Agnieszka GOLEBIEWSKA v the United Kingdom - 43153/08 [2010] ECHR 658 (07 May 2010)

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Application no. 43153/08
by Agnieszka GOŁĘBIEWSKA
against the United Kingdom
lodged on 23 August 2008

The applicant, Ms Agnieszka Gołębiewska, is a Polish national who was born in 1966 and lives in Ożarów Mazowiecki, Poland.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 27 January 2000, the applicant's Mercedes car was stopped by Customs officers on arrival in the United Kingdom at Eastern Docks, Dover. She was in Poland at the time. The driver of the car was P.T., described by the applicant as her friend. P.T.'s adult nephew was the only passenger.

Customs officers carried out a search. In the car they found a large number of cigarettes of Russian origin. These had been carried in both men's luggage and in different parts of the vehicle, including a space which had been created by substantially reducing in size the vehicle's petrol tank by converting to liquid petroleum gas (“LPG”).

The Customs seized the cigarettes and the vehicle as liable to forfeiture under section 139 of the Customs and Excise Management Act 1979 (“CEMA”, see “Relevant domestic law and practice”, below).

P.T. was arrested and charged with being knowingly concerned in the fraudulent attempt at evasion of excise duty contrary to section 170(2) of CEMA. He pleaded guilty and was sentenced to four months' imprisonment.

The Consulate General of the Republic of Poland in London wrote to the Customs on 2 February 2000 asking for information about the vehicle, stating that it was the applicant's car which had been lent to P.T. and referring to his arrest (about which the Customs had informed the Polish Embassy in London by letter date-stamped 27 January 2000).

The applicant visited the Customs' offices on the afternoon of 17 February 2000. She asked for the vehicle to be returned to her and was told that it had been seized by the Customs and would not be offered for restoration.

On 18 February 2000 the Customs' decision not to restore the vehicle was communicated to the Polish Consulate by the team leader of the excise verification team. The letter stated that “the vehicle was adapted for smuggling by cutting down the petrol tank to a fraction of its proper size and the consequent space created was used to conceal a large quantity of excisable goods” and that section 88 CEMA applied to the case and provided for the relevant authority to seize the vehicle. The applicant could challenge the legality of the seizure within 30 days of 27 January 2000 (i.e. 9 days after the date of the letter) either by instigating condemnation proceedings, which would involve a hearing before the Dover Magistrates, or by seeking restoration of the vehicle. The letter advised that previous correspondence and the applicant's personal appearance had been taken as a request for restoration of the vehicle and a decision had been made accordingly. The team leader's decision was to recommend that the vehicle should not be offered for restoration. The decision letter cited the need to protect revenue and legitimate trade in the United Kingdom by deterring and detecting fraud and other irregularities and encouraging compliance with procedures established to control movements of excise goods. It stated that the normal policy where the Customs asserted that a vehicle had been adapted for smuggling and that section 88 CEMA applied was to refuse to restore seized goods. There were no exceptional circumstances in this case which would justify a departure from this policy. The letter concluded by advising that an appeal against the decision could be made by writing to the review officer within 45 days.

By a letter dated 20 March, 2000 to the review officer, the applicant appealed against the decision of the excise verification team and requested a review. The stated grounds of appeal were chiefly that the adaptation to the petrol tank was not for the purposes of smuggling but for the purposes of “the change of the vehicle's propulsive fuel from petrol into gas”, which had been carried out solely in order to achieve economy, gas being much cheaper than petrol in Poland. Supporting documents were provided.

By letter dated 16 May 2000, the review officer confirmed the decision not to restore the vehicle. He stated that his own function as reviewing officer was to “determine whether or not the contested decision was one which a reasonable body of Commissioners could not have reached”. The review officer based his decision on the fact that (1) the vehicle was used by P.T. for smuggling; (2) the applicant was a business associate of P.T.; (3) the purpose of the change to the petrol tank was to release space for smuggling; (4) the Commissioners' policy was not to restore a vehicle seized pursuant to section 88 CEMA.

