E00988

EXCISE GOODS – restoration – appeal against non-restoration  of vehicle only – appellants Polish – only Zenon Zebryk present at time of seizure no consideration given to situation of Tadeusz Zebryk who was co-owner of vehicle – no account taken of Zenon Zebryk’s inability to speak English – matter remitted to Commissioners to consider hardship and proportionality and to consider appeal of Tadeusz Zebryk 

Valuation – question whether UK or Polish value of car relevant for issue of proportionality – appeal allowed

LONDON TRIBUNAL CENTRE

	ZENON ZEBRYK & TADEUSZ ZEBRYK	           Appellant

-	and –

	THE COMMISSIONERS FOR HER MAJESTY’S REVENUE & CUSTOMS 	 Respondents

				Tribunal:	MISS J C GORT (Chairman)
						MRS R JOHNSON

Sitting in public in London on 18 July 2006

The Appellant appeared in person

Miss Fiona Darroch of counsel, instructed by the solicitors office for the Respondents

© CROWN COPYRIGHT 2006

DECISION

1.	This is an appeal against a decision of the Commissioners which was notified to Zenon Zebryk by a letter dated 18 August 2005, but was never notified to Tadeusz Zebryk, not to restore their motor vehicle, a Volkswagen Golf car, pursuant to section 152(b) of the Customs and Excise Management Act 1979 (‘CEMA’).

2.	On 19 May 2005 Zenon Zebryk was stopped at Dover Port driving the Golf car.  He was alone in the car, had an extremely limited grasp of English, and appears to have understood almost none of the officer’s questions to him.  Both Appellants are Polish, and Zenon Zebryk was travelling to Luton in the United Kingdom for work purposes.  According to a schedule of travel produced by the Respondents, Mr Zenon Zebryk had travelled to the United Kingdom in the same vehicle on at least seven previous occasions, but there is no evidence of any goods being seized on any of those occasions.

3.	On the present occasion the officer asked if any drugs or guns were being carried, Mr Zenon Zebryk did not understand the question.  Some form of hand movements were then employed by the officer and Mr Zenon Zebryk smiled and shook his head indicating that he had none.  According to the officer’s notes (we did not hear from the officer in question) he was then asked whether he had any cigarettes or tobacco.  According to the statement of case at paragraph 6(e) the officer asked whether he had any cigarettes or alcohol.  This last is interesting because, according to Zenon Zebryk’s evidence to us, the officer used the word `vodka’ which he did understand, and he then showed the officer two bottles of alcohol which were on the back seat of the vehicle.  According to the officer’s note, he, the officer, had indicated smoking with his hand, and to this Zenon Zebryk had said `No’ and indicated the bottles.

4.	At this point the officer opened the boot of the car and found three black holdalls, some plastic carrier bags and some empty cigarette boxes.  He removed the spare wheel and checked it because it appeared to be lacking a tyre, but nothing untoward was discovered.  To carry out this inspection the bags and holdalls had been removed from the boot.  Having inspected the spare tyre, the officer replaced it.  At this point he consulted a colleague about the tyre and the empty cigarette boxes.  Whilst he was doing so, Zenon Zebryk began to put the bags back into the boot, and was seen to be replacing there a large black holdall which had been on the back seat.  The officer concluded that this was done in order that he would not check it.  No attempt was made to ask Zenon Zebryk at this point why he was putting it into the boot, nor is there any evidence from the officer as to when it was removed from the back seat.

5.	The officer inspected the holdalls and discovered that some had clothes packed on top of a quantity of cigarettes in such a manner that the cigarettes could not be seen when the bag was unzipped, and the large black holdall contained only cigarettes.  In total there were 25,800 mixed-brand cigarettes.  The vehicle and all the goods were seized.  A different officer explained in German that, because Zenon Zebryk had too many cigarettes, his car would stay with Customs, and he was requested to sign the various documents.  This he refused to do.  The first officer gives as his reasons for the seizure:

1.	Goods not declared
2.	Excise goods hidden

The officer’s notebook was not produced to us, but the photocopy that we have shows that he signed and dated it on 19 May, but that there were two late entries made which contain all the substantial details about the black holdall and the three other holdalls in the boot, there is a reference to the Appellant appearing nervous, and the account of the removal of the spare wheel is given as well as the attempt to put the holdall into the boot.  The late entries are not dated or timed.  The first account records that black holdalls and empty collapsed cigarette boxes were seen in the boot and the note continues:

“Upon inspection of rear foot-well I saw black plastic bags.  When I looked into them I saw cigarettes Marlborough Lights.  Upon inspection of the holdalls I saw more cigarettes.”

