Global Trailer Rentals Limited v The Commissioners for HMRC [2025] UKFTT 565 (TC)

[2025] UKFTT 00565 (TC)

Case No TC09529

FIRST-TIER TRIBUNAL

TAX CHAMBER

Hearing Heard on: 25 March 2025

Date Judgment date: 16 May 2025

[By remote video hearing]

Appeal reference: TC/2023/17133

Seizure of trailer under s.139(1) CEMA – initially not restored – on review restored subject to a penalty – several errors in Review Decision – no explanation as to how the penalty was calculated – appeal allowed

Before

TRIBUNAL JUDGE ALASTAIR J RANKIN MBE

TRIBUNAL MEMBER SUSAN STOTT

Between

GLOBAL TRAILER RENTALS LIMITEDAppellant

THE COMMISSIONERS FOR HER MAJESTY’S REVENUE AND CUSTOMSRespondent

Mr Danny McNamee of McNamee McDonnell Solicitors for Appellant

Ms Patricia Londono of counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs for Respondents

DECISION

Introduction

[1]The form of the hearing was by video with the consent of the parties. The documents to which we were referred are an electronic consolidated Bundle for Hearing containing 116 pages and an electronic Legislation and Case Law bundle containing 53 pages.

[2]Prior notice of the hearing had been published on the gov.uk website, with information about how representatives of the media or members of the public could apply to join the hearing remotely in order to observe the proceedings. As such, the hearing was held in public.

background

[3]The Respondents’ disputed decision is contained in a letter dated 6 December 2023. This letter notified the Appellant that, after conducting a review, the Respondents would restore, for a fee of £1,000.00, a Cartwright trailer, registration number GTR344D (“the Trailer”) seized on 23 June 2023.

[4]The Trailer had been seized because it had been used to transport 32 pallets of mixed alcoholic beer upon which excise duty had not been paid

[5]On 23 June 2023 the Trailer had arrived at Heysham having come from Warrenpoint in Northern Ireland. The trailer was examined by Border Force Officers and found to contain 25,488 litres of mixed alcoholic beer, which had been mis-manifested as frozen ready meals. The load was tallied, the accompanying documents were examined and the matter was referred to the Revenue Fraud Detection Team (RFDT). The beer was liable to duty and duty on them had not been paid or secured.

[6]The beer was seized under Section 139 (1) of the Customs & Excise Management Act 1979 (CEMA) as being liable to forfeiture under Section 49 CEMA. The trailer was seized under Section 139 (1) CEMA as being liable to forfeiture under Section 141 CEMA because it was used for the carriage of goods liable to forfeiture.

[7]A notice of seizure was served upon the Appellant, and the Appellant then challenged the legality of seizure of both the beer and the Trailer. Condemnation proceedings were started in the Lancashire Magistrate’s Court and on 9 February 2024 the court issued an order. The order stated that the application was for condemnation of both beer and Trailer but went on to condemn the beer whilst being silent about the Trailer.

correspondence between the parties

[8]By email received on 12 July 2023 the Appellant stated that the Trailer was not liable to forfeiture. By letter dated 27 July 2023 the Respondents replied, acknowledging the challenge to the legality of seizure and a request for restoration, and asking for further information. This was followed by an email dated 4 August 2023 amending the questions asked.

[9]By email received on 14 August 2023 the Appellant provided a response, noting that they were only a trailer rental company and noted that in similar circumstances, the Respondents had restored trailers. By email dated 30 August 2023 the Respondents requested an agent’s authority, proof of ownership and asked further questions relevant to trailer rental companies.

