed, been obtained for the holders “own use”.

On the face of things thus far, there being no time limit for the use, so long as the imported goods are for the defined “own use” and otherwise fall within paragraph 3, there would be total relief from duty, making the payable net duty nil, irrespective of there being a large quantity of the goods. For example, by a careful selection of vintages, a person’s supply of clarets likely to remain drinkable over the next 12 years from the date of the import and for consumption at, say, half a bottle a day (with 1 bottle a month given away as wholly gratuitous gifts) – a total which would exceed 2,000 bottles – could be brought in free of any further duty beyond that borne on their purchase for consumption elsewhere in the Community. Even in relation to a life cut short by heavy smoking, a lifetime’s supply of cigarettes for the smoker’s own use at 40 or more a day could obviously be massive. Noting, no doubt the potential for commercial use of importation at such levels, the Community permitted or required further provision and Parliament thus included provision in the 1992 Order so as in some cases to withdraw the relief mandatorily otherwise offered by paragraph 3. It did so by the provisions of paragraph 5. So far as material paragraph 5 provides as follows:-

“5.

(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)

……………

(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)

……………

(e)

……………

(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.

(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.”

I shall leave aside for the moment whether the 1992 Order complied with the relevant Community legislation.

The relevant quantities are given in the Schedule to that 1992 Order and, so far as here material, are 800 cigarettes and 1 kilo of other tobacco products. Mr Eatock and Mr Speakman each greatly exceeded those figures; so did Mr Turner, although, in his case, it is not seizure or forfeiture of any goods which is in issue, only of the car that was engaged in the process.

As emerged in Lindsay –v- Customs & Excise Commissioners [2002] 1 WLR 1766 C.A., there is not, at any rate in our domestic provisions, a clear antithesis between “own use” and “commercial purpose” such that any case is necessarily either one or the other. A person who imports with a view to selling to his friends at cost or even upon reimbursement only of his expenses is not importing for his own use (his receipt of money puts him outside the defined “own use”) but, according to Lindsay supra, one could not fairly describe such a person as having the (undefined) “commercial purpose” – see paragraph 17. The reasoning in Lindsay has been qualified in the later case of Hoverspeed to which I shall refer below and it may in any event be debated in later cases whether it is right to conflate “no commercial purpose” and “non-profit purposes”. But the Court in Lindsay accepted that the mere fact that such a person selling at cost would have had no commercial purpose would not entitle him to paragraph 3 relief, which was exclusively for goods “for his own use” – see Lindsay at paragraph 26. There was, in other words, no provision that paragraph 3 relief or any relief was available merely upon it being satisfactorily shown that the importer had no commercial purpose; paragraph 5 (3C) was not, as I read the case, perceived to go that far. Relief would thus be lost upon the paragraph 5 (1) test being failed but it was not granted merely upon that test being passed.

It seems to me to follow from that then-applicable view of our domestic legislative framework, construed, as it then would have been, on the basis that it took effect according to its language, that when a Magistrates’ Court held that the goods in question were condemned as forfeited, the Court must, (1) on one possibility, as I have already said, have taken the view that the goods were not for the claimant’s (defined) own use. But the Court may (2) alternatively or in addition have decided that the goods were either held for a paragraph 5 (1) “commercial purpose” or, (3) in a yet further alternative or addition, that the Customs had not been satisfied there was no such commercial purpose and that the Court was also not satisfied that the goods were not held for such a purpose. In such cases (2) and (3) the goods were liable to forfeiture under paragraph 5 (1) irrespective of whether, but for that provision, they would have fallen within the “own use” relief. There were thus, at the time of the Magistrates’ Court hearings which I shall come on to and on a literal construction, then to be applied, of the 1992 Order, 3 broad ways (or at least 3 ways) in which a private individual claiming an “own use” import and emerging from a Magistrates’ Court could find he had not, after all, paid the required net duty and that his goods were thus condemned.

Mr Eatock and Mr Speakman did each lodge a timely and compliant Notice of Claim within CEMA Schedule 3 paragraph 4. The Customs therefore took proceedings for the condemnation of the goods in the Blackpool and Fylde Magistrates’ Court as they were required to do by Schedule 3 paragraphs 6 and 8. The hearings took place on the 10^th October 2001. Oral evidence was given on behalf of both sides. Evidence given by Miss Byrom of the Customs and Excise included that Mr Eatock had shown her receipts for goods, that they did not tally with the goods which Mr Eatock held and that she had returned the receipts to Mr Eatock.

