Practice and Procedure


PUBLISHED January 9, 2004

The decision not to restore a motability vehicle to the appellant was disproportionate given that Customs had restored another motability vehicle to the appellant's husband. There was no evidence to suggest that the appellant had any knowledge of her husband's illegal activity and the seizure had caused her hardship.The appellants (V and H) appealed against a review decision in relation to the non-restoration of a motability vehicle (the first vehicle) seized by Customs on 2 October 2001. V suffered from poor mobility and had acquired the first vehicle so that she would not be house-bound. V's husband (H) was driving the vehicle alone when stopped by police who found large quantities of cigarettes and tobacco products therein. H's home and lock-up garage were subsequently searched and again large quantities of cigarettes and tobacco products were seized by Customs. H accepted that he had made frequent trips to the continent to bring back cigarette products but maintained that they were for personal and family use. At the same time, Customs seized another motability vehicle (the second vehicle) supplied and possessed for the use of H, whose mobility was also poor. Having forfeited both vehicles, Customs restored the second vehicle. Despite two reviews of the decision to seize, Customs refused to return the tobacco goods and the first vehicle holding that although V had not been present, she must have been fully aware of her husband's activities and therefore had to bear some responsibility for the loss of her vehicle. Customs submitted, inter alia, that Lindsay v Customs & Excise Commissioner (2002) STC 588 was authority for the proposition that it was not normally appropriate to consider the restoration of vehicles on grounds of disproportionality in cases of commercial smuggling. The appellants submitted that (1) the first vehicle had not been used for an illegal purpose, it was the property of V for her own use and not for smuggling; (2) V had suffered hardship by the non-availability of the first vehicle; (3) the decision not to restore was unreasonable.HELD: Although H might well have had a profit in mind through dealing in illegal tobacco products it was not reasonable to take the view that V had been associated with it. V's need for the first vehicle was great and hardship had been caused by non-restoration. Without the first vehicle she would have to depend on social services or other persons for mobility. The non-association of V with the dealings of H meant that the principle of proportionality could not be ignored. Customs had seized both vehicles and then restored the second vehicle but retained the first vehicle. Had the second vehicle not been a motability vehicle it probably would not have been restored. In those circumstances it would not be reasonable for the first vehicle to have been retained as well. It would have been proportionate to retain the vehicle having the closer connection with H and to restore the vehicle with the more tenuous connection with him. Customs were therefore required to conduct a further review of the decision not to restore the first vehicle and ought to come to the conclusion that the first vehicle should be restored.Appeal allowed.