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	United Kingdom VAT & Duties Tribunals (Excise) Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Davidson v Revenue & Customs [2008] UKVAT(Excise) E01127 (25 July 2008) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01127.html Cite as: [2008] UKVAT(Excise) E1127, [2008] UKVAT(Excise) E01127

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E01127

EXCISE – seizure of vehicle and goods – whether seizure challenged – restoration refused – whether appeal against non-restoration of vehicle – whether decision not to restore goods proportionate – whether appellant entitled to raise issue of own use – whether abuse of process – No

JURISDICTION – Whether criminal charge – Whether Magna Carta and Bill of Rights 1689 applicable –Whether Appellant denied right to a fair trial – Gora considered – Appeal dismissed

LONDON TRIBUNAL CENTRE

MICHAEL DAVIDSON Appellant

and –

THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: MISS J C GORT (Chairman)

MR T MARSH

Sitting in public in London on 23 August 2006, 31 May 2007 and 2 June 2008

Mr Gerard Batten MEP as amicus curiae, for the Appellant

Mr Matthew Barnes of counsel, instructed by the Solicitor's Office, for the Respondents

© CROWN COPYRIGHT 2007


 


DECISION

1. This is an appeal against a decision of HMRC dated 9 November 2005 not to restore 6 kilogrammes of hand rolling tobacco, 6,780 cigarettes, 100 cigarillos, 360 litres of beer, 4 litres of whisky and 3 litres of wine.
2. The Appellant had been stopped on 18 July 2004 at Dover Eastern Docks driving a Peugeot 405 car, a Mr Derek Beackon was a passenger in the car. Details of the circumstances of this journey will be set out later. All the goods listed above and the vehicle were seized by officers of HMRC and Mr Davidson was issued with a Seizure Information Notice and Customs Notice 12A. That notice explained that he could challenge the legality of the seizure in a Magistrates Court by sending Her Majesty's Revenue and Customs (HMRC) a Notice of Appeal within one month of the date of seizure. No such challenge to the legality of the seizure was received by HMRC, although it was Mr Davidson's evidence to the Tribunal that he had sent out such a notice. This again is a matter to which we will return later. On 20 July 2004 Mr Davidson wrote to HMRC asking for the vehicle to be restored, and on 18 August 2004 an officer replied refusing to restore the vehicle. Mr Davidson had written on 6 August requesting restoration of the goods, and on 9 August HMRC replied acknowledging the request and stating that they aimed to provide a decision by 2 September 2004.
3. Not all the correspondence is contained in the bundle provided by the Commissioners, in particular we do not have a letter dated 18 July 2005 (i.e. one year after the seizure) from Mr Batten to HMRC. We have however seen the reply dated 11 August 2005 in which HMRC states:

"Thank you for your letter of 18 July concerning your constituent Mr M P Davidson … about the seizure of excise goods and his vehicle by HM Customs & Excise, now HM Revenue & Customs (HMRC), at Dover on 18 July 2004. I am replying as a complaints manager for this region."

There then follows a statement of HMRC's policy with regard to cross border shoppers. The two concluding paragraphs of this letter state:

"Where our enforcement activity results in seizure of goods or vehicles this is subject to legal challenge and independent review. Travellers may appeal to HMRC against the legality of a seizure and, provided an appeal is received within 30 days of seizure, HMRC will initiate condemnation proceedings in a Magistrates Court. HMRC's decisions not to restore seized goods or vehicles, or to restore them for a sum of money, can also be appealed first to an impartial HMRC review officer, independent of the team that made the seizure, and then to the independent VAT and Duties Tribunal.

"Mr Davidson did not challenge the legality of the seizure in the Magistrates Court at the time and requested restoration of his vehicle instead. Our Post Seizure Unit decided not to restore the vehicle in August 2004 and their letter explained that he had 45 days in which to ask for the decision to be reviewed. He apparently chose not to challenge the decision further and the case is now closed."

We do have Mr Batten's reply dated 22 August 2005 in which he expresses his disappointment that HMRC's letter did not address the points he had made, but merely reiterated its policy. He repeated his request that either Mr Davidson's goods and car were restored to him or that HMRC take Mr Davidson before "a Court" (by which it subsequently appeared that M Batten meant the Crown Court) and press charges as he had requested. HMRC wrote again to Mr Batten on 16 September 2005 stating that his complaint had been investigated afresh. The circumstances at the time Mr Davidson was stopped are set out in this letter, and also the facts which the seizing officer took into account. The letter-writer repeats that Mr Davidson did not challenge the legality of the seizure, but requested restoration of the vehicle only on 20 July 2004. Reference is made to the decision not to restore the vehicle and the explanation given to Mr Davidson that he had 45 days in which to ask for the decision to be reviewed. It is also repeated that Mr Davidson chose not to request a review of that decision, and therefore the case was now closed as Mr Davidson was out of time to request review. The writer continues:

"Your recent letter requests restoration of Mr Davidson's vehicle and goods. As Mr Davidson did not previously request restoration of the goods, the recent request will be forwarded to our Post Seizure Unit in Falmouth for consideration. A reply will be sent to Mr Davidson in due course."

The writer was mistaken when he said there had been no previous request, Mr Davidson having requested restoration of the goods by his letter o 6 August 2004.

4. By a letter dated 19 September 2005 HMRC wrote to Mr Davidson refusing restoration of the goods and informing him that he may have this decision reviewed by an impartial review officer by writing within 45 days of the date of that letter. Mr Davidson's letter in reply is enclosed in the bundle and in this letter, which was received by HMRC on 27 September 2005, he requested either the return of his goods or full or adequate compensation. He states inter alia:

"Now you either charge me with a criminal offence or you pay me in full at UK rate for the tobacco, wine and spirits and beer and my car that was unlawfully taken has (sic) you have been told to do so by a member of the European Parliament namely Gerard Batten. Otherwise I will take a summons out against you personally and will ask the British media to call for a full scale public enquiry. And to ask that Customs and Excise compensate every single person that they have seized vehicles and goods from in the last ten years. And that you yourself be dismissed from your position unless you are prepared to take serious disciplinary action against those that have been carrying out this unlawful activity. I would just like to also inform you that you say in your letter I did not appeal against legality of the seizure and it is now too late to do so. In fact I did together with an application for restoration of my vehicle and that is why I then decided to correspond with my MEP whos (sic) conclusions are exactly the same as mine i.e. either return the goods in full or make adequate compensation or charge me."

On 1 October 2005 an officer wrote explaining the review process to Mr Davidson and inviting him to provide any further information in support of his request for a review. Nothing further was received from Mr Davidson and the review decision upholding the original decision was sent to Mr Davidson by a letter dated 9 November 2005.