In both the Eatock and Speakman cases the Magistrates’ Court condemned the relevant goods as forfeited and an order for condemnation was, I assume, drawn up in each case. I will call these the “First Orders” referable to the “First Hearings”. They specified that the Customs had not been satisfied that there was no commercial purpose and impliedly (I find the language not as clear as one would choose) that the Court, too, was not satisfied that there was no commercial purpose. Perhaps (but only perhaps) the Court was satisfied that there was a commercial purpose but the Orders do not say so. The First Orders make no mention of “own use” but, of course, as I have mentioned, under paragraph 5 (1) there was a liability to forfeiture merely upon the condition as to no commercial purpose not being complied with, without any need further to enquire into whether there had been an obtaining for “own use”. The First Orders ended by saying:-

“It is this day adjudged that the complaint is true and it is ordered that the said goods be condemned as forfeited.”

There was no appeal nor any application for permission to appeal out of time against the First Orders.

As I mentioned earlier, a prior Court decision in the Forfeiture Route can have a significant effect on the conduct of the Restoration Route. That is illustrated in Gora –v- Customs & Excise Commissioners [2003] 3 WLR 160 C.A. in a passage which was obiter but plainly intended to give guidance “in what is a fundamental point for the guidance of” Tribunals – p. 179f. Pill L.J., with whom Chadwick and Longmore L.J.J. concurred, indicated that where there had been condemnation proceedings and, in consequence, a condemnation of goods as forfeited (or, as was the case there, a deemed condemnation):-

“…….. it is not intended that the Tribunal should have jurisdiction to reconsider the condemnation of goods as forfeited.”

Pill L.J. dealt with an argument that, despite the deemed condemnation in that case, the VAT Tribunal could nevertheless look into whether duty had in fact been paid. He responded:-

“Mr Cordara’s submission that the Tribunal should have jurisdiction to consider whether duty has been paid is no more than another way of claiming that the Court’s findings should be reopened. The Tribunal’s view would produce the surprising result that the person whose goods had been seized could make a choice of fact-finding Tribunal. If he wanted the Court to determine the issue he would service a Notice under paragraphs 3 and 4; if he wanted the Tribunal he would do nothing. In my judgment the statutory scheme does not produce that result.”

Although Pill L.J.’s observation related in its terms only to an argument that there could be a reopening as to whether duty had been paid, as I read the passage the guidance given included that there was to be no reopening by the Tribunal as to any fact wherever, expressly or by necessary implication, that fact had already been found as part of the Magistrate’s Court’s decision.

Gora was considered by another constitution of the Court of Appeal in Gascoyne –v- Customs & Excise Commissioners [2005] 2 WLR 222 C.A. reported as recently as the 28^th January of this year. At paragraph 25 Buxton L.J. said:-

“All that Gora’s case says, and it is quite a lot to say, but all that it says, is that in those proceedings [proceedings to mitigate penalties or restore things forfeited or seized] issues that were, or were deemed to have been, considered in the Magistrate’s Court cannot be reopened.”

At paragraph 28, commenting on the passage from the judgment of Pill L.J. in Gora which I have cited above, he said, of a situation in which there had been a prior Court conclusion that a seizure was lawful:-

“And it also seems to flow from that finding, although Pill L.J. did not expressly say so, that the facts necessary to establish the legality issue, that is to say, the question, as it almost always will be, of whether the goods were for the importers “own use”, cannot be reopened either.”

Of the possibility that a claimant who has suffered a forfeiture by way of a Magistrates’ Court decision (or by way of there having been a deemed forfeiture) being able to reopen questions, meaning, as I read it, questions expressly or by necessary implication decided by way of the actual or deemed forfeiture, Buxton L.J. added, at paragraph 26:-

“I do not think it can have been intended that the importer before the Tribunal should have a second bite at the cherry of lawfulness, having failed in the condemnation proceedings, or let them go by default.

That, he held was not because of the terms of any statute “but because of the normal English law rules of res judicata or abuse of process” – see his paragraph 47. That being so, I cannot read the reference in paragraph 5 (3C) supra to “a court or tribunal” as enabling either to conclude afresh on a matter already duly ruled on by the other.

In Gascoyne Brook L.J. agreed with the judgment of Buxton L.J. without further comment on Gora; Carnwarth L.J. plainly had misgivings about some observations made in Gora but agreed it would be inappropriate for the Court to go behind those observations.

It may be that the remarks in Gascoyne about Gora are themselves obiter – see Buxton L.J. at paragraph 22 – but I believe I am entitled, if not bound, at this stage to take the passage in Buxton L.J.’s judgment as to what Gora’s case said – seeparagraph 25 above, as representing the current law. If, then, the First Orders had been the only orders in the Magistrates’ Court, Mr Eatock and Mr Speakman, were they later to launch restoration proceedings, would have launched restoration proceedings in which there could be no argument to undo the facts which must have been established at the First Hearings in order to have supported the conclusion that the goods had been duly forfeited.

