Clayton, R (on the application of) v The Director of Border Revenue

For the purposes of regulation 13 of the Excise Goods (Holding, Movement and Duty Point) Regulations 2010, a personal gift of excise goods is not for the recipient’s own use where it carries an expectation of a reciprocal gift, even if that expectation is uncertain and unenforceable. The expression “money or money’s worth” must be applied in a practical, real-world way. A reviewing court should not retry factual findings made by the Crown Court. Where those findings are supported by the evidence and disclose no error of law or approach, the judicial review claim must fail.

The claimant challenged the Crown Court’s dismissal of his appeal against a Folkestone Magistrates Court order condemning approximately 25 kilograms of hand rolling tobacco seized on his return from France. He maintained that the tobacco was intended as gifts for his brothers and therefore was for his own use under regulation 13(5)(b) of the Excise Goods (Holding, Movement and Duty Point) Regulations 2010.

The Crown Court found, on the claimant’s evidence, that the brothers took turns buying tobacco and expected reciprocal provision in future. The central issue was whether that arrangement involved a transfer for “money or money’s worth”, so that the tobacco was not for the claimant’s own use.

1. The claim was dismissed. The Crown Court had correctly dismissed the claimant’s appeal against the condemnation order.
2. The judicial review was concerned with whether the Crown Court had erred in law or adopted a flawed approach. It was not an opportunity to retry the evidence or substitute a different view of the facts. The Crown Court was entitled to rely on the claimant’s own sworn evidence, including his description of it being his “turn” to buy the tobacco.
3. The statutory question was whether the facts found supported the conclusion that the tobacco was transferred to another person for “money or money’s worth” within regulation 13(5)(b) of the Excise Goods (Holding, Movement and Duty Point) Regulations 2010. The expression required a practical, real-world approach rather than a philosophical analysis.
4. A personal gift for the purposes of regulation 13 cannot include an expectation of a reciprocal gift in the future. That remains so where the expectation is uncertain, falls short of certainty, and is not legally enforceable. The Crown Court was therefore entitled to conclude that the arrangement involved “money’s worth” and that the tobacco was not for the claimant’s own use.
5. There was no error of law or approach in the Crown Court’s decision. It was consequently unnecessary to consider whether any remittal would probably have produced the same result under section 31(3C) of the Senior Courts Act 1981.

• Crown Court at Maidstone: On 5 July 2019, dismissed the claimant’s appeal from the Folkestone Magistrates Court’s condemnation order.
• High Court (Administrative Court): Dismissed the judicial review claim and upheld the Crown Court’s decision.