“In the event of failure to perform the order on time, defective or improper execution of the order, the Principal has the right to reduce the remuneration or cancel the order without compensation”. (2) Copies of employment references from previous employers. (3) In the interview with the driver before he was employed, he was informed about the obligations and prohibitions that applied to him. (4) A document which was described as “Statute” was provided and the relevant provisions included “Section 2 The driver may be charged with the costs in the case of: …. • Lack of relevant information in CMR documents (quantity, weight, possible damage) Section 4 1. Unauthorised transportation of people and loads is forbidden … 4. It is forbidden to transport alcohol … 6. It is forbidden to transport cigarettes in excess of 3 packets (60 items)… 7. It is forbidden to open the transported pallets, to look inside the transported goods.”
“On July 27, an employee of the German company Livarto … contacted me by phone, Mr …, phone number …, I received an offer from him to load 1 pallet weighing 500kg in his company. He said the merchandise is a furniture composite. I received instructions from him by e-mail with the address of loading, delivery and all documents involved in the transport. The goods were already cleared through Customs. At the loading site, the driver received a CMR, Lieferschein [delivery note], an invoice and an EX document. The pallet was loaded, the driver did not report any damage, everything seemed fine”
“the pallet was wrapped in foil by the sender and had been cleared beforehand, in the presence of the sender, the driver checked that the foil was not torn and that the pallet was not damaged. Then he reported to me that everything was fine.”
“The policy for the restoration of commercial vehicles that have been used for smuggling excise goods is intended to tackle cross-border smuggling and to disrupt the supply of excise goods to the illicit market. ‘Commercial vehicles’ include not only ‘Heavy Goods Vehicles’ but any vehicle considered to be moving primarily for a commercial and business purpose. Each case is considered carefully on its individual merits so as to decide whether exceptions should be made, and any evidence of hardship is always considered. A vehicle adapted for the purposes of concealing goods will not normally be restored. Otherwise the policy depends on who is responsible for the smuggling attempt: A: Neither the operator nor the driver is responsible; or B: The driver, but not the operator is responsible; or C: The operator is responsible. A. If the operator provides evidence satisfying border force that neither the operator nor the driver was responsible for or complicit in the smuggling attempt then: (1) If the operator also provides evidence satisfying border force that both the operator and the driver carried out basic reasonable checks (including conforming with the CMR Convention) to confirm the legitimacy of the load and to detect any illicit load, the vehicle will normally be restored free of charge. (2) Otherwise, (a) On the first occasion the vehicle will normally be restored for 20% of the revenue involved in the smuggling attempt or for 100% of the trade value of the vehicle if lower…”
“… paragraph A of the policy applies, which states that neither the operator nor the driver are responsible. I must now look at whether the steps taken by you to prevent your vehicle being used to carry smuggled goods were adequate. I must determine whether you have provided evidence satisfying Border Force that you and the driver carried out basic reasonable checks (including conforming with the CMR Convention) to confirm the legitimacy of the load and to detect any illicit load.”
“1. On taking over the goods, the carrier shall check: … (b) The apparent condition of the goods and their packaging. 2. Where the carrier has no reasonable means of checking the accuracy of the statements referred to in paragraph 1 a of this article, he shall enter his reservations in the consignment note together with the grounds on which they are based. He shall likewise specify the grounds for any reservations which he makes with regard to the apparent condition of the goods and their packaging…”
“As the FTT correctly identified at [35] of the Decision, in Balbir Singh Gora v C&E Comrs[2003] EWCA Civ 525 , Pill LJ accepted that the Tribunal could decide for itself primary facts and then go on to decide whether, in the light of its findings of fact, the decision on restoration was reasonable. Thus, the Tribunal exercises a measure of hindsight and a decision which in the light of the information available to the officer making it could well have been quite reasonable may be found to be unreasonable in the light of the facts as found by the Tribunal.”
“However, the principal issue before the Tribunal, was whether the Commissioners' decision not to restore Mr Lindsay's car to him was one that they 'could not reasonably have arrived at' – within the meaning of those words in section 16(4) of the 1994 Act. Since the coming into force of theHuman Rights Act 1998 , there can be no doubt that if the Commissioners are to arrive reasonably at a decision, their decision must comply with the Convention. Quite apart from this, the Commissioners will not arrive reasonably at a decision if they take into account irrelevant matters, or fail to take into account all relevant matters – see C & E Commissioners v JH Corbitt (Numismatists) Ltd[1981] AC 22 at 60 per Lord Lane.”
“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 (Sporrong & Lonnroth v Sweden(1982) 5 EHRR 35 at paragraph 61; Air Canada as cited above). I would accept Mr Baker's 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.”
“40. Whether or not the Respondent could, or should, publish its policy on restoration is of no relevance to this appeal … 41. Neither this Tribunal, nor the FTT, has any power in the context of this appeal to require the Respondent to change its policy on restoration whether that policy is considered contrary to A1P1 or otherwise. Rather, the relevant question for determination is whether the Respondent’s review decision in this specific case was unreasonable. That said, if the FTT determines that the entire policy on restoration is unreasonable, and contrary to A1P1, it may conclude that the particular decision made in pursuance of that policy is unreasonable. That will be a matter for the FTT, but we would observe that we see little force in the Appellant’s argument that the policy takes no account of a haulier’s blameworthiness.”
“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.”
“… 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.”
“52. The appellant argued that the FTT erred in law because its decision expected Mr Szymanski to carry out more checks than he was legally obliged to carry out under the CMR Convention. As well as Article 8 (see [32] above), the appellant had referred the FTT to Article 11, which stated that the carrier was under no duty to enquire into the accuracy or adequacy of the relevant documents. 53. While the FTT did not deal with the argument directly, the FTT considered at [72] that the issue of checks before and after accepting the order and on collecting the load was relevant to the decision as to whether the appellant was complicit in the smuggling. It is clear from its findings on the extent of the checks the appellant made relating to Mr Deka and UAB Kilita, and from the way in which it approached Mr Brenton’s review of those checks, that the FTT did not regard Mr Brenton’s decision as unreasonable just because the checks he expected to be carried out went beyond those required by the CMR Convention. 54. In our judgment, there was no error of law in the FTT’s treatment of Mr Brenton’s decision in this respect. The preamble to the CMR Convention recognises “the desirability of standardizing the conditions governing the contract for the international carriage of goods by road, particularly with respect to the documents used for such carriage”