“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.” 20. In the course of his review of the authorities Lord Scott referred with approval to the 'felicitous' observation of Sir Thomas Bingham MR in Clarke Homes Ltd v Secretary of State for the Environment(1993) 66 P & CR 263 at 271–272, identifying the central issue in the case as: “… whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.”
“vitamin C 500 mg 0 tabs and Folic Acid 400 IU 60 sg.”
“However, each case is looked at on its own merits to consider whether there are any exceptional circumstances that would warrant a departure from that policy.” 31. The letter stated that the reviewing officer had “looked at all the circumstances surrounding the seizure”, but had not looked at the legality or correctness of the seizure itself. The letter continued: “I conclude that there are no exceptional circumstances that would justify a departure from the Commissioners’ policy and I confirmed that on this occasion the goods will not be restored .” 32. The letter concluded by offering a statutory review. 33. As we have noted, the appellant enclosed with his letter of7 December 2016 correspondence from Prof VKK Chatterjee, Professor of Endocrinology at the University of Cambridge (Addenbrooke’s Hospital) dated17 November 2016 . Prof Chatterjee’s letter confirmed that the appellant had taken part in a trial “some years ago” (in fact it was in 2001) in Cambridge which involved treatment with DHEA. Prof Chatterjee’s letter enclosed the publication of the results of the trial (a paper published in February 2008, which was also enclosed with the appellant’s letter of7 December 2016 ) and stated that it was found that a substantial proportion of patients “experienced health benefit and improved well-being following DHEA treatment”
“Consequently, as we recommended to trial participants, I understand that you have been purchasing DHEA from a reputable source overseas. Unfortunately, as yet, DHEA is not licensed for treatment use in the UK. However, in the United States, this hormone is freely available as a health supplement. Accordingly, I hope that this background information is of help in enabling you to continue to purchase and take DHEA from an overseas source. I have no doubt that it is of health benefit in a substantial proportion of patients with adrenal gland underactivity, including yourself.” 34. The paper enclosed with Prof Chatterjee’s letter of17 November 2016 was entitled “Long-Term DHEA Replacement in Primary Adrenal Insufficiency: A Randomized, Controlled Trial”, and Prof Chatterjee was one of the contributing authors. The paper was 9 ½ pages long including footnotes. Although couched in technical language, it seemed to us that there was little doubt that the paper indicated the health benefits of taking DHEA for patients suffering from Addison’s disease. We start with the summary of the paper and its findings which appears at the beginning of the paper: “Context: Dehydroepiandosterone (DHEA) and DHEA sulfate (DHEAS) are the major circulating adrenal steroids and substrates for peripheral sex hormone biosynthesis. In Addison’s disease, glucocorticoid and mineralocorticoid deficiencies require lifelong replacement, but the associated near-total failure of DHEA synthesis is not typically corrected. Objective and Design: In a double-blind trial, we randomised 106 subjects (44 males, 62 females) with Addison’s disease to receive either 50 mg daily of micronized DHEA or placebo orally for 12 months to evaluate its longer-term effects on bone mineral density, body composition and cognitive function together with well-being and fatigue. Results: Circulating DHEAS and androstenedione rose significantly in both sexes, with testosterone increasing to low normal levels only in females. DHEA reversed ongoing loss of bone mineral density at the femoral neck (P<0.05) but not at other sites; DHEA enhanced total-body (P = 0.02) and truncal (P = 0.017) lean mass significantly with no change in fat mass. At baseline, subscales of psychological well-being in questionnaires (Short Form-36, General Health Questionnaire-30) were significantly worse in Addison’s patients versus control populations (P<0.001), and one subscale of SF-36 improved significantly (P = 0.004) after DHEA treatment. There was no significant benefit of DHEA treatment and fatigue or cognitive or sexual function. Supraphysiological DHEAS levels were achieved in some older females who experienced mild androgenic side effects. Conclusion: Although further long-term studies of DHEA therapy, with dosage adjustment, are desirable, our results support some beneficial effects of prolonged DHEA treatment in Addison’s disease.” 