Key Facts
- •LKV Ivica Ltd appealed the refusal to restore their trailer seized for containing 10kg of cocaine.
- •The trailer was seized under s 139 of the Customs and Excise Management Act 1979 (CEMA) and deemed condemned under Schedule 3.
- •The appellant, Mr. Bogdanoski, claimed innocence and argued the decision was unreasonable.
- •The Respondent's policy generally refuses restoration for drug quantities exceeding 100g, with exceptions.
- •Mr. Bogdanoski's limited English and inconsistent responses to inquiries were key factors in the decision.
- •The appeal did not challenge the legality of the seizure.
Legal Principles
Deeming provisions in Schedule 3 of CEMA: If the legality of a seizure isn't challenged, the goods are deemed condemned.
HMRC v Jones & Jones [2011] EWCA Civ 824, HMRC v Race [2014] UKUT 03331 (TCC), HMRC v European Brand Trading Ltd [2014] UKUT 0226 (TCC)
Reasonableness review: The Tribunal's role is to determine if the decision not to restore was reasonable, considering relevant and irrelevant factors.
Lindsay v C & E Comrs [2002] STC 588, JH Corbitt (Numismatics) Ltd [1980] STC 231, Gora & Ors v C & E Comrs [2003] EWCA Civ 525
Hardship: Hardship is a relevant factor, but exceptional circumstances must be shown. It's not enough to show general hardship from seizure.
Lindsay v C & E Comrs [2002] STC 588, UAB Barela & UAB Reisrida v HMRC [2014] UKFTT 547 (TC)
Proportionality: A fair balance must be struck between individual rights and community interests. The measure must be rationally connected to its objective and not excessively intrusive.
OK Trans Ltd v UKBA [2010] UKFTT 223 (TC), Bank Mellat v Her Majesty's Treasury (No.2) [2014] AC 700, R (Bibi) v Secretary of State for the Home Department [2015] 1 WLR 5055
Convention Compliance: The condemnation and restoration procedures are compatible with Article 1 of Protocol 1 and Article 6 of the European Convention on Human Rights.
Air Canada v United Kingdom (1995) 20 EHRR 150
Outcomes
Appeal dismissed.
The Tribunal found the decision not to restore the trailer was reasonable. Mr. Bogdanoski's failure to provide sufficient information despite multiple opportunities, coupled with the large quantity of drugs, justified the decision. The Tribunal found the Respondent correctly applied policy and considered all relevant factors, and that the deeming provisions of Schedule 3 to CEMA prevented a re-examination of the legality of the seizure.