Dowling v Revenue & Customs [2006] UKVAT(Excise) E00975 (02 August 2006)

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2006/E00975.html
Cite as: [2006] UKVAT(Excise) E975, [2006] UKVAT(Excise) E00975

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E00975

EXCISE DUTY — restoration of vehicle and trailer — used and driven by owner who was an Irish haulier — load contained almost four million cigarettes among load of frozen chicken wings imported from Holland — haulier claimed he was not knowingly involved in smuggling excise goods — whether failure to make reasonable checks — whether haulier had acted with lack of care — Commissioners review decision not to restore vehicle without payment of trade value of vehicle and trailer — whether decision was reasonable — whether decision was proportionate — appeal allowed and further review directed

MANCHESTER TRIBUNAL CENTRE

NEVILLE DOWLING Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Ian Vellins (Chairman)

Susan Stott FCA CTA

Sitting in public in Manchester on 29 June 2006

Joanne Emery, solicitor, for the Appellant

Michelle Mayo, counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2006

DECISION

The Appeal

In this appeal the Appellant is Mr Neville Dowling who resides in Tullow, County Carlow, Ireland, and who carries on business as a self employed haulier. Mr Dowling ("the Appellant") was the owner and driver of a Scania vehicle and refrigerated trailer, registration 02CW 2628 ("the vehicle") which was seized by Customs officers in premises in Blackpool where it was being unloaded by fork lift truck while the Appellant was asleep in the cab. The vehicle was loaded with pallets of boxes of frozen chicken wings which were being delivered by the Appellant in the vehicle from Holland. This load was discovered also to contain 3,909,800 cigarettes. The Appellant claimed that he had no knowledge that the load contained the cigarettes, that he had not failed to make basic reasonable checks, and that he had not acted with lack of care. The Appellant appeals against a review decision of the Respondents contained in a letter dated 2 February 2006 offering to restore the vehicle to the Appellant for a restoration fee of £39,150.

The Law

Cigarettes and tobacco 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 1 mm.

2. 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.

(2) …"

The Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992

"4. Excise Duty Point

(1) Except in the cases specified in paragraphs (2) 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".

By virtue of Section 49(1)(f) of the Customs and Excise Management Act 1979 ("CEMA")

"Where any imported goods are concealed or packed in any manner appearing to be intended to deceive an officer, those goods shall, subject to subsection (2) below, be liable to forfeiture"

Section 78(4) of CEMA provides:

"Any thing chargeable with any duty or tax which is found concealed, or is not declared, ... shall be liable to forfeiture".

Under Section 139(1) of CEMA

"Any thing liable to forfeiture under the Customs and Excise Acts may be seized or detained by any officer …"

and this is followed in Section 141(1) of CEMA

"Without prejudice to any other provision of the Customs and Excise Acts 1979, where any thing has become liable 10 forfeiture under the Customs and Excise Acts –

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

(b) any other thing missed, packed or found with the thing so liable, shall also be liable to forfeiture"

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

The Tribunal's Jurisdiction

The Tribunal's jurisdiction in this appeal is statutory in nature and is set out in section. 14 to 16 of the Finance Act 1994 ("the 1994 Act"). Section 14 of the 1994 Act applies to any decision of the Commissioners of a description specified in Schedule 5 to that Act. Decisions made under section 152(b) of CEMA 1979 fall within paragraphs 2(1)(r) of Schedule 5 to that Act are subject to review and appeal.

Section 15 of the 1994 Act requires that the Commissioners review the decision not to restore the Appellant's vehicle and the excise goods if so requested. However, under sub-clause 15(2)(b) if the Commissioners do not review any decision within the period of forty-five days beginning with the day on which the review was required "they shall be assumed ... to have confirmed the decision".

In an appeal of this nature the jurisdiction of this tribunal is governed by section 16(4) of the 1994 Act which states as follows:

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

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

(b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision;"

In considering the word "reasonably", and in this context "reasonable" means reasonable in the sense in which that word was used in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1KB 223. In that case, Lord Greene MR said at page 229:

"A person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to matters which he is bound to consider. He must exclude from consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may be said, and often is said, to be acting unreasonably".

That passage was cited in Commissioners of Customs and Excise v J H Corbett (Numismatists) Limited [1981] AC 22HL by Lord Lane who continued that the tribunal:

"Could only properly [review the decision] if it were shown that the Commissioners had acted in a way in which no reasonable panel of Commissioners could have acted; if they had taken into account some irrelevant matter or had disregarded something to which they should have given weight".

In the case of Jason Thomas Bowd v Commissioners of Customs and Excise [1995] V&DR 212, the tribunal at paragraphs 60 and 61 set out the test of reasonableness by asking the following questions:

"Did the Commissioners reach the decision which no reasonable Commissioners could have reached? Did the Commissioners take into account all relevant considerations in this case? Did the Commissioners leave out of account all relevant considerations? In all of these questions it is necessary that the Commissioners should have acted on a correct understanding of the law. A decision which rests on an error of law is … not reasonable".

The Issue

The issue in this appeal is as follows. Was the decision of the review officer not to restore the Appellant's vehicle except on payment of the fee reasonably arrived at by the Commissioners?

The Restoration Policy of the Commissioners as stated in the Review Decision:

"The Commissioners policy for the restoration of heavy goods vehicles is designed to tackle cross border smuggling rigorously and to disrupt the supply of excise goods to the illicit market significantly.

1) If the Commissioners are not satisfied that the driver or haulier are not knowingly involved in smuggling excise goods then:

If the revenue involved is significant, on the first detection the vehicle may not be restored

In other cases, on the first detection the vehicle may be restored for a fee equal to 100% of the revenue involved; or the trade value of the vehicle (whichever is the lower). On the second or subsequent occasions the vehicle may not be restored.

2) If the Commissioners are not satisfied that the driver or haulier have carried out what Customs consider to be basic reasonable checks which would have identified the illicit load: then on the first occasion the vehicle may be seized and restoration offered a fee equal to 20% of the revenue involved; or the trade value of the vehicle (whichever is the lower). On the second detection the vehicle may be seized and not restored.

4) If the Commissioners are not satisfied that the driver and haulier have taken reasonable steps to ensure the legitimacy of the load the vehicle may be seized and restored free of charge.

If the Commissioners are satisfied that the haulier is either responsible for, or complicit in the smuggling attempt then on the first detection

If the total revenue evaded is less than £50,000 the vehicle may be restored for the revenue or the trade value of the vehicle, whichever is the lower.

If the total revenue evaded exceeds £50,000 the vehicle should not be restored."

The Evidence

At the hearing of the appeal, the Appellant appeared as a witness. His representative produced a bundle of documents on his behalf.

Oral evidence was given on behalf of the Commissioners by the review officer, Mrs Julie Wiggs. The representative of the Respondents produced a bundle of documents.

The Review Decision and the Background to the Review Decision

On 10 November 2005, Customs offices attended the premises McHaulage Limited in Blackpool where they found the Appellant's vehicle being unloaded by fork lift trucks into the premises. The Appellant was sleeping in the cab of the vehicle. When the officers arrived at McHaulage, two pallets had been unloaded from the vehicle. When the officers caused the remainder of the pallets to be unloaded, they observed that the vehicle had been loaded in the following way. At the back of the vehicle nearest the rear opening doors were two layers of pallets stored three pallets wide containing white boxes of chicken knuckle wings. Behind these white boxes were pallets containing brown boxes of cigarettes, on top of each box being white chicken boxes so that the entire load appeared to be entirely white chicken boxes. The white chicken boxes had holes in them but the brown cigarettes did not. Some of the brown boxes showed the name of the cigarettes brands on them and others had protruding cartons of cigarettes. The officers spoke to the Appellant who had been asleep in the cab of the vehicle, and the Appellant told the officers that he had collected the load from Astenhof in Holland and that the load was for delivery to James Burden Limited in Kent. He showed the officers the CMR for the load. This was a typed document indicating that the goods were to be taken from Astenhof in Holland to James Burden Limited in Kent, transported by the Appellant in his vehicle with a load of 32 pallets of knuckle wings in 2,431 cartons to be transported at a temperature of -18 degrees centigrade, frozen. The CMR document contained a signature on behalf of Astenhof and a signature for the haulier.

The Appellant told the officers that he owned the vehicle and was a self employed haulier. When asked about the origins of the job, he said that he had met a man called Paul who told him he was able to get the Appellant some work. On the basis of that meeting, the job was arranged with the Appellant only having a first name and mobile number for this man called Paul. The Appellant told the officers that he collected the load from Astenhof in Holland to be delivered to James Burden in Kent, both of which he knew to be large reputable dealers in frozen chickens. The Appellant told the officers that after the goods were loaded he travelled to Calais and caught the ferry to Dover. He then received a telephone call on his mobile phone from an Englishman who he believed to be from James Burden Limited telling the Appellant that the load had been sold and that the Appellant should now make his way to Kirkham, Lancashire, which he did. He told the officer that whilst at a rest stop, the Appellant again received a telephone call from the Englishman who gave him directions to Blackpool to the premises where he was to deliver the goods. He delivered the goods to those premises, which were those of McHaulage Limited.

The Appellant was sent a fax by Paul to his home address in Ireland confirming the instructions for the Appellant to deliver 32 pallets of chicken pieces from Astenhof in Holland to James Burden Limited in Kent at a fee of 3,600 Euros.

The customs officers' notebooks recorded the pallets and boxes of chickens which they found in the vehicle together with the quantity of 3,909,800 cigarettes contained behind the boxes of chickens in the vehicle.

The notebooks of the officers confirmed that they had arrested and cautioned the Appellant on suspicion of being involved in the fraudulent evasion of excise duty, his release from arrest, and the seizure of the cigarettes by the officers. One of the officers noted six telephone numbers which the officer retrieved from the Appellant's mobile phone. One of the officers telephoned James Burden Limited in Kent and was told that the load was not for James Burden Limited. Also, an officer of Customs was informed verbally by James Burden Limited that they had contacted Astenhof in Holland to verify the delivery and was told that they had been advised that the load of chickens was not consigned by James Burden Limited and the CMR was not one of Astenhof's. Three photographs of the load taken by Customs was on the file of the Customs officers.

On 18 November 2005, the Appellant's solicitors Aaron and Partners wrote to the Respondents in the following terms:

"2. On Thursday 10 November 2005, our client's vehicles were seized by HM Customs & Excise at McHaulage, Lynora, Dickies Lane South, Blackpool ("McHaulage") on the basis that the trailer was carrying an unknown quantity of tobacco products. For your information, we enclose a copy of the Seizure Information handed to our client.

