E01085

EXCISE DUTY – Attempt to smuggle cannabis resin to Ireland in vehicle belonging to a third party – third party present at the time of the seizure – cannabis seized and vehicle seized – restoration of the vehicle refused – whether decision to refuse restoration reasonable and proportionate – held it was – appeal dismissed

MANCHESTER TRIBUNAL CENTRE

	TRACEY SONIA MARSLAND	Appellant

	- and -

	THE COMMISSIONERS FOR HER MAJESTY’S 
	REVENUE AND CUSTOMS	Respondents

			Tribunal:	JOHN WALTERS QC (Chairman)
					MARJORIE KOSTICK

Sitting in public in Birmingham on 12 September 2007

The Appellant appeared in person
James Puzey of Counsel, instructed by the Solicitor for HM Revenue and Customs, appeared for the Respondents

© CROWN COPYRIGHT 2008

DECISION

1.	Tracey Sonia Marsland (“the Appellant”) appeals against a decision of the Commissioners taken on review, and contained in a letter dated 6 July 2006 (but obviously written after that date, the tribunal was told on 6 September 2007, since it refers to a letter from the Appellant’s solicitors dated 20 July 2006), to uphold the original decision, contained in a letter dated 11 July 2006, not to restore an Audi A4 Cabriolet motor car, registration V652 FUT (“the Vehicle”) to the Appellant.
2.	The tribunal understands that the appeal has been before another tribunal before, but that on that occasion no decision was given by the tribunal.
3.	The undisputed facts are as follows:
4.	On 4 April 2006, the Appellant and Mr. Mark Tibbs were stopped at Holyhead port by police officers.  They were travelling in the Vehicle, which belonged to the Appellant, bound for Dublin.  The Appellant informed the officers that they were not carrying anything for anyone else and that only she and Mr. Tibbs had access to the vehicle.  Mr. Tibbs stated that they were not carrying anything illegal.
5.	The officers commenced a search of the Vehicle and discovered three black bin bags containing packages concealed under the cover which shields the Vehicle’s retractable hood.
6.	The Appellant and Mr. Tibbs were arrested and cautioned.  The Appellant denied all knowledge of the goods in the bin bags.  Mr. Tibbs stated “it’s cannabis ... it’s 27 kilos of cannabis.  My missus knows nothing about it.”
7.	The police officers informed the Respondents, who then carried out a test on the substances in the bin bags, which proved positive for cannabis.  The substances were identified as 29.38 kilograms of cannabis resin.  They had an approximate street value of £90,000. 
8.	The Appellant and Mr. Tibbs were interviewed and notes of the interviews were in evidence before the tribunal.  
9.	Following Mr. Tibbs’s admission that he had concealed the drugs in the Vehicle, the Commissioners seized the Vehicle under s.139(1) CEMA as being liable to forfeiture under s.141(1)(a) CEMA, because it was used for the carriage of goods liable to forfeiture.
10.	The Appellant did not challenge the legality of the seizure in the Magistrates Court and the Vehicle was condemned as forfeit to the Crown under para.3, Sch. 3, CEMA
11.	Mr. Tibbs was charged with a drug smuggling offence and was convicted.  He was sentenced to 3 years’ imprisonment.
12.	The Appellant wrote on 20 April 2006, requesting restoration of the Vehicle.
13.	In response to the Appellant’s appeal against the decision on review confirming the decision not to restore the Vehicle to her, the Commissioners contend that their decision was in line with publicly stated policy and was a reasonable exercise of their discretion under s.152(b) CEMA and that the Appellant has failed to show any reason why the Commissioners should depart from their stated policy.
14.	The letter containing the decision of the Commissioners on review stated the opinion of the review officer (Mr. Wood) that the Appellant “must have had some prior knowledge that the drugs were in the vehicle, especially given the quantity involved”.  The review officer considered it inconceivable that the Appellant could not smell the cannabis concealed in the Vehicle.  He made reference to a scalpel and an unopened packet of blades which were found in the Vehicle.  He stated that the Appellant had said that these were for removing the corns on her feet, but he considered it more likely that these items were to be used to cut the blocks of cannabis into smaller pieces, possibly in readiness for sale.  He stated that there was also in the Vehicle a copy of a map printed from the internet showing directions to Belfast, and he considered that this was an indication that the drugs were intended to be delivered there.
15.	The review officer also made reference to the travel costs incurred by Mr. Tibbs and the Appellant, in the region of £160, before hotels, petrol and living expenses were taken into account.  He considered that the Appellant had given no satisfactory explanation why she and Mr. Tibbs had intended to take the Vehicle by ferry to Ireland, rather than using the much cheaper alternative of a budget flight from Birmingham.  He considered that the Appellant’s statement that she did not find it suspicious that Mr. Tibbs, who was out of work, had £600 in cash on him to be incredible.