5. HMRC had taken Mr Batten's letter of 18 July as a request for restoration of the goods, which had not previously been requested by Mr Davidson. The review letter does not deal with the matter of restoration of the vehicle because HMRC considered that that matter had already been dealt with by the letter of 18 August 2004 whereby Mr Davidson was informed he had 45 days in which to appeal that decision, and which he failed to appeal.
6. The Appellant's notice of appeal states that the original disputed decision was issued on 18 July 2004, which is the date on which he was stopped and in fact was not the decision date. The grounds of appeal are:

"On the grounds that my belongings in my car – my cigarettes – tobacco – beer – whisky and wine were illegally seized on the grounds that I was illegally importing them. The duty was paid in the EU."

There is attached to this document which is dated 7 December 2005 a lengthy letter headed "grounds of appeal". In it Mr Davidson incorporated by reference his letter quoted above which was received by the Commissioners on 27 September 2005. In addition Mr Davidson repeats that he had appealed against both the seizure of his car and goods, he had asked for restoration of his car and had been told he could do that by telephone. The nub of his appeal was that he believed he was entitled to go abroad as many times in a year as he wished, and he also stated that Customs would know that he had not purchased anything on 18 July 2004.

7. We have set out at length the background relating to the appeal because it was contended by the Respondents that the only matter before this Tribunal was the review decision in relation to the goods, and that the matter of the vehicle was not a matter for consideration by this Tribunal. It was also contended by the Commissioners that there had been no appeal against the seizure of the goods and the vehicle in the Magistrates Court, and therefore the legality of the seizure was not a matter which could be considered by this Tribunal. These are matters which we will have to decide.

The law

8. The Finance Act 1994 provides:

Section 14(3)

The Commissioners shall not be required under this section to review any decision unless the notice requiring the review is given before the end of the period of 45 days beginning with the day on which written notification of the decision, or if the assessment containing the decision, was first given to the person requiring review.

9. Tobacco products are chargeable with excise duty upon importation into the United Kingdom. The Tobacco Products Duty Act 1979 provides:

"1. Tobacco products

(1) In this Act `tobacco products' means any of the following products, namely:

(a) cigarettes;

(b) cigars;

(c) hand-rolling tobacco;

(d) other smoking tobacco; and

(e) chewing tobacco,

which are manufactured wholly or partly from tobacco or any substance used as a substitute for tobacco, but does not include herbal smoking products.

(2) Subject to subsection (3) below, in this Act `hand-rolling tobacco' means tobacco –

(a) which is sold or advertised by the importer or manufacturer as suitable for making into cigarettes; or

(aa) which is of a kind used for making into cigarettes; or

(b) of which more than 25 per cent by weight of the tobacco particles have a width of less than 1mm.

Charge and remission or repayment of tobacco products duty

(1) There shall be charged on tobacco products imported into or manufactured in the United Kingdom a duty of excise at the rates shown, […], in the Table in Schedule 1 to this Act.

(3) …"

10. The Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002:

The Tobacco Products Regulations 2001 state:

"4. (1) Amend the Tobacco products Regulations 2001[8] as follows:

(2) In the definition of "duty" in regulation 3(1) before the word "means" insert –

"except in regulation 12(1B) 9d) below,"

(3) In regulation 12, after paragraph (1) insert –

"(1A) In the case of tobacco products acquired by a person in another member State for his own use and transported by him to the United Kingdom, the excise duty point is the time when those goods are held or used for a commercial purpose by any person."

(1B) For the purposes of paragraph (1A) above –

"(a) `member State' includes the Principality of Monaco and San Marino, but does not include the Island of Heligoland and the territory of Busingen in the Federal Republic of Germany, Livigno, Campione d'Italia and the waters of Lake Lugano in the Italian Republic, Ceuta, Melilla and the Canary Islands in the Kingdom of Spain, or the overseas departments of the French Republic …".

(b) "own use" includes use as a personal gift,

(c) if the goods in question are –

(i) transferred to another person for money or money's worth (including any reimbursement of expenses incurred in connection with obtaining them), or

(ii) the person holding them intends to make such a transfer, those goods are to be regarded as being held for a commercial purpose,

(d) if the goods are not duty and tax paid in the member State at the time of acquisition, or the duty and tax that was paid will be or has been reimbursed, refunded or otherwise dispensed with, those goods are to be regarded as being held for a commercial purpose,

(e) without prejudice to sub-paragraphs (c) and (d) above, in determining whether excise goods are held or used for a commercial purpose by any person regard shall be taken of –

(i) that person's reasons for having possession or control of those products,

(ii) whether or not that person is a revenue trader (as defined in section 1(1) of the Customs and Excise management Act 1979),

(iii) that person's conduct, including his intended use of those goods or any refusal to disclose his intended use of those products,

(iv) the location of those products,

(v) the mode of transport used to convey those products,

(vi) any document or other information whatsoever relating to those products,

(vii) the nature of those products including the nature and condition of any package or container,

(viii) the quantity of those products, and in particular, whether the quantity exceeds any of the following quantities –

3,200 cigarettes

400 cigarillos (cigars weighing no more than 3 grammes each)

200 cigars

3 kilogrammes of any other tobacco products

(ix) whether that person personally financed the purchase of those products,

(x) any other circumstance that appears to be relevant,

(4) In regulation 23(1), after paragraph (a), insert –

"(aa) they were acquired by a person in another member State for his own use and transported by him to the United Kingdom."

11. Beer is chargeable with excise duty upon importation into the United Kingdom. Section 36 of the Alcoholic Liquor Duties Act 1979 provides that:

(1) There shall be charged on beer –

(a) imported into the United Kingdom, or

(b) produced in the United Kingdom,

a duty of excise [at the rates specified in subsection (1AA) below].

[(1AA) The rates at which the duty shall be charged are –

(a) in the case of beer that is not small brewery beer, [£12,59] per hectoliter per cent of alcohol in the beer;

(b) in the case of small brewery beer produced in a singleton brewery, the rate per hectoliter per cent of alcohol in the beer that is given by section 36D below;

(c) in the case of small brewery beer produced in a co-operative brewery, the rate per hectoliter per cent of alcohol in the beer that is given by section 36F below.]

[(1A) No duty shall be chargeable under subsection (1) above on beer which is of a strength of 1.2 per cent or less; but any such beer shall in all other respects be treated as if it were chargeable with a duty of excise.]

(2) Subject to the provisions of this Act –

(a) the duty on the beer produced in, or imported to, the United Kingdom shall be charged and paid, and

(b) the amount chargeable in respect of any such duty shall be determined and become due,

in accordance with regulations under section 49 below [and with any regulations under section 1 of the Finance (No.2) Act 1992].]

12. Regulation 15 of the Beer Regulations 1993 (SI 1993/1228) as amended by SI 2002/2692 provides:

(1) Save [in the case specified in paragraph (1A) below or] where any duty suspension arrangements apply to the beer, the duty point (the time when the duty is payable by a person) shall be the time when the beer is charged with the duty by section 36(1) of the Act, that is to say, the time when it is imported into the United Kingdom or, as the case may be, produced in the United Kingdom.

