Hendy v Commissioners of Customs and Excise
VDAT (March 25 2002)
Failure to take into account a car owner's disability when deciding not to restore a car which has been seized under the customs regulations may breach his right to a fair hearing under Article 6.
The Appellant in this case was a registered disabled person . His car had been seized at Dover after excess tobacco and cigarettes bought in Belgium had been found in it.
He had 23 cartons of cigarrettes and 80 pouches of tobacco which was about five times the indicative levels for personal use. He had travelled to the continent seven weeks previously when he had purchased 11kgs of tobacco and 10,000 cigarettes. On that occasion he had been given a notice informing him that goods could be brought in to the UK for personal use but that otherwise a person importing goods (1) duty unpaid and (2) which were not for own use, risked losing the goods and any vehicle used.
The quantity of goods in his possession was approximately five times the indicative limit and followed his importation of a larger quantity of similar goods seven weeks previously. He claimed to be a heavy smoker and stated that the cigarettes and part of the tobacco were for his family, who had agreed to reimburse him the cost of those goods. The car was seized and the claimant was subsequently informed that it would not be offered for restoration.
The Commissioners reviewed the matter and decided not to restore the car and the claimant appealed this decision which was in a four paragraph standard form letter, providing no reasons, but merely stating that, having considered the evidence put before the reviewing officer, the current correspondence, the legislation and current departmental policy, the decision not to restore was confirmed. In her evidence, the reviewing officer stated that she had approached the review as one involving the question of whether the restoration refusal was one that no reasonable body of commissioners could have arrived at; and she had not made any enquiries as to the claimant's disability.
The tribunal accepted that a substantial part of the goods were liable to seizure as not being either for the claimant's own use nor as gifts to his family. His car was clearly invaluable to him given his disability. In addition, its monetary value substantially exceeded the value of the goods seized and the amount of the excise duty involved.
In conducting the review the reviewing officer had applied the wrong test. Her duty was to review the original decision on the basis of all the material before her, not merely to consider whether that decision was reasonable. The claimant's disability was a factor that should have been taken into account and it was unreasonable for the officer to have ignored it. A review decision that failed to give any reasons at all did not comply with section 16 of the Finance Act and was in breach of the claimant's right to a fair hearing under Article 6(1) of the Convention.
COMMENT (June 2002)
The route by which the decision not to restore the car is taken is that a person applies for restoration and the Comissioneers decide whether or not to restore. If they decide not to restore then before a person has a right of appeal to a Tribunal the Commissioners are required to review that initial decision. If on that review the decision is still adverse then a right of appeal exists to the VAT and Duties Tribunal. The Tribunal?s jurisdiction is limited to considering the reasonableness of the review decision. This rather tortuous route is discussed in this decision.
Here the review decision did not itself give any reasons for upholding the original decision but merely confirmed it. The evidence as to why the review decision was made was oral evidence given at the tribunal itself. The Tribunal considered those reasons and found them wanting on an application of the test whether the decision was tainted with irrationality, illegality or procedural impropriety. The Tribunal considered that merely deciding whether the decision was irrational was not enough to fulfil the requirement under Article 1 of Protocol 1 that a fair balance must be struck between the general interest of the Community and the individual. Following Air Canada v UK (1995) 20 EHRR 150, the Tribunal considered that a full judicial review test met those requiremnts.
What is puzzling therefore is the comment in the opening parapgraphs of the decision to the effect that because Article 6.1 and Article 1 of the first Protocol are in play the reasons for the decision on review must be stated. The Tribunal seems to be leaning towards saying that a failure by the Commissioners to set out the reasons for the decision may infringe either or both of those provisions. It is not at all clear why this should follow. The Tribunal has itself given effect to the Appellant?s Article 6 rights and arrived at a decision within its jurisdiction. This jurisdiction was adequate to deal with the issues before it. In other words, there was no suggestion that there was a significant area of dispute before the Tribunal which it was unable to deal with because of the limited nature of its jurisdiction. In these circumstances the Appellant's rights seem to have been upheld by the appeals process to the Tribunal. Indeed had the Commissioners not called evidence to support the unreasoned review letter the task of the Tribunal in assessing whether all relevant matters had been taken into account would arguably have been much easier, since the Commissioners would have unable to establish that a particular piece of evidence had been considered. Equally, they would have been unable to establish that irrelevent matters had been excluded.
The substance of the Tribunals decision that not all relevant matters had been taken into account is that the Commissioners did not weigh in the balance, inter alia, the Appellants disability. The Tribunal concluded that not all necessary material was obtained and that the Appellant should be invited to provide a medical report.
There are two aspects of this which are worthy of note. The first is that all the circumstances bearing on the proportionality of the non-restoration have to be borne in mind including the impact on the Appellant?s disability and that the Commissioners are not entitled to treat disability as irrelevant. The second is that the Commissioners are in certain circumstances required to make further enquiries.
Following the Court of Appeal?s decision in Lindsay  EWCA Civ 267 it is necessary for the Commissioners to consider all the circumstances including the value of the vehicle. However the extent to which the impact on the Appellants disability should ultimately weigh in favour of restoration is questionable. The Tribunal correctly approaches this question carefully when they say ?we are not saying that ... the Appellants disability must outweigh all other matters, merely that it must recieve adequate treatment...?(para 69). The actual evidence of disability that the Appellant had put forward was hardly compelling. True it was that that he was no longer in employment and that he was in receipt of a full disability allowance. He was noted to limp and walk with a stick. But the Appellant was not present at the hearing and there was no medical evidence either before the Commissioners or it seems before the Tribunal. The evidence that was before the tribunal was that he regularly travelled to France/Belgium and that on this occasion had done so alone. He had obviously managed to load his car with a significant quantity of goods (18 cases of beer, 3 boxes of wine and 6 litres of spirits). Further the Commissioners were aware of the disability but in these circumstances disregarded it. On one view the decision is a little surpising. There is a difference between considering something and disregarding it and not considering it at all. There is no question of the requirements of the Disibility Discrimination Act applying nor was there any question of discrimination under Artivle 14 ECHR. Indeed that is not surprising, since the tribunal is effectively saying that the Commissioners should consider treating disabled people more favourably than others who use their cars to import goods improperly. Others who choose to risk their vehicle in this way may also establish real need to use their vehicle and it may be argued that the facility with which private vehicles may be use for improper importation coupled with the widespread ownership of and reliance upon cars goes to commend non-restoration as suitable sanction. There is surely a compelling argument to the effect that in this respect disabled people ought to be accorded equality before the law and ought to be credited with the same ability as anyone else to make judgments as to the risks of using their cars in this way. One might even go so far as to say that a person who is heavily reliant on their car must be taken to have considered the risks more anxiously than most.
Secondly, the duty to make further enquiries seems to be a departure from the general rule which requires the Commissioners to consider the material before them. The Appellant was given several opportunities to provide evidence for consideration and chose to confine himself to the pretty sketchy picture presented to the Tribunal. There does not seem to be anything in Article 6 that requires that a duty to investigate is placed on the Commissioners and there is arguably nothing contrary to Article 1 of the First Protocol in adopting a procedure whereby the onus is on the Appellant to provide the information in these cases. After all he will be in the best position to know what is his state of health and accordingly what the impact of non-restoration will be.
Owain Thomas, 1 Crown Office Row