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22-10-2012 9:51 am  #1


appealing

We won our case hurray! (see "cases won"). Got costs but then discovered they had ordered the destruction of the goods (at the same time as seizing them). They have offered the price We paid (NPSU) and We are arguing for more as we have added in the cost of travel to get a fair "market price at point of seizure" (c CEMA Sched 3 para 17).  No hope - so we want to appeal. (referee appointed by the Lord Chancellor). Now the questions how do we do it, is it worth it, do we have to go to court etc etc.
The 144 cert was signed (I was a bit slow there and just chuffed to have won) BUT the area I am trying to dispute is their estimation/interpretation of "market value at time of seizure". In a previous case quoted by NPSU (I wonder why??) from 21st Feb 2009 involving Mr Robert & Mrs Joanne Willis and goods coming from Spain a Mr Raymond Machel QC (I presume the impartial referee) only gave them the price paid IN SPAIN as the market value.  My argument is these goods were seized in Manchester i.e. the UK market. They won't give retail valuation as none of the tax has been paid BUT I think the cost of transportation should be added as this would be significant if we were to sell them (thus giving a true market valuation) Also to replace the goods (presumptively and possibally illegally destroyed-duty of care and all that) would mean going to Prague, with a suitcase, taxi to a'port, o'night hotel etc and paying at todays price and exchange rate.
But what is the procedure to appeal?? and what is a PM (bit thick with computer stuff)

Thanks for all the info although it looks like I'll have to wind my neck in and accept their valuation of market value or lose the £225 it costs to appeal.  They won again. Can you sue for compensation as a separate action against the officers/commissioners?? and get back the travel costs etc Where do you stand as to them destroying goods subject to court action - aren't they evidence especially as the case is "en rem" (about the property). Also I have a letter from NPSU  that says the goods are routinely destroyed to save storage costs not as perishable (ours were sent to the chamber the same time as the seizure).  Any chance of getting somewhere here??

Last edited by litterpicker (23-10-2012 7:13 am)

 

22-10-2012 10:16 am  #2


Re: appealing

The Cert 144 is your obstacle as the seizure is judged to have been reasonable. This is an area that we haven't been into. Perhaps Bobi would know more so l suggest you PM him. SH


http://i45.tinypic.com/24uxqug.png We don't do nice ... we do right!

When cross-border shopping, take your Statement of Truth etc and ALWAYS record the Border Force interviews and NEVER EVER sign their notebook ... Period!
 

22-10-2012 11:24 am  #3


Re: appealing

litterpicker wrote:

My argument is these goods were seized in Manchester i.e. the UK market. They won't give retail valuation as none of the tax has been paid BUT I think the cost of transportation should be added as this would be significant if we were to sell them (thus giving a true market valuation) Also to replace the goods (presumptively and possibally illegally destroyed-duty of care and all that) would mean going to Prague, with a suitcase, taxi to a'port, o'night hotel etc and paying at todays price and exchange rate.

Sorry but you are shit out of luck on  both arguments:

http://i18.photobucket.com/albums/b116/horta/refundcustoms.png


Congratz on winning though and for having the balls to fight back.

Last edited by The Blocked Dwarf (22-10-2012 11:26 am)


"I, uh, let her out the trunk...heard what, err, She snarled at THEM...."

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22-10-2012 12:17 pm  #4


Re: appealing

As to an appeal you really should consult a solicitor but if you can't or wont then google says start here with this form:https://www.gov.uk/appeal-against-sentence-conviction/magistrates-court-verdict.

Incase you haven't worked it out yet 'PM'=private message. If you click where it says 'Private Message'on the poster you want to PM.


"I, uh, let her out the trunk...heard what, err, She snarled at THEM...."

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22-10-2012 7:41 pm  #5


Re: appealing

First post, be gentle with me.

There is an FOI request, I think FOI 1663 (Burnett), covering Hmrc procedure for storage and disposal of seized goods. This suggests that goods should not be destroyed until any appeal period is over.

Is it fair to assume that ukba procedures are not likely to be significantly different from this. Might be worth another FOI to confirm.

Could this be used to suggest that goods destroyed prior to the appeal process have not been properly disposed of, i.e. in accordance with procedure. Couple this with the "shelf life" FOI showing that ukba know there is no urgency to dispose of tobacco. Would this open them up to a claim for compensation to cover replacing them at uk prices?