Prior to the second `upon’ there is an asterisk to indicate the late insertion. The asterisk is not timed or dated. There is a conflict between this evidence of the cigarettes being in the plastic bags and the insertion which describes them as being divided between the holdalls.  

6.	Mr Zenon Zebryk did not appeal to the Magistrates Court against the seizure of the car and goods but he returned Customs notice 12A dated 19 May 2005 by which he requested restoration of the vehicle.  By a letter dated 14 June 2005 this request was refused.  The excise duty on the cigarettes is £4,054.99 which is noted in that letter.  By a letter dated 4 July 2005 a letter was received from Blue Star Universal, solicitors, by which it was stated that they had been appointed by Mr Zenon Zebryk and Mr Tadeusz Zebryk to act on their behalf in relation to this matter.  By this letter it is stated inter alia as follows:

“The seized vehicle belongs to Mr Zenon Zebryk and his brother Mr Tadeusz Zebryk (a copy of the vehicle registration document enclosed – we do not have in our possession the original).  Mr Tadeusz Zebryk lives in Poland and was not aware of the illegal act of his brother, Mr Zenon Zebryk.  Mr Zenon Zebryk was not himself aware of implications of transporting indutied (sic) cigarettes.  

Undutied cigarettes were not hidden in the vehicle; they were on the sit (sic) of the vehicle and were brought to England for his own use and as presents for his friends.”

Blue Star Universal appear to be closely connected with a firm of solicitors called Staniford & Wallace, who also have sent correspondence on behalf of the Appellants in this matter.  Restoration of the vehicle was requested again.

7.	By a letter dated 18 August 2005 an officer of the Commissioners, Mrs G M Hurrell, informed Mr Zenon Zebryk that she had decided not to restore the vehicle.  In that letter she sets out her reasons for so doing.  At no point did she inform Mr Tadeusz Zebryk of her decision.  She states inter alia in the letter of 18 August that there had been no contact from Tadeusz Zebryk, and this was why he had not been provided with a reviewable decision.  She ignored the letter from Blue Star Universal which was written on behalf of both Appellants.  She sets out that the car would have a value somewhere in the region of £4,500 to £7,000 in the United Kingdom, and she considered that “a Polish purchase is likely to be of a lesser amount.”  She concluded that there was not a substantial difference between the value of vehicle and the revenue that was involved in the offence, and therefore the decision not to restore was not disproportionate.  She had previously noted that Mr Zenon Zebryk was a frequent traveller across the channel in this vehicle, and, rather curiously, stated:  “I therefore consider that any restoration would be of benefit to him, especially as he has stated the vehicle was used for his work and domestic situation.”  She then continued that, although it had been claimed that the goods were for personal use, they were considerably in excess of the guidelines, which were in respect of other European Union countries and were set at 3,200 cigarettes per person, whereas the limit for people travelling from Poland was 200 cigarettes.  She considered this, coupled with the manner in which the goods were packed, and that they were “verbally” concealed from the officer, indicated that, on the balance of probabilities, the goods were for commercial use involving profit.  For this reason a restoration fee based on the duty was not applicable.  

8.	Mrs Hurrell did consider the issue of hardship, and noted that Mr Zenon Zebryk had work and domestic needs, but he had not provided details of his work and lived in an area served by public transport.  She could find no evidence of exceptional hardship in this case.  She did not consider the position of Mr Tadeusz Zebryk. 

Legislative provisions

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

“1.	Tobacco products

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

	(a)	cigarettes;
	(b)	cigars;
	(c)	hand-rolling tobacco;
	(d)	other smoking tobacco; and 
	(e)	chewing tobacco;

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

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

	(a)	which is sold or advertised by the importer or manufacturer 		as suitable for making into cigarettes; or
	(aa)	which is of a kind used for making into cigarettes; or
	(b)	of which more than 25 per cent by weight of the tobacco 			particles have a width of less than 1mm.

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.

