The Judgement in full Case No: CO/4354/2001 & CO/911/2002 Neutral Citation Number: [2002] EWHC 1630 (Admin) IN THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION ADMINISTRATIVE COURT DIVISIONAL COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 31st July 2002 Before: LORD JUSTICE BROOKE and Mr. JUSTICE BELL THE QUEEN on the application of: (1) HOVERSPEED LIMITED (2) ALAN CHARLES ANDREWS (3) PAULINE ANDREWS (4) LYNNE ANDREWS (5) GEORGE WILKINSON Claimants - and - COMMISSIONERS of HM Revenue & Customs Defendants Rhodri Thompson QC & Rabinder Singh QC (instructed by Richards Butler) for the Claimants David Anderson QC & Thomas De La Mare (instructed by Solicitor for HM Revenue & Customs) for the Defendants Hearing dates: 8-12th July 2002 SUMMARY (This Summary forms no part of the judgment) This case is concerned with applications for judicial review of aspects of the policies and procedures adopted by HM Customs and Excise at the Dover Hoverport in relation to the importation of alcohol, cigarettes and hand rolling tobacco bought in shops in France and Belgium. The four individual claimants challenged the lawfulness of the procedures by which the excise goods being carried by Mr. and Mrs. Andrews and Mr. Wilkinson were seized, and their car, which belonged to Miss Andrews, was also seized because Customs officers considered that Mr. Wilkinson's cigarettes and hand rolling tobacco had not been purchased in Belgium for his own use (for the facts see paras 48-62). Hoverspeed Ltd, for its part, made a general challenge to different aspects of Customs' policies in relation to their passengers when they landed at the Hoverport (for the nature of these complaints, see paras 32-47). In this case reliance was placed for the first time on an English Court on the terms of Council Directive 92/112/EEC ("the Excise Directive"), as opposed to the U.K. statutory instrument, the Excise Duty (Personal Reliefs) Order 1992 ("the PRO") by which this country set out to implement the requirements of European Community law (for the Excise Directive, see paras 99-116, and for the PRO, see paras 120-124). The Court held: (i) That excise duty is only chargeable on alcohol, cigarettes and tobacco purchased by an individual in another member state of the European Union when they are held in this country for commercial purposes, as opposed to being held by the individual for his own use (para 164); (ii) That the PRO wrongly reverses the burden of proof by requiring the individual to prove that he is not holding excise goods over the minimum indicative level ("MIL": see para 7) for a commercial purpose (para 170); (iii) That if an individual holds goods in excess of the MIL, this fact must be used solely as a form of evidence and not as a persuasive presumption that he holds the goods for a commercial purpose, although except in a borderline case this may not make much difference in practice (para 173); (iv) That there must be reasonable grounds for suspecting an individual of holding goods bought in another member state for commercial purposes before he may lawfully be stopped and searched (para 180); (v) That prima facie individuals and their excise goods must be free to travel across internal frontiers of the European Community without being impeded and delayed by checks for excise duty purposes, although such checks may be made where grounds of reasonable suspicion exist on an individualised basis (para 183); (vi) That Customs officers must follow principles of proportionality when determining whether or not to restore goods and vehicles they have seized to their owners (paras 189-190); (vii) that because Customs and Excise did not explain to the Court the reasons why they stopped Mr. and Mrs. Andrews and Mr. Wilkinson in their car, and because they suggested in their evidence that they might stop passengers for legally inadmissible reasons (paras 192-3), they did not prove to the Court that there were reasonable grounds for stopping the car and questioning the occupants. The goods in it should therefore not have been seized. Nor should the car. In any event Customs' refusal to return the car to Miss Andrews without even considering whether it might be restored to her on payment of an appropriately proportionate sum represented a disproportionate response (para 194). INDEX Part No Para No 1 Introduction 1 2 The reasons for Customs and Excise policies on tobacco and alcohol 4 3 The Commissioners' strategies and policy guidance 9 4 Recent events at Dover Hoverport 22 5 Checks and lock-ins 33 6 Seizure of innocent travellers' goods and travel bans 44 7 Mr. and Mrs. Andrews: the facts 48 8 Publicity for the Commissioners' vehicle seizure policy 63 9 The effect of Customs activity on Hoverspeed's business 68 10 Relevant principles of EC law up to 199272 11 Relevant principles of U.K. law up to 199278 12 EC exemptions on imports of excise goods up to 199280 13 Relevant provisions of the Customs and Excise Management Act 197983 14 Freedom of movement of E.U. nationals and goods within the Community 95 15 The Excise Directive: the meaning of Articles 8 and 999 16 The effect of the transitional provisions for three Scandinavian countries 116 17 The Personal Reliefs Order and other changes in U.K. law since 1992120 18 Mortimer, Goldsmith and Lindsay 130 19 Some ECHR arguments 145 20 Reasonable grounds for suspicion 159 21 Hoverspeed's six claims: our conclusions 162 22 The four individual claims: our conclusions 191 JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS) Lord Justice Brooke: This is the judgment of the Court, to which both its members have made substantial contributions. 