I recall also seeing a case on ballie.org where the claiment was awarded the cost of replacing in the uk, as this would return them to the position they would have been in, therefore wasn't considered to be compensation. Might be a useful precedent if the circumstances are similar. When I get a moment I will see if I can find it again.

Good luck.

 

22-10-2012 8:00 pm  #6


Re: appealing

RA wrote:

I recall also seeing a case on ballie.org where the claiment was awarded the cost of replacing in the uk, as this would return them to the position they would have been in, therefore wasn't considered to be compensation. Might be a useful precedent if the circumstances are similar. When I get a moment I will see if I can find it again.

Good luck.

No need to look for it, we know it well. Despite the ruling the guy didn't get UK prices in the end, only the EU paid.


"I, uh, let her out the trunk...heard what, err, She snarled at THEM...."

http://i45.tinypic.com/24uxqug.png
 

22-10-2012 9:40 pm  #7


Re: appealing

SH wrote about it HERE

SH wrote:

SBC ... I'm afraid that it didn't happen. They got the Euro price they paid for them and some expences for mail, letters etc. Sadly David F has very recently passed away but l have talked to his wife Margaret. A true lady, although her words to describe Mr Sked and un-named UKBA officers involved are certainly not ladylike. David came back with his shield ... not on it!

l truly regret not having spoken to him and congratulated him. He never gave up and wrote approx 140 letters and then represented himself in court ... and won!

David deserves recognition for his victory.

Kudos David ... R.I.P.


"I, uh, let her out the trunk...heard what, err, She snarled at THEM...."

http://i45.tinypic.com/24uxqug.png
 

23-10-2012 7:19 am  #8


Re: appealing

I see later in that same thread that "anonymous" stated they had received full UK value - did they ever provide more details.

What about the recent debate on here about the case that questioned the definition of "liable to forfeiture", which suggested that if a claimant won their appeal that the goods could not be considered to have been originally "liable to forfeiture".  Could that be argued to to make any destruction prior to the successful appeal unlawful? 

Failing that, could an argument be made that the tobacco should be replaced with an equivalent amount of properly forfeited tobacco (the ukba do after all have an endless supply of this), on the basis of mitigating the cost to the taxpayer.

 

23-10-2012 7:43 am  #9


Re: appealing

RA wrote:

I see later in that same thread that "anonymous" stated they had received full UK value - did they ever provide more details.

What about the recent debate on here about the case that questioned the definition of "liable to forfeiture", which suggested that if a claimant won their appeal that the goods could not be considered to have been originally "liable to forfeiture".  Could that be argued to to make any destruction prior to the successful appeal unlawful? 

Failing that, could an argument be made that the tobacco should be replaced with an equivalent amount of properly forfeited tobacco (the ukba do after all have an endless supply of this), on the basis of mitigating the cost to the taxpayer.

Compensation revolves around whether the seizure was reasonable or not. A Sect 144 certificate in other words.

"Pursuant to s.144 of CEMA, in the event that the Commissioners are unsuccessful, “… the court may, if it sees fit, certify that there were reasonable grounds for the seizure.The result of this is that the claimant will not be able to seek compensation from the authorities.

In the event of not succeeding with a forfeiture application, Revenue and Customs/UKBA will always be anxious to ensure that the “s.144 certificate"  as to the reasonableness of their original seizure is signed, to preclude any claim for compensation."


http://i45.tinypic.com/24uxqug.png We don't do nice ... we do right!

When cross-border shopping, take your Statement of Truth etc and ALWAYS record the Border Force interviews and NEVER EVER sign their notebook ... Period!
 

23-10-2012 8:47 am  #10


Re: appealing

RA wrote:

Failing that, could an argument be made that the tobacco should be replaced with an equivalent amount of properly forfeited tobacco (the ukba do after all have an endless supply of this), on the basis of mitigating the cost to the taxpayer.

I love that idea! But i'd guess that would take a ruling by the Law Lords....because the Tobacco Control Industry would be up in arms and lobbying like mad.


