Anna Wierzbicka v The Director of Border Revenue

The Appellant (Ms Wierzbicka) appeals the Respondent’s review decision (“the Review Decision”), dated 27 April 2022, to restore an Iveco vehicle with registration number ZS 631JB (“the Vehicle”) for a fee of £8,500.

The Vehicle was intercepted on 10 December 2021 at the Port of Dover in the UK by officers of the Respondent. The driver was a Mr Adrian Stachowiak. The Vehicle was accompanied by poor handwritten CMR documents, detailing goods sent by “Taxa” based in Poznan, Poland, with the goods having been loaded in Germany. There were instructions to deliver the goods to the M25 bypass, with a telephone number to call.

The Vehicle had been sub-leased to the Appellant, who was the operator (carrier of the goods). The Appellant had entered into a fixed term contract of services with Mr Stachowiak for him to the drive the Vehicle.

A search of the Vehicle revealed 121,200 cigarettes hidden within the load, attracting revenue of £50,592.76. Officers of the Respondent seized the goods and the Vehicle at approximately 0110 hours on 10 December 2021, the Vehicle having been used to carry goods liable to forfeiture.

The issue in this appeal is whether the Review Decision, made by Officer Summers, a Higher Officer of the Respondent and employed as a Review Officer, was reasonable.

This hearing was initially listed as an in-person hearing, but was converted to a video hearing as a result of the Appellant’s application on 7 May 2024 to attend remotely from Poland, which was granted by another Judge of the Tribunal on 14 May 2024.

As such, the hearing has proceeded as a video hearing before us today. The Appellant, Ms Wierzbicka, attended by way of video link from Poland. Mr Gordon-Saker, counsel for the Respondent, and Officer Summers, attended by way of video link from the UK. Also present was Ms Anderson, a Polish interpreter, who attended initially by way of video link but later by telephone as a result of technical issues. Notwithstanding those technical issues, Ms Anderson was able to hear and properly interpret what was said for the benefit of the parties and the Tribunal without difficulty. We are grateful to Ms Anderson for her assistance.

We are also grateful to Ms Wierzbicka for the measured and civilised manner in which she has presented her case despite these proceedings having been stressful for her, and to Mr Gordon-Saker and Officer Summers for their assistance in relation to the issues we have had to consider.

The Tribunal was provided with a hearing bundle consisting of 120 pages and a skeleton argument from Mr Gordon-Saker, dated 19 February 2024. The bundle included the following key documents:

Officer Summers was called to give oral evidence. Ms Wierzbicka did not give oral evidence but made full submissions to us during the course of the hearing, with the assistance of the interpreter, Ms Anderson.

Given the narrow scope of this appeal, Mr Gordon-Saker confirmed that the Respondent did not require Ms Wierzbicka to give oral evidence. Ms Wierzbicka is resident in Poland and joining by video link from Poland. She would not have been able to give oral evidence by video from Poland without the permission of that state: see the updated guidance on taking oral evidence from abroad, issued by the Chamber President on 28 July 2022, which follows the decision in Agbiaka (evidence from abroad: Nare guidance) [2021] UKUT 286 (IAC).

However, permission is not required for written evidence, e.g. a witness statement by an individual who is overseas or a document obtained from overseas. Nor is permission required for a person to make submissions, whether oral or written, from another country, although the Tribunal must guard against the risk of a litigant making oral submissions straying into giving oral evidence.

The current position as at the date of this hearing, as we have ascertained, is that Poland has not given permission for oral evidence to be given by video from that state. Individual requests (on a case-by-case basis) to Poland is also not currently possible.

We have decided, with the agreement of the parties, to proceed without Ms Wierzbicka giving oral evidence. Ms Wierzbicka made detailed submissions to us and relied on her written evidence. She was able to cross-examine Officer Summers. We are satisfied that she was able to fully participate in this hearing with the able assistance of the interpreter. The fact that Ms Wierzbicka did not give oral evidence at this hearing has not prejudiced her position in the slightest. The appeal does not turn on any factual disputes, and we have given full weight to her oral and written submissions to us.

CEMA sets out the powers of the Respondent in relation to seizure and forfeiture. S.139(1) CEMA provides that anything 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. S.141 provides that any vehicle carrying goods liable to forfeiture may also be seized.

The Vehicle was seized in reliance on these provisions. That seizure can be challenged by making a claim in the Magistrate’s Court within one month of the date of the seizure (s.139(5) and (6) CEMA, together with Sch.3 para 3). If there is no challenge, the thing in question shall be deemed to have been duly condemned as forfeited (Sch.3, para 5).

Ms Wierzbicka did not challenge the seizure of the Vehicle in the Magistrates’ Court. As we explained at the outset of the hearing, the Tribunal does not have jurisdiction to consider the legality or correctness of the seizure itself (see the Court of Appeal decision in HMRC v Jones & Jones [2011] EWCA Civ 824). We are required to proceed on the basis that the cigarettes were being illegally imported for commercial use.

Under s.152(b) CEMA, Border Force may restore, subject to such conditions, if any, as they think proper, anything forfeited or seized under CEMA.