3. Our client was initially placed under arrest and interviewed by your officers at McHaulage. After being interviewed and checks carried on our client, it was finally accepted by your officers that our client did not have any knowledge or was aware of the tobacco products found in his trailer. Whilst our client was then released, unfortunately for our client, his vehicles were not.

4. In order to secure the restoration of his vehicles as quickly as possible, we set out below, the circumstances in this matter. Please note however that our client explained these circumstances fully to your officers on 10 November 2005. He also provided them with the appropriate telephone numbers and contact details at that time.

Background

5. In or around the beginning of November, our client met a gentleman called Paul, who was of Irish nationality, in Holland while he was loading fruit to bring back to the UK. Our client entered into a conversation with Paul and discussed bringing loads back to the UK. Paul said that he could be of assistance and that he would contact our client when he had a load coming back to the UK to see if he was available.

6. On 9 November 2005, our client was already in Holland when he received a telephone call from Paul. Paul told him that he had a load of frozen chickens that needed to be collected from a factory in Asten, Holland and delivered to James Burden Ltd in Kent. We attach a fax confirming the details. Please note however that although it was faxed on 9 November 2005, our client did see it until he returned home on 10 November 2005.

7. Our client was provided with the loading details over the telephone and told to go the factory at Asten. When he arrived, he was met by a gentleman who worked at the factory. He jumped into our client's vehicle and asked him to drive to another part of the factory for loading. Our client reversed the vehicle into the loading bay, opened the doors and then got back into the tractor unit. As our client did not have the appropriate clothes to wear, for health and safety reasons he was not allowed to be present whilst the vehicle was being loaded.

8. The vehicle took a reasonable amount of time to load and as soon as it was completed, our client shut the doors and secured them by way of a padlock. He was provided with the appropriate paperwork, which was given to your officers on 10 November 2005 and drove away.

9. He stopped twice on-route from Asten to Calais, once in Antwerp for break and again just before he was about to leave Belgium. Whilst he was on his second break in Belgium, he was approached by Belgium customs officers, who were carrying out random checks. He provided them with the appropriate paperwork and opened the trailer. The officers climbed inside the trailer and after checking everything was in order, they allowed our client to continue with his journey. Our client then proceeded to Calais where he cleared both immigration and customs before disembarking in Dover.

10. Approximately 40 minutes after he had left Dover, he received a telephone call at approximately 1 am from an English gentleman, again the contact number has already been provided to your officers. He was told that the load had been sold and he was now required to deliver it to an address near Kirkham. Our client therefore proceeded to drive in the direction of Kirkham before stopping at a parking area on the M62 near Manchester for a few hours rest.

11. At approximately 10am on 10 November 2005, our client received another telephone call from the English gentlemen asking our client to confirm that he was on his way to Kirkham. Our client confirmed that he was nearly at Kirkham and he was given directions as to where the load was to be delivered. When he arrived at where he now knows to be McHaulage, he was met by two people. He was asked to reverse the trailer over to a shed on the premises and he again unlocked the doors and climbed back into the tractor unit to get some sleep as he believed it would take them a couple of hours to unload. He had only been asleep approximately 15 minutes when he was woken up by your customs officers.

12. At no stage did anything occur suspicious to our client and as you will see from your officer's interview notes, our client co-operated fully. Our client did not, at any time, have any knowledge of the true nature of the products that had been loaded into the trailer. In addition, due to him being unable to be present when the products were loaded, he was never in any position to check the contents of the load. In fact, even when the load was inspected by Belgium customs officers, it did not appear that there was anything untoward with it.

13. As mentioned above, whilst our client was initially arrested, he was released without charge and in fact informed by your officers, whose names our client cannot recall (only that one wore glasses) that "you're ok, we've checked you out and you'll be leaving shortly". Our client was told this on several occasions and after approximately an hour he was told that he was free to go.

14. Our client co-operated fully with your officers on 10 November 2005 and provided them with all the contact numbers that he had on his telephone and paperwork available to him at that time. Please also note that our client is more than happy to co-operate with your officers, if necessary, in the future. Our client has in fact tried to contact "Paul" several times. However, not surprisingly, this number has now been disconnected.

15. Given that your officers fully accept our client is an innocent party in this matter and that he was not involved in any way, we request that our client's vehicles are restored immediately without penalty.

16. The vehicles combined value is approximately E100,000, both of which are currently under loan agreements with GE Capital Woodchester and Lombard & Ulster. The monthly payments in respect of these vehicles are approximately E3,500 per month and if the vehicles are not returned quickly, our client will have to inform the finance companies that they are no longer in his possession.

17. More importantly, the vehicles are losing our client approximately E5-6,OOO per week. Without generating any income, our client is simply not in a position to meet the financial payment due under the finance agreements payable on 20^th of each month. Therefore unless the vehicles are restored quickly, this will have serious financial implications both for our client and his business."

On 15 December 2005, a detection manager of the Respondents, Jackie Hall, replied to the Appellant's solicitors' letter of 18 November 2005 requesting restoration of the vehicle. The officer set out the number of cigarettes found and the amount of the excise duty on such cigarettes which amounted to £583,733, and details of the Appellant's Scania vehicle and 40 foot refrigerated trailer, together with the restoration policy of the Respondents for freight vehicles. The officer stated that she had looked at all of the circumstances surrounding the seizure of the vehicle and was satisfied that the Appellant had failed to make basic reasonable checks to ensure the legitimacy of the loan. In particular, the officer considered that basic checks would have revealed the presence of illicit goods. She considered that hauliers should conduct a thorough manual check of the load and load space. A manual check of the inside of the trailer would have clearly identified the presence of brown boxes behind the pallets of white boxes of chicken which should have aroused suspicion. She considered that the Appellant had made no attempt to check that what was contained in the load conformed with what was described in the available paperwork. She considered that a simple examination of the load would have revealed that on the pallets of chicken in the white boxes at the back of the load were A4 pieces of paper attached, showing the boxes of chickens originated from Van Hoey in Belgium and not Astenhof in Holland, as documented on the paperwork that the Appellant was carrying. Additionally the chicken was out of date by at least a month and the date was clearly visible on the white boxes. Both of which again should have aroused suspicion. She considered that the Appellant had taken no steps to establish the credibility of the load being carried, the details of the owner of the goods, nor the credibility of the destination to which the load was destined. The Appellant had been prepared to undertake the job on the strength on one meeting and one telephone call from a gentleman called Paul. In particular, concern should have arisen when changes to the delivery instructions that contradicted the paperwork were made en route by mobile phone only. When the officers arrived at the premises, the pallets of chicken were being unloaded into a warm storage facility, which had no refrigeration facilities, either in the unit or anywhere in the immediate locality. This also should have aroused suspicion. The fridge motor of the Appellant's vehicle had also been switched off. The officer concluded that there were no exceptional circumstances that would justify a departure from the policy of the Respondents and concluded that the vehicle would be offered for restoration on condition of payment by the Appellant of the trade value of the vehicle of £39,150.

On 19 December 2005, the Appellant's solicitors wrote to the review officer of the Respondents in Liverpool in the following terms:

"1. Our client's abovementioned articulated vehicle (tractor unit and trailer) was seized by your office on 10 November 2005 at McHaulage, Lynora, Dickies Lane South, Blackpool. On 18 November 2005 we wrote requesting restoration of these vehicles (copy enclosed). Our letter was reviewed by your office and on 15 December 2005 a decision was made that our client's vehicle would be restored upon several conditions, one of which being payment of the trade value of £39,150.00 ("the decision letter") (copy enclosed).

2.Our client does not accept the decision dated 15 December 2005 and we therefore request that a review takes place.

Basic Reasonable Checks
3.It is clear that our client was not "knowingly involved in smuggling excise goods" and that this was accepted by your officers both at the time the vehicle was seized and by Jackie Hall when deciding whether the vehicles could be restored. The decision has therefore been based solely on whether or not our client has "carried out what Customs consider to be basic reasonable checks which would have identified the illicit load'.

4.In the last paragraph on page 2 of the decision letter, it states that "everyone involved in the transportation of goods into the UK must make themselves aware of the Customs procedures. This information is freely available ... ". Despite stating that Customs procedures and policies are freely available, we have been unable to find these on your internet. In addition, your National Advice Service and customs officers at red point, Dover Port, are unaware of any such information (telephone reference number: ARV18744) and your customs officer at Liverpool airport is also unaware of this information.

5.I also emailed Jackie Hall on Friday and again today asking where I can find this information. Despite being able to answer my other queries she is not able to immediately tell me where I can find this information on the internet.

6.It is therefore quite clear that this information is not as freely available as suggested. Whilst our client has used his reasonable endeavours to ensure that his vehicles are not used to smuggle goods into the UK, it is wholly unreasonable to impose a policy upon hauliers when it is not made clear precisely what checks or procedures they are supposed to follow.

7.In relation to the "circumstances surrounding the seizure" and the checks that our client should have conducted we set out our response as follows:-

Point 1: Manual Check of the Load
8.The decision letter states that "basic checks would have revealed ... Hauliers should conduct a thorough manual check ... ". However, this is a contradiction in terms. A "thorough manual check" is more than a "basic check". However, that said, as stated in our letter dated 18 November 2005, due to the health and safety regulations, our client was not allowed to be present whilst the vehicle was being loaded. Whilst hauliers are not happy about their trailers being loaded without them, this is a perfectly normal practise, particularly when dealing with food products, and one that would not raise suspicion in any way.

9.The frozen chickens were transported on pallets and these pallets would have been loaded into the vehicle from the rear by a forklift. The trailer is not a curtain-sider and the only way to load products and check them is via the rear doors. The chickens were packed into white boxes and stacked between 11-13 boxes high. The trailer was fully loaded and there was only approximately 3-4ft of space between the top boxes and the roof. Our client was therefore simply not in a position to conduct a "thorough manual check' of the load. You should note that the cigarettes were placed in the middle of the load so that on a visual inspection only the white boxes could be seen.

10.It was simply not possible or practical for our client to "conduct a thorough manual check of the load'. The trailer had been loaded by a forklift and our client could not have physically moved any boxes to see what if anything else was behind the white boxes. Indeed, even if our client had climbed into the trailer and walked along the top, he again would only have seen white boxes. In any event, our client could not have climbed into the roof space and walked along the frozen products as there would have been an extremely high probability that the customer would have rejected the load as a result of footprints being found on their food products. There is also, of course, our client's own personal safety which needs to be taken into account.