35. We set out below a number of extracts from the body of the paper: … Deficiencies of glucocorticoid and mineralocorticoid in primary adrenal insufficiency (Addison’s disease) are well recognised and require lifelong replacement. However, the associated deficiency of DHEA(S) has been investigated only recently, and its possible clinical significance remains controversial. Patients with Addison’s disease on optimal glucocorticoid and mineralocorticoid replacement therapy still report a reduced quality of life when compared with normal individuals and score significantly worse than age-and sex-matched population controls on validated psychological tests that measure well-being. Several short-term studies of DHEA supplementation in adrenals insufficiency have now been reported: Young et al. [Footnote to article reference] validated the efficacy of oral DHEA treatment in restoring physiological circulating levels of DHEA (S) in 10 adults. 36. The paper then summarised the results of a number of earlier studies of DHEA supplementation in adrenal insufficiency: “[An earlier paper] validated the efficacy of oral DHEA treatment in restoring physiological circulating levels of DHEA (S) in 10 adults with panhypopitutarism and showed some biotransformation of DHEA in this to sex steroids.[Another paper] studied 24 women, 14 of whom had primary adrenal insufficiency… [T]he authors reported enhanced well-being and sexuality. Our previous placebo-controlled three-month crossover trial of 39 patients (including 15 males) with primary adrenal insufficiency showed similar biochemical changes and enhanced psychological well-being, independent of gender. … No changes in body composition, BMD or cognition were demonstrated in any of these short-term studies of DHEA replacement. A nine-month, parallel group trial of DHEA replacement in 39 patients showing no benefit in health status may have been underpowered. … We therefore undertook a 12-month trial of DHEA replacement therapy... To determine whether there are positive effects on bone mineral density (BMD), body composition, or effects on cognitive function, which might be related to the neuroprotective action of DHEA. We also wanted to confirm that the changes in biochemistry, well-being, and fatigue observed in our previous short-term trial could be replicated and maintained with a more protracted administration of DHEA, and these parameters were designated as secondary endpoints. …” 37. The paper then described the trial participants and the methods employed in the study and then continued to describe the results of the study: “ Hormonal and biochemical changes In those receiving 50 mg oral micronised DHEA, serum DHEAS rose markedly within one month from grossly subnormal levels to levels within the physiological range for young adults in both male and female subjects. These levels were maintained throughout the 12-month period, signifying compliance with treatment. One month after discontinuing treatment, DHEAS levels fell back to baseline low levels, confirming satisfactory washout of the active study treatment. … Body composition and BMD Discussion This 12-month study of DHEA replacement in patients with Addison’s disease both supports improved well-being documented in our previous short-term study and adds new information on longer-term effects of DHEA. We report novel effects of DHEA on body composition (lean mass), femoral neck BMD, and particular psychological parameters (fatigue and self-esteem). As expected, Addison’s patients had grossly sub- normal DHEAS levels. All replacement with 50 mg micronized DHEA daily restored DHEAS blood levels to within the normal range for young adults. … The low baseline BMD in Addison’s subjects progressed, with diminution in bone density at most sites in placebo-treated subjects during the subsequent 12 month period. In this context, reversal of this trend was an observed increase in femoral neck BMD after DHEA therapy is notable. … DHEA therapy increased both truncal and total-body lean mass measured by DEXA. The improvement in lean muscle mass mirrors that seen in previous studies with DHEA supplementation in ageing or postmenopausal women. The mechanism by which increased lean muscle mass occurs is not known, but it is noteworthy that there was no associated diminution in fat mass as has been reported by other groups after DHEA supplementation. … The effects of DHEA on psychological function were assessed both by comparing hormone and placebo-treated groups during 12 months of DHEA treatment and, in addition, determining whether any changes were reversed after washout in the DHEA-treated subjects. Because both the GHQ – 30 and SF – 36 tests have been validated and used on large population subnormal individuals, we were able to compare baseline scores in our Addison’s disease patients before hormone/placebo treatment with normative data. We recognize that these control subjects were not contemporaneous, making such comparison tentative. There were striking reductions in baseline scores for some subscales of GHQ – 30 and dimensions of SF – 36, compared with normal subjects drawn from a reference population. Interestingly, similar abnormalities in the self-esteem subscale of GHQ – 30 occurred in both our studies [this one and an earlier short-term replacement study], and