[10]By email dated 5 September 2023 the Appellant’s agent sent answers and stated inter alia that:

“We advise that previously trailers 5 were seized, 3 of which have been restored by HMRC. The 4th one is under consideration. All of these vehicles seem to have been seized on or about the same time for what it appears to be the same alleged wrongdoing, in so far as can be ascertained by our client. Our client’s relationship with HMRC and UKBF is extremely good. Our client can of course not be responsible for any alleged wrongdoing of parties who hire the vehicles and should not be penalised in circumstances where all of the appropriate checks and safeguards have been properly applied by our client prior to the leasing of the vehicles. The trailer lease section of our client’s business has some 180 trailers, and despite our client operating such a large business incidents of this kind are extremely rare.”

The agent also enclosed a copy of correspondence terminating the contract with the hirer of the trailer.

[11]On 5 September 2023 the Appellant also forwarded an agent’s authority under separate email. By correspondence dated 10 October 2023 the Respondents refused to restore the Trailer. This decision was based on the assumption that the Magistrate’s Court would find that the seizure was lawful. Concerns were highlighted including the (in)adequacy of the proof of ownership and the fact that the contract termination predated the movement.

[12]By email dated 27 October 2023 the Appellant requested a review and by email dated 30 October 2023 the Respondents acknowledged the request for a review and invited any further evidence in support of the request.

[13]By email dated 30 November 2023 the Respondents requested details of the Appellant’s business web address and by email dated 1 December 2023, the Appellant replied stating:

“Our client’s business web address is: www.gtreurope.com.”

By letter dated 6 December 2023 the Respondents varied the original decision and allowed restoration for a fee (the Review Decision).

the law

[14]The relevant legal provisions are as follows: Section 5 (1) of the Taxation (Cross Borders) Act 2018 provides:

“Goods not presented to Customs or Customs declaration not made (1) If chargeable goods — (a) are imported into the United Kingdom, and (b) are not presented to Customs on import (if so required), the goods are liable to forfeiture (as to which, see Part 11 of CEMA 1979) at the time of importation. (2) If goods are liable to forfeiture as a result of (a) subsection (1), or (b) paragraph 1(5) or 3(4) of Schedule 1 (no Customs declaration made), a liability to import duty is incurred at the time at which the goods become liable to forfeiture.” (1) If chargeable goods — (a) are imported into the United Kingdom, and (b) are not presented to Customs on import (if so required), the goods are liable to forfeiture (as to which, see Part 11 of CEMA 1979) at the time of importation. (2) If goods are liable to forfeiture as a result of (a) subsection (1), or (b) paragraph 1(5) or 3(4) of Schedule 1 (no Customs declaration made), a liability to import duty is incurred at the time at which the goods become liable to forfeiture.”

[15]Section 49(1) of CEMA states:

“(1) Where — (a) except as provided by or under the Customs and Excise Acts 1979, any imported goods, being goods chargeable on their importation with customs or excise duty, are, without payment of that duty — (i) unshipped in any port, (ii) unloaded from any aircraft in the United Kingdom, (iii) unloaded from any vehicle in, or otherwise brought across the boundary into, Northern Ireland, or (iv) removed from their place of importation or from any approved wharf, examination station or transit shed; or (b) any goods are imported, landed or unloaded contrary to any prohibition or restriction for the time being in force with respect thereto under or by virtue of any enactment; or (c) any goods, being goods chargeable with any duty or goods the importation of which is for the time being prohibited or restricted by or under any enactment, are found, whether before or after the unloading thereof, to have been concealed in any manner on board any ship or aircraft or, while in Northern Ireland, in any vehicle; or (d) any goods are imported concealed in a container holding goods of a different description; or (e) any imported goods are found, whether before or after delivery, not to correspond with the entry made thereof; or (f) any imported goods are concealed or packed in any manner appearing to be intended to deceive an officer, those goods shall, subject to subsection (2) below, be liable to forfeiture.” (a) except as provided by or under the Customs and Excise Acts 1979, any imported goods, being goods chargeable on their importation with customs or excise duty, are, without payment of that duty — (i) unshipped in any port, (ii) unloaded from any aircraft in the United Kingdom, (iii) unloaded from any vehicle in, or otherwise brought across the boundary into, Northern Ireland, or (iv) removed from their place of importation or from any approved wharf, examination station or transit shed; or (b) any goods are imported, landed or unloaded contrary to any prohibition or restriction for the time being in force with respect thereto under or by virtue of any enactment; or (c) any goods, being goods chargeable with any duty or goods the importation of which is for the time being prohibited or restricted by or under any enactment, are found, whether before or after the unloading thereof, to have been concealed in any manner on board any ship or aircraft or, while in Northern Ireland, in any vehicle; or (d) any goods are imported concealed in a container holding goods of a different description; or (e) any imported goods are found, whether before or after delivery, not to correspond with the entry made thereof; or (f) any imported goods are concealed or packed in any manner appearing to be intended to deceive an officer, those goods shall, subject to subsection (2) below, be liable to forfeiture.” 16 . Section 139(1) of CEMA provides: “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.”

