Gascoyne v Commissioners of Customs and Excise
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,LORD JUSTICE CARNWATH,LORD JUSTICE BROOKE |
| Judgment Date | 28 July 2004 |
| Neutral Citation | [2004] EWCA Civ 1162 |
| Docket Number | C3/2003/0736 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2004 |
[2004] EWCA Civ 1162
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(MR JUSTICE NEUBERGER)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Brooke
(Vice President of The Court of Appeal, Civil Division)
Lord Justice Buxton
Lord Justice Carnwath
C3/2003/0736
MR N GODSMARK QC (instructed by Nelsons) appeared on behalf of the Appellant
MR D ANDERSON QC and MR J PUZEY (instructed by Solicitor for HM Customs and Excise) appeared on behalf of the First Respondent
MS I SIMLER (instructed by Treasury Solicitor) appeared as an Advocate to the Court
Wednesday, 28th July 2004
This appeal from a decision of Neuberger J, as he then was, which was itself a decision on an appeal from the Customs and VAT Tribunal, is yet another case in this court that addresses the activities of Her Majesty's Customs and Excise in investigating, and where necessary taking steps to recover duty in respect of, the importation by persons returning from other countries within the European Union with large amounts of dutiable goods.
The framework of the law that governs those activities was set out by the Master of the Rolls in Lindsay v Customsand Excise Commissioners [2002] 1 WLR 1766. I do not need to set out in extenso what Lord Phillips there said. It is only necessary here to summarise the elements in the scheme that are of relevance to the issues in this appeal.
First, duty is payable on certain types of goods including, relevantly to this appeal, cigarettes and tobacco, which are imported for a "commercial purpose". By statutory provision, particularly the Excise Duties (Personal Reliefs) Order 1992, various considerations have to be taken into account. Firstly, there is exempt from duty any goods that are imported for the importer's own use. Secondly, if goods are imported that are above certain permitted, or perhaps more accurately guideline, amounts, the question arises as to whether they are indeed for a commercial purpose. That is to say, as understood by this court in Lindsay, either for own use or as personal gifts to other people. The guideline limits relevant to our case are 800 cigarettes and 1 kilogram of tobacco.
Secondly, Her Majesty's Customs can prosecute for fraudulent evasion of duty under section 170 of the Customs and Excise Management Act (CEMA), but they more often use their statutory powers of forfeiture of goods unlawfully imported on which duty has not been paid, or ancillary items such as the motor vehicles in which they have been carried. Thus, by section 49 of CEMA goods imported without the payment of duty are liable to forfeiture, and by section 141 where goods are liable to forfeiture any vehicle carrying them is also liable to be so forfeit.
The procedure has a number of elements which appear to have grown up over the years and which do not always easily fit with each other. Schedule 3 of the Customs and Excise Management Act lays down a procedure relating to forfeiture. The relevant paragraphs for our purposes are as follows:
"1-(1) The Commissioners shall… give notice of the seizure of any thing as liable to forfeiture and of the grounds therefor to any person who to their knowledge was at the time of the seizure the owner or one of the owners thereof.
…
"3. Any person claiming that any thing seized as liable to forfeiture is not so liable shall, within one month of the date of the notice of seizure or, where no such notice has been served on him, within one month of the date of the seizure, give notice of his claim in writing to the Commissioners at any office of customs and excise.
…
"5. If on the expiration of the relevant period under paragraph 3 above for the giving of notice of claim in respect of any thing no such notice has been given to the Commissioners, or if, in the case of any such notice given, any requirement of paragraph 4 above is not complied with, [that lays down certain limited requirements for the content of a notice of claim] the thing in question shall be deemed to have been duly condemned as forfeited.
…
"8. Proceedings for condemnation shall be civil proceedings and may be instituted—
(a) in England or Wales either in the High Court or in a magistrates' court;
[that relates back to paragraph 6 which provides that such procedures shall be taken by the Commissioner when a notice of claim is duly given to them]"
The procedure therefore is that the importer gives the notice of claim and it is for the Commissioners, when receiving such notice, then to initiate legal proceedings for condemnation: that is to say, for a decision as to whether the items are truly forfeit. Under section 152(b) of the CEMA the Commissioners have a discretionary power to "restore, subject to such conditions (if any) as they think proper, any thing forfeited or seized under those Acts".