	(3) 	…”
	
10.	The Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002:

	The Tobacco products Regulations 2001 state:

	“4-(1)	Amend the Tobacco Products Regulations 2001[8] as follows:

	(2)	In the definition of “duty” in regulation 3(1) before the word 			“means” insert -

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

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

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

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

	(b)	“own use” includes use as a personal gift,
	(c)	if the goods in question are –

		(i)	transferred to another person for money or money’s 			worth (including any reimbursement of expenses 			incurred in connection with obtaining them), or
		(ii)	the person holding them intends to make such a 				transfer, those goods are to be regarded as being held 			for a commercial purpose,

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

(i)	that person’s reasons for having possession or control of those products,
(ii)	whether or not that person is a revenue trader (as defined in section 1(1) of the Customs and Excise Management Act 1979),
(iii)	that person’s conduct, including his intended use of those goods or any refusal to disclose his intended use of those products,.
(iv)	the location of those products,
(v)	the mode of transport used to convey those products,
(vi)	any document or other information whatsoever relating to those products,
(vii)	the nature of those products including the nature and condition of any package or container,
(viii)	the quantity of those products, and in particular, whether the quantity exceeds any of the following quantities-

	3,200 cigarettes
	  400 cigarillos (cigars weighing no more than 3
                    grammes each)
	  200 cigars
	     3  kilogrammes of any other tobacco products

(ix)	whether that person personally financed the purchase of those products,
(x)	any other circumstance that appears to be relevant,

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

	“(aa)	they were acquired by a person in another member state for 		his own use and transported by him to the United Kingdom.”
	
11.	Poland is subject to restrictions on the amount of cigarettes that can be imported into the UK.  The Customs and Excise Duties (Travellers’ Allowance and personal Reliefs) (New Member States) Order 2004 provides:

“3.	Relief from duty of excise

Subject to the following provisions of this Order, a person who has travelled from a specified country shall, on entering the United Kingdom, be relieved from payment of excise duty on relevant tobacco products acquired in that country and which he has transported.

4.	Conditions of relief

(1)	The reliefs afforded under this Order are subject to the condition that the goods in question, as indicated by their nature or quantity or otherwise, are not held for a commercial purpose nor are used for such purpose; and if that condition is not complied with in relation to any goods, those goods shall, unless the non-compliance was sanctioned by the Commissioners, be liable to forfeiture.

(2)	If the goods in question are not duty and tax paid in the specified country at the time of acquisition, or the duty and tax that was paid will be or has been reimbursed, refunded or otherwise dispenses with, those goods are to be regarded as being held for a commercial purpose.

5.	Period in which article 3 shall have effect

Article 3 shall have effect in relation to a specified country on or before the date shown opposite the country in Column 3 of the Schedule.”

SCHEDULE

					   		Articles 3 and 5
(1)	(2)	(3)	
Specified Country	Relevant
Tobacco
Products	Date on or before
which Order shall
have effect	
Poland	200 Cigarettes	31 December 2008	

12.	By Regulation 16 of the Excise Goods (Holding, Movement Warehousing and REDS) Regulations 1992 (SI 1992/3135) excise goods, in respect of which duty has not been paid, shall be liable to forfeiture where there has been a breach of regulations.

13.	Section 49(1)(a) of the Customs and Excise management Act 1979 (“CEMA”) provides:

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

(i)	unshipped in any port,
(ii)	unloaded from any aircraft in the United Kingdom,
(iii)	unloaded from any vehicle in, or otherwise brought 	across the boundary, into, Northern Ireland, or
(iv)	removed from their place of importation or from any 	approved wharf, examination station or transit shed;

… those goods shall … be liable to forfeiture.”

14.	Section 49(1)(f) of CEMA 1979 provides:

“1.	Where – 

(f)	any imported goods are concealed or packed in a manner appearing to be intended to deceive an officer, those goods shall … be liable to forfeiture.”

15.	Section 139 CEMA 1979 provides:

“(1)	Anything liable to forfeiture under the customs and excise Acts may be 	seized or detained by any officer or constable or any member of Her 	Majesty’s armed forces or coastguard.”