11.It should be noted that our client has been transporting frozen chickens for the past 8 years and as a result has extensive experience of exactly how frozen chickens should be stacked and how the vehicle should feel accordingly to the amount of weight he has in the trailer. For example, frozen chickens are usually packaged in white boxes and are not stacked any higher than 11-13 boxes high otherwise the bottom level starts to crumble under the weight.

12.The temperature gauge on the refrigerator unit was also operating correctly. Frozen chickens maintain a temperature of approximately -20°c and as a result you would expect the refrigerator unit to hover around -18°c to -20°c. If different products are present in the trailer, for example, breakfast cereals, then the refrigerator unit will find it difficult to maintain the abovementioned temperature as they freeze at a much lower level. The refrigerator unit would therefore be running constantly to ensure a level of -20°c was maintained. However, this was not the case, as our client could hear the unit switching itself on and off throughout the journey.

13.As mentioned at paragraph 11, our client has considerable experience transporting frozen products and in particular chickens. From experience therefore, once our client drove away from the depot in Astenhof he was able to feel whether or not the vehicle was driving correctly in relation to the quantity of frozen products on board. Our client confirms that the vehicle was operating exactly as it should and he had no reason to suspect that he was carrying anything other than frozen chickens.

14.It is essential that you consider the checks that our client could have carried out at the time the trailer was loaded and not with the benefit of hindsight. In this regard, our client carried out the only "basic reasonable checks" that were available to him at that time. Namely:-

14.1 he carried out a visual inspection to ensure that all the boxes were evenly loaded and of the same colour (white);

14.2 he noted that all the boxes were new;

14.3 he noted that the boxes had been loaded correctly to ensure that the bottom boxes were not squashed;

14.4 the paperwork showed that the frozen chickens were to be delivered to a well-known chicken wholesaler in England;

14.5 he checked the "onboard weighing system" in the tractor unit to ensure that the weight was correct for the amount of frozen chickens that he was supposed to be carrying;

14.6 he checked the temperature gauge of the refrigerator unit to ensure that the products were holding the correct temperature; and

14.7 he noted that the vehicle was operating correctly.

15.It should also be noted that at paragraph 9 of our letter dated 18 November 2005, Belgium customs officers carried out a random inspection of our client's vehicle. Our client provided them with the paperwork for the products he was carrying and both officers climbed inside the trailer, stood up and looked at the boxes of frozen chickens. After carrying out the same "basic reasonable" check of the trailer that our client did and after checking his paperwork they allowed him to continue.

16.Our client also cleared customs at both the ports in Calais and Dover without any suspicions being raised before eventually arrived at McHaulage in Blackpool. Even when the customs officers first arrived at McHaulage it took them approximately 10-15 minutes to locate the illicit goods and it was only after they had removed a pallet of frozen chickens from the trailer by using a forklift that they became aware that there were indeed illicit goods present.

17.It is therefore wholly inaccurate to say that "basic checks would have revealed the presence of illicit goods" given that trained customs officers were satisfied, on a "basic check" that no illicit goods were being carried in our client's vehicles.

Point 2: Paperwork
18.Again, it is essential that you consider the position at the time our client received the paperwork and not with the benefit of hindsight. Two points have been raised in relation to this issue, namely that the origin of the frozen chicken is different to the collection depot in Astenhof and the chicken was out of date.

Origin of the Frozen Chicken
19.It is standard practice throughout the haulage industry that the origin of a product may differ from the collection depot. This is particularly so in relation to food products. For example, fruit and vegetables may originate from anywhere around the world but the haulier will collect it from a central depot.

20.Our client was aware that the products had originated from Belgium and not from Astenhof in Holland. In fact, our client has been transporting frozen chickens from Van Hoey, who is a major chicken company in Belgium, for the past 5-7 years and has often collected products of Van Hoey's from other places in Holland.

21.For your information, we enclose the information from a website which states that Van Hoey "is one of the leading Belgian exporters of poultry products". If anything, our client has received additional comfort by the fact that he was transporting frozen chickens that had originated from a well-known company. Given his extensive experience of transporting chickens from Van Hoey this only re-emphasised that, after carrying out checks listed at paragraph 14 above, everything was in order.

22.This was particularly so, given the fact that our client was, as he believed at this time, delivering to James Burden Limited, a well-known, chicken company in England, to whom he had delivered products on many occasions. You should note that it was not until he arrived in England that he was told that the products had been sold and the delivery depot changed.

23.For your information we also enclose the home page of James Burden Ltd's website, which states that the company is "the largest wholesaler of poultry on the market. The high volumes and fast turnover, ensure absolute value for money ... ". You will also note that "The Company acts as the sole agents in the UK and Ireland for Van Hoey N. V.".

Out-of-Date
24.It is wholly unrealistic to say that as a result of the frozen chickens being out of date our client should have been suspicious. Companies transport all kinds of different products for all different kinds of reasons. It is not for our client to question or guess why out-of-date chickens were being sent to James Burden Limited in Kent.

25.When carrying out the visual inspection of the load, our client did not notice any dates on the white boxes and even if he had this would not have raised immediate suspicion particularly as everything else appeared to be in order. It is important to recognise that whilst certain incidents may appear strange to people operating outside the transport industry, they are in fact totally normal and indeed every day occurrences.

26.It is perfectly possible that these chickens could have been sold for use in pet food or even relabelling for sale. Frozen products are edible for years and it is sometimes the case that whilst they have been labelled with a sell by date, this does not mean that the product is actually inedible.

Point 3: Credibility

Credibility of the Load
27.It is wholly inaccurate that our client took no steps to establish the credibility of the load. Our client carried out the checks listed at paragraph 14 above and was satisfied that everything appeared correct. From the points set out above, there was nothing that caused our client concern or suspicion in relation to the load. It is not clear, and we note that no steps have been listed, exactly what else our client could have done in the circumstances to establish the credibility of the load. The load had originated from a well-known chicken company in Belgium (see paragraph 21 above)

28.As mentioned at paragraph 20 our client has often collected loads for Van Hoey at different places in Holland albeit that the company itself is based in Belgium.

Credibility of Destination
29.It is also wholly inaccurate that our client took no steps to establish the credibility of the destination. As mentioned at paragraphs 22-23, our client believed that he was delivering to and is well-aware of James Burden Limited in Kent. There can be doubt that at the time of loading, our client was entirely satisfied with the credibility of the destination of the frozen chickens. It was not until he arrived in England, as mentioned at paragraph 10 of our letter dated 18 November 2005, that the delivery destination was changed.

30.Although the decision letter states that "concern should have arisen when changes to the delivery instructions that contradicted the paperwork were made on route" this again is simply inaccurate and unrealistic. As mentioned at paragraph 23, James Burden Limited work on a fast turnover and it is not unusual for our client to be given a different point of delivery on-route. Again, our client has often been transporting products for Van Hoey to a specific destination before being contacted and told to deliver it somewhere else.

31.It is extremely common in the transport industry for products to be sold on route or to receive telephone calls changing the delivery details. In fact, in many situations, hauliers are unaware of the delivery destination at all and are either told to head for a certain town or place before being given full details. Again, it is important to recognise that whilst certain incidents may appear strange to people operating outside the transport industry, they are in fact totally normal and indeed every day occurrences.

Credibility of Owner
32.It is a common occurrence that hauliers are never aware of the identity of the owners of goods and a lot of their business is carried out through agents. In this situation, given the fact that the frozen chickens appear to have originated in Belgium, were being collected in Holland, delivered to Kent and then sold on route, it would have been extremely difficult and unrealistic to expect our client to establish the credibility of the owner.

33.We note that the decision letter makes reference to the fact that our client "was prepared to undertake the job on the strength of one meeting and one telephone call ...". However, this is simply how business is undertaken. Our client met Paul from HSF Logistics whilst he was waiting for a load at Keelings in Holland. Keelings is a large Irish company who has a base in Holland and Ireland. Our client spoke to Paul for approximately two hours and was perfectly satisfied, on the face of it, to accept work on the basis that Paul was also undertaking loads for Keelings, a reputable company, and both Paul and his vehicle looked professional and reputable.

34.We note that no steps have been listed as to exactly what our client could have done in order to confirm the credibility of Paul or his company and we are unclear exactly what steps our client could have taken. All business worldwide is carried out on the basis of taking people at face value and it is only if things appear out of place or cause concern that people look at the situation more closely.

35.Our client is an experienced owner operator and has been operating in the transport industry for many years. He has always taken his responsibilities seriously and has never had any problems like this in the past. When he has ever had any concerns about a customer or a load, he has always refused to take it. In fact, since this incident our client has turned away work for customers that are not familiar to him. Whilst this seriously hampers his business, he is, unfortunately, now well aware of the risks of not doing so.

Point 4: Premises at McHaulage
36.This point is wholly unreasonable. How could our client have possibly been aware before he arrived at McHaulage that there were no refrigeration facilities? As far as our client was aware he was delivering frozen chickens to a depot which had suitable facilities for storing them. Even after arriving, our client did not have access to the building and as stated at paragraph 11 of our letter dated 18 November 2005, our client merely reversed the trailer into a loading bay of a modern building and unlocked the doors.

37.As he believed it would take some time to unload the trailer and he would not be allowed to watch due to health and safety regulations, he climbed back into the tractor unit to get some sleep. In fact, he was only asleep approximately 15 minutes before being woken up by your customs officers.

38.In addition, when our client arrived at the premises there were other tractor units and trailers present. There were forklifts within the vicinity and the building looked relatively new. In addition, the overall location appeared to be in a relatively industrial area with another haulier's yard within close proximity. Everything appeared to be in place and there was nothing that caused our client concern.

39.Whilst it is not clear exactly what the relevance is for our client's fridge motor being switched off, we confirm that he switched it off prior to unlocking the doors, as he always does. There is simply no point in keeping it running because once the doors are open the refrigerator is merely trying to freeze the outside air.

Conclusion
40.Whilst we note the four points listed for refusing to restore our client's free of charge, we consider this to be an incredibly harsh and ill-founded decision for the following reasons:-

40.1 Our client took all "basic reasonable steps" that he could at the time of loading to ensure the legitimacy of the load;

40.2 Our client's vehicle was physically checked by Belgium customs officers, cleared by UK customs at Calais and Dover, all of whom were satisfied the trailer was carrying the frozen chicken products listed on the paperwork;

40.3 At the time of loading, the frozen chicken was being transported between two well-known and respected poultry wholesalers.