1 Introduction 1. In these applications for judicial review Hoverspeed Limited ("Hoverspeed"), Mr. Alan Charles Andrews, his wife Mrs. Pauline Andrews, his sister Miss Lynne Andrews and Mr. George Wilkinson challenge the lawfulness of the procedures adopted by the Commissioners for Customs and Excise (whom we will call "the Commissioners" or "Customs") in checking and detaining Hoverspeed passengers arriving at Dover, and in seizing and refusing to return not only the goods they have bought in France or Belgium, and in particular cigarettes and hand rolling tobacco ("HRT"), but also the vehicles in which they are carried. The challenge is made by Hoverspeed in general terms and by the other four claimants in respect of a particular incident which occurred on 22nd August 2001 and the conduct of Customs thereafter. 2. These procedures, the Excise Duty (Personal Reliefs) Order 1992 ("the PRO") and the policies under which Customs officers are conducting themselves at Dover, are alleged to give rise to unlawful restrictions on the rights of individuals to import to this country goods bought in other member states of the European Community, on their rights to receive services and to move freely within the Community, and on the right of Hoverspeed to provide services to their customers free from the inconveniences caused by these unlawful actions. 3. Although the main thrust of the claimants' case is that the Commissioners' policies and procedures violate their rights under EC law, they also rely on the European Convention on Human Rights (which we will call "ECHR" or "the Convention") both through the vehicle of EC law, which includes the protection of Convention rights as a general principle, and through domestic law by virtue of section 6 of the Human Rights Act 1998. 2 The reasons for Customs and Excise policies on tobacco and alcohol 4. Successive U.K. Governments have adopted a policy of high rates of excise duty on tobacco products. The purpose of the policy is to protect public health, and in particular the health of the young, for whom the likelihood of establishing a smoking habit is particularly dependent on price. Our rates of excise duty are among the highest in the Community, and they are significantly higher than those imposed in France and Belgium. For example, in April 2002, U.K. excise duty and VAT on premium brand cigarettes constituted 78.9% of the recommended retail selling price: £3. 46 on a typical price of £4. 39 for a pack of 20. A similar pack could be bought in France for about £2. 25, and for about £1. 85 in Belgium. Yet cigarettes and tobacco in those countries are readily available to those who care to cross the Channel in order to purchase them from retail outlets on the European mainland or on the cross-Channel carriers themselves. 5. The price difference did not only benefit those who wished to travel in order to buy cigarettes for their own use. It also offered the opportunities of profit to those who wished to import them for clandestine commercial purposes. Even assuming a street price for smuggled premium cigarettes of as little as £2. 50 for a pack of 20, a carton of 200 smuggled cigarettes would command a mark up of £2. 50, if from France, or £6.50, if from Belgium, on the basis of the orthodox retail selling prices we have mentioned. 6. Smuggling (an expression Customs uses to embrace both large scale importing of goods for resale without paying U.K. duty and also smaller scale imports by individuals, which go beyond what is required for the individual importers own, personal use), grew rapidly through the 1990s until 2000. 7. According to the Commissioners' estimates, revenue lost through freight and non-freight smuggling of cigarettes and HRT amounted to £0.9 billion in 1996/7. This annual loss rose to £3. 5 billion in the year ending 31 March 2001. In the calendar year 1996, £678 million revenue was lost through non-freight, cross-Channel smuggling of tobacco products (£943 million if alcohol smuggling is included). For 2000, the figure was £1,362 million (£1,690 million). The PRO and Council Directive 92/12/EEC ("the Excise Directive") both provided a guide level or Minimum Indicative Level ("MIL") of 800 cigarettes, 400 cigarillos, 200 cigars and 1kg of HRT, above which the Commissioners presumed that tobacco products brought in by an individual traveller were brought in for commercial purposes rather than for his own use. On the occasions when goods have been seized, the average seizure from a cross-Channel passenger has been 6,500 cigarettes (revenue evaded £1,124) or 20kg of HRT (revenue evaded £2,400). 