Jaszczyszyn v Director of Border Revenue [2011] UKFTT 126 (TC)

FTT-Tax
Jaszczyszyn v Director of Border Revenue
[2011] UKFTT 126 (TC) · 2011-02-16
[1]Mr Daniel Jaszczyszyn, the Appellant, appeals against a decision of the Respondent contained in a letter of 9 February 2010. In that letter he was notified that, following a departmental review, his vehicle would not be restored. The vehicle, a BMW 316, registration number FZ71763 (“the vehicle”), was seized on 20 September 2009. The reason for the seizure was that the vehicle had been adapted for the purpose of smuggling and therefore was liable to forfeiture under section 88 of Customs and Excise Management Act 1979 (“CEMA”).[2]Section 88 of CEMA provides:
“… if a vehicle is or has been within the limits of a port … while constructed, adapted, altered or fitted in any manner for the purpose of concealing goods, that … vehicle shall be liable to forfeiture.”
[3]The question for us arises under Finance Act 1994 section 16(4). Are we satisfied, as regards the decision not to restore the vehicle, that “the Commissioners or other persons making the decision could not reasonably have arrived at it …”? The background facts[4]On 20 September 2009 the Appellant was stopped by an officer of the Respondent (at the relevant time HMRC now UK Border Agency) at the UK Control Zone at Coquelles, France. The Appellant informed the officer that he was going to stay with his sister in London for three or four weeks. The officer asked to see the ticket and noted that it showed a return date of 21 September. The Appellant said that he had owned the vehicle for 18 months and that the ticket had been paid for in cash. He was not able to provide his sister’s address but said that he could phone for it. The officer then decided to explain the prohibitions and restrictions on importing certain goods into the UK and asked the Appellant if he had any such goods. The appellant confirmed that he was aware of the prohibitions and restrictions and that he had no such goods. The officer, accompanied by a colleague, then proceeded to examine the vehicle. During the search of the boot area, the officer found a piece of shaped metal on top of the spare wheel; it was the same colour as the car. The officer then removed the interior carpet which covered the bulkhead from the boot to the rear seat. This revealed a bulkhead of metal the same colour as the car; however in the middle a shaped piece of metal was missing. The hole corresponded with the shaped piece of metal found on top of the spare wheel. Behind where the bulkhead should have been an area had been cut out of the foam[5]The officer then tested the area for drugs using an ion scanner. This showed a positive reading for class A drugs as did the boot carpet and the place which had been removed.[6]The officer was satisfied that the vehicle had been adapted for the purpose of smuggling and therefore seized it under section 139(1) CEMA as being liable to forfeiture under section 88 CEMA.[7]When the vehicle was seized the Appellant was issued with a “Seizure Information Notice” and, it was claimed for the Respondent, Customs Notice 12A (“Goods and/or Vehicles seized by Customs”). The Notice explained that he could challenge the legality of the seizure in a Magistrates’ court by sending Customs a notice of claim within one month of the date of the notice of seizure. The Seizure Information Notice and the Seizure Notice were not signed by the officer, but were signed by the Appellant. The box on the former Notice indicating that Customs Notice 12A had been issued had not been ticked. The officer’s note states:
“Goods seized. Due to the driver’s inability to understand English Well language line used. All paperwork issued. Using telephone interpreter.”