However, the relevant acts did not stop with the First Orders on the 10^th October 2001 as, at a date and in circumstances not adequately explained to me, Miss Byrom later found that the Customs still had the receipts which she had said in her evidence on the 10^th October had been returned to Mr Eatock. Moreover, the receipts tallied with the goods which he had said were his. She drew the attention of the Solicitor of the Customs & Excise to this and he in turn sought successfully to have the matter restored before the Magistrates’ Court. On the 7^th December 2001 there was a hearing before the same Bench as had heard the matter in October. Mr Eatock and Mr Speakman were present and the Customs & Excise were represented. It was agreed by all parties that there should be a rehearing. Believing, no doubt, that a rehearing was possible in point of jurisdiction, the Magistrate ordered that one should be arranged before a different Bench to that which had heard the matter in October.

On the 28^th March 2002 that rehearing took place. It was a complete rehearing; oral evidence was given afresh by Mr Eatock and Mr Speakman and on behalf of the Customs. For the second time there was an order for condemnation in each of the two cases. The new orders for condemnation (“the Second Orders”) indicated that Mr Eatock or Mr Speakman (as the case required) had failed to satisfy the Customs that the goods had not been held or used for a commercial purpose, that the goods had therefore been seized, that (impliedly) the Court was not satisfied within paragraph 5 (3C) that the goods were not held or used for a commercial purpose and that it was adjudged that they should be condemned as forfeited. The Second Orders ended as I have mentioned in paragraph 22 above.

There has been no appeal against those Second Orders by either Mr Eatock or Mr Speakman, nor any application in either case for an extension of time in which to appeal.

I now move from wholly domestic law considerations to the wider picture. The First and Second Orders, as I have mentioned, were respectively made in October 2001 and March 2002. In July 2002 the Queen’s Bench Divisional Court (Brooke L.J. and Bell J.) heard an application for judicial review in which judgment was given on 31^st July 2002. The case, reported in November 2002, was Regina (Hoverspeed Ltd) –v- Customs & Excise Commissioners [2002] 3 WLR 1219. It established, by reference, in particular, to Council Directive 92/12/EEC, that whereas the 1992 Order had correctly transposed the Directive’s provisions as to “own use” into English law (paragraph 105), the 1992 Order did not duly reflect the requirements of the Directive and of Community authorities as to burden of proof - p. 1259, paragraph 130, sub-paragraph 7 and see the Declaration made at p.1275. The third of the 3 possibilities I discussed in paragraph 20 above was, as I read Hoverspeed, now seen not to be an acceptable route to a seizure. Rather, it is for the Court (here the Magistrates’ Court) to decide de novo whether the goods were imported for a commercial purpose, the burden being the civil one and lying on the Customs to prove on the balance of probabilities that the goods were imported for a commercial purpose - paragraph 130, sub-paragraph 10, pages 1259 and 1260. Hoverspeed indicates that in the course of their respective considerations of that issue, the Customs and the Court, where the relevant quantity exceeds the prescribed limits, may regard that excess as raising merely an evidential presumption which calls for a response from the citizen but that neither the Customs nor the Court may presume from that excess that there had been a commercial purpose – see also paragraph 173.

Whilst Hoverspeed thus held that the 1992 Order in relevant respects failed to implement the 92/12/EEC Directive, it can, though, be no criticism of the Magistrates’ Courts’ First and Second Orders that they fail to reflect the later judgment in Hoverspeed. Nor is it the case that a court decision is, without more, nullified or to be cut down by reason only of a later change in whatever law it may have relied upon. Further, I have no transcript or, indeed, any form of note whatsoever as to what was said to the Magistrates at the First Hearings or the Second hearings or by them in their respective brief oral judgments. There are, as I shall come on to, arguments that either or both of the First Orders and the Second Orders are invalid in each case but, bearing in mind the law as it was understood to be at the time of the First and Second Orders, I do not see Hoverspeed as displacing my view, in paragraphs 21 and 22 above, as to what were the facts which I must, by way of the First Order (if valid) take to have been found at the First Hearings. Nor do I see any reason to distinguish between the First Orders and the Second Orders as to the facts which I must take to have been found to have justified the conclusions arrived at.

That completes the Forfeiture Route. I turn to the Restoration Route.

Section 152 of CEMA, after a reference to “the customs & excise acts” provides, so far as relevant:-

“The Commissioners may, as they see fit –

(a)

………

(b)

restore, subject to such conditions (if any) as they think proper, anything forfeited or seized under those Acts.”

The discretion is left unfettered, nor is there any provision limiting the types of case in which or the periods within which it can be invoked.

The Finance Act 1994 provides a mechanism by which that discretion may be made subject to judicial control. It is open to a person whose goods, by the decision of the Customs, have not been restored to him under section 152 to require the Customs themselves to review that decision – 1994 Act, section 14 (1) (d); Schedule 5 paragraph 2 (r). On such a review the Customs may confirm, withdraw or vary the decision – 1994 Act section 15. There is then provision for appeal to the Tribunal against the decision of the reviewing officer – section 16 (1) (a); section 16 (2). In some defined circumstances, though, the appeal to the Tribunal is limited in its scope. If the decision appealed against is as to “an ancillary matter” the power of the Tribunal is confined. “Ancillary matters” are identified by section 16 (8) by reference to their being within the 5^th Schedule of the 1994 Act but outside its section 14 (1) (a) to (c).