40.4 It was not until pallets of frozen chicken were removed from the trailer by forklift at McHaulage that it was apparent that illicit goods were present;

40.5 The procedures and policies to which the decision letters refers do not appear to be freely available and even your own officers cannot tell us where they can be found or located;

40.6 There appears to be no clear list of steps or guidance available to hauliers as to precisely what checks or steps they should undertake;

40.7 A basic check as listed in your policy cannot include "a thorough manual check" as this is clearly a contradiction in terms;

40.8 The reasons listed have either been reached with the benefit of hindsight or are simply unrealistic or impractical; and

40.9 Even if our client had carried out further checks, for the reasons set out above they would not have raised suspicion or revealed the fact that illicit goods had been placed in his vehicle without his knowledge.

42. Our client is simply not in a position to pay the trade value of the vehicle, particularly as the vehicles are already on finance agreements. As I am sure you can appreciate, our client's business is suffering hugely as a result of him not being able to operate the vehicles currently seized and it is likely that he will be unable to continue operating at all if this matter cannot be speedily resolved. On this basis, we shall be grateful if you review the decision as a matter of urgency."

On 2 February 2006, the review officer, Mrs Julie Wiggs, replied to the Appellant's solicitors' letter of 19 December 2005. Mrs Wiggs stated that she had completed a review. She set out in the letter the background and legislation and the restoration policy of the Commissioners. She stated that she had taken into account all the material which was before the Commissioners at the time the original decision was made and stated that she had examined the representations made on behalf of the Appellant in the letters from the Appellant's solicitors.

Mrs Wiggs then stated the following:

"You claim it is not clear to hauliers what checks or procedures should be followed to prevent smuggling. I do not accept this is generally the case and I believe that most measures to be common sense to a haulier who wants to protect himself and his vehicle. Your client could have contacted one of a variety of road haulier associations who give help and assistance about many matters including measures to prevent smuggling. Searching the internet would have no doubt also have been of assistance.

In practice, hauliers and drivers are already legally required to undertake a number of checks for immigration purposes and under the CMR convention. …

As an experienced haulier, your client is no doubt aware that vehicles such as his are used for smuggling purposes, including that of drugs, people or excise goods. He is responsible for the integrity of the load he carries and for taking steps to prevent his vehicle from being used to smuggle. I have no doubt he would be aware of the potential serious consequences of his vehicle being found to be involved in smuggling. It is clearly going to be more difficult for a driver to check a consignment once it has been loaded onto the vehicle by fork lift trucks because smuggled goods or people will often be carefully concealed. This is why checking the consignment when it is being loaded against the paperwork (a thorough manual check) is the best and obvious way to prevent smuggling. This may mean having the correct protective clothing such as boots and high visibility jackets and so these should be carried by drivers.

Had Mr Dowling watched the consignment being loaded, he could not have failed to notice the difference between the regular shaped white boxes of chicken with holes in them to allow for freezing and the irregular shaped brown boxes showing either the cigarettes themselves or the names of cigarettes on the side.

You have not been more specific about the particular health and safety issues in this case that your client claims prevented him from watching the vehicle being loaded. At point 8 of your letter you state that although hauliers are not happy about their trailers being loaded without them, it is a perfectly normal practice. You further claim that dealing in food products in particular would not raise suspicion in any way, a statement I do not accept. Smugglers will use any type of load they believe they can get away with, including food.

Just because some hauliers accept they will not be watching the loading of the vehicle does not make it an automatic excuse to indemnify the driver if the vehicle is subsequently found to be smuggling. Otherwise there would be no deterrent for hauliers who smuggle which would in turn make smuggling significantly easier.

As well as not checking the credibility of the load sufficiently, your client failed to make any checks into the credibility of Paul, the person he claims got him this job. He could have obtained a land line telephone number for him and his surname and checked he worked for the large Irish company he claimed to. He could have asked him why, when he worked for such a large company, he was managing a delivery for someone else. Just knowing a mobile number, a first name and having only met once, he was clearly taking a huge risk. That said, I do not accept however that this job came about as innocently as your client describes which I will come on to shortly.

Obtaining work from new individuals without making any checks will clearly mean there is a higher risk of smuggling. Although you claim this is how business is done, it does not mean that this again is a reasonable excuse for a haulier if smuggling does occur. Again, this would make smuggling a lot easier with little or no deterrent for hauliers. Likewise, receiving last minute calls from a new source to divert the load means your client had no real confirmation that James Burden Limited was ever the intended destination of the load.

Mr Dowling claims to have been stopped and his vehicle inspected by Customs abroad, although there is no evidence of this. He does not state whether they used fork lift trucks to remove and check the load. His claims that they allowed him to proceed whether correct or not does not in itself prove anything. You claim he was allowed through Dover Customs but I note you do not claim he was stopped by them. Again not being stopped by Customs does not in itself prove anything.

It is now known that the CMR document your client was carrying for the load was false. This has been confirmed by both James Burden Limited and Astenhof in Holland. The CMR would not have been false, however, if your client had collected the load from Astenhof as he claims. There can be little doubt, therefore, that your client collected the goods from somewhere else and has deliberately misled officers. I therefore believe it is reasonable to conclude that your client was more aware of what was going on and that this load contained something other than frozen chicken. I do not accept that your client was innocently duped into carrying this consignment of smuggled cigarettes. The officers in this case limited their action to seizure of the vehicle only, which was their decision to take, and it is not for me to comment on that decision.

Mr Dowling's dishonesty in respect of where he collected the load calls into question the credibility of all his other claims. It also indicates that he was involved in the smuggling attempt. Taking into account the Commissioners' policy in such instances, detailed earlier in this letter and the fact that the revenue evaded in excess of £50,000 it would be reasonable in this case to refuse restoration. Although I could overturn Mrs Hall's decision and refuse restoration, I do not intend to in this case. Mrs Hall's decision was based on the fact that Mr Dowling failed to make reasonable checks. However, the evidence points to the fact that Mr Dowling knew more about this consignment and misled officers. In this case, I am satisfied that Mrs Hall's decision to restore the vehicle for its trade value, being lower than the revenue evaded, is now very reasonable, considering all the circumstances.

You have not provided any evidence to persuade me to overturn or vary the disputed decision in this case.

Having considered all the relevant evidence in this case, I confirm my option to uphold the original decision, the vehicle is offered for restoration on the terms set out in Mrs Hall's decision dated 15 December 2005."

The Appellant appealed on 24 February 2006 and in his grounds of appeal he contended that the decision not to restore the tractor unit and trailer free of charge was unreasonable.

Evidence at Hearing of Appeal

At the hearing of this appeal, we heard oral evidence from the Appellant, Mr Neville Dowling. He said that he had experience of driving haulage vehicles in to and out of Europe from Ireland and England for almost nine years. He became self employed in about 1998. After first transporting flowers and plants, he then went on to delivering chicken, food and fruit. He owned three refrigerated vehicles on hire purchase. He said he was aware of the danger of goods and people being smuggled, although he had not seen documentation from Customs relating to checks to be carried out by hauliers. He said that he was familiar with the CMR document which was used when goods were being hauled from Ireland and England to the continent of Europe and back again. He confirmed that the CMR document in this case was the document he received when he collected the chicken wings at Astenhof in Holland which had detailed a load of chicken wings to be delivered to James Burden Limited in Kent. He said that it looked like an ordinary CMR and there was nothing on it which would have alerted him to anything being unusual. He had quickly signed the document as the haulier and he confirmed that the signature on the document was his and that it had also been signed at Astenhof by the person who loaded his vehicle at Astenhof's factory.

The Appellant gave details about how he acquired this particular job. He said that at the end of October 2005, he and his vehicle were in Holland waiting to collect a load of fruit to deliver back to the British Isles. Whilst waiting for the load, he met an Irish man who gave his name as Paul, who told the Appellant that he was a self employed haulier, like the Appellant. The Appellant and Paul went to a restaurant together and talked generally about the haulage business. The Appellant explained that in the trade, if a load had been delivered from Ireland or England to Holland or Denmark, it was not economical for a haulier to return to the British Isles with an empty load. If no return haulage had been booked, it was the practice for small hauliers to telephone contacts in Holland to see if they could obtain an order to deliver goods back to the British Isles. The Appellant said that he discussed with Paul helping each other out if one of them would otherwise be returning to the British Isles with an empty vehicle, and the other had obtained haulage offers in excess of the capacity of the other's vehicles. The Appellant said that he and Paul exchanged mobile telephone numbers and discussed helping each other out. The Appellant said that he did not obtain or did not remember the surname of Paul but made a note of Paul's mobile telephone number on the Appellant's mobile phone.

The Appellant said that this was standard procedure and practice for self employed hauliers on the small scale operated by the Appellant. He said that a lot of his work was done by word of mouth, through the mobile phone and text messaging. Arrangements would be confirmed by a fax to his home in Ireland. The Appellant did not employ office staff and he communicated with his wife at his home in Ireland by mobile phone whilst he was working. He and his wife would deal with invoicing when he returned home.

The Appellant had regular weekly days when he had loads to deliver from Ireland or England to Holland and Denmark and he was usually in Holland on the same day each week. He informed Paul of this.

The Appellant said that on 9 November 2005, early that morning he had delivered a load to Holland and he then drove to a service area to have something to drink and to catch up with some sleep and to wait to see if there was any availability of any load to return to the British Isles. He telephoned on his mobile phone to some of his normal contacts looking for loads but nothing was available and it was very quiet. The Appellant said that he then received a telephone call from Paul and they had a chat. The Appellant told Paul that he was in a service area in Holland and that he was looking for a load to bring back to the British Isles. Paul then asked the Appellant if he was interested in hauling a load of chicken from Asten in Holland back to the UK. The Appellant said that he agreed. The Appellant then had something to eat and washed. The Appellant said Paul then telephoned him back on his mobile phone and gave him directions to the chicken factory at Asten of Astenhof, who the Appellant knew to be a large chicken factory.

The Appellant said that he drove his vehicle through the gateway and into the yard of Astenhof where a man dressed in a white coat and usual clothing used in a food factory got into his cab and instructed him to drive to a loading bay at the far end of the yard and reverse into the loading bay. As the Appellant's vehicle was a refrigerated vehicle and as food factories were refrigerated, the Appellant reversed so that the rear of his trailer was flush against the sealing around the delivery bay. This was the usual practice so that cold air would not escape. The Appellant said that the man in the white coat then was going through a side door into the factory but when he went to follow, the Appellant was told that he was not allowed to go into the factory because it was a controlled environment as a food factory. The Appellant said that this was the usual standard practice with food factories, that drivers were not permitted to go into the factory whilst loading is taking place, for hygiene purposes and to avoid the spread of disease by cross contamination.

