Michael Davidson v Her Majesty's Revenue & Customs, E 01127
| Jurisdiction | UK Non-devolved |
| Judge | Miss J GORT |
| Judgment Date | 25 July 2008 |
| Respondent | Her Majesty's Revenue & Customs |
| Appellant | Michael Davidson |
| Reference | E 01127 |
| Court | First-tier Tribunal (Tax Chamber) |
E01127
EXCISE – seizure of vehicle and goods – whether seizure challenged – restoration refused – whether appeal against non-restoration of vehicle – whether decision not to restore goods proportionate – whether appellant entitled to raise issue of own use – whether abuse of process – No
JURISDICTION – Whether criminal charge – Whether Magna Carta and Bill of Rights 1689 applicable –Whether Appellant denied right to a fair trial – Gora considered – Appeal dismissed
MICHAEL DAVIDSON Appellant
-
and –
Tribunal: MISS J C GORT (Chairman)
MR T MARSH
Sitting in public in London on 23 August 2006, 31 May 2007 and 2 June 2008
Mr Gerard Batten MEP as amicus curiae, for the Appellant
Mr Matthew Barnes of counsel, instructed by the Solicitor’s Office, for the Respondents
© CROWN COPYRIGHT 2007
1. This is an appeal against a decision of HMRC dated 9 November 2005 not to restore 6 kilogrammes of hand rolling tobacco, 6,780 cigarettes, 100 cigarillos, 360 litres of beer, 4 litres of whisky and 3 litres of wine.
2. The Appellant had been stopped on 18 July 2004 at Dover Eastern Docks driving a Peugeot 405 car, a Mr Derek Beackon was a passenger in the car. Details of the circumstances of this journey will be set out later. All the goods listed above and the vehicle were seized by officers of HMRC and Mr Davidson was issued with a Seizure Information Notice and Customs Notice 12A. That notice explained that he could challenge the legality of the seizure in a Magistrates Court by sending Her Majesty’s Revenue and Customs (HMRC) a Notice of Appeal within one month of the date of seizure. No such challenge to the legality of the seizure was received by HMRC, although it was Mr Davidson’s evidence to the Tribunal that he had sent out such a notice. This again is a matter to which we will return later. On 20 July 2004 Mr Davidson wrote to HMRC asking for the vehicle to be restored, and on 18 August 2004 an officer replied refusing to restore the vehicle. Mr Davidson had written on 6 August requesting restoration of the goods, and on 9 August HMRC replied acknowledging the request and stating that they aimed to provide a decision by 2 September 2004.
3. Not all the correspondence is contained in the bundle provided by the Commissioners, in particular we do not have a letter dated 18 July 2005 (i.e. one year after the seizure) from Mr Batten to HMRC. We have however seen the reply dated 11 August 2005 in which HMRC states:
“Thank you for your letter of 18 July concerning your constituent Mr M P Davidson … about the seizure of excise goods and his vehicle by HM Customs & Excise, now HM Revenue & Customs (HMRC), at Dover on 18 July 2004. I am replying as a complaints manager for this region.”
There then follows a statement of HMRC’s policy with regard to cross border shoppers. The two concluding paragraphs of this letter state:
“Where our enforcement activity results in seizure of goods or vehicles this is subject to legal challenge and independent review. Travellers may appeal to HMRC against the legality of a seizure and, provided an appeal is received within 30 days of seizure, HMRC will initiate condemnation proceedings in a Magistrates Court. HMRC’s decisions not to restore seized goods or vehicles, or to restore them for a sum of money, can also be appealed first to an impartial HMRC review officer, independent of the team that made the seizure, and then to the independent VAT and Duties Tribunal.
“Mr Davidson did not challenge the legality of the seizure in the Magistrates Court at the time and requested restoration of his vehicle instead. Our Post Seizure Unit decided not to restore the vehicle in August 2004 and their letter explained that he had 45 days in which to ask for the decision to be reviewed. He apparently chose not to challenge the decision further and the case is now closed.”
We do have Mr Batten’s reply dated 22 August 2005 in which he expresses his disappointment that HMRC’s letter did not address the points he had made, but merely reiterated its policy. He repeated his request that either Mr Davidson’s goods and car were restored to him or that HMRC take Mr Davidson before “a Court” (by which it subsequently appeared that M Batten meant the Crown Court) and press charges as he had requested. HMRC wrote again to Mr Batten on 16 September 2005 stating that his complaint had been investigated afresh. The circumstances at the time Mr Davidson was stopped are set out in this letter, and also the facts which the seizing officer took into account. The letter-writer repeats that Mr Davidson did not challenge the legality of the seizure, but requested restoration of the vehicle only on 20 July 2004. Reference is made to the decision not to restore the vehicle and the explanation given to Mr Davidson that he had 45 days in which to ask for the decision to be reviewed. It is also repeated that Mr Davidson chose not to request a review of that decision, and therefore the case was now closed as Mr Davidson was out of time to request review. The writer continues:
“Your recent letter requests restoration of Mr Davidson’s vehicle and goods. As Mr Davidson did not previously request restoration of the goods, the recent request will be forwarded to our Post Seizure Unit in Falmouth for consideration. A reply will be sent to Mr Davidson in due course.”
The writer was mistaken when he said there had been no previous request, Mr Davidson having requested restoration of the goods by his letter o 6 August 2004.
4. By a letter dated 19 September 2005 HMRC wrote to Mr Davidson refusing restoration of the goods and informing him that he may have this decision reviewed by an impartial review officer by writing within 45 days of the date of that letter. Mr Davidson’s letter in reply is enclosed in the bundle and in this letter, which was received by HMRC on 27 September 2005, he requested either the return of his goods or full or adequate compensation. He states inter alia:
“Now you either charge me with a criminal offence or you pay me in full at UK rate for the tobacco, wine and spirits and beer and my car that was unlawfully taken has (sic) you have been told to do so by a member of the European Parliament namely Gerard Batten. Otherwise I will take a summons out against you personally and will ask the British media to call for a full scale public enquiry. And to ask that Customs and Excise compensate every single person that they have seized vehicles and goods from in the last ten years. And that you yourself be dismissed from your position unless you are prepared to take serious disciplinary action against those that have been carrying out this unlawful activity. I would just like to also inform you that you say in your letter I did not appeal against legality of the seizure and it is now too late to do so. In fact I did together with an application for restoration of my vehicle and that is why I then decided to correspond with my MEP whos (sic) conclusions are exactly the same as mine i.e. either return the goods in full or make adequate compensation or charge me.”
On 1 October 2005 an officer wrote explaining the review process to Mr Davidson and inviting him to provide any further...
To continue reading
Request your trial