Golobiewska v Revenue and Customs

Evidence concerning alterations to a vehicle may be relevant to whether its owner knew, or ought to have known, that it would be used for smuggling, even where a previous tribunal found that the owner did not know the purpose of the alterations. Such evidence may also bear on credibility and the surrounding circumstances. A tribunal may reach an adverse knowledge finding from indirect evidence where the burden rests on the claimant and the conclusion falls within the range reasonably open to it. An alleged concession must be confined to its actual terms. A fairness objection based on delay and evidential scope will generally fail where the issue was not raised in good time and the party had a proper opportunity to prepare and give evidence.

The appellant sought the return of her Mercedes motorcar after it had been forfeited following its use by Mr Tanecki to smuggle cigarettes. A first tribunal found, among other matters, that she did not know that adaptations to the vehicle were intended to facilitate smuggling. After an earlier appeal, the issue whether she knew or ought to have known of Mr Tanecki’s intended use of the vehicle was remitted to a differently constituted tribunal.

The second tribunal found that she had failed to establish that she lacked such knowledge and that she had turned a blind eye to Mr Tanecki’s intentions. The appellant challenged that decision on the relevance of evidence about the vehicle’s adaptations, the alleged concession concerning her knowledge of the cigarettes, the rationality of the tribunal’s conclusion, and the fairness of the hearing.

1. Concession. The concession recorded by the first tribunal was limited. It established that HMRC did not contend that the appellant knew that cigarettes were in the vehicle after Mr Tanecki had loaded it. It did not establish that she lacked knowledge that he intended to use the vehicle for smuggling. Those matters were not inconsistent.
2. Relevance of evidence. The second tribunal was entitled to hear and consider evidence about the vehicle’s conversion. The evidence was relevant to the appellant’s knowledge of the intended use of the vehicle, the surrounding factual circumstances and her credibility. The tribunal remained bound by the earlier finding that she did not know the purpose of the adaptations and did not impermissibly reopen that issue.
3. Assessment of evidence. The second tribunal was entitled to rely on indirect evidence, including inconsistencies in the appellant’s evidence, the nature of her relationship with Mr Tanecki, the circumstances of the vehicle’s adaptation and the surrounding events. The earlier findings and the concession had been taken into account. They did not make the tribunal’s conclusion inconsistent or irrational.
4. Appellate restraint. The tribunal’s conclusion that the appellant had not discharged the burden of proving that she lacked knowledge, or had not turned a blind eye, was one which it was entitled to reach on the totality of the evidence. It was not outside the range of decisions open to a properly directed tribunal.
5. Fair hearing. The complaint that the passage of time and the wider questioning made a fair hearing impossible was raised too late. The appellant had previously given evidence and had an opportunity to prepare for the remitted issue. The second tribunal was entitled to proceed, particularly where no proper challenge had been made at or before the hearing.
6. The appeal was dismissed.

• High Court (Chancery Division): The appeal from the second VAT and Duties Tribunal decision was dismissed.
• VAT and Duties Tribunal: The second tribunal reheard the remitted factual issue and found that the appellant had failed to establish that she did not know, or had not turned a blind eye to, Mr Tanecki’s intended use of the vehicle for smuggling.
• Earlier proceedings: A first tribunal decision was appealed to the High Court and then to the Court of Appeal. The relevant factual issue was remitted for rehearing before a differently constituted tribunal.