Mr Eatock and Mr Speakman duly sought a review of the Customs’ failure to restore their goods to them. In each case the reviewing officer, Miss Logan, had confirmed the decision not to restore. In each case Messrs Eatock and Speakman then appealed to the Tribunal under section 16 (1) of the 1994 Act. Both appeals by Messrs Eatock and Speakman were thus “in relation to [a] decision as to an ancillary matter” within Schedule 5 paragraph 2 (r) but outside section 14 (a) to (c). Accordingly the scope of each appeal was confined by section 16 (4) of the 1994 Act which provides as follows:-

“In relation to any decision as to an ancillary matter, or any decision on the review of any such a decision, the powers of an Appeal Tribunal on an appeal under this section shall be confined to a power, where the Tribunal are satisfied that the Commissioners or other person making that decision could not reasonably have arrived at it, to do one or more of the following, that is to say –

(a)

To direct that the decision, so far as it remains in force, is to cease to have effect from such time as the Tribunal may direct;

(b)

To require the Commissioners to conduct, in accordance with the directions of the Tribunal, a further review of the original decision; and

(c)

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

In the events which had happened section 16 (6) appeared to cast the burden of proof at that appeal stage upon Messrs Eatock and Speakman respectively; section 16 (6), after excepting some special cases not here relevant, says:-

“…. but it shall otherwise be for the appellant to show that the grounds on which any such appeal is brought have been established.”

The appeals to the Tribunal (heard together) concerned not only Messrs Eatock and Speakman’s respective goods but also Mrs Eatock’s car. As to the car, the Customs have accepted and do not appeal against the Tribunal’s decision that Mrs Eatock was blameless and that the action of the Customs in seizing her car was unreasonable and disproportionate. I have thus not been at all concerned with Mrs Eatock’s car. As for the goods, the Tribunal concluded:-

“Our jurisdiction is restricted to directing the Commissioners to carry out a new review of their decisions not to restore Mr Eatock’s and Mr Speakman’s goods, …. we direct that at that review, the reviewing officer (who shall not be Miss Logan) take account of the findings of fact we have made, and our conclusion that the relevant excise goods were not imported for a commercial purpose. The review shall be conducted by 31^st August 2003, and a copy of each shall be sent to the Manchester Tribunal Centre.”

At the hearing before the Tribunal both sides were professionally represented and oral evidence was given on behalf of both sides.

Although the hearing before the Tribunal had begun on the 31^st March 2003 it was not completed on that day but continued on the 13^th May 2003. The decision was released on the 4^th August 2003. On the 29^th September 2003 the Customs lodged Appellants’ Notices in the Eatock and Speakman cases. Those are the appeals now before me.

Against that background Mr Vaughan, for both Mr Eatock and Mr Speakman, argues as follows:-

Mr Puzey for the Customs argues as follows:-

A remarkable feature of this case is that there is a dispute as to whether or not the Tribunal was told of the Second Orders. Given that the Second Orders were made in March 2002 and the hearings before the Tribunal did not even begin until March 2003 it would have been strange if the Tribunal was not told of the outcome of the Second Hearings. Unfortunately, neither Mr Puzey nor Mr Vaughan was present at the Second Hearings but Mr Puzey’s inquiries of those who, on the Customs’ part, then attended led him to tell me that the Second Orders were mentioned to the Tribunal in the sense that it was told of the outcome of the Second Hearings but that the Second Orders themselves were not produced. However, the Chairman of the Tribunal has written a “Note for the Judge” that, in part, reads as follows:-

“The Tribunal, as the decision makes plain, was told that at the original condemnation hearing the goods …. had been condemned as forfeit but that subsequently the Commissioners had agreed that the proceedings should be reopened to enable the Appellants [Speakman and Eatock] to adduce further evidence. The Tribunal was not told that a second condemnation hearing had taken place and that the Magistrates had confirmed their original decision. Throughout the Tribunal was mindful of the condemnation proceedings and their possible impact on its decision. No certificate of the outcome of the Magistrates’ Court proceedings was produced, nor was any other evidence of its decision. Further, no information was provided as to the evidence adduced before the Magistrates.”

No evidence, not even a letter, has been produced by the Customs as to what was said and done at the hearing before the Tribunal; I accept the Note from the learned Chairman.

I am unable to find a situation in which the Customs cannot assert the validity of both the First and Second Orders. I am content to assume, without deciding, that, as McNeill J. put it in Budd supra at p. 429:-

“…. there is no statutory power in a Magistrates’ Court to reopen cases to rectify mistakes where civil proceedings are concerned.”