The applicant subsequently appealed to the VAT and Duties Tribunal (“the first tribunal”) arguing that the decision was unreasonable. In order to assess the reasonableness of the decision, the first tribunal was required to make certain findings of fact. A hearing took place over four days, two in February 2002 and two in February 2003. The applicant gave evidence through an interpreter. The first tribunal found as facts that P.T. had used the car for smuggling; that P.T. had borrowed the car for a purpose of using it for smuggling; that the applicant was aware that P.T. had borrowed the car for such a purpose; that the purpose of the change to the petrol tank was to release space for smuggling; but that the applicant was not aware that the purpose of the change to the petrol tank was to release space for smuggling.

On 20 March 2003, the first tribunal directed that a further review be conducted, because the review officer had made an error of law in limiting his review to the reasonableness of the Commissioners' decision instead of considering the matter afresh, as he was required to do.

As regards the applicant's argument that the forfeiture of her vehicle violated Article 1 of Protocol No. 1, the first tribunal noted (at paragraphs 54 to 56):

“We understand the point taken under art. 1 of the First Protocol to be in effect a challenge to the proportionality of the Commissioners' decision not to restore the car to the Appellant. In her submissions, Ms. McCue [for the applicant] fairly conceded that if the car had been adapted for the purposes of smuggling, then it would be in the public interest to seize the car. We take that to be a concession that in those circumstances it would not be disproportionate for the Commissioners to refuse to restore the car. It may be, however, that in making that concession Ms. McCue did not have in mind the possibility that the car could have been so adapted, but without the knowledge of the owner.

We have found that the car was adapted for smuggling, but by reason of the hole being made in the panel behind the back seat by [P.T.], without the knowledge of the Appellant. However, we have also found that the Appellant lent her car to [P.T.], being aware that he was borrowing it for the purpose of smuggling. We bear in mind that the Appellant (in the company of [P.T.] and Mr. [G.]) had travelled to the United Kingdom in the car less than two months before the seizure and had on that occasion been stopped by Customs. In these circumstances, it seems to the Tribunal that the Appellant is almost in the same position as someone who deliberately uses her car to further a fraudulent venture in the knowledge that if she is caught, her car will be liable to forfeiture and who cannot reasonably be heard to complain if she loses her vehicle – see: Lindsay [Lindsay v Commissioners of Customs and Excise [2002] 3 All ER 118] at paragraph 63.

As the Master of the Rolls states in that paragraph, 'cases of exceptional hardship must always, of course, be taken into consideration'. The submission as to exceptional hardship, which has been advanced on behalf of the Appellant, is that she needed the car for her work. It is not clear to the Tribunal that this submission was originally made to the Customs so that [the review officer] could take it into account in making his decision. However that may be, we do not doubt that the Appellant did need the car for her work (and that the other factors ... apply, viz: that she is a single mother, that she is continuing to pay loan instalments on the car, and that she has to pay school fees in respect of her son) but it seems to the Tribunal that these factors may not carry any significant weight in the necessary balance against the public interest in removing from circulation a car adapted for smuggling, which has been used for smuggling, having been lent by the owner to the smuggler in the awareness that smuggling was the smuggler's purpose in borrowing the car. The Tribunal will direct a further review ... and the question of proportionality will need to be considered afresh.”

The applicant appealed to the High Court to challenge the finding that she knew of P.T.'s intention to use the car for smuggling.

In the meantime, a second review officer reconsidered the matter as instructed by the first tribunal and, by letter dated 30th May 2003, confirmed the previous decision. No further appeal was lodged against the decision of the review officer.

On 27 January 2004, the applicant's appeal against the findings of fact made by the first tribunal was dismissed by Mr Justice Laddie in the High Court.

The applicant applied for leave to appeal to the Court of Appeal. Permission to appeal was granted on 25 August 2004, limited to the question of whether the first tribunal gave adequate reasons for its finding of fact that the applicant knew of the intention to use the car for smuggling, and the related questions of the burden of proof and the standard of proof.

On 6 May 2005, the Court of Appeal allowed the appeal on the ground that the tribunal had erred in law in failing to give adequate reasons for its finding that the applicant had known of P.T.'s intention to use the car for smuggling. The matter was remitted for re-hearing before a differently constituted tribunal (“the second tribunal”).

On 19 March 2007, the rehearing took place. The sole question in issue before the second tribunal was whether the applicant knew or ought to have known of P.T.'s intention to use her car for smuggling. On the same date, the second tribunal handed down its decision. In particular, it concluded that it was not satisfied that the applicant had not known of, or had not “turn[ed] a blind eye to” P.T.'s intentions with regard to the car and his visit to the United Kingdom.

