Jones  v The Commissioners of  Customs and Excise  [2002] UKVAT(Excise) E00366 (07 November 2002)

E00366
RESTORATION OF VEHICLE — vehicle lent to husband — husband arrested at Dover — other occupants took car without consent of owner — reviewing officer’s review making incorrect reference to ownership — reviewing officers did not act reasonably — decision cease to have effect

MANCHESTER TRIBUNAL CENTRE

MAXINE KAREN JONES	
	Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE
Respondents

Tribunal:         Mr D S Porter LLB (Chairman)
Mr M Kostick

Sitting in public in Manchester on 2 October 2002 

The Appellant appeared in person

Miss N Preston of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

© CROWN COPYRIGHT 2002

DECISION

1.	By notice of appeal dated 3 June 2001 the Appellant appeals against the decision of the Commissioners in a letter dated 11 May 2001 refusing to restore the Vauxhall Cavalier 1.7 TD motor vehicle registration number M441 XDM on the basis that the persons using the vehicle had no authority from the Appellant to take the car out of the country.
Prior to the matter being heard, Miss Preston asked that the case be adjourned pending the outcome of the appeal in Hoverspeed.  She indicated that it was not possible for the case to be heard today because she would want to address the tribunal as to the law arising from the Hoverspeed case and she was not able to deduce evidence as to the grounds of which the vehicle was stopped.
The Appellant objected to the adjournment on the basis that she had had time off work; that she had been waiting a long time for it to come to hearing; that a suggestion had been made that it would be reviewed in any event and she did not wish to come to the tribunal again.
The chairman and his colleague confirmed that the matter should be heard.  The facts would need to be known in any event.  If it was apparent that the Hoverspeed case would be relevant, judgment would reserved until after the Hoverspeed and both parties would be entitled to address the tribunal on both the facts and the law arising from the Court of Appeal’s decision.  We therefore proceeded.
Miss N Preston appeared on behalf of the Commissioners and produced a revised statement of case and bundle of documents.  The Appellant appeared in person.
The facts
The Appellant and her husband Glyn Jones split up in January 2001.  Their daughter stayed with the Appellant who took her to school and had the use of the motor car.
The Appellant lent the car to her ex-husband from time to time and had done so some five to six times before the present incident.
She needed the car in any event and her husband usually returned it the same day or the next morning having kept it over night.
On the day in question her husband had telephoned her in the morning to ask if he could borrow the car.
She confirmed that he could but she would need the car the next day to take their daughter to Bolton to buy some clothes.
Mr Jones collected the car after the telephone call but by the evening of the next day the car had not been returned.  She had attempted to find out what had happened.  She expected him back because she wanted the car to go to Bolton.
She received a telephone call from somebody she did not know asking if Mr Jones was available.  She advised that Mr Jones had not lived there for some time and she did not know where he was.
The individual telephoning said that they had been to France and they had lost him and could not get in touch with him but they had got his car.
The Appellant said that it was not her husband’s car but it was her car.  She was then told that it had been taken off them by Customs and Excise.
She subsequently spoke to her husband.   She had not discussed with him the basis on which he was borrowing the car as he always returned it in any event within the day and a half.  It appeared however that Mr Jones was running his new partner and a few of her friends to France for a day trip.  Her husband and his new partner Emma McCormick were not present at the seizure of the vehicle as he had been arrested by the French police in Dover, before the journey to France, due to a warrant for his arrest for absence from the French Foreign Legion some 14 years previously.  After a period of some 4 to 5 hours Mr Jones was handed back to the British police and was later taken to a 24 hour Tesco.  At this time both the Appellant and her husband were unaware that the remaining three passengers had carried on to France and proceeded to fill the car with a large quantity of excise goods.
It would appear that the vehicle had been stopped at the control zone at Coquelles on 15 February 2001.  The occupants, Robert Parks, Anne Marie Moore and Kevin William Newton advised that they had 800 cigarettes and 60 pouches of tobacco each.
When the car was examined, further excise goods were found under the back seat and beneath the spare tyre as follows:
	4,000 cigarettes
	14.50 kilos of hand-rolling tobacco
	72 litres of beer
	18.00 litres of wine
	1 litre of spirits
	100 cigarillos
It was undisputed that the three occupants had been involved in smuggling.  They had not resisted forfeiture and they had not attended at the tribunal today.  It is also abundantly clear that they are totally unknown to the Appellant.
Some time in March 2001 the Appellant wrote to the Excise Support Team asking for her vehicle back in the following terms:
“I am writing to request restoration of my vehicle which took place on 15 February 01.  I lent the car to my ex-husband who unknown to my knowledge lent my car to somebody else of whom I haven’t got any idea who these people are and had no right driving my car out of the country without my permission.”
On 20 March 2001 the Excise Support Team wrote back to Mrs Jones indicating that they had considered all the facts and could not recommend that the vehicle be restored.