an identical pattern of abnormalities in baseline SF-36 scores were observed in another Addison’s population from Norway, suggesting that there may be a disorder specific profile of psychological deficit in Addison’s disease. During DHEA treatment, scores for the subscales of GHQ – 30 and SF – 36 improved and worse and more markedly (albeit nonsignificantly) after washout of DHEA. Furthermore we observed a similar trend with physical and mental fatigue dimensions of the MFI – 20 infantry (a prominent complaint in Addison’s patients), with statistically non-significant improvement at six and 12 months during DHEA treatment, followed by deterioration of scores after washout. This pattern of initial early improvement in well-being and fatigue followed by a rebound in schools after DHEA washout may be noteworthy. … This trial describes the longest duration of DHEA replacement therapy in a comparatively large number of patients with Addison’s disease and provides important additional information on its effects and tolerability. Our results show that daily oral administration of DHEA in physiological dosage for 12 months normalises serum DHEAS levels and does have positive psychological effects. Our study also suggests that patients with Addison’s disease may have a disorder-specific psychological deficit. … Beneficial responses to DHEA treatment in lean body mass and femoral BMD were also observed, changes that if sustained in the long term, could reduce morbidity.” 38. The appellant produced a letter from Prof Pierre Bouloux (Professor of Endocrinology at the Royal Free Hospital, London dated4 September 2014 ) which stated: “[The appellant] has had no episodes of adrenal insufficiency, and had a very satisfactory day curve on 10, 10 and 5 of Hydrocortisone about nine months ago. He is also on Fludrocortisone 50 mcg twice daily and blood pressure is normal. He is using DHEA supplements and all things being well, we will keep an eye on him in two years’ time.” 39. The appellant also produced a letter, dated12 June 2017 , from Prof Bouloux which stated: “This is to certify that the above gentleman [the appellant] suffers from primary adrenal insufficiency (Addison’s disease) for which he has been prescribed Hydrocortisone 10 mg twice daily and 5 mg at night, 9-alpha Fludrocortisone mcg twice-daily, and latterly DHEA at a dose of 50 mg per day. I, as his treating physician, would recommend that he continues on the DHEA long-term as this has shown to be beneficial to such patients. This letter will, therefore authorise the importation on medical grounds.” 40. In addition, the appellant produced a letter dated25 August 2017 from Dr Bernard Khoo, Senior Clinical Lecturer and Honorary Consultant in Endocrinology at the Royal Free Hospital, which stated: “This gentleman [the appellant] is symptomatically stable and has not apparently had any Addison’s crises recently. He is still continuing to take DHEA and feels that this is beneficial for him. I understand Prof Bouloux has issued a letter which authorises its importation for medical purposes, and I hope this documentation will be sufficient for him to import the medication, which I concur is required for continued treatment of his Addison’s disease.” 41. The letter from Prof Chatterjee of17 November 2016 (including the paper enclosed with Prof Chatterjee’s letter) and that of Prof Bouloux dated4 September 2014 were amongst the papers placed before Ms Perkins when, in a letter dated19 February 2017 , he requested a statutory review of the Border Force’s decision not to restore his DHEA tablets. 42. In his letter of19 February 2017 seeking a statutory review, the appellant wrote as follows: “Unfortunately the Border Force letter [unhelpfully this letter was undated] does not set out why the conclusion is reached that there are no exceptional circumstances to justify a departure from the policy, so I have not been able to specifically address their reasoning. So instead, I am setting out matters that I believe make my circumstances exceptional. 1. My specific personal and medical situation is exceptional – I have a rare medical condition, which in itself makes my situation exceptional. It is estimated that only 40 to 60 people per million of the general global population habit. The NHS website says there are only 8400 sufferers in the UK. 2. DHEA is exceptional – it is a naturally occurring hormone that everyone produces in their body, except Addison’s Disease sufferers as their bodies stop making it. DHEA is legal and freely available in other countries, including the USA – see appendix 2 [the letter of17 November 2016 , Prof Chatterjee]. 3. My personal use of DHEA is exceptional because I am not taking it as a supplement, as other people who buy it may do, but as a REPLACEMENT; this is because my body does not make DHEA like other people. 