[(1A) In the case of beer acquired by a person in another member State for his own use and transported by him to the United Kingdom, the duty point is the time when that beer is held or used for a commercial purpose by any person.

(1B) For the purposes of paragraph (1A) above –

(a) "member State" includes the Principality of Monaco [, San Marino and the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia], but does not include the Island of Heligoland and the territory of Büsingen in the Federal Republic of Germany, Livigno, Campione d'Italia and the waters of Lake Lugano in the Italian Republic, Ceuta, Melilla and the Canary Islands in the Kingdom of Spain, or the overseas departments of the French Republic,

(b) "own use" includes use as a personal gift,

(c) if the beer in question is –

(i) transferred to another person for money or money's worth (including any reimbursement of expenses incurred in connection with obtaining them), or

(ii) the person holding it intends to make such a transfer,

that beer is to be regarded as being held for a commercial purpose,

(d) if the beer is not duty and tax paid in the member State at the time of acquisition, or the duty and tax that was paid will be or has been reimbursed, refunded or otherwise dispensed with, that beer is to be regarded as being held for a commercial purpose,

(e) without prejudice to sub-paragraphs ( c) and (d) above, in determining whether beer is held or used for a commercial purpose by any person regard shall be taken of –

(i) that person's reasons for having possession or control of that beer,

(ii) whether or not that person is a revenue trader (as defined in section 1(1) of the Customs and Excise Management Act 1979(,

(iii) that person's conduct, including his intended use of that beer or any refusal to disclose his intended use of that beer,

(iv) the location of that beer,

(v) the mode of transport used to convey that beer,

(vi) any document or other information whatsoever relating to that beer,

(vii) the nature of that beer including the nature and condition of any package or container,

(viii) the quantity of that beer, and in particular, whether the quantity exceeds 110 litres,

(ix) whether that person personally financed the purchase of that beer,

(x) any other circumstance that appear to be relevant.]

13. By section 5 of the Alcoholic Liquor Duties Act 1979 spirits are chargeable with excise duty upon importation into the United Kingdom.
14. By section 54 of the Alcoholic Liquor duties Act 1979 wine is chargeable with excise duty upon importation into the United Kingdom.
15. Regulation 4 of the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 provides:

(1) Except in cases specified in paragraphs [(1A)] to (6) below, the excise duty point in relation to any Community excise goods shall be the time when the goods are charged with duty at importation,

[(1A) In the case of excise goods acquired by a person in another member State for his own use and transported by him to the United Kingdom, the excise duty point is the time when those goods are held or used for a commercial purpose by any person.]

[(1B) For the purposes of paragraph (1A) above –

"(a) "member State" includes the Principality of Monaco [, San Marino and the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia], but does not include the Island of Heligoland and the territory of Büsingen in the Federal Republic of Germany, Livigno, Campione d'Italia and the waters of Lake Lugano in the Italian Republic, Ceuta, Melilla and the Canary Islands in the Kingdom of Spain, or the overseas departments of the French Republic,

(b) "own use" includes use as a personal gift,

(c) if the goods in question are –

(iii) transferred to another person for money or money's worth (including any reimbursement of expenses incurred in connection with obtaining them0, or

(iv) the person holding them intends to make such a transfer, those goods are to be regarded as being held for a commercial purpose,

(d) if the goods are not duty and tax paid in the member State at the time of acquisition, or the duty and tax that was paid will be or has been reimbursed, refunded or otherwise dispensed with, those goods are to be regarded as being held for a commercial purpose,

(e) without prejudice to sub-paragraphs (c ) and (d) above, in determining whether excise goods are held or used for a commercial purpose by any person regard shall be taken of –

(i) that person's reasons for having possession or control of those goods,

(ii) whether or not that person is a revenue trader (as defined in section 1(1) of the Customs and Excise Management Act 1979),

(iii) that person's conduct, including his intended use of those goods or any refusal to disclose his intended use of those goods,

(iv) the location of those goods,

(v) the mode of transport used to convey those goods,

(vi) any document or other information whatsoever relating to those goods,

(vii) the nature of those goods including the nature and condition of any package or container,

(viii) the quantity of those goods, and in particular, whether the quantity exceeds any of the following quantities –

10 litres of spirits,

20 litres of intermediate products (as defined in Article 17(1) of Council Directive 92/83/EEC),

90 litres of wine,

(ix) whether that person personally financed the purchase of those goods,

(x) any other circumstance that appears to be relevant,

(f) "excise goods" do not include any goods chargeable with excise duty by virtue of any provision of the Hydrocarbon Oil Duties Act 1979 or of any order made under section 10 of the Finance Act 1993.]

16. By Regulation 16 of the Excise Goods (Holding, Movement Warehousing and REDS) Regulations 1992 (SI 1992/3135) excise goods, in respect of which duty has not been paid, shall be liable to forfeiture where there had been a breach of regulations.
17. Section 49 of the Customs and Excise Management Act 1979 ("CEMA") provides:

Forfeiture of Goods improperly imported

"1 Where –

(a) except as provided by or under the Customs and Excise Acts 1979, any imported goods, being goods chargeable on their importation with customs or excise duty, are, without payment of duty –

(i) unshipped in any port,

(ii) unloaded from any aircraft in the United Kingdom,

(iii) unloaded from any vehicle in, or otherwise brought across the boundary, into, Northern Ireland, or

(iv) removed from their place of importation or from any approved wharf, examination station or transit shed;

… those goods shall … be liable to forfeiture.

18. Section 139 CEMA 1979 provides:

"(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."

19. Section 141 CEMA 1979 provides as follows:

"(1) … where any thing has become liable to forfeiture under the Customs and Excise Acts –

any ship, aircraft, vehicle … which has been used for the carriage, handling, deposit … of the thing so liable to forfeiture … and

… any other thing mixed, packed or found with the thing so liable, shall also be liable to forfeiture."

20. Section 152(b) CEMA 1979 provides that the Commissioners may as they see fit, restore, subject to such conditions (if any) as they think proper, any thing forfeited or seized. Section 152 CEMA 1979 provides that:

"The Commissioners may, as they see fit –

(a) …

(b) restore, subject to such conditions (if any) as they think proper, any thing forfeited or seized under the Customs and Excise Acts."

21. The jurisdiction of the Tribunal is pursuant to the Finance Act 1994, section 16(1), 16(4) and Schedule 5. This matter is an ancillary matter as defined in Schedule 5 to the Act and the Tribunal, if it finds that the Respondents have acted unreasonably in not restoring the thing seized, can make an order under the Finance Act 1994, section 16(4) which enables the Tribunal:

"…

(a) to direct that the decision, so far as it remains in force, is to cease to have effect from such a time as the tribunal may direct;

(b) to require the Commissioners to conduct, in accordance with the direction 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 given 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."