[17]Section 141(1) of CEMA states that: “…where any thing has become liable to forfeiture under the customs and excise Acts”-(a) any ship, aircraft, vehicle, animal, container (including any article of passengers’ baggage) or other thing whatsoever which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture, either at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and

(b) any other thing mixed, packed or found with the things so liable, shall also be liable to forfeiture”. (a) any ship, aircraft, vehicle, animal, container (including any article of passengers’ baggage) or other thing whatsoever which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture, either at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and (b) any other thing mixed, packed or found with the things so liable, shall also be liable to forfeiture”.

[18]Section 152 of CEMA establishes that:

“The Commissioners may, as they see fit – …(b) restore, subject to such conditions (if any) as they think proper, anything forfeited or seized under the Customs and Excise Acts.” …(b) restore, subject to such conditions (if any) as they think proper, anything forfeited or seized under the Customs and Excise Acts.”

[19]Finally, sections of the Finance Act 1994 provide: Section 14 (2): “(2) Any person who is—(a) a person whose liability to pay any relevant duty or penalty is determined by, results from or is or will be affected by any decision to which this section applies,

(b) a person in relation to whom, or on whose application, such a decision has been made, or

(c) a person on or to whom the conditions, limitations, restrictions, prohibitions or other requirements to which such a decision relates are or are to be imposed or applied, may by notice in writing to the Commissioners require them to review that decision.” (a) a person whose liability to pay any relevant duty or penalty is determined by, results from or is or will be affected by any decision to which this section applies, (b) a person in relation to whom, or on whose application, such a decision has been made, or (c) a person on or to whom the conditions, limitations, restrictions, prohibitions or other requirements to which such a decision relates are or are to be imposed or applied,

[20]Section 15(1):

“Where the Commissioners are required in accordance with this Chapter to review any decision, it shall be their duty to do so and they may, on that review, either- (a) confirm the decision; or (b) withdraw or vary the decision and take such further steps (if any) in consequence of the withdrawal or variation as they may consider appropriate.” (a) confirm the decision; or (b) withdraw or vary the decision and take such further steps (if any) in consequence of the withdrawal or variation as they may consider appropriate.”

[21]Section 15(2):

“Where— (a) it is the duty of the Commissioners in pursuance of a requirement by any person under section 14 [or 14A] above to review any decision; and (b) they do not, within the period of forty-five days beginning with the day on which the review was required, give notice to that person of their determination on the review, they shall be assumed for the purposes of [section 14 or 14A] to have confirmed the decision.” (a) it is the duty of the Commissioners in pursuance of a requirement by any person under section 14 [or 14A] above to review any decision; and (b) they do not, within the period of forty-five days beginning with the day on which the review was required, give notice to that person of their determination on the review, they shall be assumed for the purposes of [section 14 or 14A] to have confirmed the decision.”