4. The impact on me and my family of not having the DHEA restore to me is exceptional – because I am taking DHEA as a replacement and not a supplement not taking DHEA has negative impacts on my health and well-being and my family life. Prior to receiving DHEA during the medical trial, my life and that of my family was blighted by the physical and psychological effects of not having DHEA in my body. Please see the highlighted sections of the medical paper at appendix 3 [the paper enclosed with Prof Chatterjee’s letter of17 November 2016 ] which provides an explanation of these. 5. I have been importing DHEA for 15 years for my personal use without incident – on completion of the medical trial the researchers advised me which supplier I should use to obtain the tablets for my future use. I ordered one year’s supply (I take one tablet per day and ordered 360). 6. My MP, Matthew Offord, is supporting my case and has written to the Immigration Minister . Mr Offord agrees that if DHEA has been classified as a class C drug, which I have been unable to verify, it cannot have been intended to deprive those who are using it for personal medicinal purposes and whose health is significantly affected by being unable to access it. … The fact that there is an appeals process, which acknowledges that there may be exceptional circumstances where a decision can be made to depart from the policy, gives me hope that you can truly use your discretion to make a decision to restore the DHEA tablets to me. I honestly do not see how anyone’s circumstances could be any more exceptional. Because the Government has allowed that there may be such exceptions I am putting my trust in you to use the power you have to help me.” 43. In addition, the appellant’s letter of19 February 2017 also enclosed leaflet from the Addison’s Clinical Advisory Panel (prepared by Professor John Wass of Churchill Hospital, Oxford, Dr Trevor Howlett of the Leicester Royal Infirmary, Dr Wiebke Arlt of the University Hospital, Birmingham and Dr Simon Pearce of the Royal Victoria Infirmary, Newcastle) explaining that the use of DHEA was a method of treating Addison’s disease. The leaflet referred to the fact that Addison’s disease was treated by lifelong daily steroid medication and indicated that an Addison’s disease sufferer would usually be prescribed Hydrocortisone, Fludrocortisone and, “possibly”, DHEA. The leaflet continued: “Patients taking the precautions in section 5 usually manage their illness smoothly, without going into crisis … Adrenal crisis is a state of acute cortisol shortage … If you feel severely unwell, take extra medication then call a doctor. An emergency injection followed by urgent hospital treatment is needed for an adrenal crisis.” 44. On8 March 2017 , Ms Perkins, the reviewing officer, wrote to the appellant notifying him of the outcome of the Border Force’s review of its earlier decision not to restore the DHEA tablets. After setting out a summary of the correspondence, Ms Perkins’ letter proceeded as follows: “ Summary of the Restoration Policy for seized goods [including Prohibited and Restricted goods] The policy is that seized prohibited and restricted goods should not normally be restored. However, each case is examined on its merits to determine whether or not restoration may be offered exceptionally. Consideration It is for me to determine whether or not the contested decision should be confirmed, varied or withdrawn. I am guided by the restoration policy but not constrained by it in that I consider every case on its individual merits. I have considered the decision afresh, including the circumstances of the seizure and the related evidence, so as to decide if any mitigating or exceptional circumstances exist that should be taken into account. I have examined all the representations and other material that was available to Border Force both before and after the time of the decision. You were invited to provide any further information and support of your request for a review but as nothing has been received from you I have to make my decision based on the evidence that I already have. … While I sympathise with your medical issues the seized goods, Dehydroepiandosterone (DHEA), were obtained from the USA and were imported into the UK through the postal system. They are controlled under theMisuse of Drugs Act 1971 as Class C substances, classified under Schedule 4 (IV) of theMisuse of Drugs Regulations 2001 . If you wished to import a controlled drug you are required to apply for a Home Office license [sic] to do so. While I note that you say you were not aware that these goods were considered to be a Class C, the responsibility rests with you is important to check prior to importing the goods, ignorance of the law is not accepted as reasonable excuse. In addition I note that you say that you have been importing these goods into the UK for 15 years and have not previously had any problems. When BF intercepted these goods they were clearly mis-described, as they were referred to on both the label and the invoice as Folic Acid and Vitamin C, which clearly they were not. No explanation has been provided as to why these goods