22. The Human Rights At 1998 was enacted to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights. Article 6 provides:

In the determination of his civil rights and obligations or any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

23. The Tribunal was referred to the following cases:

Gascoyne v Customs and Excise Commissioners (2005) Ch 215

Gora & Others v Customs and Excise Commissioners (2004) QB 93

Dickinson v Customs and Excise Commissioners (2004) 1 WLR 1160

Commissioners of Revenue and Customs v Albert Charles Smith (17 November 2005, unreported)

Johnstone v Chairman of the VAT and Duties Tribunal (Defendant) & CCE (Interested party) [2005] EWHC 115 (Admin)

Commissioners of Customs and Excise v David Weller [2006] EWHC 237

Lindsay v Customs and Excise Commissioners (2002) 1 WLR 1766

Steve Thoburn v Sunderland City Council, [2002] EWCH (Admin) 195

Commissioners of Customs and Excise v Ronald Angliss (unreported) heard in the High Court on 28 June 2002

Bowles v Bank of England (no reference given) heard in the High Court 4 November 1912

Hoverspeed Ltd v Commissioners of Customs and Excise [2002] EWHC 1630

24. On behalf of Mr Davidson Mr Batten additionally referred the Tribunal to the following:

The Treaty on European Union Article 3 which provides:

Article 3

For the purposes set out in Article 2, the activities of the community shall include, as provided in this Treaty and in accordance with the timetable set out therein:

(a) The prohibition as between Member States, of Customs duties and quantity of restrictions on the import and export of goods, and of all other measures having equivalent effect.

European Commission Press Release IP/06/860

European Commission Press Release IP/04/867

European Commission Press Release IP/04/1255

BBC News website concerning Michael Stone

The Bill of Rights 1689

The facts

25. Evidence provided by the Commissioners showed that Mr Davidson had between 19 October 2003 and 18 July 2004 made ten trips to the continent. Mr Beackon his passenger, had travelled some three times prior to 18 July 2004. In his evidence in chief to the Tribunal he had said:

"I said I knew I could do what I liked with them (the goods) provided I was not making a profit, was what I said to him. Even if I was taking money it would not be an offence even if selling them."

Mr Davidson and Mr Beackon were unemployed at the time, although Mr Davidson told the Tribunal that for the twelve months prior to the seizure he had worked off and on delivering leaflets in France. Both Mr Davidson and Mr Beackon were in receipt of incapacity benefit. They had travelled to the continent together on at least three occasions, the evidence was conflicting as to the exact number of journeys. Mr Davidson had savings of £ at the time and produced evidence of them to the officer who had stopped him. Both Mr Davidson and Mr Beackon smoked reasonably heavily. In the case of Mr Davidson it was some 40-60 cigarettes per day, and he informed us that when he was in the pub he smoked more. His sister also smoked, as did his four brothers. One of his brothers lived at the same address as he did. Mr Davidson had paid for the goods he purchased using his savings. He could not remember whether on the occasion that he was stopped he was distributing leaflets or whether he was visiting a friend. He had a friend in Calais who ran a place selling beer, tobacco and cigarettes.

26. In the course of the interview which took place when he was stopped on 18 July Mr Davidson had told the officer that the goods had been purchased in Belgium and France and they had cost him about £500 plus. They had been paid for by credit card, and he had not been given any money to buy the goods by anybody else. He also told the officer that he mainly smoked tailor-made cigarettes, but sometimes he smoked hand rolling tobacco and considered he could get about a hundred or more cigarettes from a 50 gram pouch. He had been out of work for about twelve months and his income, including housing benefit was about £120 a week. His savings amounted to between £1,000 and £1,500. The vehicle itself did not belong to him but to his cousin, although he himself was the registered keeper. We note that no challenge to the actions of the Respondents was ever made by that cousin Mr Davidson informed the officer that he had travelled some four or five times in the previous twelve months (which was not the case, as the records produced by the Commissioners showed), that on the last few occasions he had not brought in any excise goods, however five or six months ago he had been stopped with 'a small amount' of beer and cigarettes. On the present occasion he had bought up to the limit of what he was allowed to import and he was aware of the prohibitions and restrictions. At the outset of the interview Mr Davidson is recorded by the officer as having said, in reply to a question as to whom the goods were for: "Just for me and some friends, if I can't sell them I will give them away." At the end of the interview he was asked if he considered that he had been treated fairly, and he replied: "Yes, you have a job to do." He was asked if he had anything he wished to add and he, in reference to the entry in the notebook which he was shown about giving away the goods if he could not sell them, said that it read ambiguously and he had meant to say that he would give them away because he knew that it was unlawful to sell them. He signed the notebook. In cross-examination on this he said that he had had an argument with the officer about the recording of the remark quoted above. He was asked by the Tribunal why he had signed the officer's note. His reply was that he had been there a long time, and that approximately what the officer had written was correct, and that when he saw the officer was trying to entrap him he had signed because it was a reasonably fair representation of what was done. We regard this evidence as indicating that Mr Davidson believed that he was within his rights to sell the tobacco goods he had purchased, albeit at cost price.
27. Mr Davidson explained in evidence that he had travelled to Europe frequently because he had friends who assembled sheds and bikes and he would deliver leaflets on their behalf to shops on the continent. On some occasions when he went he had just stayed on the ferry, but he would visit shopkeepers in Belgium on a regular basis and on occasions he would also drive round Boulogne. His evidence was very uncertain as to whether he had or had not been distributing leaflets on the occasion with which we are concerned. He never kept a record of people to whom he had given leaflets, and often he was not paid at all for this work. He accepted that he had not mentioned distributing leaflets on 18 July when he was stopped, a matter which he considered was irrelevant. None were found in the vehicle. In relation to the ten other journeys he had made between 19 October 2003 and 18 July 2004, when he had stayed for only between three and four hours, he said that on some occasions he did not buy cigarettes, and he had gone for pleasure, to visit friends, to fill up with petrol, and to buy tinned cat food. He denied that on those short journeys he had been going to Adinkerke. He told the Tribunal that he had not intended selling the cigarettes which were seized, and had savings at the time so could afford to buy them.
28. Mr Davidson had had a vehicle seized previously, on 14 January 2001. He informed the Tribunal of this in his evidence, but it is not referred to by the reviewing officer. He told the Tribunal that he had in the past locked horns with the Commissioners because he antagonised them. He told us that it was part of his motive for bringing in the quantity of excise goods which he did on this occasion to do so again, because, he said:

"I go because I feel like it. If I am guilty, put me before a jury … . That's the reason I imported them. I was doing it for other people. The EC agree with me … Customs are not charging (people) (they) are taking the easy route for seizure, (it is) one reason for doing it. I want to press this home."