The Appellant said that he then stayed in the cab of his vehicle whilst his vehicle was being loaded by fork-lift trucks from the factory. The Appellant said that he could feel the vibrations in the vehicle of the forklift going into the trailer but he could see nothing from his cab. After the load had been loaded, the man returned with the CMR which the Appellant signed.

The Appellant had been told that he was to deliver the load to James Burden Limited in Kent, and that was the name of the company on the CMR to which delivery was to be made.

The Appellant said that once he had been given the CMR, he pulled off the loading bay and then went to the back of the trailer, climbed up and fastened the bars at the back of the trailer which prevented the pallets from moving. He said that what he saw with regard to the load was that the trailer had been loaded with a full load to within seven or eight inches of the back of the trailer. He was able to see the boxes at the rear of the load which were white boxes of frozen chicken. He could feel the cold from the load. The Appellant tapped a couple of the boxes with his knuckles to check that the boxes were fully frozen. They were hard and appeared fully frozen. The Appellant said that the boxes appeared all new and that he did not see anything wrong with them. The Appellant said that he could not recall specifically if he saw any dates on the boxes because it was not usual for him to consider specifically any dates on boxes that he is hauling. He said that the boxes were loaded to a height which was normal for frozen chicken pieces. Looking from the back of the vehicle all the boxes appeared to be white, both those nearest the door and the tops of the load. The Appellant said that he then closed the doors of the trailer and set the fridge unit of the vehicle to the appropriate temperature of -18 or -20 degrees. He then obtained his padlock from the cab and locked the trailer. He said that the man who had given him the CMR document had gone back inside the factory and the Appellant did not see the man again. The Appellant said he then left and drove off. The Appellant was aware that James Burden Limited was a large firm and the Appellant had delivered to their premises before.

The Appellant said that on his journey back to the United Kingdom, he stopped for refreshments at a couple of service areas. He said that whilst on the Belgian side of the Belgian / French border at a service area, Belgian customs were doing a random check, which was a regular procedure. A Belgian customs officer inspected the Appellant's CMR and documentation and asked to look into the Appellant's trailer. The Appellant said that he opened the padlock and a door of the trailer and customs officers went into the back of the trailer and inspected his load. The Appellant told the officer that he was carrying a load of frozen chicken. The Appellant said that the officer told the Appellant that everything was ok and that he could continue with his journey. The Appellant locked up again and drove to Calais.

The Appellant said that when he arrived in Calais, he was asked by customs officers there what load he was carrying. The Appellant told them he was carrying frozen chickens. The Appellant said that the officers attached heartbeat monitors to his vehicle to check that no human beings were present in the trailer. The Appellant said that one officer took the temperature of the trailer, which showed -18 or -20 degrees. The Appellant said that the officers did not wish to get into the trailer as they appreciated that no potential refugees or asylum seekers would be able to conceal themselves in a trailer at that low temperature.

The Appellant said that as he had flu, he stayed asleep in the cab of his vehicle during the ferry crossing to England. At Dover, he drove off the ferry and proceeded towards the premises in Kent of James Burden Limited.

The Appellant said that when he was 30 or 40 minutes from Dover, he received a telephone call from a man with an English accent who told the Appellant that the man was aware that the Appellant was coming with a load of frozen chickens for James Burden Limited. The Appellant said that the man told him on the mobile phone that the load had been sold on and the Appellant should not bring it to Kent but that it was going up north and he should head up north towards Blackpool. He told the Appellant that he would telephone him again in the morning with the exact address. The Appellant said that he thought that the man on the telephone was from James Burden Limited as he was aware that the Appellant had a load of frozen chickens for them. The Appellant said that the telephone call was after midnight, at about 12.30 am to 1.00 am. He said it was not unusual to receive a call like this as most companies worked on a 24 hour basis. He said that he had received such telephone calls on numerous occasions redirecting the product before. He said that a similar incident had occurred the previous week when he was hauling a load of fruit from Holland to Shropshire and he received a telephone call to redirect the load to Soham. The Appellant said that the telephone call had come from an English telephone number on his mobile phone screen. He said he could not recall if the man gave a name. The Appellant proceeded to head north up the M1, intending to travel on the M62 towards Blackpool. As the Appellant was tired, he parked in a service area and had a few hours sleep. He started driving again at about 9.00 am or 9.30 am. He said that near Blackpool he received a telephone call from the same man who told him that the load was going to Kirkham. The man did not give an exact address but directions to an industrial area in Kirkham with a haulage company there. The Appellant was given specific direction to drive right up to the haulage company's premises.

The Appellant drove his vehicle to the address of the haulage company. The haulage company had signs showing "McHaulage" on the trailers and units. The Appellant said that the premises appeared to be perfectly regular. When he arrived at the entrance, there were two men standing there who were expecting him and they motioned him to reverse into a warehouse entrance. The men greeted him and asked if he had a load of frozen chickens for them, to which the Appellant agreed. The Appellant unlocked the trailer, turned off the fridge unit and got back into the bunk in his cab. The Appellant said that he was not feeling great because he still had flu and thought that he could get some sleep. The Appellant said that he did not enter the warehouse and did not see the unloading of his vehicle. The Appellant said that normally, he did not get involved in the unloading of his trailer as his function was to deliver.

The Appellant then said that sometime later whilst he was sleeping in his cab, a customs officer opened the door of his cab and asked him to get down. He then saw that there were a number of customs officers around the vehicle. The officer told him that he was under arrest. The Appellant was interviewed briefly and told the officer where he had come from. The Appellant said that he did not hide anything from the officers and co-operated fully. He gave the officers his mobile phone. He said that the officers only told him that they had found some cigarettes in the load.

The Appellant said that the officers brought him into the warehouse. He could see one or two pallets with boxes of chickens being taken off the trailer. At that stage, he could not see any cigarettes. He said that the officers started passing boxes from the trailer to the back of the trailer. An officer then told him that he had been checked out and was free to go. An officer then told him that the officers were going to seize his vehicle and trailer. An officer told him that he could not take the vehicle with him as it was being unloaded. Then an officer handed to the Appellant a seizure notice for the vehicle and trailer and the Appellant had to leave by taxi.

The Appellant said that the vehicle and trailer were on finance and lease to finance companies and that he would not fully own them until they were fully paid for. He said that he was still making the payments for both the vehicle and the trailer but he could not afford to keep paying for them and had borrowed money to keep up the payments. This was causing him hardship. He had contacted the finance companies who had informed him that if the vehicles were not retrieved, the companies would still look to the Appellant to make the payments and would sue him if he did not pay. He had been paying E3,500 a month.

The Appellant said that he had never been paid for the journey. He had never heard from Paul again. He had tried to telephone Paul on the number on his mobile phone but that the number had been discontinued. He said that at the time of the seizure he had only had the vehicle and trailer for a couple of months and they had cost approximately E92,000.

The Appellant said that when he returned to Ireland, there was a fax from Paul which was headed "HSF Logistics Nimegan Holland". He said that he knew that HSF Logistics in Holland was a very large company with refrigerated vehicles hauling food and chicken products and the Appellant could not envisage that Paul, an Irishman was in any way connected with that company.

The Appellant said that he accepted the CMR document at its face value as it was a typed document containing the serial number of his vehicle, the correct address of Astenhof and James Burden Limited in Kent. The Appellant said that he had no previous experience of anything being smuggled and this was the first time that anything like this had happened to him. He had arrived at the premises of a large company in Holland, everything seemed to be right and there was nothing out of place. He had signed the CMR document without great care to the legibility of his signature as he had signed it on a clipboard which he held in his hand. He said that he signed many such documents without taking great care as to his signature and this accounted for his signature looking slightly different to his signature on his leasing documents. He confirmed, however, that it was his signature on the CMR document. He said that he had not thought it suspicious that Paul had given no surname. It was not unusual to receive orders or instructions by mobile phone. He said that 98 per cent of his work was dealt with on the telephone. He said that it was not suspicious that he was loading in Holland in a place further down the yard because frozen goods were normally kept separate from other goods. He was happy not to go into the factory as this was the usual practice with drivers not being allowed in many factories where there was frozen food. The white boxes on the pallets were loaded even and straight. They were packed in a way that was expected with frozen goods. It was not possible to check the number of pallets that had been loaded unless they were unloaded again with a forklift truck, which was not usual. He knew how many pallets his vehicle could take and the load was full. He was not taking a risk by not counting. He said it was regular practice with food products for the company to which the load was to be delivered to sell the load on for a profit and redirect the delivery. For example, he had previously had pallets of chicken products to deliver to a firm called Blake Brothers although James Burden Limited had been on the CMR. The Appellant said that he was not concerned that he did not have a document for the redirection of the load. He did not think that it was unusual that the telephone call from James Burden Limited was in the early hours of the morning. He said it was usual for food factories to have some staff at night at their premises.

The Appellant said that the sensor for the temperature was at the top of the trailer, close to the frozen chicken boxes at the top, and there was nothing in the temperature of the vehicle which was suspicious, nor in the weight. He said that a haulier would not open up boxes in the vehicle to inspect what was in the box but would rely on the loader.

The Appellant said that he never noticed any smell from the load. He did not accept that the chicken was rotten. If it was, he was not aware of it. He had checked the temperature in his vehicle during the journey. He said that if indeed the chicken had been out of date, this would not have raised his suspicions as to the load he was carrying as he was concerned as a haulier with delivering his load, and not with the final use of the product. Goods could be hauled when the final use of the goods was not necessarily for human consumption.

The Appellant produced witness documents, relating to his purchase of the vehicle and the financing and leasing of the vehicle. He also produced a copy of the fax that he had received from Paul which he had found at his home when he returned to Ireland.

Oral evidence was given a the hearing by the review officer, Mrs Julie Wiggs. She was a review officer of the Respondents with five and a half years' experience.

Mrs Wiggs gave evidence that when she made the review decision, she had before her the decision of the previous officer, Mrs Hall, the notes of the officers of customs, the Respondents' policy document, and the three small photographs. She said that she had also spoken to James Burden Limited. She did not have then the two bundles of photographs taken by customs officers when they had attended at the premises of McHaulage Limited. These photographs had actually come into her possession shortly before the hearing of this appeal.

Mrs Wiggs said that the aim of the Respondents' policy with regard to restoration was to be robust and to stop the smuggling of excise goods into the United Kingdom, and to be a deterrent to those who intend to smuggle.