were not accurately described/declared and in the absence of a credible explanation it is not unreasonable that I conclude that this was a deliberate ploy to avoid the goods being detected. Secondly they were recorded as being a gift, which as you have provided proof of payment and they were clearly from a commercial source is clearly a false declaration. As the importer you are actually responsible for the declaration. Furthermore information available to me indicates that BF have recently made a number of seizures of DHEA tablets through the post from the same individual, ‘Amy Maude’ which is noted on the label of your consignment, which have also been mis-described as Vitamin C. On the balance of probability, I am satisfied that these importations are a clear attempt to circumvent UK Customs controls to illegally import commercially Class C drugs into the UK. Having taken account of the above including your medical condition I must conclude that the goods were not only improperly imported but also missed declared, and should not be restored. I believe that this decision is fair, reasonable and proportionate in all of the circumstances. I have read your letters carefully to see whether a case is being presented for departing from the policy and whether there are any exceptional circumstances for doing so: I have found no reason departing from the policy and no exceptional circumstances. Conclusion I am of the opinion that the application of our policy in this case streets you know more harshly will leniently than anyone else in similar circumstances, and I can find no reason to vary the policy in this case. I have decided to uphold the original decision: · The goods should not be restored to you If you have fresh information that you would like me to consider and please write to me: however, please note that I will not enter into further correspondence about evidence that you have already provided.” 45. The appellant has now appealed against Ms Perkins’ decision to this Tribunal. 46. Finally, we should note that although Ms Perkins refers to the Border Force having seized other packages from “Amy Maude”, there was no suggestion that these packages were addressed to the appellant. Moreover, although the appellant told us that he had been importing DHEA tablets without any question being raised for the last 15 years, there was no evidence to suggest that those tablets were mis-described – there was simply no evidence before us on this point and we make no finding of fact in relation thereto. The appellant’s evidence 47. The appellant told us that without his DHEA tablets he had ended up taking more time off work than before and he did not complete a trial period for a promotion a his workplace. He was made redundant in May of this year and whilst he could not prove that his redundancy was a direct result of his lack of access to his DHEA tablets he considered it to be “highly coincidental.”
“As the importer you are actually responsible for the declaration.”
“[30] The question about exceptional circumstances is simply answered [by the FTT] in the negative and the question about the reasonableness of the decision amounts to no more than saying that it is not unreasonable to uphold the forfeiture of goods which were illegally imported in the first place. That conclusion does not reflect a proper consideration of the matters which need to be taken into account in a restoration application such as that with which Mr Crouch, and the FTT, were faced. One of the important questions that has to be decided is whether the goods should be restored despite the fact that they were illegally imported and validly forfeited in the first place. That is the whole purpose of the restoration inquiry .” (Emphasis added)
“While I sympathise with your medical issues the seized goods, Dehydroepiandosterone (DHEA), were obtained from the USA and were imported into the UK through the postal system. They are controlled under theMisuse of Drugs Act 1971 as Class C substances, classified under Schedule 4 (IV) of theMisuse of Drugs Regulations 2001 . If you wished to import a controlled drug you are required to apply for a Home Office license [sic] to do so. While I note that you say you were not aware that these goods were considered to be a Class C, the responsibility rests with you is important to check prior to importing the goods, ignorance of the law is not accepted as reasonable excuse.” 