He was referring to any power beyond what was, in effect, a slip-rule, a power in the Court itself merely to rectify a mistake made by the Court in an order so as to make it fit whatever the Chairman of the Bench had said. “The order”, said McNeill J., “is what is said by the Chairman of the Court or Panel”. On that footing the First Orders stand but the Second Orders were made without jurisdiction. The consent of the parties at the hearing of the 7^th December 2001 or the willingness of the Magistrates’ Court to entertain a second hearing could not have conferred a jurisdiction which otherwise did not exist. If, therefore, the First Orders stand, I fail to see how it can be an abuse of process for the Customs to assert that they do and that they can be relied upon. Even if the incorrect evidence which had been given at the First Hearings had been fraudulently given, which has never been said, the orders concerned would nonetheless stand until duly set aside. No authority has been cited to me which supports there being some means, such as Mr Vaughan asserted, for the avoidance of a judgment by reference to some fundamental mistake but without there being a formal ruling setting the judgment aside nor any appeal against it. Had the Second Orders represented different conclusions to the First I can quite see that there would have been at least moral and possibly legal difficulties upon the Customs relying upon the First Orders but that proved not to be the case. Mr Puzey has not pressed that the Second Orders were made with jurisdiction but he does assert that the Customs can rely upon the First Orders and in my judgment it is no abuse of process for the Customs to do so. It follows (although the Tribunal does not seem to have had the case drawn to its attention) that the Tribunal should have had in mind Gorasupra (decided on 11^th April 2003) unless that case can be distinguished.

Mr Vaughan seeks to distinguish Gora in four ways. First he says there is a public interest in the Tribunal being able to find the facts for itself where the facts found by the Magistrates’ Court (he is speaking of the First Hearings) were accepted to have been based on false evidence. He refers to Johnson -v- Gore Wood & Co [2001] 2 WLR 72 H.L. and in particular to Lord Bingham’s speech at p. 90 c-e. The passage focuses on whether a party is or is not abusing the process of the Court; as I have said, I cannot see that here to be the case. As for public interest, it would be very ill-served if the effect of judgments could be avoided merely upon assertions that the evidence that had led to them had been false, albeit innocently so; there would be endless litigation were that so. Nor would it be conducive to any public interest if a different tribunal could come to different conclusions on the same issues of fact in such a way that parties could adopt one conclusion or another as might suit their respective interests; again it would be a recipe for delay, expense and confusion.

Mr Vaughan says that even if the Tribunal was obliged to hold the seizures to have been valid by reason of the First Orders, they were not precluded from themselves hearing evidence as to, and coming to conclusions as to, the facts that lay behind the Magistrate’s conclusion. But that is no distinguishing of Gora; it flies directly against a fair analysis – see paragraph 25 above - of the passage from the judgment of Pill L.J. which I have cited in paragraph 24 above.

Thirdly, Mr Vaughan sought to distinguish Gora by reference to passages in Gascoyne supra in particular at paragraphs 51 and 52 but in those passages Buxton L.J. was concerned, as I read his judgment, with the propriety of a deemed forfeiture shutting out further consideration of the legality of the seizure. Upon a person failing to challenge the seizure within the limited time, opportunity would have been denied thereafter for a man to raise a judicial challenge to the seizure. That is hardly an appropriate consideration where there has been not only one prior Magistrates’ Court decision at which the parties attended and gave evidence but where, remarkably, there were two such prior proceedings, both coming to the same conclusion.

As a fourth way of seeking to distinguish Gora Mr Vaughan draws my attention to the decision of Peter Smith J. in Dickinson –v- Customs & Excise Commissioners [2004] 1 WLR 1160 where at p. 1171paragraph 49 the Learned Judge said:-

“I have come to the conclusion that it is open to Mr Dickinson in the restoration proceedings to raise the issue of private use for the purposes of seeking to invoke the discretionary procedure of restoration. That does not involve a challenge to the forfeiture, which cannot be done per Gora’s case 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. The failure to issue the notice would preclude the commissioners and the tribunal on review from considering restoration when evidence is later produced which shows that it was an own purchase. Second, of course, the proceedings 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 the matters in. The restoration procedure is discretionary, whereas the challenge to the forfeiture is not. Mr Dickinson would be seeking a review of the decision of the commissioners, and one factor in that exercise would be the fact that the transaction he establishes was not for profit. By way of contrast, in the condemnation proceedings, if he establishes it, he establishes that the forfeiture was not valid.”