Mrs Wiggs commented on the representations from the Appellant that it was difficult to obtain documents itemising what checks should be carried out by hauliers. Mrs Wiggs said that most of it was common sense and that a haulier should make sure that the goods corresponded with the paperwork and that he was dealing with legitimate people and taking all reasonable steps to ensure the legitimacy of his load. She said that information was available about the steps to be taken for those who sought that information. She said a haulier should check with Customs or the road haulage organisations or with magazines or the internet.

Mrs Wiggs commented on the Appellant's claim that it was practically impossible for him to check more than he did. Mrs Wiggs said that the Appellant should have been concerned that he did not know anything about Paul other than his first name and mobile phone number. The Appellant did not have a surname or address or land line telephone number on where to contact Paul to get paid. She considered that mobile telephones were disposable and the Appellant had no where to contact Paul if anything went wrong.

With regard to the loading of his vehicle at Holland, Mrs Wiggs stated that Astenhof were a reputable company. She suggested that either the Appellant did load at Astenhof and Astenhof were responsible for the smuggling of the cigarettes or the Appellant did not load at Astenhof. The email that Mrs Wiggs received from James Burden Limited and the answers that James Burden Limited had obtained from Astenhof revealed that the CMR was not a CMR from Astenhof. Mrs Wiggs said that she had reasonably concluded that it was a false CMR and that the chance that it was loaded at Astenhof was small. She said that if the Appellant had loaded at Astenhof, he would have wanted to have some form of authorisation as to what was being put on the vehicle and any responsible company would give that confirmation. She said that smugglers would make sure that the goods were concealed so it was necessary for the haulier to check the goods as the goods were being loaded. She said that if the Appellant had been able to see the boxes as they were being loaded, he would have noticed that irregular shaped brown boxes without holes were being loaded with the boxes labelled as cigarettes on the outside. She said that for the Appellant to suggest that his vehicle was loaded at Astenhof meant that a large number of people at Astenhof would have to know about it as 26 pallets of cigarettes was not easy to conceal.

Mrs Wiggs said that she could not accept that the refrigerated unit of the vehicle was kept at -18 degrees during the journey as she had spoken to one of the officers who had been present at McHaulage Limited who had indicated to her that the chickens had rotted when the officers had unloaded the vehicle at the premises of McHaulage Limited. She said that one of the officers had been concerned about health and safety and had made enquiries before the load was unloaded. She said that she would not expect anyone smuggling the quantity of cigarettes to allow the cigarettes to travel at a temperature of -18 degrees as this would freeze the cigarettes and may damage them. She said that she considered it was unlikely that the temperature of the vehicle had been at -18 degrees.

Mrs Wiggs said that the change of address for the delivery should have alerted the Appellant that the goods could have been stolen or smuggled. When the Appellant had arrived at McHaulage Limited, he received no confirmation that they were the new customers.

Mrs Wiggs said that she found it extremely strange that anyone working for a food company would have been working at the unusual time at 12.30 am to 1.00 am, to telephone a haulier that the goods had been sold and should be delivered elsewhere. Mrs Wiggs said that the fact that the Englishman who telephoned the Appellant could not at first give the Appellant an exact address for delivery should have given the Appellant cause for concern.

Mrs Wiggs said that she had spoken to a Mr Gower of James Burden Limited on the telephone to ask if it was normal for goods to be diverted elsewhere, and Mr Gower had told her that it was very rare and he could not even tell Mrs Wiggs when it had last happened.

Mrs Wiggs said that she considered it would have taken two hours to unload the Appellant's vehicle, she suggested that if the Appellant had thought that the people at McHaulage Limited were unloading chickens for two hours, he would not have turned off the refrigeration unit in the vehicle. Mrs Wiggs said that she did not believe that the consignment had been loaded at Astenhof. She said that she believed that not only had the Appellant been careless but that he had misled officers of the Respondents, and she said that the evidence indicated that the Appellant knew more about matters than he was telling the Respondents or the tribunal.

Mrs Wiggs said that the decision made by Mrs Hall was based on the fact that the Appellant had failed to make reasonable checks, and Mrs Wiggs said that the decision of Mrs Hall was correct in offering the Appellant restitution on payment of the trade value of the vehicle. She said that Mrs Hall's decision had been taken in accordance with the policy of the Respondents and the facts that Mrs Hall had available to her at the time. The revenue involved had been over half a million pounds.

Mrs Wiggs said that when she herself had conducted the review, she had concluded on all the evidence before her that she was not satisfied that the vehicle had been loaded at Astenhof, and she was more than satisfied, even after hearing the evidence at the hearing, that the Appellant was more involved in this smuggling attempt. The policy stated that where the Respondents believed or were not satisfied that the driver was not involved as claimed by him, the vehicle should not be restored at all. Mrs Wiggs said that the offer of Mrs Hall to restore the vehicle back to the Appellant for its trade value was more than reasonable in the circumstances. She said that if she had heard what the Appellant had said in evidence at the hearing before her decision, her decision would have inevitably have been the same.

Mrs Wiggs said that she had not made a note of her telephone conversation with James Burden Limited, but she confirmed that she had spoken to them and they had told her that they had spoken to Astenhof and were told that the CMR was not one of theirs.

Mrs Wiggs said that she did not know why officers of the Respondents had gone to Blackpool and she did not know if this was part of an ongoing investigation.

Mrs Wiggs accepted that it was not recorded in the officers' notes that the chickens were out of date. She said that she had been told verbally by one of the officers that the chickens were out of date and said that the officers got that information from what was recorded on the boxes of chickens. She said that after the unloading of the boxes of chickens, these boxes had to be destroyed straight away. Mrs Wiggs agreed that on examining the two bundles of photographs, the photographs did not prove that the chickens were out of date. Mrs Wiggs said that she telephoned the officer when she received the photographs and was told that there was something on the boxes of chickens to say that they were out of date. Mrs Wiggs agreed that the Respondents had not provided proof for the hearing that the chickens were in fact out of date. Mrs Wiggs said that she had no reason to disbelieve what she had been told by the officer and she had not seen any reason to obtain further evidence. She had not had the two bundles of photographs when she made her review. At that stage she had not known that the photographs existed. She said that she had not had time to obtain the photographs earlier but if there had been anything on the photographs to cause her to change her decision, she would have done so. Mrs Wiggs said that she could not conclude from the photographs whether white marks on the vehicle floor and side were caused by ice.

Mrs Wiggs confirmed that from the photographs there were a substantial amount of chicken boxes loaded nearest to the rear doors of the vehicle before the cigarettes were reached. She agreed that the photographs showed that the cigarettes boxes had on top of them chicken boxes. She agreed that if anybody stood at the back of the vehicle and looked inside it, all that could be seen was white chicken boxes. She agreed from the photographs she could not see where the officers had obtained the information that the chickens were out of date for one month. Mrs Wiggs said that she did not know if it could have been seen from the outside if there were signs on the boxes of chickens that they were out of date.

It was put to Mrs Wiggs that there was no evidence that the Appellant would have been aware at the time of the loading of his vehicle that the chickens were out of date. Mrs Wiggs replied that she could only go from the photographs and she could not tell from the photographs if there was any marking on the boxes of the date of the products.

It was put to Mrs Wiggs that if there was no documentary evidence at the time of her decision that the chickens were out of date, why did she put it in her review decision? Mrs Wiggs replied that this was because she had been told verbally by an officer. She said that when she received the photographs, she tried to contact the officer first but without success and then spoke to the team leader who told her that the chickens were out of date. Mrs Wiggs said that she could not say where the team leader obtained that information from. She had only spoken to the team leader on the telephone the day before the first hearing of this appeal. Mrs Wiggs said that the original officer had believed that the Appellant would have been aware that the chickens were out of date. She said that it had not crossed her mind to obtain some documentation or something in writing from the officers relating to the chickens.

Mrs Wiggs said that she did not know why the officers in their notes had not recorded that they had found that the chickens were not frozen. She agreed that one officer had written in his notebook that the vehicle contained frozen chickens. It was suggested that Mrs Wiggs that the officer would not have written frozen chickens if the chickens had not been frozen. Mrs Wiggs could not answer except to say that the load appeared to be frozen chickens. Mrs Wiggs said that she could not tell from the photographs if there were remnants of ice on the vehicle. Mrs Wiggs agreed that the officers had not noted in their notebooks that the chickens were rotten.

Mrs Wiggs said that she had not asked for colour copies of the three photographs in black and white that she had seen at the date of her decision. She had not obtained written statements from the officers about the age or dates of the chickens because she did not have time to do so, Mrs Wiggs said that she had enough evidence to reach her decision.

Mrs Wiggs did not agree to the suggestion that the information about the dating of the chickens pieces was information that she should have obtained before her review decision. She said that the age or dates of the chickens was not a factor which would have affected her decision.

Mrs Wiggs said that she accepted that unless a person was present when the loading and unloading had taken place, that person would not have seen the cigarettes boxes.

Mrs Wiggs said that if the Appellant had not been present when his vehicle was loaded, she would have expected him to have got someone in authority to sign for what was put on the back of the lorry. It was put to her that the Appellant had been given a CMR document which stated that the load was of a number of boxes of chickens. Mrs Wiggs replied that she did not believe that the goods were loaded there at Astenhof, because Astenhof itself was a reputable company and she considered that a large number of people would have to be involved in a smuggling attempt to load such a large quantity of cigarettes into a lorry. She said that it was not probable that rogue employees at Astenhof had been involved in the operation. If those involved in the smuggling had loaded the cigarettes at Astenhof, they would have been taking an enormous risk that other people working there, such as management, would have seen the cigarettes being loaded. Mrs Wiggs said that she believed that the Appellant had been more involved in the smuggling than he had indicated based on everything that had happened from beginning to end which should have rung alarm bells in the ears of the Appellant. Mrs Wiggs had not made further enquiries at Astenhof but said that she found it highly unlikely that the load would have been loaded at Astenhof.

Mrs Wiggs said that she had not visited Astenhof and did not know if there was a place there where goods could be hidden. She did not know what security they had there and did not know if Astenhof recorded vehicles coming in and out of their premises.