The legislation provides for a review to be made by Her Majesty's Customs of any decision as to forfeiture, and by section 16 of the Finance Act 1994 an appeal lies to a VAT and Duties Tribunal with respect to any decision on such a review. So if the Commissioners decide, having reviewed the matter, that they will not exercise their powers under section 152, the importer can appeal that decision to the tribunal and the tribunal has limited, but only limited, powers to itself review the decision.
I turn to the facts of this case. Mr Gascoyne was stopped at Dover by customs officers when he was returning from France on 15th April 2001. He was driving a Land Rover vehicle. He was accompanied by a friend of his, a Miss Gifford. Hidden in the boot of the vehicle were 10,000 cigarettes and 32 kilograms of rolling tobacco: that is to say, for those who are not familiar with this expression, tobacco used in order to produce cigarettes by rolling them in a machine or by hand.
These amounts attracted the attention of the officers because they very much exceeded the guideline limits set out in the legislation to which I have already referred. The amount of the cigarettes exceeded those guidelines by 12 times, the amount of the tobacco exceeded those guidelines by 32 times. The duty on those amounts would have been something like £5,000.
Mr Gascoyne claimed, however, that all of the goods were for his and/or Miss Gifford's personal use, and therefore, under the provisions already set out, were not dutiable. He was not believed in that claim by the officers, who confiscated his goods together with the Land Rover in which they were carried.
In circumstances that are controversial in this appeal, and to which I shall have to return, Mr Gascoyne's case was investigated by the tribunal on an appeal to it against a refusal of Her Majesty's Commissioners to review the confiscation orders.
In order to put this case into some sort of context it will be appropriate to set out the facts upon which Mr Gascoyne relied and the conclusions of the tribunal on those facts. They are to be found in paragraph 47 of the tribunal's ruling, the tribunal having looked into the facts in a fashion that, on one view of the issues in this appeal, was not open to it. Be that as it may, they reached detailed conclusions:
"On 15th April 2001 the Appellant and his partner Miss Gifford were stopped by officers of the Commissioners at Eastern Docks, Dover. They did not initially disclose to the officers the considerable amount of excise goods that were contained in the vehicle. Officers discovered in the vehicle a large quantity of excise goods, some of which were in a box mixed among clothing and a large part of the tobacco was found hidden in a compartment in the boot of the vehicle. In the vehicle the officers found 10,000 cigarettes and 32 kilograms of hand-rolling tobacco (640 pouches) . This quantity was considerably in excess of the guidelines which were 800 cigarettes per person and 1kg of hand-rolling tobacco per person for each person's own use. The smoking habits revealed by the Appellant and Miss Gifford to the officers indicated that it would have taken them far more than one year to smoke the tobacco themselves. Indeed at the hearing the Appellant admitted that in fact he had only smoked at the time about 1 pouch of tobacco per week and Miss Gifford a few cigarettes. On that basis the Appellant had been purchasing almost twelve years' supply of tobacco. Even if he had smoked 2 pouches a week, he would have been purchasing almost six years' supply. We find that it is not credible that the Appellant and Miss Gifford had purchased tobacco and cigarettes solely for their own use. There was no suggestion by either of them that they were purchasing the goods for anyone else. We find that the explanation that they gave as to the purpose of their journey and their intentions concerning where they were visiting was not credible. We did not believe that they had intended to travel to Bruges and changed their mind after they had been to Adinkerke. We did not believe the Appellant's contention that he had travelled to Adinkerke to buy chocolates for a neighbour. In fact he never purchased any chocolates and we did not believe his explanation. We did not believe his assertion that he was not aware of the guidelines. Neither he nor Miss Gifford were able to demonstrate to the officers that they knew how to roll tobacco. We did not believe the explanation of the Appellant that he used a machine to roll tobacco, but that he had lost the machine on the previous day in France, and that he had not been experienced...
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