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07-10-2015 11:29 am  #1


Case won at Luton

Further to my thread of preparation here http://n2d.boardhost.com/viewtopic.php?id=1724 this was my day in court:

I've arrived to the court and reported to the reception. I was told the court room number and was asked to wait. About 10 minutes later the opponent solicitor has arrived - very nice lady. I handed my bundle to her (as I did not sent it to her in advance) and said that I've sent a copy to court in advance. She did not seem upset about the fact I did not send my bundle to them in advance, although I had a reason for that - no one has given me the address of where to send it to. We still had time before the hearing, so she went away to read my bundle. Then the officer who stopped me at the airport arrived.
The lady solicitor came to me and was very helpful (surprisingly to me) in explaining the process of the upcoming hearing and showed me her Costs Schedule, which was totalling just over £2,000. She explained, that should I lose today, she will be trying to get this costs awarded against me. I also showed her my schedule, which was totalling just below £800. She then said that I would probably not be able to claim my time, as this can only be claimed if one uses legal services, however, disbursements can be claimed, most likely. She then handed me a copy of the notebook from my previous stop (not the one we are fighting about today) and said, "this is a copy of your previous stop. I will not be using it, but think this may be helpful". This was unexpected, as that notebook has indeed been very helpful later in the hearing.

We proceeded to the court room, I was asked to take a place in a witness area but remain standing. I then asked whether I could have a desk, as I had a lot of paperwork, since was representing myself, so was allowed to sit next to my opponent.
The 2 bundles were presented to the judges and my opponent has suggested they go and familiarise themselves with these before we start. The judges have left the room for 15 minutes.