16.	Section 141 CEMA 1979 provides as follows:

“(1)	… where anything has become liable to forfeiture under the Customs and 	Excise Acts – 

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

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

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

“The Commissioners may, as they see fit – 

(a)	…

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

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

“…

(a)	to direct that the decision, so far as it remains in force, is to cease to have 	effect from such a time as the tribunal may direct;
(b)	to require the Commissioners to conduct, in accordance with the directions of 	the tribunal, a further review of the original decision, and
(c)	in the case of a decision which has already been acted on or taken effect and 	cannot be remedied by a further review, to declare the decision to have been 	unreasonable and to given direction to the Commissioners as to the steps to 	be taken for securing that repetitions of the unreasonableness do not occur 	when comparable circumstances arise in future.”

19.	At the appeal hearing we heard evidence from Mrs Hurrell, and from Mr Zenon Zebryk.  Mrs Hurrell had, since sending out the decision letter, made enquires as to the value of the car, and she had been informed that the vehicle had been disposed of because no appeal had been lodged within two months of the seizure.  The price it had achieved was £3,250.

20.	Zenon Zebryk gave evidence before us through a Polish interpreter.  He informed us that at the time of the seizure he had neither understood English at all, nor been able to speak it beyond the very minimum.  He had bought the car in 2003 at a cost of 67,000 zloty (about £11,000) in order to transport a third brother who lived in Poland and was disabled.  He had to return to Poland every four to six weeks in order to transport that brother to the hospital for medical attention.  Mr Tadeusz Zebryk had bought a share of the car on  1 March 2005,  but we were not told what he had paid for that share.  

21.	At the time of the seizure Mr Zenon Zebryk had been doing casual work in a warehouse.  He had needed the car to travel from where he was staying in Luton to his work in Stevenage.  At the time of the hearing he was working in Milton Keynes, and again needed a car in order to travel there.  He had in the meantime purchased a vehicle for £350 which he described as unfit for transporting his disabled brother, being in poor condition.  

22.	Mr Tadeusz Zebryk lived in Poland on a remote farm.  He was taking it in turns with Mr Zenon Zebryk to visit the disabled brother.  He too had been put in a position of having to buy a cheap vehicle to continue making those visits.

23.	Mr Zenon Zebryk himself did not smoke, but he informed the Tribunal that he had been asked to purchase the cigarettes for a friend of his, who wanted them not just for himself, but for his brother and his girl friend and her brother.  All four were heavy smokers.  They did not themselves possess a vehicle and were not able to travel to Poland where cigarettes were cheaper.  They had given him £500 to purchase the cigarettes.  Although he had been checked on every occasion in which he had entered the United Kingdom, he had never had any problems with Customs and Excise before.  He considered that the cigarettes were in plain view, and, in those holdalls where they were beneath the clothing, they were not being deliberately hidden there.  When the officer had put back the tyre into the car, he had considered that the search was ended and he was trying to be helpful by putting the holdalls into the boot.  He was not trying to prevent a search of the holdalls.  He claimed not to know that cigarettes were subject to tax, never having bought any, being a non-smoker.  

24.	The Appellants’ representatives had provided what is entitled a “Statement of Case” on their behalf.  The document is dated 13 January 2006.   In it is stated that Mr Zenon Zebryk was working as a driver.  In his evidence he explained this to us by saying that he had been working delivering frozen goods in a refrigerated, articulated lorry, going to Belgium and the low countries.  He had been checked on occasions in that lorry too, with nothing ever being seized.  His disabled brother received invalidity benefit, and needed transport to attend medical appointments.  He himself understood very little German, and had not properly understood the German interpreter provided by Customs at the Port.  

25.	In addition to the Appellants’ Statement of Case, so-called, a skeleton argument was submitted on their behalf.  Both these documents appeared to have been prepared for an earlier hearing at which the Commissioners had applied for a direction that the Appellants’ application for an extension of time to serve the notice of appeal be dismissed.  That application was dismissed and time was extended for the service of the Appellants’ notice of appeal to a time after 16 November 2005, so that the notice of appeal, which was dated 11 November 2005, should be treated as having been served in time.  The notice of appeal gives the names of both Zennon Zebryk and Tadeusz Zebryk as appellants.  The grounds of appeal stated that the Commissioners had erred in law and fact in that:

“(a)	… review officer cites “in reviewing the decision, I should firstly point out that my review is in respect of Mr Zenon Zebryk only, as it was he who requested restoration of the vehicle as the owner, and it was he who has been provided with a reviewable decision.  There has been no contact from Mr Tadeusz Zebryk and he has not been provided with a reviewable decision”.