Ss.14 and 15 of the Finance Act 1994 (“FA 1994”) allows a person to seek restoration of a vehicle seized, and if Border Force refuse to restore the vehicle, the person may request a review of that decision. If that person is dissatisfied with the outcome of the review, they can appeal to the Tribunal under s.16.

A decision to refuse restoration is a decision as to an “ancillary matter” (s.16(8) FA 1994 read in conjunction with Sch. 5). The Tribunal’s powers on such an appeal are limited by s.16(4) FA 1994. That provision reads as follows (emphasis added):

In short, the question for us is whether the Review Decision was reasonable. Pursuant to Customs and Excise v JH Corbitt (Numismatists) Ltd [1980] STC 2312, a decision is not reasonable if (a) the decision maker acted in a way which no reasonable decision maker could have acted; (b) if they had taken into account some irrelevant matter; or (c) had disregarded something to which he or she should have given weight.

Further, as confirmed in Commissioners of Customs and Excise in Gora v CCE [2003] EWCA Civ 525, and in Harris v Director of Border Revenue [2013] UKFTT 134 (TC), the reasonableness of the decision-maker’s decision is to be judged against the information available to us at the date of the hearing, even though in some cases this may include information which was not available to the decision-maker when the decision was taken. Further, in Gora, Pill LJ held that the Tribunal could make findings, and then go on to decide whether, in the light of those findings, the restoration decision made by the officer was reasonable.

The burden is on Ms Wierzbicka, the Appellant, to show that the Review Decision was unreasonable. This means that she must prove that the Respondents could not reasonably have arrived at the Review Decision: s.16(4) FA 1994. The standard of proof is the balance of probabilities.

In summary, Ms Wierzbicka’s notice of appeal raises the following grounds:

That the Review Decision is unreasonable;

That the Review Decision is contrary to Article 1 of the First Protocol to the European Convention on Human Rights (“the ECHR”);

That non-publication of the Border Force policy on the restoration of seized commercial vehicles (“the Border Force policy”) is unlawful.

The Respondent opposes the appeal. It maintains that the Review Decision to restore the Vehicle for a fee of £8,500 (50% of the trade value of the Vehicle) is reasonable. The Respondent contends that:

The Respondent has provided a summary of the relevant sections of the Border Force policy, which is as follows:

The Respondent does not accept that the Review Decision is contrary to Article 1 of the First Protocol to the ECHR, or that non-publication of the Border Force policy is unlawful.

Ms Wierzbicka denies being complicit in the smuggling attempt involving the cigarettes and having any knowledge of the same. The Respondent now accepts that she was not complicit, and was not responsible for the smuggling attempt. This was implied in the Review Decision, and confirmed in the Respondent’s statement of case and in Officer Summers’ oral evidence. He stated that he had considered matters afresh and disagreed with the initial decision made by another officer that Ms Wierzbicka was complicit.

We find as a fact that Ms Wierzbicka was not complicit or responsible for the smuggling attempt.

Officer Summers maintained in his oral evidence that the Review Decision was reasonable and that Ms Wierzbicka did not take adequate steps to prevent driver smuggling. He stated that:

As stated above, we find that Ms Wierzbicka was not complicit in the smuggling attempt. However, we find as a fact that Ms Wierzbicka did not take adequate steps to prevent smuggling, either by the driver or by third parties. We have taken the following factors into account:

We have decided that the Review Decision was reasonable.

Given that Ms Wierzbicka was not complicit in the smuggling attempt, but did not take adequate steps to prevent driver smuggling, the matter fell within paragraph B2 of the Border Force policy.

Paragraph B2 of the policy states that a) on the first occasion, the vehicle will normally be restored for 100% of the revenue involved in the smuggling attempt (or for the trade value of the vehicle if lower); (b) on a second or subsequent occasion, the vehicle will not normally be restored.

This is the first occasion, and the policy therefore is that the Vehicle should be restored for 100% of the revenue involved in the smuggling attempt, or for the trade value of the vehicle if lower. The revenue involved is £50,592.75. The trade value of the vehicle is £17,000. The fee payable, if the policy were to be applied strictly, would therefore be a sum of £17,000.

However, on this occasion, Officer Summers made the decision to apply a 50% reduction, which reduced the fee to £8,500. He stated in his oral evidence that when arriving at the Review Decision, he took into account the Border Force policy and the following factors:

Officer Summers stated that he has decided, exceptionally, to reduce the fee by 50% due to the personal circumstances of Ms Wierzbicka.

A decision is not reasonable if the decision maker acted in a way which no reasonable decision maker could have acted, if they had taken into account some irrelevant matter or had disregarded something to which he or she should have given weight. We also remind ourselves of Judge Hellier’s comments in Harris v Director of Border Revenue [2013] UKFTT 134 (TC) (§6):

The Review Decision applied the Border Force policy. Officer Summers’ discretion was not fettered by this policy. We are satisfied that he considered all of the circumstances, taking into account all relevant matters and no irrelevant matters. We are satisfied that the decision was not one which no reasonable decision maker could have reached.