29. With regard to the matter of appealing to the Magistrates, it was Mr Davidson's evidence to us that he had filled out both the application forms he had been given in respect of rights of appeal and that HMRC had only acknowledged his form relating to his application for restoration, not the one relating to the seizure. He claimed that he had not been concerned about this because, on a previous occasion when he had gone to the Magistrates Court, it had taken a year to come to Court, and he had not considered it would not be wise to ask HMRC to speed matters up. Because of this, he had contacted Gerard Batten. He had lost his case on the previous occasion and had had to pay the court costs. He had then appealed the Magistrates' decision to the Crown Court, but again had lost. Despite his dissatisfaction on that occasion, he told the Tribunal that he had nonetheless decided to appeal to the Magistrates Court on the present occasion because he believed that, following the Hoverspeed case, the law had changed.
30. The Tribunal heard evidence from an officer of HMRC about the recorded occasions on which Mr Davidson's car had been stopped. He produced evidence of six occasions other than the present one when Mr Davidson had been stopped at the port, including the previous occasion when the car he was travelling in had been seized. It was the officer's evidence that none of these stops were targeted, and only a very tiny percentage of people who travelled through the port were stopped, this therefore was evidence that Mr Davidson was a very frequent traveller. The officer who had completed the review dated 9 November 2005, Helen Perkins, was not available to give evidence to the Tribunal being away on maternity leave. Mr Davidson accepted that he had been stopped and had his car searched on many other occasions. Documentary evidence produced by HMRC showed that on 27 July 1999 Mr Davidson had had 15 kilogrammes of hand rolling tobacco concealed under a crate of beer, that on 14 January 2001, the previous occasion on which Mr Davidson's vehicle was seized, he had had 17 kilogrammes of hand rolling tobacco and 2,000 cigarettes. Mr Davidson accepted that on 18 July 2001 he had had 1.5 kilogramme of hand rolling tobacco and 600 cigarettes and that he had had an argument with Customs on that occasion. On 13 December 2001 he had had 1,400 cigarettes and 20 trays of beer.
31. The reasons given by the officer for the seizure on 18 July 2004 the occasion with which we are concerned, were:

"1. Large quantity of goods imported;

2. Income against expenditure;

3. The Appellant initially stated the goods were for a commercial purpose;

4. Frequency of travel;

5. Conflicting accounts between Appellant and his co-traveller;

6. The Appellant's knowledge that duty had not been paid on the goods imported.

The review officer set out in detail the reasons for not reviewing the issue of restoration of the vehicle. She then set out the background and her understanding of the case, having looked at the documents which were available to her. She referred to what she considered to be the salient points of Mr Davidson's interview as well as those of Mr Beackon's interview. Mr Beackon had not challenged the legality of the seizure of the excise goods, nor had he appealed the non-restoration of the goods.

32. The review officer considered all the correspondence referred to above, and the matters she deemed relevant were as follows:

Mr Davidson had not contested the legality or correctness of the seizure.

He had not provided any details of exceptional circumstances that might result in her deciding to restore the excise goods under the department's policy.

His initial statement to the officer that the goods were for himself and friends and "if I can't sell them I will give them away".

She did not accept as credible his revised statement that he would give away excise goods that had cost him approximately £500 paid for from savings without anticipating recompense.

She considered that his initial answer (set out above) was clear and unequivocal and she therefore considered that the goods were held for a commercial purpose.

He had told the officer that he had travelled about four or five times in the previous twelve months when the records available to her showed that this was not truthful and that in a period of ten months he had made ten trips to the continent.

Both Mr Davidson and Mr Beackon were in receipt of benefits and had provided details of outgoings and savings but had not provided her with any information such as bank statements to support his ability to finance goods to a value in excess of £1,250 without receiving reimbursement. She considered it likely, given that the goods were paid for with cash from Mr Davidson's credit card that interest charges would negate the benefits of any savings made buying the goods abroad rather than in the UK.

She took account of the fact that both he and Mr Beackon had stated they did not buy excise goods on previous trips abroad during the year.

33. At the conclusion of the evidence and the Respondents' submissions Mr Batten made various oral submissions on behalf of Mr Davidson. These submissions included reference to the Bill of Rights and to the case of Thoburn (the so-called "metric martyrs" case). In essence Mr Batten was submitting that the Commissioners' procedure was unlawful, but he did not provide copies of any of the authorities to which he was referring and Mr Barnes felt unable to deal with the Appellant's case without having sight of those authorities. The Tribunal therefore directed that Mr Batten should reduce his argument to writing and time was allowed for this to be done. Mr Batten put in written submissions and produced various authorities; subsequently the Respondents put in an argument in reply. Mr Batten requested further time to respond, which was granted to him, and he also requested a further oral hearing which was granted. Mr Barnes was granted time to respond properly to the further points raised by Mr Batten at that adjourned hearing and a further date was set. In the event neither Mr Davidson nor Mr Batten appeared at this resumed hearing. Both Mr Barnes and Mr Batten submitted further written argument, in his last letter dated 25 June 2008 Mr Batten requested that the Tribunal allow the appeal on the basis that Mr Barnes had not complied with a direction that his written submissions be served by 9 June 2008, and he repeated his earlier submission that, in effect, the burden of proof was upon the Respondents.

The Respondents' case

34. With regard to the seizure of the vehicle, it was the Respondents' primary case that the Appellant had failed to seek a review of that decision within the 45-day limit provided for by section 14(3) of the Finance Act 1994 and therefore the Appellant had no right of appeal in relation to the decision not to restore the vehicle. With regard to the issue of seizure of the goods, the Tribunal had no jurisdiction to make a finding that the seizure was not properly made or that the goods were for Mr Davidson's own use. Mr Barnes relied on the decision of the Court of Appeal in the case of Gascoyne v Customs and Excise Commissioners. The Tribunal was also referred to the cases of Dickinson, Albert Charles Smith, Johnstone and Weller. It was Mr Barnes' principal submission on the point that, following Gascoyne, it would be an abuse of process for the Tribunal to consider the issue of own use, and the Appellant's case did not fall within the type of situation in which the Tribunal should re-open the issue of own use. The Respondents contended that the Tribunal must accept that the goods were imported for a commercial purpose and, in light of this deemed fact, consider only the proportionality of the decision not to restore the goods. However, the Tribunal was invited, in the circumstance that it should decide that it had jurisdiction to make a finding of fact that the goods were imported for own use, to record formally that it had considered whether making such a finding would amount to an abuse of process in accordance with paragraph 55 of Gascoyne, and to state the reasons why it believed there were exceptional circumstances which permitted it to consider the issue of own use.
35. In the case of Weller the High Court refused to interfere with the tribunal's decision that the appellant in that case be allowed to contest the validity of the forfeiture, but it was held obiter that an appellant be permitted to do so only after the following two questions were answered:

Did the importer have a realistic opportunity to invoke the condemnation procedure?

If he did are there nonetheless reasons, disclosed by the facts of the case, which should persuade the commissioners or the tribunal to permit him to re-open the question of the validity of the original seizure on an application for return of the goods?