(b)	He failed to have regard or otherwise if taken into consideration failed to give due weight to 

(i)	the Customs and Excise reviewing officer is wrong in law and practice to disregard the application made by his brother Tadeusz Zebryk
(ii)	which would be contrary to article 6 of the Human Rights Act 
(iii)	that the refusal to restore would be depriving of the Appellant from his employment as it is only transportation that he had 
(iv)	to disregard evidence of ownership etc from the brother Tadeusz Zebryk

(c)	The Appellant was denied a full and fair hearing in not granting them an independent interpreter and making individual and separate inquires (sic).

(d)	That the decision in all the circumstances is Wednesbury unreasonable.”

26.	The Respondents’ case was that the amount of tobacco being imported exceeded the guidelines by an enormous margin, which gave rise to the presumption that it was a commercial undertaking, and not either for personal use or for donations to friends.  Secondly they pointed to what they considered to be an attempt to conceal cigarettes in the car, both in the way that they were packed, and in the way Mr Zenon Zebryk behaved once he was investigated by Customs officers. 

27.	It was further submitted that the vehicle was lawfully forfeited, having been used to smuggle excise goods into the country.  The Tribunal was referred to the case of Lindsay v Commissioners of Customs and Excise [2002] 3 All ER, where the Court of Appeal examined the reasonableness of the Commissioners’ policy in respect of the restoration of vehicles, in the light of article 1 of the First Protocol to the European Convention on Human Rights.  Following that case a more lenient policy was applied, in that a vehicle may be restored upon the payment of duty.  In the present case it was submitted there had been no exceptional circumstances brought to the Commissioners’ attention which would warrant the consideration of a departure from their policy.  There had been no evidence of exceptional hardship caused by the seizure of the car.  With respect to Mr Tadeusz Zebryk, any issue of hardship was for him to raise with Mr Zenon Zebryk.  It was submitted that, in the light of the decision in Lindsay, the Commissioners’ decision not to restore fell within the margin of appreciation allowed to the government under article 1 of the First Protocol, in the absence of any exceptional circumstances.

28.	Finally it was submitted that the threshold of “reasonableness” as envisaged in section 16(4) of the Finance Act 1994 was similar to the concept of Wednesbury reasonableness or rationality to be found in public law; and the issue was whether the impugned decision was “so unreasonable that no reasonable authority could ever have come to it”.  It was submitted that there had been no mention of a disabled brother, or a commission to purchase cigarettes by friends, so those issues were not before the reviewing officer when she had made her decision.  

Reasons for decision

29.	We find that there are various matters which ought to have been taken into consideration by Mrs Hurrell but which were not.  Some of these matters are more serious than others, they are as follows:

(i)	Whilst she took account of the fact that Mr Zenon Zebryk had travelled to the United Kingdom on many previous occasions, she did not take account of the fact that he had been stopped on previous occasions, but no cigarettes had been found on  those occasions.  (It was Mr Zenon Zebryk’s evidence to us that he had been stopped previously, we accept this evidence, and if it was not known to Mrs Hurrell at the time of her decision, certainly it was information which could have been available to her).

(ii)	She did not take account of the fact that he had no opportunity to explain at the time of the seizure what the purpose of having cigarettes was.

(iii)	At no point did she consider Mr Tadeusz Zebryk’s claim that he was unaware of Mr Zenon Zebryk’s activities, which were conveyed to her in the letter of 4 July 2005, and no decision letter was sent to Mr Tadeusz Zebryk showing that his case had been considered separately from that of Mr Zenon Zebryk, as ought to have been the case.

(iv)	She did not take into account the fact that cigarette cartons were in full view in the vehicle. We find that it is highly unlikely that anybody who believed that he was unlawfully bringing in cigarettes would leave empty cigarette cartons lying around in the vehicle.

In addition to not taking the above matters into account, we find that she wrongly considered that Mr Zenon Zebryk had attempted to conceal the goods.  We do not consider that having a large quantity of cigarettes in a large holdall on the back seat of a vehicle constitutes an attempt to conceal them.   We do not find it appropriate, given his complete inability to speak English, that Mr Zenon Zebryk `verbally’ concealed the presence of the cigarettes.