We reject the contention that the Review Decision contravenes Article 1 of the First Protocol of the ECHR. In Lindsay v C&E Commrs [2002] EWCA Civ 267, the Master of the Rolls, giving the leading judgment, said:

The Border Force policy achieves a legitimate aim, e.g. the prevention of the evasion of excise duty. The Officer Summers had regard to the policy and was not fettered by it. The policy states that vehicles in cases falling within paragraph 2b would ordinarily be returned for a fee equivalent to 100% of the revenue or the trade value of the vehicle, if lower. In this case, Officer Summers applied a reduction of 50% to the fee. In this context, the Review Decision clearly cannot be said to have been disproportionate.

As for the non-publication of the Border Force policy, that issue does not assist Ms Wierzbicka. We have regard to Sczepaniak (t/a PHU Greg-Car) v The Director of Border Revenue [2019] UKUT (TCC), in which the Upper Tribunal stated (at §40):

Although Ms Wierzbicka is not complicit in the smuggling attempt, the Vehicle in this case was used to smuggle 121,200 cigarettes (a not insignificant amount) and no adequate steps had been taken to prevent the driver smuggling. The fact that it was seized as a result should not have come as a surprise. The policy is of no relevance to the appeal, which turns on whether the Review Decision is reasonable.

For the reasons set out above, the appeal against the Review Decision is dismissed.

In closing, we wish to add this. For most of the hearing, we had proceeded on the basis that the Vehicle remained in storage. Mr Gordon-Saker and Officer Summers were also of that understanding and believed that the Vehicle remained in storage.

It later transpired that the Vehicle had in fact been disposed of by the Respondent on or about 9 September 2022. This only came to light towards the end of the hearing as a result of Ms Wierzbicka having commented that she believed that the Vehicle had been disposed of and the Tribunal raising the question as to whether that was the case.

Officer Summers stated that he was unaware that the Vehicle had been disposed of and that he would be disappointed if it had been disposed of pending this appeal. He made enquiries and ascertained that the Vehicle had indeed been disposed of on or about 9 September 2022. The decision had been made by another officer. According to Officer Summers, a letter had been sent to Euro Lex Partners LLP dated 4 August 2022 indicating that the fee had not been paid, and as there was no appeal to the Tribunal, disposal had been authorised.

The fact that the Vehicle was disposed of on or about 9 September 2022 in circumstances when an appeal had been brought on 26 May 2022 in respect of the decision to restore in return for a fee, and the Respondent had been notified by the Tribunal by letter dated 16 August 2022 that the appeal had been assigned to the standard category, is unsatisfactory. The Respondent would have been made aware on/shortly after 16 August 2022 that there was an appeal pending.

Furthermore, nowhere in the Respondent’s statement of case, dated 24 October 2022, or in counsel’s skeleton argument, dated 19 February 2024, was the fact of the disposal of the Vehicle made known to Ms Wierzbicka and the Tribunal.

We have directed the Respondent to provide (a) an explanation as to the circumstances surrounding the disposal of the Vehicle in September 2022, prior to the determination of this appeal (to include provision of any letter(s) sent by the Respondent to the Appellant regarding such disposal); and (b) an explanation from the Respondent as to what payment/ compensation might be available to the Appellant concerning the disposed Vehicle, by 4 pm on 7 June 2024.

On 29 May 2024, the Respondent sent an email to the Tribunal copying in Euro Lex Partners LLP with (a) a letter addressed to Euro Lex Partners LLP dated 4 August 2022 indicating that the Respondent cannot store the Vehicle indefinitely, and requesting payment of the restoration fee and collection of the Vehicle within 14 days; and (b) a document explaining compensation entitled “Forfeiture of Excise Goods (Alcohol, Tobacco & Oils) – Mandatory Instructions”.

The Tribunal has arranged to forward the Respondent’s email and the attached documents to Ms Wierzbicka given that she is no longer represented by Euro Lex Partners LLP (and has not been represented by them for some time).

On 7 June 2024, the Tribunal received a further email from the Respondent with a document prepared by Mr Gordon-Saker entitled “Explanation of the disposal of the vehicle”. Ms Wierzbicka was copied in.

We make clear that disposal of the Vehicle does not in any way affect our decision in relation to this appeal, which concerns only whether the Review Decision is reasonable. We have upheld the Review Decision. However, the disposal does have a bearing on the next steps. Ms Wierzbicka is now not able to recover the Vehicle even if she were able to pay the £8,500 fee.

Whilst the information provided by the Respondent does not explain why disposal of the Vehicle had not been made known to the Tribunal or to the Respondent’s representatives for the purposes of this appeal, and indeed Officer Summers expressed surprise that it might have been disposed of prior to the outcome of the appeal, the information which the Respondent has now provided does shine some light on the circumstances surrounding the disposal. It will be a matter for Ms Wierzbicka whether she wishes to take the matter up with the Respondent and pursue compensation (if indeed there is any). It is not a matter for the Tribunal. As for her personal effects in the Vehicle, the Respondent has not provided information as to their whereabouts, but we had understood from Officer Summers that he believed those would likely also have been disposed of. Ms Wierzbicka will have to make her own enquiries.

This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.