Mr Puzey has attacked that passage wholesale: the Judge’s reference to a tribunal being precluded “on review from considering restoration when evidence is later produced which shows that it was an own use purchase” is wrong. The discretion to restore conferred by CEMA section 152 is unfettered and it is entirely open to the Customs or, in an appropriate case, the Tribunal, to restore or (as the case might be) give indications favourable to restoration even when the case was plainly of an importation not for own use. Nor (at any rate prior to Hoverspeed) has it been necessarily inherent in a decision that a forfeiture was lawful that the import was not for own use; a decision that there was a paragraph 5 (1) commercial purpose would have sufficed to lose the paragraph 3 relief without there necessarily being any finding as to whether or not the import was within the defined “own use”. Moreover it is said not to be acceptable that “forfeiture results in the deemed findings that the goods were commercial”; equally the forfeiture could represent a holding that the goods were not imported for “own use”. But these are only quibbles and I respectfully agree with the Learned Judge that it can be open to a claimant who has suffered a forfeiture to give evidence before a Tribunal in restoration proceedings that he was, at any rate, not importing for profit and that that is a fact, notwithstanding the forfeiture, which, following Lindsay supra, the Tribunal could, in restoration proceedings, regard as a factor pointing towards restoration. There may or may not be justice in the criticisms made of the passage which I have cited but it is not for me to quarrel with the Learned Judge’s observations on the particular facts of the Dickinson case, nor do I read it as even attempting to lay down, as a general proposition, that the question of own use can always be raised in restoration proceedings notwithstanding a prior Court decision that the goods were forfeited. Whether what is sought before the subsequent Tribunal amounts to a challenge to the forfeiture must depend, where (unlike the Dickinson case) there has been a prior Magistrates’ Court decision, upon what can be seen or must be inferred to have been decided as matters of fact in the Magistrates’ Court. In the absence of Dickinson even purporting to lay down some general but contrary rule, I do not see the case as providing a means of distinguishing Gora on the facts before me.

Thus far I would see myself as bound to conclude that it was not open to the Tribunal to receive evidence tendered to counter whatever findings of fact are implicit in the First Orders or to find facts contrary to those earlier-found facts. But here there is a real difficulty: what were those earlier-found facts? As I have mentioned, no record of what the single Magistrate or the Chairman of the Bench said is before me so I must – see Budd supra at p. 430 – rely on what the First Orders themselves said. I have already mentioned there are three possibilities – see paragraph 20 above – one or more of which at least must have been found by the Magistrates’ Court but which of the three was found? As for “own use” the First Orders (on my assumption that they took the same standard form as the Second Orders) make no mention of own use whatsoever. In the only paragraph which could represent the Magistrates’ Court’s own conclusion of fact or their reasoning, the paragraph 7 before the concluding paragraph which I have cited at paragraph 22 above, the Magistrates’ Court said:-

“In these proceedings the condition under Article 5 (1) of the Order shall be treated as not being complied with in respect of the goods pursuant to Article 5 (3A) and (3B) of the Order unless the Court are satisfied pursuant to Article 5 (3C) that the said goods were not held or used for a commercial purpose.”

That as it seems to me, is not the language of a finding by the Magistrates on a balance of probabilities as required by Hoverspeed that the goods were held or used for a commercial purpose. At most it was a decision by the Magistrates’ Court as to the now-seen-to-be-unacceptable possibility to which I have referred, a decision that the Customs had not been satisfied that the goods were not held for a commercial purpose and that the Court was not satisfied that the paragraph 5 (1) condition had been complied with and hence that the paragraph 5 (1) condition as to there being no commercial purpose had to be treated as not complied with. As I have mentioned, the Magistrates’ Court perhaps had meant to hold that there was a commercial purpose in the imports but I do not see it as fair to the respondents to treat, as if found, facts which are not said in the Order to have been found and which only might have been found.

If that is a right analysis of what the Magistrates’ Court must be taken to have decided it is far from easy to spell out of that that there was any decision of the Court or at all that the case was not one of “own use” or even that the Court itself, without relying on a presumption going beyond the limited evidential presumption permitted by Hoverspeed supra, had decided for itself on the balance of probabilities that there had been a holding of the goods for a paragraph 5 (1) commercial purpose. In the absence of any indication of what the Magistrate had said and in the face of such uncertainty as to what, if any, facts were truly found or were found in a manner not inconsistent with Hoverspeed, I cannot regard it as having been wrong for the Tribunal to allow evidence to be given to them, as it was. There was such legal uncertainty that not to have resolved it would have been to have proceeded in a materially-uninformed way.