The judges returned and the hearing has started. My opponent stood up and started explaining the law very slowly, reading the 2010 Act, which is basically same as the Council Directive 2008/118/EC. She pretty much done most of what I was expecting to do myself, which is outlining that indeed the excise goods importation from other member states of EU is legal and allowed, as long as goods are imported for own use or for giving away as gifts. She then mentioned MILs - the guideline amounts, which I thought she presented as, in fact, legal limitations. At this point, I was amazed as to how she is explaining everything to the judges, who in my view were supposed to know all of this. Otherwise, how do they know she is not making things up?! Anyway, in the end (when waiting for judges to make a decision), she explained to me that magistrates are not qualified judges and are pretty much a bunch of civilians performing duty of judges, that's why all has to be explained to them by legal professionals in the court. I thought it is very weird and not right! But anyway, moving back to the hearing..
So she pretty much explained the law to the mags, outline the case, stating I was bringing cigarettes, was stopped by the officer and officer outlined 6 reasons why he seized my goods. Then she called the witness – the officer who stopped me. She did not ask him many questions, simply allowed him to explain those 6 points he based his decision on. It was then my turn to ask questions. I had over 20 questions prepared and started with establishing the reasonable grounds for stopping. The officer refused to comment on the grounds for stop and simply said he had reasonable grounds. At this point the court clerk intruded and said I should not be asking these speculative questions (what?!). I proceed to finish with my questions. Then, the opponent solicitor stood up to ask some correction questions.
Now I was asked to proceed to the witness box and to present my evidence. By this point, all the legislative background has been given by my opponent, which I must stress was all correct and she did not try to hide anything. As I’ve started talking, I tried to stick to my prepared structure, which consisted of legislations re importation, the methodology which the member states may use to establish whether goods are imported for own use, my financial state, CEMA extract explaining what revenue trader is and going through all 6 officer’s reasons for seizure and challenging them. Unfortunately, 30 seconds into the speech I was interrupted by the clerk saying: “the legislative background has been established already and agreed upon, and you are not a lawyer to set up legal background to the case (lol?!).. the question of the process is whether or not these goods were for your own use, therefore you must provide evidence of own use.”. This has straight away knocked me out of my comfort zone! Strangely, mags were sitting there like incompetent bunch of dilettantes and were adhering to everything the clerk was saying. I knew I had to think quickly now and reconstruct my strategy on the spot. I said: “look, there can be no hard evidence from either side, otherwise there would not be the case in the first place. We are talking probability here. I therefore want to bring more variables to this equation and show not only evidence the goods were for my own use, but also that it is unlikely I would be bringing these for any commercial reason. We are discussing the legality of seizure here I would have thought. So I would like to not only show evidence of my consumptions, but also show my financial soundness and overall personal profile which would evident that a person like myself is very unlikely to risk their career and reputation in exchange for a potential few hundred pounds profit”. I wanted to present a report, showing how BF was underperforming on their targets, and use this as an argument that they are seizing goods from innocent travellers. I was not able to do that, though, as the clerk kept interrupting and insisting I should be trying to prove the goods were for my own use and nothing else. I lost control for a moment and took out a packet of cigarettes from my jacket pocket and said: “look, this is a hard evidence and the only evidence there can be”. Surprisingly, she approved this action of mine and said something like “well at least we now know you do smoke” (LOL!). I then referred to the notes that the opponent solicitor gave me earlier in the waiting hall. I used them to show, that the gap between my previous 3 importations was 12 month and 10 months respectively which exactly correlates with what I have declared as the time my cigarettes would last me for.
It was the turn for my opponent to question me and she did a damn good job on in. She managed to dig out all of the little discrepancies from the interview notes, especially about my previous travels. Using those, she tried to get a “confession” of me that I was bringing these for purposes other than my own consumption. She kept asking why I did not bring cigarettes on the trip before that? Why did I have to go again specifically to buy cigarettes and pay another £130 for the flights when I could have brought them during my previous trip… At that point I was quite lost as the clerk knocked me out of my strategy and I was now hit by this persistent woman, who says sensible things and makes logical points. However, I explained that this was due to my personal budgeting arrangements. I could not have made this purchase earlier, however, I specifically allocated moneys later on and went to buy these. She then pushed the “non mentioned trip” argument, saying “why did you not mention one of your trips” to which I replied that under those stressful circumstances I forgot about it, however, I presented evidence of the luggage allowance for that trip which showed I only had one hand cabin bag. Therefore, I made a claim I could not have brought anything in that bag. She then went to say something I found ASTONISHING! “Your booking information is generated on the day when you book and pay for the flight, yes? In which case, you could have gone to the airport on the day of travel and checked in more bags by paying for it at the airport.”. LOL! Why would I do that?! She then tried to get confession of me few more times and, obviously, was unsuccessful.
Then, quite disappointed and anxious, I sat down. I was then asked if I wanted to make a final speech. I took the opportunity and briefly summarised the points I made. Then I referred to the judges saying that as we are talking probabilities here, please also consider a probability of anyone of my profile and financial state doing something stupid like selling cigarettes for a profit of a few pounds. The clerk interrupted again saying: “that’s for them do decide”. I felt like swearing at her at that stage, seriously.
The judges left and took about 20 minutes to make a decision. I went for a cigarette in the meanwhile. I was fairly sure I had lost, given the pressure of the clerk and my opponent, and was already thinking about the appeal.
The judges returned and said they decided the goods were for my own use and should not be forfeit.
Here is where the interesting bit started! My opponent jumped up and started asking for certificate 144: “actually, the Director of border has another request today…”. She started reading out tonnes of legislation off her iPad with this regard. First reaction of judges was: “and why should that be granted?!”. She proceeded to explain that although the decision was made that the goods are not liable for forfeiture, the court should agree the decision to seize the goods was reasonable at the time (what?! Why?!). She explain that this is required so that I do not claim any losses or damages (aww, how honest of you!). The judges gave me a word and I said I was not intending to claim any damages but would like to claim costs related to this case. The judges disappeared again to decide on this. By the way, the clerk was ever so “helpful” to my opponent, produced and printed all of the required legislation re certificate 144 and advised the judges. I thought this is ridiculous.. Why is she allowed to make further claims in this hearing, where I was not even allowed to speak my mind freely?!
The judges have returned and approved granting the certificate 144.
My opponent stood up again and started talking for me, saying, that I would like to claim costs as per my schedule of costs, but she thinks this should either be rejected or substantially reduced, as I have put too many hours of preparation. I then explained that this is in fact the actual time I spent on preparing for the hearing and may seem a lot to professional solicitors, but is not at all a lot for a non-professional. The judges have left again.
Judges have returned and said as they have granted Certificate 144 they can only grant any costs in exceptional circumstances. They did not find any such circumstances therefore are unable to grant costs. The process has finished.
I thought this was a little bit unfair. Should I have lost the case, would I be able to get the same certificate 144 granted and be relieved from the costs? I don’t think so.. All in all, I felt a lot of inequality in the court approach, especially the clerk.
 

