Gora & Ors v Commissioners of Customs And Excise & Ors

A refusal to restore goods or a vehicle seized for customs or excise purposes does not, without more, determine a criminal charge under Article 6. The conclusion is not altered by the severity or deterrent purpose of the loss, where the proceedings do not determine criminal wrongdoing by the owner.

A tribunal reviewing restoration decisions under section 16(4) of the Finance Act 1994 can satisfy Article 6 where it may review the reasonableness and proportionality of the Commissioners’ policy, make the necessary primary findings of fact, and direct a further review.

“Seized” does not include “detained”. The statutory appeal route arises only after seizure or forfeiture. Short-term detention pending prompt enquiries is legitimate and proportionate, subject to judicial review.

The appellants challenged preliminary rulings of the VAT and Duties Tribunal concerning the Commissioners’ refusal to restore excise goods and a vehicle. The Commissioners’ policies included non-restoration of goods where excise duty had not been correctly paid, even where an owner asserted innocence, and restoration of a vehicle only on payment of part of the evaded duty.

The appeals raised whether restoration proceedings determined a criminal charge under Article 6, whether the Tribunal’s statutory powers provided a Convention-compliant remedy, and whether an appeal lay while goods were detained rather than formally seized. The court also gave guidance on the Tribunal’s jurisdiction after goods were deemed condemned as forfeited.

1. The appeals were dismissed unanimously. Pill LJ held, with whom Chadwick LJ agreed and Longmore LJ also agreed, that refusal-to-restore proceedings under section 152(b) of the Customs and Excise Management Act 1979 did not determine a criminal charge. The domestic classification was civil. More importantly, the proceedings did not condemn or punish the owner for criminal wrongdoing. The loss could be severe and deterrent, but those features were not decisive in this statutory context.

2. The decisions in AGOSI v United Kingdom (1987) 9 EHRR 1 and Air Canada v United Kingdom (1995) 20 EHRR 150 materially supported that conclusion. The court was also bound by R (on the application of Mudie) v Kent Magistrates Court and HM Customs and Excise [2003] EWCA Civ 237, which had held that even condemnation proceedings under section 139 and Schedule 3 did not involve a criminal charge.

3. The Tribunal’s jurisdiction met Article 6. On the Commissioners’ concession, it could determine whether a restoration policy was unreasonable by public-law standards, including proportionality under Article 1 of Protocol 1, make the relevant findings of primary fact, and require a further review under section 16(4) of the Finance Act 1994.

4. “Seized” in paragraph 2(1)(r) of Schedule 5 to the Finance Act 1994 did not mean “seized or detained”. Detention pending enquiries was legally distinct from formal seizure. Accordingly, no Tribunal appeal lay against a refusal to restore goods merely detained. A short, expeditious detention to check duty status was legitimate and proportionate; unreasonable delay remained amenable to judicial review.

5. Where no notice of claim is given under Schedule 3, paragraph 5, goods are deemed duly condemned as forfeited. That deemed condemnation is binding for the statutory scheme. The Tribunal cannot reconsider whether duty had in fact been paid, since that would reopen the forfeiture question reserved to condemnation proceedings in the courts.

• Court of Appeal (Civil Division): Appeals dismissed in [2003] EWCA Civ 525. The court upheld the Tribunal’s preliminary rulings on Article 6, Tribunal jurisdiction, and detention; it also gave guidance rejecting the Tribunal’s proposed jurisdiction to revisit deemed forfeiture.
• VAT and Duties Tribunal: Decisions released on 30 May 2002 after hearings in December 2001. The Tribunal determined preliminary questions concerning Article 6, restoration, detention, and forfeiture.