Gora and Others v Commissioners of Customs and Excise; Dannatt v Same

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Pill:,Lord Justice Chadwick,Lord Justice Longmore
Judgment Date11 April 2003
Neutral Citation[2003] EWCA Civ 525
Docket NumberCase No: C3/2002/1650
Date11 April 2003

[2003] EWCA Civ 525






Lord Justice Pill

Lord Justice Chadwick And

Lord Justice Longmore

Case No: C3/2002/1650


Balbir Singh Gora And Others
Commissioners Of Customs And Excise)
Mrs M Dannatt
Commissioners Of Customs And Excise

Roderick Cordara QC and Tim Eicke (instructed by Oury Clark) for the Appellants

Kenneth Parker QC and Tim Ward (instructed by HM Customs and Excise Solicitors) for the Respondents

Lord Justice Pill:

These are appeals against decisions of the VAT and Duties Tribunal ("the Tribunal"), Mr Stephen Oliver QC (Chairman), released on 30 May 2002 following hearings in December 200Following certificates issued by the Tribunal on 30 July 2002, permission to appeal to this Court was given by Robert Walker LJ.


In each case, preliminary points were before the Tribunal for decision. The points as understood by the Chairman, and as agreed by the parties, are first: whether the appeals to the Tribunal involved the determination of a "criminal charge" within the meaning of that term in Article 6 of the European Convention on Human Rights; secondly, whether they involved determination of a criminal charge or only the determination of "civil rights and obligations", within the meaning of Article 6, the jurisdiction of the Tribunal is sufficient to satisfy the requirements of Article 6. A related question arose as to the meaning of the word "seizure" in a context to be described and its consequences in Convention terms.


In so far as is material, Article 6(1) provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

Articles 6(2) and 6(3) confer specific rights on "everyone charged with a criminal offence".

Article 1 of Protocol 1 provides:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

Facts and issues


In the Gora group of cases, the appellants are traders in alcoholic drinks and are "revenue traders" as defined in section 1 of the Customs and Excise Management Act 1979 ("the 1979 Act") in that they deal in goods liable to excise duty. In each case, they were in possession of excise goods, alcoholic liquor, on which the Commissioners of Customs and Excise ("the respondents") were not satisfied duty had been paid correctly. It is not suggested that the traders were the producers or importers and they may have been several transactions away from the stage at which duty was payable..


Mrs Dannatt is the owner of a motor vehicle which, when being driven by her husband, was stopped by officers of the Commissioners at Eastern Dock Dover on 13 January 2000. Excise goods were found in the vehicle. There is an issue as to whether they should be restored to Mr Dannatt but Mrs Dannatt's claim to the Tribunal arose because she was required to pay 25% of the duty alleged to be payable on the excise goods, a sum of £1,100, in order to have the vehicle restored to her. The officers decided that Mrs Dannatt had allowed her car to be used by her husband for an improper importation of the excise goods.


In each case, the respondents relied, before the Tribunal, on policies they followed in the discharge of their duties. These included a policy not to restore seized goods even when the failure to pay excise duty by the owner was innocent in that he had taken all reasonable steps to ensure that he was purchasing goods on which the duty had been paid. It also included a policy that the owner of a vehicle used by another for smuggling alcohol or tobacco, even if not party to the offence, will not have the vehicle restored without paying a sum equivalent to 25% (now 50%) of the revenue evaded.


For the appellants, Mr Cordara QC opened the appeal on the basis that the Court would consider the lawfulness of these policies in the context of the procedure by which they are enforced. Reliance was sought to be placed on the majority decision of this Court in International Transport Roth GmbH & Ors v Secretary of State of the Home Department [2002] 3 WLR 344 that a penalty scheme under section 32 of the Immigration and Asylum Act 1999, summarised later in this judgment (paragraph 25), was an unfair scheme in breach of Article 6. It also imposed such a burden on the carriers as to be disproportionate to the objective to be achieved and was a breach of Article 1 of the First Protocol to the Convention which deals with the peaceful enjoyment of possessions. This broader question was not considered by the Tribunal, nor was it required to be having regard to the preliminary questions, as understood by the Tribunal and the parties, posed.


This Court indicated that it was not prepared to go beyond the preliminary questions. The broader question should first be considered, if at all, by the Tribunal and upon facts as found and not upon statements of facts stated to be agreed solely for the purposes of the preliminary issues. Concessions, to which I shall refer, made by the respondents as to the jurisdiction of the Tribunal, support the view that it is not for this Court to embark upon the exercise at this stage.


The classification issue, that is whether the proceedings involve criminal charges or merely the determination of civil rights and obligations, does arise for determination. Additional rights are conferred by Article 6 upon those charged with a criminal offence and, in considering the substantive issues, the Tribunal will need to know into which category the proceedings fall. That issue was also considered in Roth. Two further points arise on which it is also appropriate to give a ruling. Provisions for the constitution and procedure of the Tribunal are provided in Schedule 12 to the Value Added Tax Act 1994. It is accepted that the Tribunal is "an independent and impartial Tribunal established by law" within the meaning of that expression in Article 6 of the Convention.

The statutory framework


I will set out the statutory procedures together, though each of the points at issue requires consideration of only some of the provisions. We were referred to section 49 of the 1979 Act which provides that any imported goods, being goods chargeable on their importation with customs or excise duty, unshipped or unloaded without payment of that duty, shall be liable to forfeiture. Section 139 provides:

"(1) Any thing liable to forfeiture under the customs and excise Acts may be seized or detained by any officer or constable or any member of Her Majesty's armed forces or coastguard.

(2) Where any thing is seized or detained as liable to forfeiture under the customs and excise Acts by a person other than an officer, that person shall, subject to subsection (3) below either—

(a) deliver that thing to the nearest convenient office of customs and excise; or

(b) if such delivery is not practicable, give to the Commissioners at the nearest convenient office of customs and excise notice in writing of the seizure or detention with full particulars of the thing seized or detained.

(3) Where the person seizing or detaining any thing as liable to forfeiture under the customs and excise Acts is a constable and that thing is or may be required for use in connection with any proceedings to be brought otherwise than under those Acts it may, subject to subsection (4) below, be retained in the custody of the police until either those proceedings are completed or it is decided that no such proceedings shall be brought.

(4) The following provisions apply in relation to things retained in the custody of the police by virtue of subsection (3) above, that is to say—

(a) notice in writing of the seizure or detention and of the intention to retain the thing in question in the custody of the police, together with full particulars as to that thing, shall be given to the Commissioners at the nearest convenient office of customs and excise;

(b) any officer shall be permitted to examine that thing and take account thereof at any time while it remains in the custody of the police;

(c) nothing in the Police (Property) Act 1897 shall apply in relation to that thing.

(5) Subject to subsections (3) and (4) above and to Schedule 3 to this Act, any thing seized or detained under the customs and excise Acts shall, pending the determination as to its forfeiture or disposal, be dealt with, and, if condemned or deemed to have been condemned or forfeited, shall be disposed of in such manner as the Commissioners may direct.

(6) Schedule 3 to this Act shall have effect for the purpose of forfeitures, and of proceedings for the condemnation of any thing as being forfeited, under the customs and excise Acts.

(7) If any person, not being an officer, by whom any thing is seized or detained or who has custody thereof after its seizure or detention, fails to comply with any requirement of this section or with any direction of the Commissioners given thereunder, he shall be liable...

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