69. It seems to us that Ms Perkins simply asked herself the wrong question. The second and third sentences of this amount, in essence, simply to a statement that the goods were illegally imported. In relation to the final sentence, whilst the existence of a reasonable excuse is a statutory defence in relation to a wide range of penalties prescribed in the tax code, it is not the applicable test in this case. The question was whether the appellant’s lack of awareness that DHEA was a Class C drug and his difficulties in establishing that it was were questions which should have been taken into account by the Border Force in exercising its statutory discretion. These factors seem to us go to the issue of the degree of culpability of the appellant. It seems to us that the fact that the appellant had been advised by his doctors to take DHEA on medical grounds, had no reason to believe that it was unlawful to import DHEA and could not easily establish that DHEA was, in fact, the same drug as Prasterone listed in Schedule 2 Part III were relevant factors that Ms Perkins should have taken into account and her failure to do so, in the belief that the principle that ignorance of the law is not a reasonable excuse prevented her from giving consideration to these matters, flawed her decision. [4] 70. Secondly, the circumstances of the appellant’s medical condition and the importance and benefits of DHEA in treating that condition were highly relevant. Ms Perkins admitted in her oral evidence that she did not understand all the aspects of the paper enclosed with Prof Chatterjee’s letter of17 November 2016 . It seemed to us that, on her own evidence, she had failed properly to take into account relevant matters. If she did not understand the paper enclosed with Prof Chatterjee’s letter, she should have taken appropriate specialist advice. Ms Perkins asserted in her oral evidence that she had taken into account matters of fatigue and physical and mental issues and that she understood that the DHEA tablets had a benefit in respect of mental well-being, but that this had to be balanced against the correct way of importing the tablets. But it seems to us that Ms Perkins’s understanding of the medical issues was superficial. This is reflected in the fact that in the “Consideration” section of her review letter, the appellant’s medical issues are only briefly mentioned. [5] Accordingly, we consider that Ms Perkins failed to take into account all relevant matters. 71. Thirdly, as we have mentioned, we consider that Ms Perkins misdirected herself by considering that the appellant was “actually responsible for the [mis-] declaration.”
“Having taken account of the above including your medical condition I must conclude that the goods were not only improperly imported but also mis-declared, and should not be restored. I believe this decision is fair, reasonable and proportionate in all the circumstances.” 73. In our view, Ms Perkins’ letter does not give adequate reasons for concluding that it was proportionate for the DHEA tablets to be restored to the appellant. That proportionality is an essential factor in any restoration decision is clear from the decision of Mann J in Putri Projusujadi (see at [31]). Ms Perkins simply asserts that decision is proportionate. That is a conclusory statement i.e. it is simply a statement of Ms Perkins’ conclusion, but gives no indication as to what factors she took into account or what principles she applied in reaching that conclusion. In short, she did not give reasons for her conclusion that the decision was proportionate. 74. Fifthly, and in the same vein, in the final paragraph of Ms Perkins’ review letter under the heading “Consideration”
“I have read your letters carefully to see whether a case is being presented for departing from the policy and whether there are any exceptional circumstances for doing so: I have found no reason for departing from the policy and no exceptional circumstances.” 75. In this sentence, Ms Perkins identifies the question that she has addressed (i.e. whether there were exceptional circumstances) and then states a conclusion that there were none. She gives no reasons as to why she has reached this conclusion. Once again, her failure to give adequate reasons is a flaw in her decision. 76. We reject the argument advanced by Mr Newbold that the lack of reasons given by Ms Perkins in respect of proportionality and “exceptional” circumstances can somehow be cured by the production of the Border Force’s statement of case and skeleton argument. Adequate reasons are required in order to allow a potential appellant to decide whether to appeal within the statutory 30 day period and must be contained in the decision in question. 77. Next, under the heading “Conclusion”, Ms Perkins stated: “I am of the opinion that the application of our policy in this case treats you no more harshly or leniently than anyone else in similar circumstances, and I can find no reason to vary the policy in this case.” 78. We have recorded at [56] above the answers which Ms Perkins gave in cross-examination as to why she considered that the appellant had been no more harshly treated than those in similar circumstances. In her initial answer she did not refer at all to the appellant’s medical condition but only did so when pressed. We were not convinced by Ms Perkins’ answer. Indeed, we asked Ms Perkins whom she had in mind when she referred to “anyone else in similar circumstances”
