Practice and Procedure


PUBLISHED September 9, 2003

The review of a decision not to restore the appellant's vehicle was unreasonable as it failed to spell out the policy in relation to the seizure of vehicles owned by third parties under which the review was carried out.Appeal by the applicant ('K') from the decision on review by the respondent ('the commissioners') dated 6 September 2002 refusing to restore her car seized on 21 June 2002. The vehicle was seized by the commissioners whilst being driven by K's son ('V'). It was K's initial case that she did not know that V had used the vehicle for improper means. She sought the return of the car on the basis that it was used to take her disabled mother to hospital. On 11 July 2002 K was informed that there was no evidence of exceptional circumstances which justified a departure from the usual policy to refuse restoration. On review K stated that her initial case was incorrect in that she would have had to have reported the incident to the police as a theft of the car by V to obtain a crime number and that she had not done so to avoid getting her son in trouble. The review officer concluded that the change of account by K threw her credibility into doubt. He was not persuaded by K's subsequent account of events and did not believe that the car was indeed taken without her consent. He further concluded that there were no exceptional circumstances to warrant a departure from the normal policy and accordingly confirmed the contested decision not to offer restoration of the vehicle. K appealed.HELD: (1) The evidence established that had K known that V was taking the car to France and importing tobacco she would not have given him permission to have taken the keys. Further, the absence of the keys from her home indicated to K that V had taken the car for some other reason, namely, that for which she had given him permission. (2) The review letter in the instant case failed to spell out the policy on restoration of seized vehicles belonging to third parties. That omission put K at a disadvantage. The policy approach referred to in the review letter was more consistent with the treatment of owners directly implicated in smuggling. In cases such as the instant, not only should the review officer have taken the policy into account, but he or she should have been seen to have taken it into account. (3) The officer should have made further enquiries regarding the discrepancies in K's accounts before concluding that her original account was untrue. (4) Further, the officer concluded that the registration of two further vehicles at K's address went against her claim of hardship. However, without further evidence as to their location and availability that conclusion was based on faulty logic and was unreasonable. (5) In all the circumstances of the case, the appeal was allowed and a fresh review ordered.Appeal allowed.