The applicant was stopped at Customs carrying cigarettes over the quantity set for personal use. His car was seized, and Customs refused to return it. The cigarettes were for his own use and for sale to family members. He claimed the seizure was an interference with his right to peaceful enjoyment of his property.
Held: The policy, adopted as a blanket policy, was disproportionate. It made no distinction between professional smugglers and others. There had been no proper attempt to strike a balance between the public interest and private rights, and there was no proportionality as required. The tenor of the letter implementing the policy made it plain that restoration should only be ordered in exceptional circumstances, and that message was reinforced by the example given: ‘a first time technical offence where a minimal amount of tobacco has been brought back for a relative’s consumption with payment at cost.’ The policy was unlawful.
The value of the car did not have to be taken into account on impounding for a commercial import.
Lord Phillips MR said: ‘ . . Under Article 1 of the First Protocol to the Convention such deprivation will only be justified if it is in the public interest. More specifically, the deprivation can be justified if it is ‘to secure the payment of taxes or other contributions or penalties’. The action taken must, however, strike a fair balance between the rights of the individual and the public interest. There must be a reasonable relationship of proportionality between the means employed and the aim pursued . . I would accept [counsel’s] submission that one must consider the individual case to ensure that the penalty imposed is fair. However strong the public interest, it cannot justify subjecting an individual to an interference with his fundamental rights that is unconscionable.’
Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Judge and Lord Justice Carnwath
Times 27-Feb-2002,  1 WLR 1766,  EWCA Civ 267
European Convention on Human Rights, Customs and Excise Management Act 1979 152
England and Wales
Cited – Sporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
Cited – Air Canada v The United Kingdom ECHR 5-May-1995
Hudoc No violation of P1-1; No violation of Art. 6-1
An aeroplane was seized as liable to forfeiture pursuant to section 141(1) of the 1979 Act. It was restored on payment of a penalty of andpound;50,000. . .
Cited – Gascoyne v Commissioners of Customs and Excise ChD 21-Feb-2003
The applicant challenged the respondent’s policy on restoration of vehicles confiscated on being found to be used for commercial smuggling. Vehicles would only be returned exceptionally. The applicant had written to the respondents who considered . .
Cited – Commissioners of Customs and Excise v Newbury Admn 3-Mar-2003
The commissioner appealed a finding that a car and other goods they had forfeited should be returned. The owner said that matters had been imported for personal use under the directive.
Held: The directive had direct effect and precedence over . .
Cited – Commissioners of Customs and Excise v Dickinson ChD 15-Oct-2003
The applicant had returned to England with a quantity of goods which the Customs and Excise deemed were not for his personal use. His car was seized, but ordered to be restored by the VAT and Duties Tribunal.
Held: There was now a two track . .
Cited – Gascoyne v Customs and Excise and Another CA 28-Jul-2004
The Commissioners had found what they considered to be an excess of dutiable goods brought into the country by the tax payer, and had forfeited the car. The court considered the effect of the Gora case.
Held: The difficult statements in Gora . .
Cited – Martin v Director of Border Revenue FTTTx 14-Dec-2010
FTTTx EXCISE DUTY – restoration of car – 15 kilos of hand-rolling tobacco, 1,200 cigarettes and 2,050 cigars between three people – whether reasonable not to restore – yes – appeal dismissed . .
Cited – JP Whitter (Water Well Engineers) Ltd v Revenue and Customs SC 13-Jun-2018
The taxpayers registration under the Construction Industry Scheme had been withdrawn. The Court was now asked whether HMRC are obliged, or at least entitled, to take into account the impact on the taxpayer’s business of the cancellation of its . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 July 2021; Ref: scu.167666