Gascoyne

Rosalind English

Gascoyne v Customs and Excise Commissioners [2003] EWHC 257, [2003] 2 WLR 1311

ABSTRACT

The policy of vehicle seizures under the Customs and Excise legislation did not breach Article 1 Protocol 1 and the system of appeal/review fulfilled the requirements of Article 6.

SUMMARY

The claimant's vehicle was seized on return to the UK from mainland Europe after it was found to have  asubstantial quantity of tobacco products on board. The claimant wrote a letter to the Commissioners requesting return of the vehicle and this letter was interpreted  as an application for restoration under Section 152 of the Customs and Excise Management Act ("the 1979 Act"). If this had been taken to be a claim that the vehicle was not laible to forfeiture it would have triggered court proceedings under paragraph 6 Schedule 3 of the 1979 Act for condemnation of the vehicle as forfeited. As it was, no court proceedings were commenced and the seizure was affirmed and review and the Claimant's appeal to the VAT and duties tribunal was unsuccessful.

On appeal to the High Court the claimant contended for the first time that the letter had been a notice of claim and by not interpreting it so he had been deprived of a fresh judicial determination of whether the car and the goods had been properly seized. Appeals to the Commissioner and VAT Tribunal under Section 16 of the 1979 Act are heard on reasonableness grounds only. He also relied on Articles 6 and 1 Protocol 1 of the Convention.

Held:

Appeal dismissed. The claimant's letter had been properly treated as an application under Section 152 of the 1979 Act. The policy of refusing to restore vehicles was neither unreasonable nor disproportionate for the purposes of Article 1 Protocol 1 of the Convention. The availability of the appeals procedure satisfied the requirements of Article 6.

COMMENT (May 2003)

Vehicle Confiscation under the Customs Legislation

There are two points to make about this decision, one of many in an increasing number of challenges to the Customs and Excise procedure and its compatibility with the Convention. The first arises out of the argument advanced by the Claimant that the policy was disproportionate under Article 1 Protocol 1. The second relates to the different types of judicial hearings triggered by the individual's response to his or her car being seized.

To support his argument that the Customs and Excise policy failed to strike the correct balance between public and private interests under Article 1 Protocol 1, the Claimant relied on the reasoning by Simon Brown LJ in International Transport Roth GMBH v Secretary of State for the Home Department [2003] QB 728. In that case it was said that the blanket policy of imposing criminal sanctions on drivers who, consciously or unwittingly, brought illegal immigrants into this  country, was disproportionate. By logical extension the "blanket" policy of the Customs and Excise Commissioners with regard to forfeiting and refusing to restore motor vehicles seized pursuant to Section 141 of the 1979 was similarly disproportionate. Neuberger J did not accept this analogy, because the Roth case concerned criminal sanctions whereas the present case is concerned with civil sanctions.

With respect, this seems to mistake form for substance. The criminal sanctions in Roth involved the imposition of large financial penalties. The civil sanctions under the Customs and Excise Management Act involve the confiscation of vehicles and goods which are sometimes worth tens of thousands of pounds. It is an established canard of Strasbourg law that the question of whether the penalty is classified as "civil" or "criminal" in domestic law is not determinative of the classification of the same penalty for the purposes of the Convention. The Strasbourg Court - under, under Section 2 of the Human Rights Act 1998 - should look at the substance of the penalty, not its characterisation in national law.

Finally it is worth noting that Neuberger J rejected the argument that the VAT tribunal's decision was assailable under the Convention because it involved merely considering whether the Commissioners' decision not to restore the car was a decision which could reasonably have been reached by the Commissioners, rather than affording the claimant a hearing before an independent judicial body that considered the facts de novo. The judge found  the present case to be on all fours with the Krugerrands smuggling case Allgemeine Gold- und Silberscheideanstalt v United Kingdom (1986) 9 EHRR 1, where the Strasbourg Court considered that the fact that a smuggler had recourse to the courts, even where the decision could only successfully be challenged if it was "one which a public authority properly directing itself on the relevant law and acting reasonably could not have reached" gave a sufficient remedy to satisfy the requirements of Article 1 of the First Protocol. In addition, a person in the position of the claimant can, in the judge's words, elect for condemnation proceedings or the review procedure.

But this begs the question at the heart of the claimant's appeal - that he was never effectively given the chance to make that important election. It is perhaps unfortunate that such a crucial question of what kind of hearing the individual gets in these proceedings turns on the interpretation of a letter written without legal advice in somewhat stressed and urgent circumstances. The judge himself acknowledged not only that there is an overlap between the restoration application and an appeal against seizure, and that the same letter might represent both an application for restoration under the 1979 Act and a notice of claim under paragraph 3.

Rosalind English, 1 Crown Office Row

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