Customs & Excise v Dickinson

A tribunal reviewing a Customs and Excise restoration decision may make findings of fact, but it cannot substitute its own restoration order. The statutory forfeiture and restoration procedures have different functions. A failure to challenge forfeiture does not prevent evidence of own use or non-profit distribution being considered as mitigation in the discretionary restoration review, although it prevents the forfeiture itself being contested except through condemnation proceedings. The reviewing body must apply the correct commercial-purpose and proportionality analysis, including the scale of importation, concealment, previous offending, vehicle value and hardship. On judicial review of the tribunal’s decision, the court asks whether no reasonable tribunal could have reached it.

The Commissioners appealed against a VAT and Duties Tribunal decision allowing Darren Lee Dickinson’s appeal from a Customs and Excise review officer’s refusal to restore a vehicle, tobacco and beer seized at Dover. The Tribunal had accepted that the goods were intended for personal or family use and had criticised the seizure and the officers’ conduct. The appeal raised the effect of later Court of Appeal authority on forfeiture, the proper distinction between condemnation and restoration, the Tribunal’s fact-finding and remedial powers, the refusal of an adjournment, and the adequacy of the review officer’s procedure.

The central issues were whether the Tribunal had applied the correct legal approach and whether its decision and directions could stand.

The appeal was allowed only to the extent necessary to set aside the Tribunal’s direction which in substance ordered restoration. The matter was remitted to Customs and Excise for reconsideration.

1. Adjournment and evidence. The Tribunal’s refusal to adjourn was not a decision which no reasonable tribunal could have made. The Commissioners had delayed their application, had assumed that an adjournment would be granted, and had chosen not to cross-examine the respondent or call available officers. The Tribunal was entitled to rely on the unchallenged evidence and had considered the other evidence before it.
2. Forfeiture and restoration. Under Customs and Excise Management Act 1979, condemnation proceedings determine liability to forfeiture, while restoration under section 152(b) is discretionary. The reasoning in Gora v Customs and Excise Commissioners [2003] EWCA 525 prevented the Tribunal from reopening forfeiture where the statutory notice had not been given. It did not prevent own-use evidence from being considered in deciding whether restoration should be granted, because that evidence could show a non-profit transaction relevant to mitigation and proportionality.
3. Commercial purpose and proportionality. Following Lindsay v Customs and Excise Commissioners [2002] EWCA 267, commercial purpose was not confined to professional smuggling for profit. Social redistribution to family or friends without profit required a fact-sensitive and proportionate approach. Relevant matters included the scale and value of the importation, concealment or dissimulation, whether it was a first offence, the value of the vehicle and hardship. The review officer had failed to apply that approach and had failed to give the respondent a proper opportunity to answer adverse material.
4. Tribunal’s powers. Under section 16(4) of the Finance Act 1994, the Tribunal could direct a further review, but could not order restoration. It could make binding findings of fact for the purpose of reconsideration. The Tribunal’s findings that the goods were acquired without profit were reasonably open to it. The findings concerning the lawfulness of the seizure were irrelevant to the restoration issue, but did not invalidate the result.
5. The respondent’s letters were capable of amounting both to a restoration request and to a notice challenging forfeiture. Applying the approach in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, the letter was to be construed in context, including the Commissioners’ misleading explanation of the two procedures. Condemnation proceedings therefore remained open, subject to any abuse-of-process issue arising from the delay.

1. VAT and Duties Tribunal allowed Mr Dickinson’s appeal against the review officer’s refusal to restore the seized vehicle and goods.
2. High Court (Chancery Division) allowed the Commissioners’ appeal in part, declined to uphold the Tribunal’s effective restoration order, and remitted the matter for a further review applying the findings and legal approach identified in the judgment.