[22]Sections 16 (4) to (6): “(4) In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of an appeal tribunal on an appeal under this section shall be confined to a power, where the tribunal are satisfied that the Commissioners or other person making that decision could not reasonably have arrived at it, to do one or more of the following, that is to say—(a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct;

(b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision; and

(c) in the case of a decision which has already been acted on or taken effect and cannot be remedied by a further review, to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future. (5) In relation to other decisions, the powers of an appeal tribunal on an appeal under this section shall also include power to quash or vary any decision and power to substitute their own decision for any decision quashed on appeal. (6) On an appeal under this section the burden of proof as to— (a) the matters mentioned in subsection (1)(a) and (b) of section 8 above, shall lie upon the Commissioners; but it shall otherwise be for the appellant to show that the grounds on which any such appeal is brought have been established.” (a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct; (b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision; and (c) in the case of a decision which has already been acted on or taken effect and cannot be remedied by a further review, to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future. (a) the matters mentioned in subsection (1)(a) and (b) of section 8 above, shall lie upon the Commissioners; but it shall otherwise be for the appellant to show that the grounds on which any such appeal is brought have been established.”

the appropriate test

[23]The Respondents suggested in their Statement of Case that the appropriate test to be applied when determining the reasonableness of the decision was whether the Review Officer acted in a way in which no reasonable Review Officer could have acted, if he “had taken into account some irrelevant matter or had disregarded something to which [he] should have given weight.” This proposition was based upon the decision of Lord Lane in Customs and Excise Commissioners v J H Corbitt (Numismatists) Ltd

[1980] STC 231

at paragraph j on page 239.

[24]This Tribunal may consider evidence that was not before the decision maker and may reach factual conclusions based on that evidence such that the decision under appeal may be found by the Tribunal to be reasonable or unreasonable – see the decisions in Balbir Singh Gora and others v Commissioners of Customs and Excise

[2003] EWCA Civ 525

a summary of the appellant’s case

[25]The Appellant relied upon the following grounds of appeal challenging the reasonableness of the Review Decision:a. The decision relied upon factual inaccuracies;

b. There were no grounds for the £1,000 penalty;

c. The Respondent’s reference to a previous incident involving a trailer belonging to the Appellant being used to transport migrants failed to take into account that the Appellant aided the police in its investigation;

d. A reference to Sharon Devlin was inaccurate – she is not a director of the Appellant company; and

e. References to a lack of due diligence on behalf of the Appellant were inaccurate and unjustifiable – the hirer should not be fixed with blame for any wrongdoing perpetrated by the hirer.

a summary of the respondents’ case

[26]The legality of seizure is not an issue in the appeal as the Trailer had been (or ought to have been, but-for the court’s remediable error), condemned as liable to forfeiture. Although the Respondents had written to the court suggesting that the omission of the trailer from the Magistrate’s Court condemnation order on 9 February 2024 was an error on the face of the order no further reference was made to this point in the papers before the Tribunal or during the hearing of the appeal.

[27]In so far as the Appellant sought to challenge the reasonableness of the review decision, the Respondents contend that the review decision to restore the Trailer for a fee was one that was reasonably arrived at for the following reasons:a. The Review Officer applied the Respondents’ reasonable policy on the restoration of hired/leased commercial vehicles, but was not fettered by it. The policy is intended to be robust in order to tackle cross-border smuggling and disrupt the supply of excise goods to the illicit market. The case was considered on its merits and evidence of hardship was considered. The policy is:

• The general policy for the restoration of commercial vehicles is designed to tackle cross border smuggling rigorously and to disrupt the supply of prohibited or restricted goods to the market significantly.

• Restoration for a fee - On a first offence the trailer may be restored to the finance company on the following conditions:

(a) The finance company has demonstrated clear title to the trailer.

(b) Ordinarily a restoration fee of £5,000 is paid or a sum equal to the trade value of the trailer whichever is the lower. If the finance company however can demonstrate that they have done all that can be reasonably expected to ensure that they are leasing vehicles to legitimate companies for use for a legitimate purpose, then the fee can be reduced proportionately.