On 24 March Mrs Jones again wrote requesting the return of her vehicle.  She indicated: 
“the lending of the vehicle by myself, and the taking of the vehicle by my ex-husband was not intended for the purpose of transporting excise goods, so, having no liable consequences or purposes for which later gave reason for the car to be seized.  The car was lent, with good intention to my ex, his reasons for borrowing the vehicle were not discussed as they were irrelevant.  However, it later became apparent to me, after the events spiralled, that my husband Mr Glyn Jones was running his new partner and a few of her friends to France on a day trip.  Mr G Jones and his partner Emma McCormick were not present at the seizure of the vehicle as he had been arrested by the French police in Dover, before the journey to France, due to a warrant for his arrest for absence from the French Foreign Legion some 14 years previous.  After a period of some four to five hours Mr G Jones was handed back to the British police and was later taken to a 24 hour Tesco.”
The letter then went on to say she had contacted the police who had indicated that it was a Customs and Excise matter.
On 11 May 2001 Mrs S C Pemberton, the review officer, wrote to Mrs Jones confirming that she had considered the evidence put before her and the subsequent correspondence, the legislation and the current departmental policy.  The rest of the letter set out the legislation and the policy and concluded by advising that the seized vehicle would not be restored.
In her evidence the Appellant advised that the husband had not given authority for the individuals to use his car.  It was unclear whether such authority had been given or not.  She had not called her ex-husband to give evidence.  It was clear however that her ex-husband had been arrested and clearly left his car and that the occupants had then decided to use it to go to France.  It is not clear how they would have got his consent to drive the car as presumably he was being interrogated for a considerable length of time.  We think it is reasonable to suspect that they did not obtain his consent but merely took the car.
Miss Preston summed up by indicating that the evidence from Customs and Excise was more particularly contained in the witness statement which had been served on the Appellant from senior officer S Pemberton of the 12 June 2001.  The witness statement was presented to the tribunal and it was noted that on the second page of the transcript it indicated that the car belonged to Glyn Jones who had not travelled because of problem with his passport.  
The Appellant had given a different version of the facts to those contained in her letter which had indicated that she had lent her car to her ex-husband who had unknown to her knowledge, lent the car to somebody else.   No evidence had been given on the points which had only been raised at the tribunal and had not appeared in the notice of appeal nor in any of her correspondence.  The car had not been stolen in a technical sense but lent with her knowledge to her husband.  
The relevant facts of the decision were important.  (1) False information was given by the occupiers of the car when asked what excise goods they were carrying.  (2) When search, additional goods were found hidden under the back seat and the spare tyre.  (3) All of the occupants declined to stay for interview.  (4) The value of the duty was some £2,000.  It was not clear what the value of the car was but it was suggested it would be £5,000 of which £2,000 was owing to the bank.
This was clearly a case of smuggling and the Lindsay decision would not be applicable so that proportionality could not be applied.  On the evidence provided to the reviewing officer there were no exceptional circumstances and no hardship.  It was for the Appellant to look to her ex-husband to compensate her for any loss. 
Decision 
We have considered the facts and the law in this matter and are of the opinion that the review of 11 May 2001 was not reasonable.   We are of the opinion that the reviewing officer was put on notice as to the circumstances surrounding the lending of the car by the Appellant to her ex-husband.  She did not choose to pursue that enquiry.  Further in spite of the two letters, her witness statement makes it abundantly clear that she believed that the car belonged to Mr Jones.  There is no doubt if that had been the case for the decision not to restore the vehicle would have been reasonable.  However being of the opinion that the car belonged to Mr Jones from her witness statement and having not pursued any enquiry with regard to the comments made by the Appellant, we believe that she had not got sufficient facts to be able to make the decision that she came to and in those circumstances we consider her decision was unreasonable.
We do not consider that this is a case which should go for further review but we consider that the decision so far as it remains in force should cease to have effect from 20 May 2001.
We were addressed with regard to the decision in Hoverspeed and advise that this matter might be reserved until the decision from the Court of Appeal.  We do not however believe that the Hoverspeed case has any relevance to this matter.
If the decision for Hoverspeed is that the Customs and Excise do not need to have reasonable grounds to stop a vehicle in the first instance and/or this tribunal has no jurisdiction to consider that matter, we would still maintain that the reviewing officer acted unreasonably in relation to the facts.
If the Hoverspeed decision is upheld we still do not believe that it is relevant whether the vehicle should have been stopped or not as we believe that the decision of the reviewing officer was unreasonable.
We were not addressed as to costs but we would award costs to the Appellant in the sum of £200.

D S PORTER
CHAIRMAN
RELEASE DATE: 7 November 2002

MAN/01/8082