30.	There are an increasing number of cases coming before this Tribunal which concern the seizure of cigarettes and vehicles from non-English speaking foreigners.  There appears to be no system whereby such people are given a proper opportunity to answer the questions which Customs officers regularly put to people they suspect of bringing in cigarettes for a commercial purpose. It must surely be possible for questionnaires to be prepared in the majority of the languages with which Customs officers are confronted, and a time limit given to such people for them to submit answers to those questions.  The Tribunal is regularly confronted by a situation where an appellant has not had a proper opportunity to explain himself at the port of entry, and there is often considerable doubt as to how much he has understood of the questions put to him.  In the present case we find that Mr Zenon Zebryk’s understanding of English was so limited that we cannot accept that he properly understood the question put to him asking about cigarettes, and the meaning of the gesture indicating smoking.  Since Mr Zenon Zebryk does not smoke, it would have been possible for him to have thought the question related to whether or not he himself smoked, and this would explain his answer of “No”.  We accept Mr Zenon Zebryk’s evidence that the officer used the word “vodka”, which we find highly plausible, and that was why he indicated the bottles.  We find no credible evidence that Mr Zenon Zebryk attempted either to conceal the goods, or to mislead the officer.  The officer makes no reference to when or how the holdall containing the cigarettes was removed from the back seat.  We consider it entirely reasonable for Mr Zenon Zebryk to attempt to put that holdall in the boot.  The very fact that it was that holdall which contained cigarettes which were not covered by clothing, and yet it was the one in full view on the back seat, demonstrates to us that there was no attempt at concealment.  Mrs Hurrell in her consideration refers to the fact of the manner in which the goods were packed, and “that they were verbally concealed from the officer”.  Whilst it is true that Mr Zenon Zebryk did not open up the bags and show the contents to the officer, we do not consider that he said anything which could properly be considered to be a denial that he had any cigarettes.  

31.	It is unfortunate that the matters which were set out in both the Appellants’ statement of case, and the skeleton argument, were not put before the officer by those representing them before she reviewed the decision.  We consider that the evidence set out there, and the evidence given to us by Mr Zenon Zebryk at the hearing, do raise the issue of hardship.  The evidence is not entirely clear as to the precise nature of the third brother’s disability, nor as to the frequency with which he needs to be taken for medical attention. We were informed by Mr Zenon Zebryk that he has been registered with a doctor in the United Kingdom, and it seems to us that further evidence with regard to the nature of that disability could with advantage be obtained from that doctor.  Mr Zenon Zebryk now has a car which is sufficient to enable him to get to work, and his evidence was that he does not need the car for work itself as he is working in a warehouse, therefore that is not an issue to be taken into account.  However, we are very concerned about the circumstances of the disabled brother in Poland, and the possible hardship caused by no proper transport being available for him.   

32.	Evidence was produced to show that Mr Tadeusz Zebryk was the joint owner of the car.  The only consideration given by Mrs Hurrell to his position was as follows: “Even if your clients jointly own the vehicle, Mr Zenon Zebryk was present at the time of seizure, and therefore restoration to him is not applicable on innocent third party grounds.”  This seems to be an example of muddled thinking on the part of Mrs Hurrell. Restoration could be possible to Mr Tadeusz Zebryk on the basis that he was an innocent third party, even if it could not be made to Mr Zenon Zebryk.

33.	It was not submitted to us on behalf of the Commissioners that, because the Appellants had not challenged the seizure of the vehicle and the goods in the Magistrates Court, it was not open to them to argue ‘own use’.  Nevertheless, in the case of Commissioners of Customs and Excise v David Weller [2006] EWHC 237 (Ch), the High Court refused to interfere with the Tribunal’s decision that the Appellant in that case be allowed to contest the validity of the forfeiture.  Mr Justice Evans-Lomb, having considered all the relevant authorities, adopted Mr Justice Lewison’s approach in the case of Gascoyne v Customs and Excise Commissioners [2005] CH215, namely, that, whether or not an importer, having suffered a deemed forfeiture under paragraph 5 of schedule 3, is able to raise the validity of the forfeiture on a review by the Commissioners and on appeal from them to the Tribunal, depends on two questions.  The first of those two questions is:

(1)	Did the importer have a realistic opportunity to evoke the condemnation procedure?