• Any vehicle adapted for the purposes of smuggling may not normally be restored.

• A subsequent detection of the same trailer being used by the same haulage company, or anybody directed by them, may result in non-restoration. In respect of any other vehicle leased to the company, the previous seizure would be a relevant factor in deciding not to restore or requiring a higher sum to restore. These terms apply afresh where a leasing company’s vehicle is seized from an unconnected company.

b. The Review Officer considered the steps taken by the Appellant to prevent their trailers being used to carry smuggled goods, and the history of seizures involving the Appellant’s trailers. The following instances were noted:

• 23 October 2019, used to facilitate people smuggling into the UK.

• 16 May 2023 – three trailers seized inland by HMRC. All were leased by Ciaran McBride of C&M Transport Ltd and were restored free of charge.

• 8 June 2023 – a fourth trailer leased by Ciaran McBride of C&M Transport Ltd and seized at Heysham by the Respondent. It was again restored free of charge

c. The Review Officer noted that the termination of the lease documents for the index hirer (which the Appellant stated was for non-payment) and for Ciaran McBride of C&M Transport (which the Appellant stated was due to the seizure on 8 June 2023) were both suspicious and was reasonably concerned about whether the Appellant was attempting to deceive the Border Force in relation to these two seizures. Notably:

• The terminations both bore the same date (19 June 2023) despite involving different hirers and different reasons for termination.

• The termination documents were both signed by Mark Devlin, but the signatures were significantly different.

d. The Review Officer further noted that the company documentation detailed Mark Devlin as being the director of the Appellant company, but Companies House listed Sharon Devlin as director.

e. The Review Officer considered that the Appellant had previously leased trailers to two clients in a short space of time, both of whom had them seized through unscrupulous behaviour. This was also the third seizure of the Appellant’s trailers within a two-month period. It was therefore reasonably considered that the Appellant ought to have employed checks of clients that were more robust. The failure in due diligence was therefore a factor that militated against a consequence free restoration.

f. The fact that previous restorations had been made free of charge did not mean that subsequent seizures would or should be treated in the same way. Similarly, this decision should not be seen as creating a precedent and any future seizures would require the matter to be considered afresh, taking into account the index seizure.

g. Accordingly, restoration for a fee of £1,000 was both reasonable and proportionate.

[28]Hardship had been considered, but hardship is an expected and intended consequence of the seizure process. It was reasonably concluded that any such hardship was not exceptional.

[29]The application of the policy in this case treated the Appellant no more harsher or more leniently than anyone else in similar circumstances and the degree of failure in the duty to take reasonable steps to prevent smuggling was considered. The outcome is proportionate.

Evidence at the hearing

[30]Ms Zoe Boote, a Higher Officer of the Respondents had provided a Witness Statement dated 19 August 2024 in which she stated that she had completed a review of the case on 6 December 2023. She had relied on 21 listed documents all of which were exhibited to her Statement. On 6 December 2023 she had written to the Appellant’s solicitors, McNamee McDonnell, with her review of the decision not to restore the seized trailer. In this letter she stated that the trailer had arrived from Ireland whereas it had in fact arrived from Warrenpoint a port in Northern Ireland and therefore within the United Kingdom. She also stated that she was assuming that the Magistrate’s Court would condemn the trailer as forfeit to the Crown under paragraph 6 of schedule 3 of CEMA. Neither party was able to inform the Tribunal whether the trailer had in fact been condemned by the Magistrate’s Court.