It was submitted that in the present case Mr Davidson had a realistic opportunity to invoke the condemnation procedure and there were no reasons disclosed by the facts of the case that should persuade the Tribunal to permit him to re-open the question of the validity of the original seizure. However, if the Tribunal did decide it was right to consider the validity of the seizure, the Respondents contended that the evidence available clearly indicated that the goods were imported to be sold, either on a profit or a not-for-profit basis. The Respondents relied on the same matters as those relied on by the reviewing officer.

36. With regard to the reasonableness of the reviewing officer's decision, it was contended that the decision to refuse to offer the goods for restoration was proportionate in that:

(a) The goods were dutiable and the Appellant failed to pay duty or guarantee payment of duty on the goods in advance as commercial importers of excise goods are required to do.

(b) The supply of such goods on the UK market would damage legitimate trade and the protection of revenue.

(c) Once it was established that the Appellant was in breach of statutory requirements, there had to be some penalty for this breach as otherwise the statutory requirement would be rendered meaningless and inoperable.

(d) If the Respondents' policy were to offer seized goods for restoration upon payment of the outstanding duty, or a small fee, any deterrent to prevent breaches of statutory requirements would be weak and any penalty for breaches would be minimal and non-effective.

(e) There were no exceptional circumstances.

(f) The decision struck a fair balance between ensuring compliance with the UK revenue law and protecting revenue on the one hand and the right to enjoyment of property under Article 1 of Protocol 1 of the European Convention on Human Rights on the other.

With regard to the submission on behalf of the Appellant that there had been a contravention of EU Treaties and Regulations, Mr Barnes submitted that these matters were not properly particularised in that there was no proper identification of the particular provisions of the EU Treaty or Regulations that it was said the Respondents had contravened, nor any detailed explanation of how the Respondents were said to have acted in contravention of them.

37. With regard to the alleged contravention of the Bill of Rights, to the effect that there can be no fine or forfeiture imposed without a criminal conviction, again it was the Respondents' case that such a submission required considerably more support than had been provided. A properly supported analysis of the meaning of the words contained in the Bill of Rights and the impact and status of various Customs and Excise Management Acts enacted through the years should have been supplied. It was accepted on behalf of the Respondents that it was the aim of the EU Treaty to eradicate duties, but it had been proposed they should be done according to a timetable, and the provisions relied on by the Appellant set out the aim of the law, not what the law is in fact. In respect of the Bill of Rights, the problem concerned tracing it to the present day, and the Appellant had not attempt to tackle that point. It would be expected that the Appellant would set out the links which showed the relevant provisions were still in force. With regard to the case of Thoburn relied on by the Appellant, the Tribunal was referred to paragraph 63 where Lord Justice Laws stated:

"Ordinary statutes may be repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statutes, the court would apply this test: is it shown that the legislature's actual – not implied, constructive or presumed – intention was to affect the repeal or abrogation? I think the test could only be met by express words in the later statutes, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendments to a constitutional statute, by reference to what was said in Parliament by the Minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizens and State, by unambiguous words on the face of the latest statutes."

Mr Barnes submitted that the words of paragraph 49 of CEMA, combined with section 139(1) and section 141 of the Act were sufficiently specific to leave no room for doubt as to Parliament's intention.

The Appellant's case

38. Mr Batten's principal submission was that Mr Davidson had done nothing illegal, there was no evidence that he was intending to do something illegal, and he was being punished for the actions of his passenger and on the basis of an arbitrary opinion of the Commissioners. Mr Davidson ought to have been afforded the benefit of an independent and impartial trial of the criminal allegations which were made against him, and the Commissioners had not particularised or substantiated the allegations of criminal activity made against Mr Davidson. The Commissioners were acting against European law, and the United Kingdom policy was disproportionate in circumstances where people imported goods from abroad without intending to make a profit on them. The seizing of property was a severe sanction which went further than was necessary, and represented an obstacle to the free movement of goods. Seizing the vehicle was disproportionate, the Commissioners could either impose a penalty or require him to pay the revenue lost. In addition to the seizure being contrary to European legislation, it was also illegal under the 1689 Bill of Rights. This Act had not been repealed and Mr Davidson should have the opportunity to go before a criminal court. The Commissioners had acted in breach of Mr Davidson's rights pursuant to the Magna Carta and the Bill of Rights 1689, by seizing and forfeiting his property without trial and judgment by a court of law, and the Tribunal was obliged to give effect to those rights, whether by declaring the relevant statutory provisions as incompatible with the Bill of Rights 1689, or by transferring the matter to a Divisional Court.
39. It is noted that prior to the date set down for the last hearing of this appeal Mr Batten had requested to know whether members of the Tribunal took an Oath of Office, whether all members of the Tribunal performed their public functions whilst seated under the Royal Coat of Arms, and to confirm that the Coat of Arms was intended to demonstrate that the Tribunal sits under (and makes full claim to represent) the authority of the Crown in all its dealings. The Tribunal was requested to state the alternative force of authority if it was not as above. Mr Batten was informed that the Tribunal's jurisdiction is derived from section 82 of the Value Added Tax Act 1994 and its constitution and procedure are to be found in Schedule 12 to the Act. Mr Batten taken no point on this in the course of his further written submissions.
40. In his penultimate written submissions Mr Batten had repeated that it was for the Commissioners to prove that the Bill of Rights 1689 does not apply in Mr Davidson's case, not for him to prove that it does. He continued:

"It is frankly laughable that HMRC, which undoubtedly has access to a battery of professional lawyers, should be asking me to explain the meaning of the wording of the Bill of Rights. To me and to Mr Davidson, it clearly means exactly what it says."

He continued:

"HMR (sic) has taken Mr Davidson's car and property and yet cannot explain why this was legal under EU Directives (which takes precedence over UK law) and the Bill of Rights, which as a Constitutional Act takes precedence over all legislation."

Having referred to Article 3 of the Treaty on European Union (Maastricht 1993), Mr Batten then referred to a Press Release dated 28 June 2006 in which the EU Commission interpreted the above as:

"Individuals are entitled to bring back excise goods (tobacco and alcoholic beverages) which have been bought tax paid in a Member State without incurring further charges, provided the goods are transported by the individuals themselves and are for their own use."

Mr Batten submitted that the guidelines provided by the Commissioners are arbitrary. People suspected of buying goods not for their own use were not taken to court nor charged with any offence which they could contest, but the goods, and in some cases the cars, were confiscated. He referred the Tribunal to the case of Hoverspeed Ltd but made no specific submission in relation to the that case. In relation to the facts of the present case he contended that Mr Davidson had not admitted that he intended to sell a proportion of the goods on a not-for-profit basis, but even had he done so, the confiscation of his vehicle and goods would have been a disproportionate penalty.

41. With regard to the Bill of Rights 1689, the Tribunal was referred to the passage which states:

"That all grounds and promises of fines and forfeitures of particular persons before conviction are illegal and void."