On the basis of the evidence it heard the Tribunal made many findings, not all of which I shall cite. Thus, for example, they held that Mr Eatock purchased the excise goods for himself with his own money and not on behalf of any other person, that he imported his cigarettes for his own use, that Mr Speakman similarly bought the goods for himself with his own money and imported the cigarettes for his own use. They held that Mr Speakman had had an ability himself to pay for the goods that were in his possession. They held that there was no evidence adduced by the Customs to indicate that Mr Eatock had pre-financed Mr Speakman’s purchases or that arrangements were in place for Mr Eatock subsequently to finance those purchases. They held, therefore, that there was no pre-financing or post-financing arrangements in place between Mr Eatock and Mr Speakman. They held, in effect, that Mr Eatock’s receipts tallied with the goods he said were his. They held that smoking was an integral part of Mr Speakman’s life and that of some of his relatives and that gifts by him of cigarettes would be habitual. Moreover, they did not hold that the seizure had been invalid; in their paragraph 22 they said that whilst they had doubts about the validity of the seizures they were to proceed on the footing that they had been valid. The findings of fact which I have mentioned and the Tribunal’s conclusion that it was to proceed on the footing that the seizures were valid do not, as it seems to me, contradict anything that can be seen to have been necessary components of such facts as had had to be found in order to have justified the First Orders. I thus do not see it to have been wrong for the Tribunal to have proceeded as it did.

I add that the Tribunal had proceeded on the basis that it should “take no account of the original condemnation proceedings”, a reference to the First Hearings and the First Orders. The Tribunal does not say that that had been agreed with the parties and there is no material before me to suggest that it was. It was, in my judgment, a misdirection which the Tribunal gave itself but, as the Tribunal proceeded on the basis that the seizure was valid, the misdirection became one more of form than of substance. More difficult to justify, though, is the Tribunal’s failure to acknowledge that, the appeal being as to a decision on an ancillary matter, its powers were confined as described in paragraph 38 above. Mr Puzey’s argument that the decision was thus made in error of law has, in my view, a sound basis. I could, on that account, set the Tribunal’s decision aside and remit the Eatock and Speakman cases to the Tribunal for consideration by it of what conclusion it would wish to come to whilst having in mind the confined nature of its powers. However, having regard to the relatively small sums at stake, the delays and expense already incurred in these matters and the fact that the Tribunal’s present decision itself restores the matter to the Customs for further review (which could, again, be taken to the Tribunal by way of challenge), it would seem quite disproportionate were I first to remit to another hearing before the Tribunal. I therefore shall not do that.

Accordingly, on the Eatock and Speakman appeals, I dismiss the appeals; the existing Tribunal decisions stand. I next turn to Mr Turner’s case.

In Mr Turner’s case there was no Magistrates’ or High Court hearing before the hearing of the Tribunal. Nor had there been a timely and compliant Notice of Claim. Accordingly there was a deemed forfeiture not only of the goods which Mr Turner was seeking to import but, under CEMA section 141, of the Renault Espace car he was using in the importation. Section 141, so far as material, provides:-

“141.

Without prejudice to any other provision of the Customs & Excise Acts 1979, where any thing had become liable to forfeiture under the customs and excise acts –

(a)

any …. vehicle … which has been used for the carriage … 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;

(b)

….

shall also be liable to forfeiture.”

Mr Turner sought only restoration under CEMA section 152 and only of his car, not of the relevant goods. Mr Puzey accepts that under Gascoynesupra such a deemed forfeiture can be reopened – see Gascoyne at paragraphs 54-56. But Mr Puzey attacks the Tribunal’s decision in three ways.

Firstly, he argues that as nothing but restoration was sought there was no challenge by Mr Turner to the validity of the deemed seizure and that the Tribunal was thus wrong to embark on findings as to whether the seizure had been appropriate or not. I do not accept Mr Puzey’s argument; in Gascoyne at paragraph 55 Buxton L.J. said:-

“In my view, therefore, in a case where the deeming provisions under paragraph 5 are applied, the Tribunal can reopen those issues; though the Tribunal will always have very well in mind considerations of, or similar to, abuse of process in considering whether such issues should in fact be ventilated before it.”

The Tribunal was to have in mind, Buxton L.J. continued, whether forfeiture issues should be ventilated before it but, beyond that reference to abuse of process, no test was suggested for determining whether such issues ought or ought not to be ventilated. Taking abuse of process, therefore, to be the appropriate test, I cannot see, on the facts of Mr Turner’s case, why it should be regarded as abusive for him, relative to the unfettered discretion as to restoration in section 152, to pray in aid, for example, the allegedly offensive manner in which the seizure had taken place. It would be for the Tribunal to determine what weight should be attached to such matters but I cannot see it to have been wrong in law for the Tribunal at least to have entertained evidence and hence to have made findings on such a subject.

Secondly, Mr Puzey argued that the Tribunal decision failed to reflect that the Tribunal’s powers were confined as in paragraph 38 above. It should have asked itself whether the Reviewing Officer’s decision was “Wednesbury unreasonable”. But the Tribunal at no stage mentioned the limitations of the 1994 Act section 16 (4) supra nor is its decision cast in a way that suggests that the limitation was in mind. In particular, the Tribunal never says that the Reviewing Officer’s decision was not one to which a reasonable Reviewing Officer properly instructing himself could have come. That, in my judgment, was an error of law sufficient of itself to justify the setting aside of the Tribunal’s decision, but Mr Puzey has a third ground of attack.