"I, uh, let her out the trunk...heard what, err, She snarled at THEM...."

http://i45.tinypic.com/24uxqug.png
 

08-11-2012 8:12 am  #11


Re: appealing

I am trying to argue the goods should be replaced on a "like for Like" basis as they were wrongly  DESTROYED not seized (so 144 cert does not apply). The order was given on the same day as seizure. The court challenge registered 5 days after. I only found out they had been destroyed on 23rd August 2012 (NPSU letter) so can I file a complaint in Mags Court up to 23rd Feb 2013 ?? and at this time go for compensation and "delict" ie intentional or negligent "tort" (civil wrong causing persons harm and allowing recovery of loss).  Also found out that "market value" has been re defined as "the price a willing seller and buyer agree on" and can be "black" or "white" market (unlike old one that it was the price paid in a legitimate market) also it is subject to interpretation, case by case.Rv Islam (2008)EWCA Crim 1740 plus it should be valued at the point of importation!! Commissioners can order the destruction of perishable goods as a health and safety issue (their rotting poses environmental hazard). We have testimony to say tobacco properly packed is good for at least 1 yr. Go to the National War Museum and on display are cigs recovered from ist WW trenches that are said to be still viable so the labelling of tobacco as "perishable" is a convenient misuse of the term. Also the letter from NPSU  states it is "common practice to destroy goods to save the taxpayer storage costs".  Surely as evidence in a court case it is wrong to order its destruction.
Thanks for all the advice. I am still waiting for their reaction to my last e mail, if it is the same I would like to take the case to a referee appointd by the Lord Chancellor but I am not sure how to do this (I asked the NPSU and they said I had to instigate proceedings by applying to the High Court - Any idea how??). As yet I am not looking for compensation just 362 packets of B & H  light fags to replace the ones they pre-emptively destroyed.

Last edited by litterpicker (09-11-2012 10:02 am)

     Thread Starter
 

08-11-2012 9:53 am  #12


Re: appealing

I'm really hoping you'll take this all the way, although I'm doubtful it will get anywhere because the UKBA will argue that the Cert 144 applies (even if it doesn't).

If they destroyed the goods in the first 30 days after seizure  simple 'natural justice' and Common Law would suggest that compensation, adequate compensation, must be inorder. The goods weren't their property to destroy...not until the 30 days were done. Surely the EU Human Rights Act would cover this?

Thing is that you are now well and truly into an area that no one here, so far as I know, is qualified to help or advise you on. My only advice is that you seek a lawyer who'll fight this PB/NWNF.


"I, uh, let her out the trunk...heard what, err, She snarled at THEM...."

http://i45.tinypic.com/24uxqug.png
 

08-11-2012 10:41 am  #13


Re: appealing

Starting with relevant piece-

S144 Cema
"the plaintiff or prosecutor shall not be entitled to recover any damages or costs and the defendant shall not be liable to any punishment.
(3)Nothing in subsection (2) above shall effect any right of any person to the return of the thing seized or detained or to compensation in respect of any damage to the thing or in respect of the destruction thereof."

Tie this in with BD's 'white page' above and it pretty well sews it up.There are plenty of precedents set where compensation has been refused.
I have spent much time searching s144, looking for an appeal procedure and I've yet to find one. The only way I can see of appealing s144 is to appeal the whole case at Crown Court and after having won the case already it would be a very brave man who would do that.It should be noted that dealing with a condemnation hearing is not just about winning your goods back but also is about proving 'unreasonableness' on the part of BF, and hence no s144 cert.

Personally I would accept what was a very good victory and move on but if you can see a way forward, then all power to you.


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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.

 
 

08-11-2012 11:53 am  #14


Re: appealing

If the Cert 144 is signed then l strongly suggest that you accept your victory and move on. You may have lost a little money but when all said and done ... you did win. You must also remember that by winning you also stopped the HMRC's wrongdoing fine and duty bill. You now are in a much stronger position to carry on cross-border shopping. Appealing a Cert 144 is not to be recommended as it hangs on whether the seizure was reasonable or not ... unless you have proof otherwise, the bench will come down on the side of 'reasonable'.

However, we've had a few cases recently that have been dropped by Border Force before it got to court and so there is no Cert 144. ln these instances, taking Border Force to civil court is definitely an option.


http://i45.tinypic.com/24uxqug.png We don't do nice ... we do right!

When cross-border shopping, take your Statement of Truth etc and ALWAYS record the Border Force interviews and NEVER EVER sign their notebook ... Period!
 

08-11-2012 1:12 pm  #15


Re: appealing

SH
Do we know of any instances  whereby BF have claimed duty on condemned goods after a hearing and after winning costs?


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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.

 
 

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