16.	The review officer also formed the view on the material before him that Mr. Tibbs had unrestricted access to the Vehicle and would have it again, on his release from prison, if the Vehicle were to be restored to the Appellant.  The Appellant and Mr. Tibbs intend to resume their relationship on his release from prison and to live at the same address.
17.	The review officer stated in his letter that he had considered the claim of hardship made by the Appellant consequent on the seizure of the Vehicle, but found that the hardship suffered by the Appellant could not be regarded as exceptional.  
18.	He concluded that the Appellant’s account that she did not know about the concealed drugs was not credible and that on the balance of probabilities even if she were not complicit in the attempt to smuggle cannabis (she was not charged with any offence), she “must have at least had some degree of knowledge of the attempt” by Mr. Tibbs to smuggle the cannabis.
19.	He regarded the application in this case of the Commissioners’ policy, which is not normally to restore seized vehicles, as reasonable and proportionate, having regard in particular to the quantity of drugs found in the vehicle.
20.	A Witness Statement made by Mr. Wood was admitted in evidence exhibiting the documentation relevant to the case, including the transcripts of tape recorded interviews with Mr. Tibbs and the Appellant.
21.	The Appellant’s evidence was that she and Mr. Tibbs had been stopped in the Vehicle at Holyhead on the same day, once before the occasion which led to the seizure.  That had been at about 2:15 am.  The Vehicle had been examined by customs officers in the absence of the Appellant and Mr. Tibbs and no cannabis had been found or, presumably, smelt by them.  That search had made them late for the ferry they were meaning to catch and they had gone away from the port for refreshment before returning to catch a later ferry at about 6:15 am.  The Appellant said that she did not know there was cannabis ion the Vehicle and, if she had known, she would not have returned to the port after the first search.
22.	The Appellant complains that the earlier search of the Vehicle was not mentioned in the review letter.
23.	The Appellant had been in a relationship with Mr. Tibbs for four years.  She used to live in Stevenage but moved to the West Midlands at the end of 2005 to be closer to Mr. Tibbs.  She knew Mr. Tibbs smoked cannabis.  He was expected to be released from prison on 2 November 2007 and she expected him to come back to live with her again.  Their relationship is still ongoing.
24.	Mr. Tibbs has his own car, a Vauxhall Vectra, described as an “old banger”, which the Appellant did not use.  She would, however, let Mr. Tibbs use the Vehicle “as and when”, which we understand to mean whenever he wished to do so.  However she said in evidence “if he’s changed his ways, I’d let him use it again: everyone is entitled to a second chance.  I wouldn’t take a car abroad again.”
25.	Mr. Tibbs gave a statement which he confirmed as true in the police interview (a transcript of which was before the tribunal).  In it, he stated that he was the driver of the Vehicle, travelling to Dublin about to catch a ferry at about 8:05 am.  He stated that the owner of the Vehicle was the Appellant and that he had hidden the cannabis in the Vehicle under the sunroof cover the previous day (3 April).  He stated that he had been paid by a person whom he did not wish to name for fear of reprisals to courier the cannabis to a location in Dublin and was to be paid £1,000 for doing so.  He stated that he had never in the past undertaken this kind of service.  He stated that he wished to emphasize that the Appellant had nothing whatsoever to do with the movement of the cannabis and had no knowledge of his intentions, nor of the fact that there were any drugs hidden in the Vehicle.  He stated that he had arranged a four day break with her in Dublin for the purpose of sight-seeing and shopping and that she believed that this was the sole purpose of the visit.  He stated that he was going to arrange for the cannabis to be handed over in Dublin when he was contacted.
26.	The Appellant said in evidence that she knew nothing about the intended hand-over of the cannabis in Dublin.  When asked whether she had asked Mr. Tibbs about this matter since the seizure of the Vehicle, she replied “No, what’s the point?  He’s been caught.  He’s in prison.  He hasn’t said much about it apart from ‘sorry’.  He only said he intended it to go to Dublin.  According to Mark it is better that I don’t know more information as there were still people out there.”