(2)	If he did, are there nonetheless reasons, disclosed by the facts of the case, which would persuade the Commissioners or the Tribunal to permit him to reopen the question of the validity of the original seizure on an application for return of the goods?

In the present case, of course, we are dealing just with a seizure of a vehicle but we consider that the same principle applies.  There is no evidence before us that either Appellant was given a document in his own language, or any language which he might have understood, which clearly set out the different routes available to them for appealing.  Mr Zenon Zebryk’s right to give evidence as to the purpose of the importation was not challenged before us, nor was his evidence as to his having being given money to purchase the cigarettes for friends challenged.  It is incumbent on the Commissioners to consider whether or not the cigarettes were being imported for sale at a profit, or on a not-for-profit basis, in order to establish whether they are obliged to consider the issue of proportionality and whether or not exceptional circumstances pertain.  In the case of Lindsay (supra) at paragraph 64, having referred to the fact that the Commissioners’ policy did not draw a distinction between the commercial smuggler and the driver who was importing goods for social distribution with no attempt to make a profit, Lord Phillips MR said: “But where the importation is not for the purpose of making a profit, I consider that the principle of proportionality required for each case should be considered on its particular facts, which will include the scale of importation, whether it is a ‘first offence’, whether there was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship that will be caused by the forfeiture.  There is open to the Commissioners a wide range of lesser sanctions that will enable them to impose a sanction that is proportionate where forfeiture of the vehicle is not justified.”  In the present case, there is undoubtedly a large importation, but that of itself is not sufficient to displace the necessity of considering the other matters, which was not done.   
 
34.	It would not have been possible for Mrs Hurrell to take account of the fact either that Mr Zenon Zebryk did not smoke nor that the cigarettes were being brought in for friends, since she did not have that evidence available to her at the time.  We accept Mr Zenon Zebryk’s evidence to us that he had brought in the cigarettes for friends to purchase, and that he had been given money to do so.  He was not cross-examined by Miss Darroch as to the amount of money which he had been given, which he said was some £500, which would not indicate that any profit was being made.  We accept that in principle Mr Zenon Zebryk was bringing in cigarettes for friends to purchase from him.  Given the fact, and that it was a first offence, and that there is a question as to whether or not there is exceptional hardship in this case – a matter which we are unable to resolve on the present state of the evidence – we consider there may be issues both of proportionality and hardship to be considered in this case.  Mrs Hurrell herself gives the value of the car as being in the region of £4,500 to £7,000. The evidence before us is that the car was purchased for somewhere around £11,000 when it was new in 2003.  We were shown no documentary evidence by Mrs Hurrell as to the sale price which was apparently achieved on this vehicle of £3,250.  We find this a surprisingly low amount for a car which at the time would only have been two years old, and given the popularity of Volkswagen Golf cars.  It is difficult for us to decide this issue when we have no written evidence of the proper value of the car at the date of the seizure.  We are concerned that the car which Mr Zenon Zebryk is currently using cost only £350 and is clearly unfit, being in his words a “rat-trap”, for transporting his disabled brother.

35.	Because of the matters which the reviewing officer failed to take into account as set out above, and because of her having taken into account that the cigarettes were concealed, which we do not find to be the case, we find that the review decision was unreasonable in respect of Mr Zenon Zebryk.  With regard to Mr Tadeusz Zebryk, we find that no proper consideration was given to the fact that he was not present at the time and was therefore an innocent bystander.  Indeed no consideration at all was given to his position.  For those reasons therefore we consider that both these appeals should be remitted to the Commissioners for a reconsideration, taking into account all the above matters.  We would recommend to the Appellants that they submit further evidence as to the nature of their sick brother’s illness, his place of residence and the length of the journey which has to be undertaken to get him to the place of treatment.  Evidence of the nature and frequency of the treatment would also be necessary for the Commissioners properly to be able to consider the issue of hardship and whether these are exceptional circumstances here.  They should also obtain a proper valuation of the car at the time it was sold, and give consideration to the question of whether its UK value is substantially lower than its value in Poland, which would appear to us to be the proper valuation to consider where there is an issue of proportionality.

36.	This appeal is allowed.  We direct that the Respondents pay the Appellants’ costs of and relating to this appeal, to be agreed if possible, if not to be referred back to this Tribunal.

MISS J C GORT
CHAIRMAN

RELEASED: 13 September 2006

LON/05/8120