It was put to Mrs Wiggs that the customs officers took the Appellant's tachograph from his vehicle. Mrs Wiggs replied that she had no knowledge of that. She agreed that she had not analysed the Appellant's tachograph to see what movements he made. Mrs Wiggs said that she considered that she had sufficient evidence to make her review decision and did not think about the tachograph. Mrs Wiggs said that the Appellant's version of events was not realistic and that affected his credibility. She disputed the Appellant's assertion that it was normal or usual in the haulage business for orders to be obtained through a person when only a first name and mobile telephone number had been obtained and that it was usual for instructions to deliver a load to a different address would be made by mobile telephone. Mrs Wiggs agreed that she had never worked in the haulage business but said that her husband had worked in a warehouse, and she herself had operational experience of how food premises worked from her activities in the employment of the Respondents.

Mrs Wiggs was of the view that the obtaining by the Appellant of the mobile telephone number of Paul was not sufficient as mobile phones could be disposed of. The Appellant's representative put to Mrs Wiggs that whilst Mrs Wiggs was aware of smuggling, as this was her job, the Appellant was a haulier, used to transporting goods and had never had any previous problems of this kind. Mrs Wiggs replied "I don't know about that". It was put to Mrs Wiggs that the Respondents had no evidence of any prior involvement of the Appellant in smuggling. Mrs Wiggs replied "He must be aware that smuggling happens". Mrs Wiggs considered that the Appellant had taken a risk in only obtaining the first name of Paul and his mobile phone number. She accepted that hauliers on the road usually communicated by means of mobile phones.

Mrs Wiggs was asked if there were any written directions or documents which told a haulier what he should do and whether a haulier should require a land line telephone number when taking instructions. Mrs Wiggs did not know but considered that there should be information obtainable from haulage associations or on the internet or from Customs. When it was put to her that the Appellant's representative had been unable to find such information, Mrs Wiggs accepted that she herself had not looked for such information and could not say whether or not such information was freely available. She said, however that if a haulier wished to stop his vehicle being used for smuggling, the haulier would need to check who he was dealing with.

Mrs Wiggs did not accept the Appellant's claim that his vehicle had been tested on his journey to check if human beings were being carried in the vehicle. She did not accept that customs officers in Belgium had checked his vehicle and that check had not revealed the load that was actually being carried. Mrs Wiggs replied that she only had the Appellant's word for that and apparently the officers' in Belgium do not have a forklift truck to take off part of the load to examine what was behind. Mrs Wiggs accepted that a basic check would not have seen that anything was wrong.

Mrs Wiggs accepted that the officers of Customs in Blackpool had allowed the Appellant to return to Ireland, but she said that that was an operational decision. She said that she had no reason to believe that the Appellant had not co-operated with the officers in Blackpool. She had made no reference to co-operation in her decision and she was asked if she had taken into account the Appellant's level of co-operation. Mrs Wiggs replied that she had taken into account the actual facts and that the Appellant had spoken to officers and she had considered if he had spoken the truth to them. Mrs Wiggs accepted that when she mentioned in her review decision that the Appellant had spoken by telephone to Paul in England, this was incorrect and that the Appellant had referred to speaking to an Englishman on the telephone in England who told him about the changed delivery venue.

Mrs Wiggs said that she had taken into account the fact that the vehicle was under finance. She was asked if she had considered hardship. She said that it was obvious that if the Appellant's vehicle was taken away, it would cause expense to the Appellant and that it would hurt him, but she considered that this is what the Appellant could have expected. She said that having heard all the evidence at the hearing she was happy that her decision was correct and not disproportionate.

Mrs Wiggs said that she only received the information that the chickens was rotten by telephone call after her decision but said that whether that information was correct or incorrect did not factor into her decision. Before her decision was made, she had the telephone call that the chicken was out of date. She said that the date of the chickens would not have affected her decision and any information as to whether the information was frozen or not would not have affected her decision. She said that she did not know who had signed the CMR.

Mrs Wiggs said that her views as to the credibility or otherwise of the Appellant had not affected the level of penalty that has been suggested by the Respondents.

Contentions of representatives at hearing

Miss Mayo, on behalf of the Respondents, submitted that the decision of the review officer was within the bounds of reasonableness and should not be interfered with by the tribunal.

She submitted that the burden of proof as to whether the decision was reasonable rested solely on the Appellant. Although the review officer at the time of the decision had not heard the oral evidence of the Appellant given at the hearing, as the Appellant's representatives had already set out in correspondence the claims of the Appellant, the decision of the review officer would not have been different, had she had the benefit of the oral evidence.

Miss Mayo submitted that the review officer had properly applied the policy of the Commissioners to the facts of the case and that the review officer was an experienced officer with considerable experience in the field and was in a position to analyse the Appellant's explanations and form a view as to their likely credibility. She submitted that it was very easy for a haulier to claim lack of involvement, but it ought to be relatively easy for anyone like the Appellant to take simple and basic precautions to reasonably protect themselves from suspicion.

She submitted that the Appellant had failed to take reasonable basic precautions to prevent his vehicle from being used in smuggling. Miss Mayo pointed to the Appellant having taken a mobile telephone call from a man whom he merely knew as Paul without obtaining a land line or obtaining his address or checking his identity. This was the first of a series of extremely reckless actions by the Appellant. It was not sufficient for the Appellant to say that this was the way that the industry operated. By not being present when his vehicle was being loaded, the Appellant was not exercising a reasonable level of care. The Appellant had not seen the loading, the CMR signature was illegible. He did not know the identity of the person who signed the CMR. The Appellant accepted a telephone call in the middle of the night from an Englishman without verifying his identity or authorisation and without initially being given a full address and name for the place he was to deliver. The Appellant had not checked the dates on the boxes of chickens.

Miss Mayo submitted that the review officer had taken into account the letters written by the Appellant's solicitors and all the information and documentation at her disposal. It could not be said that she had failed to take into account anything that the Appellant had to say. She submitted that even on his own case, the Appellant had shown a considerable lack of care and lack of precautions to point to him being culpable in his own downfall. She submitted that if hauliers could merely plead ignorance when they failed to take any adequate level of responsibility for the integrity of their load would lead to the Commissioners' policy being ineffective.

She submitted that the decision was proportionate and a proper exercise of the policy of the Commissioners. She submitted that Mrs Wiggs' conclusions as to the credibility of the Appellant had not actually affected her decision as even if she had accepted the Appellant's evidence, she would still reasonably have come to the same decision that he had failed to carry out any precautionary steps. She submitted that there were no grounds for disapplying the policy of the Commissioners and submitted that the appeal should be dismissed.

Miss Emery submitted on behalf of the Appellant that the appeal should be allowed. She submitted that the decision of the review officer was not proportionate. The officer had failed to take into account that the Appellant had not committed any previous offence or had his vehicle seized before. The Appellant had made no attempt at concealment or dissimulation. The officer had not properly considered the degree of hardship caused by the forfeiture of the vehicle.

She submitted that it was not unusual in the transport industry involving smaller hauliers that orders should be obtained by mobile phone in the manner described by the Appellant and it was not unusual for delivery addresses to be varied by mobile telephone. She submitted that the Appellant had given a credible and consistent account of what had happened. She submitted that it was not clear precisely what was required by the Respondents from hauliers to prevent smuggling occurring. The Respondents did not publish and supply to hauliers details of what steps they required hauliers to take. Information was not readily available.

She submitted that Mrs Wiggs had accepted that unless the Appellant was present during the loading of the vehicle, a basic check of the vehicle would not have revealed the identity of what was hidden behind the frozen chickens. The cigarettes could not be seen without removing the pallets of chickens which could only have been done by a forklift truck. The Appellant had erected the bars in the vehicle behind the load before closing and locking the rear doors. The vehicle was examined in a random customs check in Belgium where officers opened the rear doors of the vehicle. The vehicle had been checked that there were no human beings sealed in the vehicle.

There was no evidence whatsoever to show that the Appellant had collected the goods from anywhere other than Astenhof. Mrs Wiggs was acting unreasonably in believing the Appellant had not collected the goods from Astenhof. There was no evidence on which to base that belief. The Appellant had been given a CMR document, which he had no reason to disbelieve. It contained all the information that would be expected from a CMR document.

Miss Emery submitted that the review officer had reached the wrong conclusion in believing that there would have to have been a number of people involved, therefore the goods had not been loaded at Astenhof. She submitted that the Appellant had given a credible and proper explanation as to why he had not been surprised at receiving a telephone call in the early hours of the morning to deliver to a different address. Mrs Wiggs had failed to take into account the refrigeration of the unit by the Appellant and the decision of customs officer not to re-arrest the Appellant. She submitted that this was clearly a case of a professionally organised gang targeting an innocent haulier. She submitted that there was nothing in the circumstances which would cause suspicion to the Appellant that smugglers were using his vehicle without his knowledge. The Appellant had been reasonably and rightfully relying on practices which occurred in the transport business on a regular and daily basis. This was not taken into account by Mrs Wiggs. Failure to take into account all relevant matters made her decision unreasonable and wholly disproportionate. She submitted that at the worst, the Appellant had merely failed to carry out very minor checks as opposed to being reckless or carrying out reasonable basic checks.

Conclusions and findings of fact

The burden of proof is on the Appellant. The Appellant in order to succeed in his appeal has to satisfy the tribunal that the Respondents could not reasonably have arrived at the decision made by the review officer, Mrs Wiggs in her letter of 2 February 2006 within section 16(4) of the 1994 Act.

We found the Appellant in this appeal to be a credible witness. We believed his evidence which was consistent. It did not vary on cross examination. We found his version of events to be plausible, likely, and to be the truth.

The version of events had previously been communicated by the Appellant's solicitors to the Respondents in two letters. We find that the review officer, Mrs Wiggs, did not take into account the full circumstances detailed to her in the letters from the solicitors, and indeed disregarded the information in those letters to which she should have given weight.

The solicitors in their letters, and the Appellant in his oral evidence at the hearing of this appeal, gave full details of the circumstances leading to the Appellant having delivered his load to Blackpool, which we find as a fact actually occurred.