It was submitted that any Act of Parliament which serves to breach the terms of the Bill of Rights must be unlawful, because the Sovereign is deprived of authority to enact such legislation, whatever may be the wishes of any Parliamentary majority. In addition the Bill of Rights provides the basis for the lawful enactment of all Statute Law and restates the terms under which the peoples of England, Wales and Northern Ireland have consented to be governed.

42. The Tribunal was referred to the case of Thoburn and the statement of Lord Justice Laws at paragraph 62 and 63 where it is said:

"62. We should recognise a hierarchy of Acts of Parliament: as it were 'ordinary' statutes and 'constitutional statutes'. The special status of constitutional statutes follows the special status of constitutional rights. Examples are the … Bill of Rights 1689 …

63. Ordinary statutes may be impliedly repealed. Constitutional statutes may not."

It was pointed out that the Bill of Rights had never been repealed or amended. The Tribunal was also referred to the 1912 case of Bowles in which Mr Justice Parker said:

" No practice or custom, however prolonged or however acquiesced in on the part of the subject could be relied on by the Crown as justifying an infringement of the provisions of the unrepealed Bill of Rights."

Mr Batten concluded that, since the Bill of Rights had never been repealed, and could not be repealed impliedly, the Commissioners were acting illegally in seizing Mr Davidson's goods. It was submitted that the Bill of Rights was valid in both civil and criminal actions.

43. Mr Batten provided the Tribunal with very lengthy submissions which we have attempted to summarise. In the course of the submissions it was said that the Tribunal should properly discharge its duty both to the Crown and to Michael Davidson by ensuring that the case is referred to the Criminal Court (sic) by the Respondents in order to provide that the presumption of innocence be maintained as a matter of course. In respect of this submission the Tribunal was referred to two cases, namely, Woolmington v DPP (P135) AC 462 and R v Lambert (on appeal from a Court of Appeal) in the House of Lords, but no copies of either of these decisions was provided to the Tribunal.
44. Mr Batten invited the Tribunal to make a declaration that it was bound to observe the provisions of the Bill of Rights 1689 in all its dealings with the matter of this appeal, and to state whether or not that required it to decide that the Statutes and/or Regulations relied on by the Commissioners could have been enacted in breach of the provisions made by the Bill of Rights and were therefore illegal or void. Alternatively he invited the Tribunal to declare that the Bill of Rights is repealed and the Tribunal is unrestrained by its provisions. In the event that the Tribunal did not feel able to make such a declaration, it was invited to transfer the matter to the Divisional Court.
45. Mr Batten further invited the Tribunal to consider:

(a) Whether or not the defences of law that now belonged to all subjects of the Crown under the provisions of Magna Carta and the Bill of Rights are properly counted to be at the disposal of the Sovereign and/or any Parliament.

(b) Whether or not Parliament itself is properly held to be subject to the provisions of that Law of the Constitution which provides that the lawful existence and functions of Parliament, as a legislative body that is intended to operate only under and with the restraint authority of the Crown.

(c) Whether or not the Sovereign and Parliament intended to repeal Magna Carta and/or the Bill of Rights, when the legislation and/or regulations now relied on by the Respondents was enacted by the Sovereign and Parliament and/or by any Ministers of the Crown.

A further argument advanced by Mr Batten on behalf of Mr Davidson was that the presumption of innocence was not removed by a process of prosecution that relied upon an unsubstantiated assertion of guilt. In the present case unsubstantiated evidence of criminal activities were levelled by the Commissioners and penalties imposed on Mr Davidson. Such allegations were properly the business of the Criminal Court.