“The Appellant is ultimately responsible for the importation.” [3] This is supported by the fact that mid-way the same paragraph through Ms Perkins appears to hold against the appellant the fact that he had not explained the mis-description of the goods even though Ms Perkins accepted in her oral evidence of the mis-description would have been that of the sender of the goods i.e. “Amy Maude”. [4] In any event, the Upper Tribunal has recently commented, obiter , that ignorance of a legal obligation to file a tax return could potentially be a "reasonable excuse" (see Perrin v The Commissioners for HM Revenue and Customs (Tax)[2018] UKUT 156 ). [5] "While I sympathise with your medical issues…" and "Having taken account of the above including your medical condition….". [6] We should add that it occurs to us that it may be necessary, in this connection, to consider the impact ofArticle 14 of the European Convention on Human Rights in relation to discrimination. Article 14’s protection is limited in that it only prohibits discrimination with respect to other rights under the Convention – the relevant provision would be Article 1 Protocol 1. If the comparison which Ms Perkins sought to draw with persons in "similar circumstances" was, for example, with all persons importing Class C drugs unlawfully, it is at least possible (we express no concluded view on the point) that such a test might be discriminatory. Discrimination can arise not only in treating persons in a similar situation differently but also where persons in different situations are treated in the same way. If the appellant's Addison's disease, for example, constituted a disability then comparing the harshness of his treatment with persons not similarly afflicted might (again without deciding the point) constitute discrimination. The Border Force must, of course, not act in a way which is incompatible with a Convention right (s6 The Human Rights Act 1998 ). [7] See also the recent decision of this Tribunal (Judge Redston and Mr Simon) in Smouha v The Director of Border Revenue[2015] UKFTT 147 (TC) at [142] – [144] with which we respectfully agree: “142. The Supreme Court recently considered A1P1 and proportionality in R v Waya[2012] UKSC 51 , in the context of whether a confiscation order made following Mr Waya’s false declaration for mortgage purposes was compatible with A1P1. The facts are obviously different to the present case but the principles considered by the Court are essentially the same. The judgment in Waya was given by Lord Walker and Hughes LJ. At [12] they said: “It is clear law, and was common ground between the parties, that [A1P1] imports, via the rule of fair balance, the requirement that there must be a reasonable relationship of proportionality between the means employed by the state in, inter alia, the deprivation of property as a form of penalty, and the legitimate aim which is sought to be realised by the deprivation. That rule has consistently been stated by the European Court of Human Rights.” 143. They then cited Jahn v Germany(2006) 42 EHRR 1084 at [93], describing it as setting out a principle “gathered from established Strasbourg jurisprudence in terms often repeated and generally applied”: “The court reiterates that an interference with the peaceful enjoyment of possessions must strike a 'fair balance' between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights: see, among other authorities, Sporrong and Lönnroth v Sweden(1982) EHRR 35 , para 69. The concern to achieve this balance is reflected in the structure of article 1 of Protocol No 1 as a whole, including therefore the second sentence, which is to be read in the light of the general principle enunciated in the first sentence. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions: see Pressos Cia Naviera SA v Belgium(1995) 21 EHRR 301 , para 38. In determining whether this requirement is met, the court recognises that the state enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question: see Chassagnou v France(1999) 29 EHRR 615 , para 75.” 144. In Lindsay [[2002] EWCA Civ 267 ], Lord Phillips MR considered the application of A1P1 to the Commissioners’ policy of not restoring vehicles used to import excisable goods into this country in excess of guideline levels. At [52] he observed: “The Commissioners' policy involves the deprivation of people's possessions. Under Article 1 of the First Protocol to the Convention such deprivation will only be justified if it is in the public interest. More specifically, the deprivation can be justified if it is ‘to secure the payment of taxes or other contributions or penalties’. The action taken must, however, strike a fair balance between the rights of the individual and the public interest. There must be a reasonable relationship of proportionality between the means employed and the aim pursued . I would accept [the] submission that one must consider the individual case to ensure that the penalty imposed is fair. However strong the public interest, it cannot justify subjecting an individual to an interference with his fundamental rights that is unconscionable."”