The applicant appealed to the High Court, arguing that the second tribunal was not entitled to hear evidence regarding the conversion of the car as the first tribunal had found that she did not know that the conversion was to enable to the car to be used in smuggling; that the length of time which had passed since the events to which the proceedings pertained meant that she could not have a fair hearing; and that the second tribunal had erred in law in not holding the Customs to a concession which it had made that the applicant did not know that P.T. planned to use the car to smuggle cigarettes.

On 26 February 2008, the High Court dismissed the applicant's appeal. As regards her complaint that it was not possible to have a fair trial as a result of the passage of time, Mr Justice Warren found as follows:

“I comment that it is extraordinary that this point is taken at this stage of the proceedings without having been raised before or at the commencement of the hearing before the second tribunal, if not well before that. Mr Ley [for the applicant] suggests, I believe even on instructions, that Miss Calder [the applicant's counsel at the second tribunal hearing] was simply not permitted to address the second tribunal because the chairman had required her to get on with the evidence.

That seems to me to be a fanciful suggestion. The idea that counsel was unable to get the second tribunal to listen to a submission which she wished to make to the effect that the proceedings should not continue because there could not be a fair hearing is one I find astonishing. Although Mr Ley, who was not at the hearing, tells me that this is what happened, Mr Beal who was there tells me that that was not the case at all. Rather, Miss Calder opened her case to some extent, but the chairman then indicated that the second tribunal had read enough beforehand and that it would be preferable to get on with the evidence. I have no actual evidence about what happened in contrast with statements from the Bar. In my judgment there is nothing in this aspect of the second ground of appeal.

Insofar as the merits of the second ground are concerned, the second tribunal dealt with this at paragraph 36 of the second decision where they said this:

'We accept Miss Calder's submission that it is very difficult for any witness to remember precisely events which happened seven years before. However, it is not as if Mrs Golobiewska was suddenly asked after seven years to recall those events. She had given evidence at the earlier tribunal which took place some two years after the event and in respect of which findings of fact were fully recorded and we find it inconceivable that Mrs Golobiewska was not properly reminded both about the previous tribunal proceedings, the proceedings in 2004 in the High Court and subsequently in the Court of Appeal in 2005. The fact that she did not choose to refresh her memory by looking at her statement of 2000 before appearing before us as we were told is the case, is no indication that prior to setting off for England she had not read any of the relevant papers or been asked to cast her mind back over events. She either knew or ought to have known exactly what this hearing was about and we find it very surprising that those representing her did not properly furnish her with the relevant papers to refresh her memory if that was the situation.'

The second tribunal clearly considered that a fair hearing was possible. Even if I might have reached a different conclusion myself sitting in their seats, which I hasten to add I would not have done, I can see no possible challenge to the second tribunal proceeding to give its decision notwithstanding the submission of Miss Calder, made for the first time in her written closing submissions after the end of the hearing.”

The High Court also dismissed the applicant's other grounds of appeal. No application for leave to appeal to the Court of Appeal was made.

The Customs and Excise Management Act 1979 (“CEMA”) regulates the power of Customs to seize a vehicle suspected of use in smuggling.

while constructed, adapted, altered or fitted in any manner for the purpose of concealing goods, that ship, aircraft or vehicle shall be liable to forfeiture.”

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

(a) any ... vehicle ... which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture, either at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and

“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.”

Section 152 CEMA provides for a discretion for the Commissioners to restore, subject to such conditions, if any, as they think proper, any thing forfeited or seized under the customs and excise Acts.

The applicant complained under Article 6 § 1 of the Convention about the length of the domestic proceedings, which she contended lasted from January 2000 until 26 February 2008.

She further complained under Article 6 § 3 (e) that she was not provided with an interpreter in the forfeiture proceedings.

Finally, under Article 1 of Protocol No. 1 to the Convention, she complained of the refusal of the authorities to return her car to her.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Agnieszka GOLEBIEWSKA v the United Kingdom - 43153/08 [2010] ECHR 658 (07 May 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/658.html Cite as: [2010] ECHR 658

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