Reasons for decision

46. The first issue we have to decide is whether there is before us an appeal against the failure by the Commissioners to restore the seized vehicle to Mr Davidson. Curiously, Mr Davidson had written separate letters requesting the restoration of the vehicle and the goods. As set out above, his application in respect of the vehicle was refused on the 18^th of August 2004 by the Commissioners and no review of that decision was requested by Mr Davidson within the 45-day limit or indeed, formally, at all. He did not suggest in his evidence to us that he had in fact requested a review of that decision and we therefore are only dealing with the issue of the goods imported by Mr Davidson in this appeal.
47. The second matter for us to decide before looking at the facts of the case in detail is whether or not Mr Davidson ever challenged the legality of the seizure of the goods. Mr Davidson was quite certain in his evidence that he had indeed challenged the seizure of both the goods and the vehicle. Whilst there was no acknowledgement by the Commissioners that he had in fact done so, it was nonetheless the case that, with regard to Mr Davidson's request for restoration of the goods made on the 6^th of August 2004, there was no decision made until the 19^th of September 2005, and this only arose because of Mr Batten's intervention. The Commissioners were therefore not being as careful with regard to Mr Davidson's communications as might be expected. In these circumstances we give Mr Davidson the benefit of the doubt which arises and accept that he did in fact seek to challenge the seizure in the Magistrates Court. That being our decision, we then have to decide whether the fact that there has been no hearing of that challenge by the Magistrates permits the Tribunal to look at the question of the validity of the original seizure. Given that the High Court in the case of Weller, cited above, considered that where an importer had not had a realistic opportunity to invoke the condemnation procedure he might be allowed to challenge the seizure before the Tribunal, we consider that in the present circumstances we are able to look at the matter, and that it would not be an abuse of process to do so. However, the issue of the seizure may only be looked at in relation to the goods, not the vehicle, there never having been a review of the seizure of the vehicle, and hence there is no appealable matter before us in relation to the vehicle. If we are wrong as to this, the vehicle did not belong to Mr Davidson but to his cousin. That cousin has at no stage put in an appeal, nor have we seen any authority from him to Mr Davidson to appeal on his behalf.
48. One other piece of relevant evidence that Mr Davidson did challenge the legality of the seizure was because he refers to so doing in his letter of the 27^th of September 2005, it is not simply a matter which he sought to raise before us.
49. With regard to the facts of this case, whilst it does not involve a particularly large consignment of goods, Mr Davidson had, in the ten months prior to July 2004, made ten trips to the continent. He was not working at the time, and although he claimed before us to have been earning some money by distributing leaflets, he had not mentioned this to the interviewing officer after he was stopped and there was no evidence of any such employment produced at any point. In the circumstances, and especially since Mr Davidson said he paid for the cigarettes out of his savings, and there has been no evidence in the form of bank statements or any other form as to any income Mr Davidson had at the time, the expenditure of some £500 is a matter both the interviewing officer and the reviewing officer were entitled to consider.
50. Whilst Mr Davidson had at the conclusion of that interview, amended his comment to the interviewing officer about selling the goods, (see paragraph 33 above) he did not dispute that he had made that remark, only that he had intended to say something rather different. We regard his evidence to us that he knew he could do what he liked with the goods 'provided that he was not making a profit', as evidence that he was intending to sell the goods, even if at cost price. In those circumstances Mr Davidson was not purchasing these goods solely for his own use or to give to his family and friends. We do not accept his subsequent evidence that he would have given the goods away, given that both his original remark to the officer about selling them, and his subsequent remark to the Tribunal were remarks made against interest, and as such carry considerable weight.
51. Whilst the principal reason for deciding that Mr Davidson was not solely bringing in the goods for his own use were the remarks referred to above, we also take account of the frequency of his trips and the fact that he attempted to mislead the interviewing officer by saying that he had travelled about four or five times in the previous twelve months when the records show that he had made ten trips in ten months. Also, although by itself it is not very significant, the fact that Mr Beackon had not made any challenge to the seizure of what were said to be in part his goods, are all matters which support our conclusion that Mr Davidson was not importing the goods solely for his own use, and the importation is therefore deemed to be a commercial one.
52. Having found that Mr Davidson was not importing goods solely for his own use, we now turn to the matter of restoration. We have looked carefully at the reviewing officer's decision, and we can find no fault with it. There are no matters which she ought to have taken into account which she failed to do, and she did not take account of matters which she ought not to have done. We agree with her conclusion that the goods were held for a commercial purpose. For the reasons put forward by Mr Barnes on behalf of the Commissioners we consider that the decision to refuse to offer the goods for restoration was proportionate, and in particular there are no exceptional circumstances which have been put before us which might persuade us that, despite the commerciality of the importation, the goods should be restored to Mr Davidson. The seizing of goods which a person intends to sell in the United Kingdom, albeit on a not-for-profit basis, cannot be considered disproportionate.
53. Turning to the submissions made by Mr Batten, he suggests that we should take account of the fact that Mr Davidson had not been involved in any criminal activity and had not been afforded the benefit of an independent and impartial trial of the criminal allegations made against him, yet he has produced no authority, either United Kingdom or European, to show that where somebody is suspected of importing tobacco products with the intention of selling them, that matter ought to be dealt with by the Crown Court. We were referred to the case of Hoverspeed, but without any specific reference to any relevant passages. Whilst that case is authority for the proposition that there is a burden of proof on the Commissioners to show that they have reasonable grounds for suspecting an individual of holding goods bought in another member state for commercial purposes before he may lawfully be stopped and searched, and also that customs officer must follow principles of proportionality when determining whether or not to restore goods and vehicles they have seized, this case is not authority for the proposition that Mr Davidson ought to have the right to go before the Crown Court. In fact he did have the right to go before the Magistrates Court, but for reasons partly of administrative failure and partly because Mr Davidson did not follow up his applications he was denied that opportunity. In the circumstances we can see no reason why the Commissioners should be expected to particularise or substantiate allegations of criminal activity made against Mr Davidson, especially since Mr Davidson made an admission to the interviewing officer that his intention was to sell the goods (which would be an illegal act) and the Commissioners are entitled to rely on that statement.
54. With regard to Mr Batten's submissions in respect of the Magna Carta and the Bill of Rights 1689, and his allegation that by seizing and forfeiting Mr Davidson's property without trial and judgment by a court of law the Commissioners had acted in breach of Mr Davidson's rights pursuant to those statutes, we assume that Mr Batten was referring to the seizure of the vehicle. We have already set out our reasons for deciding that this appeal is not in respect of the vehicle, which in any event did not belong to Mr Davidson. With regard to the seizure of the goods, these were seized as being liable to duty on the basis that they were imported for a commercial purpose, pursuant to the Commissioners' powers under the Customs and Excise Management Act 1979. Pursuant to Schedule 3 of the 1979 Act, Mr Davidson was notified of the seizure of the vehicle and goods and that they were liable to forfeiture, and that if he wanted to contest the seizure and forfeiture he should give notice to the Commissioners, who would bring condemnation proceedings in the Magistrates' Court. Also pursuant to Schedule 3 of the 1979 Act, on the failure by Mr Davidson to contest the seizure and forfeiture, the goods (and the vehicle) were deemed condemned as forfeit. Mr Davidson was entitled to, and did request that the Commissioners exercise their powers pursuant to Section 152 (b) of the 1979 Act to restore the goods. That application was refused by the Commissioners, both initially and on review, and in those circumstances Mr Davidson was entitled to, and did, appeal that refusal to the Tribunal. In considering an appeal of a refusal to restore the goods, the Tribunal is not entitled to consider the matters relating to seizure and forfeiture that have been deemed to be decided against Mr Davidson other than in exceptional circumstances, and in this case we have found such exceptional circumstances and have considered whether there were grounds for the seizure. The Tribunal is restricted to exercising the powers conferred on it by statute including the Human Rights Act. The powers of the Tribunal in this appeal are limited by Section 16(4) of the Finance Act 1994 to a review of the decision, and if it finds the Commissioners have acted unreasonably, to direct that: (i) The decision is to cease to have effect; or (ii) to require the Respondents to conduct a further review of the decision; or (iii) to declare the decision is unreasonable and to give directions that such unreasonableness does not arise in the future. There is therefore a full statutory framework within which the courts may consider Mr Davidson's rights. Arguments challenging the legal foundation of the power to seize and the forfeiture provisions, such as those made by Mr Batten, fall properly within the remit of the Magistrates or the High Court. There is no jurisdiction for this Tribunal to declare that the legislation governing this appeal is void. In the case of Gora the Court of Appeal held that the function of the tribunal was not to determine criminal charges. It explored in detail the jurisdiction of the tribunal and the issue of an appellant's rights under the Human Rights Act 1998 in circumstances where goods had been seized. The headnote reads:

"Held, (1) that the function of the tribunal was not to determine criminal charges so that an application to it, pursuant to section 152(b) of the 1979 Act, for the restoration of goods subject to excise duty did not amount to the determination of a criminal charge within the meaning of Article 6 of the Convention notwithstanding the severity of the sanction, namely loss of the goods even on a finding of innocent failure to pay the duty owed; that the reason for such severity was in order to maximise the deterrent effect of seizure and detention; that significant factors to be taken into account were that the criminal courts were not involved and the absence of any criminal sanction; that the procedure was indistinguishable from proceedings in the High Court or Magistrates Court for the condemnation of goods seized as liable to forfeiture, which proceedings had been held not to be criminal in nature, and (per Longmore LJ), if anything, the procedure was even less penal in nature in that the goods would be restored on payment of a percentage of the duty allegedly evaded; and that, since the tribunal had power to make findings of fact so that it could determine for itself whether the Commissioners' decision on restoration was reasonable, the tribunal provided an effective remedy and, therefore, its jurisdiction met the requirements of the Convention."

In circumstances where the Court of Appeal have already considered the issue, it is not for this Tribunal to take a different view of the law.

55. In all these circumstances this appeal is dismissed with no order for costs.

MISS J C GORT

CHAIRMAN

RELEASED: 25 July 2008

LON 05/8128