The Appellant had delivered a load in his refrigerated vehicle and trailer to Holland and was waiting to seek the availability of a return load to the British Isles, which was his usual method of business. The Appellant received a telephone call from Paul, who he understood to be a similar haulier, and whom he had met in Holland previously and with whom he had discussed assisting each other in providing return loads. Paul informed the Appellant that he had available haulage from Astenhof in Holland to the United Kingdom, which Paul himself was unable to fulfil, and which Paul could arrange for the Appellant to haul. The Appellant considered that there was nothing unusual in the arrangement and the fact that he only knew Paul by his first name and by his mobile telephone number did not reasonably cause suspicion to the Appellant. The Appellant drove to the premises of Astenhof, at Asten, Holland, which is a large reputable dealer in food stuffs. The Appellant was greeted there by a man in a white coat who was expecting him. The Appellant was given a CMR document stating that the load was of a number of pallets of boxes of chicken parts which were frozen for delivery to James Burden Limited in Kent. The Appellant received a signed CMR document. It reasonably appeared to the Appellant to be in order. The Appellant had reversed his vehicle into a loading bay at the premises, flush against the rubberised doors of the loading bay. The goods were loaded into his vehicle from inside the factory without the Appellant being able to see it being loaded. The Appellant was not allowed into the factory. This was not unusual in the case of a food premises where precautions had to be taken against cross contamination. The Appellant stayed in his cab whilst the load was loaded. After it was loaded he moved his vehicle away from the loading bay, climbed into the rear of the vehicle and fastened the bars. All he could see was that boxes visible from the back of the vehicle were boxes of frozen chicken. There was nothing in the appearance of the load to cause any suspicion to him. Mrs Wiggs at the hearing of the appeal conceded and agreed that the Appellant would not have been able to have seen that the vehicle contained anything other than boxes of chicken from seeing the load from the rear of his vehicle.

Thereafter, the Appellant drove towards Calais. On the way, his load was randomly checked by Belgian customs officers for whom he unlocked the rear of the vehicle. They went into the vehicle, inspected the load and found nothing suspicious. Later on the journey, other customs officers made a mechanical check from the outside of the vehicle to ensure that it was not carrying human beings. They were so satisfied.

As the Appellant was driving towards the destination for delivery in Kent, which was on the CMR, he received a telephone call at 12.30 am to 1.00 am from an Englishman whom he reasonably believed to be an employee of James Burden Limited, instructing him not to deliver to Kent but to a destination in Lancashire. A further telephone call gave him directions to the delivery address in Blackpool, although he was not given the name of the establishment. When the Appellant arrived at the address in Blackpool, he was met by men who were expecting the load, and the Appellant reversed his vehicle so that the load could be unloaded by fork lift truck. During the unloading, the Appellant remained in his cab as he wished to sleep. He had 'flu at the time. Whilst the vehicle was being unloaded, and whilst he was in the cab, he was requested by customs officers to answer questions.

Mrs Wiggs stated that she did not know why the customs officers appeared there at the time, and whether this was part of an ongoing investigation.

We find that the Appellant co-operated with the customs officers. He answered their questions, and supplied the officers with his mobile telephone, the memory of which he said only contained a record of the last few telephone calls.

The Appellant, after answering questions from the customs officers, was released to continue by taxi. His vehicle and trailer were seized by the officers.

The Appellant, when he returned to Ireland, found a fax from Paul confirming the order. Subsequently, the Appellant found that Paul's mobile telephone number had been discontinued and that the name of Paul's company on the fax was in fact a company which was a reputable haulage company and not run by Paul, whose true identity and address the Appellant has been unable to find.

Enquiries by the Respondents have established that the CMR which had been given to the Appellant was false and that the frozen chicken was not a consignment from Astenhof to James Burden Limited and that James Burden Limited have not ordered the frozen chickens from Astenhof.

The Appellant has not been involved in smuggling in the past, he has had no previous experience of his vehicle having been stopped or seized or alleged to have been involved in smuggling. Mrs Wiggs confirmed in her evidence that she had no reason to doubt that assertion by the Appellant.

When the customs officers unloaded the contents of the Appellant's vehicle at McHaulage Limited in Blackpool, they found hidden behind the boxes of chickens nearly four million cigarettes in brown boxes. This was after the officers had removed by fork lift truck from the vehicle the rows of pallets nearest the rear door which contained boxes of chickens. Also, boxes of chickens had been loaded on the top layer of each of the pallets so that it was not possible to see, without unloading the pallets that the boxes of cigarettes had been concealed behind and underneath the layers of boxes of chickens.

During his journey, the Appellant maintained the refrigeration of his vehicle to a temperature of between -18 and -20 degrees.

Mrs Wiggs in her review decision mentioned that the chicken was out of date. That information did not appear in the notes of the customs officers who were present at Blackpool when the load was inspected. Mrs Wiggs gave evidence that she received information verbally on the telephone from an officer that the chickens had been out of date and a period of one month was mentioned. Mrs Wiggs did not keep a note of that conversation and there is no written evidence as to any dates which were on the boxes of chickens. Mrs Wiggs in her assertions as to the chickens being out of date are not based on documentary evidence but on information given in an undocumented telephone call. At the hearing, Mrs Wiggs gave evidence that she had been told by a customs officer that the chickens smelled. This had not been documented and did not appear in any written evidence from the Respondents. There was some suggestion on behalf of Mrs Wiggs that the chicken had smelled because it was not frozen. However, the officers' notebooks referred to 'frozen chicken'.

We find that the Appellant was not aware and did not know if in fact the chicken was out of date or if it did smell. The Appellant had 'flu at the time of the journey.

Mrs Wiggs, in her evidence, stated that she believed that the Appellant had in fact been involved in the smuggling, and had been more involved than he had claimed. She stated that she believed that the Appellant had not picked up the goods from Astenhof, because as she believed, that would have meant that a number of employees at Astenhof would have been involved in the smuggling, in order to conceal the large quantity of cigarettes and load the cigarettes on to the vehicle. We find that Mrs Wiggs had no reasonable basis on which to reach that belief or conclusion. We are satisfied that the Appellant did in fact pick up his load from Astenhof in the way he described. We found the Appellant to be credible and we found no reasonable basis on which Mrs Wiggs could reach her conclusions that the load had not in fact been collected from Astenhof.

Mrs Hall's original decision not to restore the vehicle to the Appellant except on payment of the trade value, was based on the Respondents' assertions that the Appellant had failed to make reasonable checks. Mrs Hall had claimed that basic checks would have revealed the presence of the illicit goods and that the Appellant should have conducted a thorough manual check of the load and load space. We find the conclusion of Mrs Hall, which was adopted by Mrs Wiggs, was not reasonable. We find that the Appellant had carried out a reasonable and basic check by seeing the load before he fastened the bars and padlocked the vehicle. Mrs Wiggs did agree that a visual check could not have revealed the presence of the boxes of cigarettes which were concealed and hidden behind the pallets of boxes of chickens which covered the whole of the width of the rear of the vehicle, and which were the top boxes of the whole of the length of the vehicle. We find that the only way that the Appellant could have checked further as to the other boxes in the load would have been for the Appellant to have removed pallets by forklift truck at the rear of his vehicle. We find that the Appellant could not have reasonably have been expected to have done this.

We find that the Appellant was given a credible explanation of the full circumstances of his journey. His explanations were set out in full in the letters from his solicitors as well as in his oral evidence at this appeal. Mrs Wiggs had received the letters from the solicitors prior to her making her decision.

The Appellant gave evidence that the customs officers at Blackpool took the tachograph from his vehicle. An examination of his tachograph may have given information to the Respondents concerning his journey as claimed by him. There is no evidence in this appeal that the Respondents did in fact make checks from his tachograph and if so with what result. The result of a tachograph examination would have been relevant in considering the credibility and reasonableness of the Appellant's claims. Mrs Wiggs failed to make any enquiries concerning the tachograph.

In our judgement, Mrs Wiggs erred in her consideration of the information available to her and this must have affected her decision making.

Mrs Wiggs failed to take into account that the Appellant was a haulier with no previous convictions relating to being involved in the importation of illicit goods. He had never been involved in smuggling and had not previously been stopped by customs carrying illicit loads. In assessing the credibility of the Appellant's claims, she failed to take that into account at all.

Mrs Wiggs alleged dishonesty on behalf of the Appellant in her review decision and considered that the claimed dishonesty called into question the credibility of all his claims. We find that Mrs Wiggs erred in concluding that the Appellant had been dishonest. We find that there was not reasonable evidence and information upon which Mrs Wiggs could reasonably and properly reach that conclusion.

Mrs Wiggs, in her review decision, indicated that she considered that the Appellant had been involved in the smuggling attempt. We find that there was no reasonable evidence upon which Mrs Wiggs could reach that conclusion. Her claim at the hearing to believe that the Appellant had not collected the goods from Astenhof was based on conjecture and suspicion which was not reasonable on a proper and reasonable consideration of all the matters which were before her. We find that that unsupported conclusion of Mrs Wiggs clouded her judgment and conclusions, and affected her decision adversely against the Appellant not to overturn the disputed decision of Mrs Hall. We find that the evidence did not point to the fact that the Appellant knew more about the consignment than he had stated and did not point to the fact that Mr Dowling had misled officers. Mrs Wigg's conclusion to the contrary was an error.

We find that Mrs Wiggs erred in maintaining Mrs Hall's decision that the Appellant had failed to make basic reasonable checks as to his load. We have found that the Appellant did in fact carry out checks that were reasonable, and that the Appellant reasonably did not know or suspect that his load contained the hidden cigarettes.

As to the degree of hardship suffered by the Appellant, we are satisfied that this was very considerable and that no sufficient regard was had to it by the reviewing officer. The Appellant has had to carry on paying for the leasing of the vehicle and trailer, with payments to the finance companies, without being able to use the vehicle and trailer, which have been seized. We find that the restoration fee is disproportionate in the case of the Appellant who was not implicated in the attempted excise fraud and this was not taken into account by the review officer in exercising her discretion under the policy of the Respondents.

For the above reasons, we find that the decision of the review officer, Mrs Wiggs, was not one which a reasonable body of Commissioners would have arrived at within the Wednesbury criteria.

We allow the appeal. We have no power to substitute our decision for that of the review officer. Our powers in the circumstances are to direct a further review which we so direct.

The Appellant is entitled to his costs, to be agreed between the parties. If not agreed, the matter should be referred to a chairman of this tribunal sitting alone for a further direction.

This tribunal accordingly directs :-

i. That the Respondents shall carry out a further review of the decision to restore the vehicle and trailer only on payment of the trade value of £39,150.

ii. The review shall be carried out by an officer who has had no previous connection with this matter.

iii. In carrying out the review, the Respondents shall have regard to the facts found by the tribunal in this decision as relevant consideration.

iv. The review should be carried out within six weeks of the release of this decision.

v. In the event of the review being adverse to the Appellant, that will be a decision from which a further appeal will lie to a tribunal.

IAN VELLINS

CHAIRMAN
Release Date: 2 August 2006

MAN/06/8010

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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 >> Dowling v Revenue & Customs [2006] UKVAT(Excise) E00975 (02 August 2006) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2006/E00975.html Cite as: [2006] UKVAT(Excise) E975, [2006] UKVAT(Excise) E00975