[31]Officer Boote continued by outlining the general policy of Border Force concerning the restoration of commercial vehicles which was designed to tackle cross border smuggling. She continued:

“Restoration for a fee - On a first offence the trailer may be restored to the finance company on the following conditions. a) The finance company has demonstrated clear title to the trailer b) Ordinarily a restoration fee of £5,000 is paid or a sum equal to the trade value of the trailer whichever is the lower. If the finance company however can demonstrate that they have done all that can be reasonably expected to ensure that they are leasing vehicles to legitimate companies for use for a legitimate purpose, then the fee can be reduced proportionately. Any vehicle adapted for the purposes of smuggling may not normally be restored. A subsequent detection of the same trailer being used by the same haulage company, or anybody directed by them, may result in non-restoration. In respect of any other vehicle leased to the company, the previous seizure would be a relevant factor in deciding not to restore or requiring a higher sum to restore. These terms apply afresh where a leasing company’s vehicle is seized from an unconnected company. Border Force does not disclose the full guidance or frameworks of the restoration policy, including details of exceptional circumstance, into the public domain. To do so would allow those associated with the smuggling of illicit goods to adapt their behaviour, the circumstances of the importation or their cover story to deceive Border Force and receive the most lenient treatment. In the case of PHU Greg-Car (TC/2016/05707), Judge Anne Fairpo stated: ‘We do not agree that HMRC are required to publish full details of their restoration policy of vehicles. It should be clear to anyone involved in smuggling that there will be serious consequences to such actions without HMRC specifically publishing what such actions will be.’” a) The finance company has demonstrated clear title to the trailer b) Ordinarily a restoration fee of £5,000 is paid or a sum equal to the trade value of the trailer whichever is the lower. If the finance company however can demonstrate that they have done all that can be reasonably expected to ensure that they are leasing vehicles to legitimate companies for use for a legitimate purpose, then the fee can be reduced proportionately. ‘We do not agree that HMRC are required to publish full details of their restoration policy of vehicles. It should be clear to anyone involved in smuggling that there will be serious consequences to such actions without HMRC specifically publishing what such actions will be.’”

[32]In her review letter dated 6 December 2023 Officer Boote then detailed the previous occasions when the Appellant’s trailers had been restored:• “On 23 October 2019, one of your client’s trailers was used to facilitate people smuggling into the UK. 39 Chinese migrants were found dead in the trailer in Essex. News article, GTR operators prove difficult to contact as sources say 'nothing suggests involvement' - Extra.ie refers. The news article discusses difficulties in contacting your client. I have had difficulty in finding an internet presence, hence why I asked for your client’s web address. In the modern era, I would expect an internet search engine to provide the link.

• As you have mentioned in your correspondence three vehicles were seized inland by HMRC on 16 May 2023 - E5807473 refers. All were leased by Ciaran McBride of C&M Transport Ltd and were restored free of charge.

• A fourth vehicle was leased at the same time as the above and was seized by Border Force at Heysham on 08 June 2023 – E5803985 refers. This Vehicle was also leased by Ciaran McBride of C&M Transport Ltd and was restored free of charge. I also have concerns regarding this case. The original decision letter stated, ‘My primary concern is that the lease termination is dated before the movement happened, you have not provided me with a reasonable explanation as to why this is.’ Your response to this was, ‘Further in relation to the termination letter, Mr. Scott’s lease was terminated due to his nonpayment of rent for the trailer.’ Comparing the termination of contract for this case with E5803985, it seems unusual that both contracts were terminated on the same date of 19 June 2023, one for seizure by Border Force, and this one for non-payment. Neither details the reason for the termination of contract, which I cannot understand. E5803985 requests all outstanding monies to be finalised by 30 June 2023, yet this case, which is supposedly for non-payment, mentions no such thing. Additionally, both have been signed by Mark Devlin, yet the signatures are significantly different. Given that no plausible explanation has been provided, it is open to conjecture whether these events have occurred to cover the truth in a manner intended to deceive Border Force.” And she continued:

“Furthermore, there is a discrepancy regarding who is the Director of the company. Mrs Sharon Devlin is listed as the Company Director for Global Trailer Rentals on Companies House, with her occupation listed as a teacher. Mark Devlin appears to be the Director according to the company’s paperwork.”