It is this. Before the hearing at the Tribunal the Customs had had no notice that the validity of the seizure would be challenged. The Tribunal had before it the seizing officers’ handwritten notes of what was said and done at the point of seizure and those notes included:-

“I have read the above notes and agree with them.

(signed) Ian Turner”

The notes to that extent agreed by Mr Turner include two usages of the word “just”. Thus they record the seizing officer asking “Where did you go?” to which Mr Turner’s answer was “Eastenders”, a well-known depot, followed by the seizing officer’s question “Just for beer and wine?” to which Mr Turner answered “Yes”. A little later the notes show the seizing officer asking “What is in the bags?” to which Mr Turner is recorded as answering “Just some cigarettes” which elicits the seizing officer’s next question “How much?”. The Tribunal took the view that the notes were sufficient to illustrate that the seizing officer approached his or her task with the view to justifying seizure rather than his dealing with the matter against a background of Mr Turner having a Community right to import excised goods into the United Kingdom for his personal use. They added:-

“We particularly note the use of the word “just” on each of the two occasions it is said to have been used; taken in its immediate context it conveys the impression of Mr Turner having misled the officer. But its use on the first occasion would logically have led to the officer’s next question being something like “No cigarettes or tobacco?”, and on the second occasion the question which would naturally have followed the reply of “Just cigarettes” would have been “How many?” not “How much?” For these reasons we doubt the word “just” was used on either occasion it is said to have been.”

The Tribunal added that the fact that Mr Turner had signed the officer’s notebook did not, in the Tribunal’s judgment, indicate that he accepted it as a verbatim record of its contents. Given that Mr Turner, apart from cigarettes, brought in 12 kilos of tobacco and that the Tribunal took the view that the seizing officer’s account was not a verbatim account, it is easy enough to see that had there been any unrecorded reference by Mr Turner to tobacco it could well have elicited the question “How much?” rather than “How many?”. Certainly such a linguistic analysis of the officer’s note, without having any explanation from him, would provide only a fragile basis for any attack on his credibility or on the propriety of his conduct.

The seizing officer’s notes had been amongst the papers which the Customs had disclosed as intended to be relied upon at the hearing and, as I have mentioned, no challenge to the validity of the seizure or the correctness of the notes was indicated to the Customs before the hearing. Accordingly the Customs had made no arrangements to call the seizing officer. It had not been indicated, either, that Mr Turner’s side wished the seizing officer to attend for cross-examination. In those circumstances, says Mr Puzey, once the Tribunal found itself seriously questioning the correctness of the seizing officer’s notes and the manner of the seizure they should, in all justice, have indicated to the Customs at the hearing that they were moving in such a direction and that the Customs might accordingly wish to request an adjournment in order that the seizing officer could be called. I have not been told that an adjournment was asked for but refused.

Whilst I see that the outcome may have been unfair to the Customs, I have no note of how the hearing at the Tribunal was conducted and it is difficult, in the absence of any such record, to determine whether such unfairness was occasioned by the Tribunal having failed to disclose the manner, hostile to the seizing officer’s view of things, in which its mind was working or by the failure of the Customs, that becoming apparent, to have asked for an adjournment for the purpose. Had the issue been on its own I would not have seen it as an error of law sufficient to require the Tribunal’s decision to be set aside but, allied, as it is, to the section 16 (4) issue above, I see the risk of injustice to the Customs, however it came about, as being a factor which I am able to add in concluding that the Tribunal, in the Turner case, was in material error of law. The Tribunal’s decision was that the Customs had been unreasonable and that they were to be given directions to take steps to secure that repetition of such unreasonableness should not occur when comparable circumstances arose in the future. I set aside that decision and to that extent the appeal is allowed.

However, Mr Puzey accepts that one of Mr Turner’s grounds for pressing for a restoration was, Mr Turner had said, that great hardship was occasioned to him and his family by way of the forfeiture of the car. Mr Puzey accepts, also, that the Tribunal never gave its mind to the question of hardship or cannot be seen to have done so. He accepts, further, that a case in hardship could be made such as provided some ground for restoration. Accordingly, whilst setting aside the Tribunal’s decision in the Turner case released on the 1^st August 2003, I remit the matter to a Tribunal (not necessarily constituted as before) for there to be a hearing at which hardship can be assessed. Indeed, as the existing Tribunal decision is set aside, all issues may be reopened at the fresh hearing. There should though, prior to that, be a directions hearing or exchange of letters by which the Tribunal can indicate whether it would be appropriate for arrangements to be made for the attendance of the seizing officer for him to give oral evidence, should the Customs so apply.

For the reasons I have given, in the Eatock and Speakman cases the appeals are dismissed; in the Turner case the appeal is allowed and the matter is to be remitted in the manner I have indicated above.