[8]The Appellant did not challenge the legality of the seizure of the vehicle. The vehicle was consequently condemned as forfeit under paragraph 5 Schedule 3 of CEMA (“deemed condemnation”) and ownership passed to the Crown. Correspondence[9]On 2 October 2009 the Respondent received a facsimile message from the Appellant requesting restoration of the vehicle. This requested that all correspondence be sent to his “advocate”, Paul Smith. On 6 October Mr Smith was written to, seeking written authority to act on the Appellant’s behalf and the completed authority was received by the Respondent on 20 October.[10]On 5 January the Respondent wrote to Mr Smith announcing the refusal to restore the vehicle. On 15 January 2010 a request was made for the Appellant requiring the decision to be reviewed. That letter states:
“The overbearing reason that your [officer] has given for not restoring my vehicle is that the vehicle has been modified/adapted to conceal narcotics or smuggle goods. It is admitted that there was a void in the back seat of the vehicle which was cut to house a “Sub Woofer”
Speaker. The Sub Woofer Speaker in question was removed by the previous owner of the vehicle and as such the void became visible.”[11]On 19 January 2010 the Respondent wrote to the Appellant explaining the review process and inviting the Appellant to provide any further information in support of the request for a review. No further information was provided. On 9 February 2010, a Reviewing Officer (Mr David Harris who gave evidence before us) confirmed that having conducted a review the Respondent would not restore the vehicle. In that letter the Review Officer summarised the facts as set out above. He stated the UK Border Agency policy relating to the Restoration of Private Vehicles as being, for present purposes “Vehicles adapted for the purposes of smuggling will not normally be restored.” The letter goes on to state that the officer has been guided by the restoration policy. He states that the legality or correctness of the seizure has not been considered because the seizure itself had not been contested in the Magistrates’ court. The letter notes the assertion in Mr Smith’s letter of 14 January 2010 to the effect that the space had been created to house the Sub Woofer Speaker. It notes that no evidence had been provided in support of that assertion. It also notes that the scan taken of the space showed a positive result to cocaine. The letter concludes that non-restoration is proportionate in the circumstances and that, therefore, the vehicle should not be restored. Our conclusion[12]We are satisfied that the review decision not to offer the seized vehicle for restoration was one that could have been reasonably arrived at.[13]The stated policy of UK Border Agency, set out above, is, we think, a reasonable policy. The reasonableness of the decision not to return has to be determined by reference to the question of whether the Respondent has addressed any exceptional circumstance or circumstances that should result in restoration of the vehicle and whether in all the circumstances the result (to restore or not to restore) is fair, reasonable and proportionate in all the circumstances.[14]Here the claim of the Appellant is that the hole created in the foam behind the back seat was made by the person from whom the vehicle had been bought at an open market in Lublin some eighteen months before. The Appellant said the hole had previously housed a Sub Woofer Speaker. The assertion was unsubstantiated and was not made until 14 January 2010; and that was some 3½ months after the seizure and the interview at which he might have provided that explanation as to the existence of the hole. The evidence of Mr Christopher Kidd, an engineer for HMRC with experience of examining vehicles that had been seized, was that a Sub Woofer would not have been contained in a foam hole, covered by carpeting and facing backwards into the baggage part of a vehicle. Moreover, he said, the hole was too small to house a normal Sub Woofer. We are not satisfied that there was an explanation for the hole that displaces the conclusion that the hole have been made “for the purpose of concealing goods”.[15]We heard Mr Kidd’s evidence about the tests showing a positive result to traces of cocaine having been found in the hole as well as on the carpet and on the cover. We are satisfied that the tests were reliable and properly carried out. The fact that the artificially created hole was in the vehicle and that it contained traces of cocaine satisfies us that the decision not to restore was reasonable and that there was no exceptional circumstance that should have weighed against that conclusion. Moreover the fact that the vehicle had signs of cocaine being transported in it suggests that the outcome was wholly reasonable and proportionate in the circumstances.[16]We turn now to the Appellant’s contention that he had not been provided with the necessary paperwork to explain his right to resist seizure. The law in Schedule 3 of CEMA does not require this. The fact that he did not actually receive a Notice 12C does not remove the fact that the Seizure Information Notice (which he was given, according to his signature on the Notice) explains the procedure for resisting seizure. We note that the Appellant had the advice of Mr Smith his (advocate) who, within the 30 day time limit for resisting seizure, formally applied for restoration of the vehicle. More to the point, we cannot see how the alleged irregularity (i.e. to provide a Notice 12C) can displace the reasonableness of the decision not to restore a vehicle such as this, being a vehicle that had evidently been used to transport cocaine.[17]For those reasons we think that the Reviewing Officer was justified in concluding that the vehicle should not be restored and we think that this decision was fair, reasonable and proportionate in the circumstances. We therefore conclude that the appeal should be dismissed.[18]This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. SIR STEPHEN OLIVER QC RELEASE DATE: 16 February 2011