27.	When asked why there was a map of Belfast in the Vehicle, she said there were maps of other places too and she didn’t pay any attention to it.
28.	They had nowhere booked to stay in Dublin and she told the police that she had no money (less than £2) on her.  She knew Mr. Tibbs had £600 though she didn’t know how he had got it.  She said she presumed it was payment for odd jobs, but she did not ask him.  He would have said if he had had a win on the horses, but he did not say so in this case.
29.	When asked why they had taken the car ferry to Ireland, rather than the cheaper alternative of a flight from Birmingham, she said “we like to stop”, presumably on the way, and she mentioned they had taken the Vehicle to Spain.
30.	When asked what the 10 surgical blades and scalpel were doing in the Vehicle, she said they had been given her by a friend and left in the Vehicle.  She had given the Commissioners the contact details for the friend, but they had not contacted her.  Neither had she thought to get a statement from this friend.
31.	She said she had not smelt the cannabis during the four hour journey to Holyhead from the West Midlands.
32.	She stated that she had been questioned when the Vehicle was stopped for the first time at Holyhead, but there is no mention in the taped interview of this having happened.
33.	Mr. Puzey in his submissions stated that the review officer had referred to only one search in his letter in his Witness Statement.  The tribunal notes from his Witness Statement, however, that he had considered the transcript of the tape recorded interview with the Appellant, which had mentioned the earlier search.
34.	Mr. Puzey submitted that the Commissioners, in their policy on restoration of vehicles, make a distinction between a “completely innocent” third party vehicle owner and one who neither knew nor cared what his/her vehicle was being used for.  He submitted that on an overall view of the evidence the review officer was entitled to conclude that the Appellant must have known that the Vehicle was being used in an attempt to smuggle cannabis.
35.	Mr. Puzey had a further point, which was that even if she did not know that the Vehicle was being used in an attempt to smuggle cannabis, the evidence is that if it is restored it will in practice be again at Mr. Tibbs’s disposal, and there is a public interest in not letting a convicted drug smuggler have access to the Vehicle, the same vehicle in which he attempted to smuggle drugs.
36.	In her reply, the Appellant stated that Mr. Tibbs had never before been convicted of smuggling drugs, he had however been to prison before, for robbery of a lorry.  She said that Mr. Tibbs would have used the razor blades in the Vehicle to slash the sides of lorries and that she had been told that the razor blades would never have got through cannabis.
37.	Our conclusion is that the Appellant has failed to discharge the burden of proof which is on her, to show that the decision not to restore the vehicle to her was unreasonable.
38.	Although we are puzzled by the Appellant’s explanations for the presence in the Vehicle of the razor blades and the scalpel and her evidence about the Vehicle having already been searched once before on the morning of the incident, we do not find that she positively knew about the attempt to smuggle the cannabis in the Vehicle.  We do, however, find that she was careless about whether Mr. Tibbs was using the Vehicle for illegal purposes and that she was someone who neither knew nor cared what her vehicle was being used for.
39.	Our reason for this finding is her unconcern about the financial aspects of the trip to Ireland.  She neither knew nor cared where Mr. Tibbs had obtained £600 in cash from.  She had no plausible explanation for their taking the Vehicle to Ireland rather than adopting the much cheaper (and more convenient) alternative of flying from Birmingham. 
40.	We also accept Mr. Puzey’s submissions regarding the public interest in not permitting Mr. Tibbs further access to the Vehicle following his release from prison.  Clearly the Vehicle has proved to be especially easy to use for the purposes of attempted drug smuggling and we find that the Commissioners’ apprehension that Mr. Tibbs might use it for that purpose again is reasonable. We find it extraordinary (and indicative of an attitude that the Appellant continues to be careless regarding Mr. Tibbs’s use of the Vehicle) that she had not explored fully with Mr. Tibbs, since his imprisonment, the real story surrounding his attempted drug smuggling, and yet she was obviously content to resume her relationship with him on his release from prison.
41.	In these circumstances and for these reasons we uphold the Commissioners’ decision not to restore the Vehicle to the Appellant as reasonable and proportionate.  We dismiss the appeal. 

JOHN WALTERS QC

CHAIRMAN
RELEASE DATE: 24 January 2008

MAN /2006/8050