[33]Mr Mark Devlin, the Director of the Appellant provided a signed but undated statement to the Tribunal . He took issue with Officer Boote’s reference to the seizure of one of his trailers on 23 October 2019 when 39 Chinese migrants had been found dead in the trailer. In fact, the prosecution of those involved had only been possible through information which he had provided to the prosecuting authority.

[34]Mr Devlin also took issue with the reference to Mrs Sharon Devlin as she was not a director of the Appellant. Border Force had searched a totally different company at Companies House – Global Trailer Rentals NI Ltd. He also took issue with Officer Boote’s comments about the lack of due diligence as the hirer of a vehicle cannot be fixed with any wrongdoing by the operator of the vehicle. The Appellant had completed all appropriate due diligence checks prior to contracting the hire of the trailer the subject of this appeal. He maintained that Border Force had not asked for any specific due diligence document.

[35]Mr Devlin pointed out that the trailer the subject of this appeal was a Chereau refrigerated trailer and not a Cartwright trailer as stated by Border Force in their letter dated 10 October 2023 and Officer Boote in her Review letter dated 6 December 2023. He also stated that the Appellant only challenged the seizure of the trailer. It did not challenge the seizure of the beer.

[36]Mr Devlin explained why his signature on the two termination documents differed – although he could not now remember the exact circumstances but the documents were presented to him for signature at either different times or different locations. He also explained that the two termination letters had been issued due to non-payment of rent.

decision

[37]We have decided to direct that the decision to allow the trailer to be restored for a fee of £1,000 is to cease to have effect from 6 December 2023 for the following reasons.

[38]Review Officer Boote's decision letter dated 6 December 2023 contained several inaccuracies. On page 7/13 she refers to the horrific incident on 23 October 2019 when 39 Chinese migrants were found deceased in a trailer belonging to the Appellant company. The subsequent prosecution of those responsible was only possible due to the voluntary collaboration of Mr Devlin.

[39]The three vehicles seized by HMRC on 16 May 2023 and the fourth vehicle seized on 8 June 2023 were seized from Ciaran McBride of C&M Transport Ltd. All were restored free of charge. Border Force guidance referred to by Officer Boote on page 5/13 states that Border Forces' terms apply afresh where a leasing company's vehicle is seized from an unconnected company. The trailer the subject of this appeal was leased to C Scott International Ltd. Accordingly Officer Boote should not have considered any of these points in reaching her decision.

[40]Officer Boote referred to Mrs Sharon Devlin as a director of the Appellant company. This was incorrect as Officer Boote had searched the wrong company. In her evidence to this Tribunal, she accepted her error. She also queried the validity of the signatures on the two letters dated 19 June 2023 terminating contracts with C Scott International Ltd and C&M Transport Ltd. Mr Devlin confirmed to the Tribunal that both letters had been signed by him and Mr McNamee had been able to explain why both letters were sent.

[41]Although Officer Boote took virtually all of page7/13 and the first paragraph of page 8/13 to set out reasons for allowing restoration subject to a fee of £1,000 she really only included one paragraph dealing with due diligence. The Tribunal accepts that the Appellant has not provided any evidence of the due diligence carried out prior to signing the hire agreement on 7 November 2022. However, Officer Boote accepted that carrying out due diligence does not prevent any subsequent illegal activity. The Tribunal considers that any due diligence carried out in November 2022 would not have been relevant to the shipment on 23 June 2023.

[42]The Tribunal notes that the original decision dated 10 October 2023 and the Review decision dated 6 December 2023 refer to the seizure occurring on 24 June 2023 when the seizure occurred on 23 June 2023.

[43]Finally no explanation was provided by Officer Boote either in her decision letter or to the Tribunal as to how she arrived at the restoration fee of £1,000.

[44]Accordingly, the decision by Officer Boote is not one a reasonable review officer should have made and the appeal is allowed. The trailer should be restored to the Appellant free of charge.

Right to apply for permission to appeal

[45]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. Release date: 16th MAY 2025