 

07-10-2015 12:23 pm  #2


Re: Case won at Luton

Wirelesslife good result!  Well done.  It's disappointing that a S144 was issued and that no costs were allowed.

Thanks for writing an account of the day.

JMK

Last edited by Johny_MK (07-10-2015 12:24 pm)

 

07-10-2015 1:42 pm  #3


Re: Case won at Luton

Yes thanks for the write up. Apart from giving us a lift it helps us to keep abreast of the latest tactics.

The clerk's job is to see that justice is done by a fair hearing. That some times means asking you questions that you have omitted to ''help'' your case. It's rare but not unknown for them to interfere as in your case. It is not the clerk's job to decide what can and cannot be heard but of course, no matter who asks the questions you should always face the mags and direct your answer to them. So sometimes there might be a little leeway to be had by saying to the mags....
''with respect your worships it is necessary for me to expand on this point in order to......''

Anyway it sounds like you had a bad one on the day so well done.


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07-10-2015 1:56 pm  #4


Re: Case won at Luton

Thanks for the write, great to know whats going on.

congrats on your win.

Garry


START HERE, By answering these questions. http://n2d.boardhost.com/viewtopic.php?id=1526
Useful documents for download : http://n2d.boardhost.com/viewforum.php?id=34
Goods been seized, Start here.  http://n2d.boardhost.com/viewtopic.php?id=78
SOT Thanks to TBD. http://n2d.boardhost.com/viewtopic.php?id=373
 

07-10-2015 3:09 pm  #5


Re: Case won at Luton

eezyrider wrote:

 no matter who asks the questions you should always face the mags and direct your answer to them.

Yes, but funny enough, mags were turning to the clerk as if asking fer her permission to hear me out. What an incompetent bunch of so and sos, I thought. I got really upset about that.

     Thread Starter
 

07-10-2015 9:39 pm  #6


Re: Case won at Luton

"My opponent jumped up and started asking for certificate 144: “actually, the Director of border has another request today…”. She started reading out tonnes of legislation off her iPad with this regard. First reaction of judges was: “and why should that be granted?!”. She proceeded to explain that although the decision was made that the goods are not liable for forfeiture, the court should agree the decision to seize the goods was reasonable at the time (what?! Why?!)."
( in the quote above the underline is my addition)

I will never understand how when goods are not liable to forfeiture that the reasons to seize were reasonable at the time.
Have you not just proved to the court that all the stated reasons were incorrect and spurious therefore the decision of the seizing officer was incorrect and based on his own false assumptions,  in fact the officer at that point was either incompetent or was driven by a need to achieve his departmental targets.
After all is said and done he had before him at the time exactly the same information that you have presented to the magistrates.


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08-10-2015 5:36 am  #7


Re: Case won at Luton

Congratulations.


Please ensure you do not divulge any information which could identify you as Border Force will use your posts here as evidence against you in court.
 

08-10-2015 9:13 am  #8


Re: Case won at Luton

''She then pushed the “non mentioned trip” argument, saying “why did you not mention one of your trips”

Of course there is a flaw in their argument as has been shown up before. That is that they apply to carriers for your travel history to establish previous trips. However all they have available is booking history. This means that if you were to book a trip and then for some reason not travel on it, they could not prove you actually did travel.

All the more so if you were able to prove you were somewhere else at the time.


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