8. Both the Government in general and the Commissioners in particular were acutely aware of the public harm and damage caused by smuggling. This harm included loss of revenue, undermining of the Governments health objectives as a consequence of the low price and unregulated modes of supply, a rise in general criminality (particularly near the cross-Channel ports), an increasing disrespect for the law, as more and more people became involved in supplying and using illegal cigarettes, and the adverse impact on legitimate traders and retailers who lost not only tobacco and alcohol sales, but also associated sales of other goods. 3. The Commissioners' strategies and policy guidance 9. In March 2000, the Government announced a £209 million strategy designed to slow, stabilise and reduce smuggling over a three year period. The aim of this strategy was to make smuggling less profitable and less attractive by increasing the chance of getting caught and by increasing the penalties on the smugglers who were caught. Key aspects of this strategy included a large increase in the Commissioners' resources (including the provision of more staff, who were made available to intensify the checks on cross-Channel passengers), and a hardening of policies relating to the seizure and retention of goods and vehicles. Other aspects of the strategy included the education of the public. 10. The strategy appears to have worked. In November 2001 the Commissioners estimated that revenue lost from non-freight, cross-Channel smuggling of tobacco products was down to £345 million (£395 million, if alcohol is included) in 2001. The claimants, however, contend that this success was achieved at the cost of their rights under EC law and the Convention. 11. In these circumstances the claimants seek declarations to the following effect: (i) that the PRO is incompatible with the Excise Directive and Article 28 of the EC Treaty, by creating a presumption that goods imported to this country in excess of the MIL's are held for a commercial purpose and therefore chargeable to further excise duty, and by placing a burden on the traveller to prove that tobacco products and alcohol are not held or used for a commercial purpose (draft declarations 1, 2 and 3); (ii) that the Commissioners' policies and practices relating to checks on individual travellers and the goods which they bring from other member countries, in particular France and Belgium, are contrary to Articles 28 and 49 of the EC Treaty, Council Directives 64/221/EEC and 73/148/EEC and Council Regulation (EEC) No 3925/91 (draft declarations 4 and 5); (iii) that the Commissioners' policy of seizure and non-restoration of goods presumed to be chargeable to U.K. excise duty, and of vehicles containing such goods, is incompatible with EC law and with the rights conferred on individuals by Article 6 and Article 1 of the First Protocol to the Convention (draft declaration 6); and (iv) that Customs' checks on Mr. and Mrs. Andrews and Mr. Wilkinson and their goods, and the decision to seize their goods, and the decisions to seize and not restore Miss Andrews' vehicle, in which they were carried, were contrary to EC law and incompatible with their Convention rights (draft declarations 7 and 8). 12. Some of the claimants' contentions rely on their interpretation of the PRO and the Excise Directive. Others depend partly on their interpretation of various domestic, Community and Convention provisions, and partly on matters of fact, including the Commissioners' policies and practices relating to checks, seizures and non-restoration. It is convenient to turn to the matters of fact first. 13. The development of the Governments new strategy is well documented. By 1996 it was already the Commissioners' normal policy to refuse to restore seized excise goods, to maximise the deterrent value of seizure. This policy was to be applied firmly but not rigidly. Most seized goods were not to be restored. In exceptional circumstances, however, officers could exercise their discretion to return goods. In April 1998, a new policy was introduced to the effect that where goods were seized for the first time, the vehicle involved would also be seized. It would be restored, however, following the payment of £250, or a sum equivalent to 50% of the duty due, whichever was the greater, up to a maximum of the value of the vehicle. Second and subsequent seizures would increase the payment on restoration to £1,000 or 100% of the duty due. In August 1999, as duty evasion continued, a "two strikes and you're out" policy was introduced. When non-rental vehicles were seized for the first time, they were subject to a restoration fee of 100% of the dutiable value of the goods seized, or the value of the vehicle, whichever was the lower, but subject to a £250 minimum. Second and subsequent seizures led to non-restoration of the vehicle unless there were mitigating circumstances. 14. The need for flexibility, however, was recognised. In certain mitigating circumstances the terms on which restoration was offered could be reduced. Vehicles which belonged to third parties who were not present at the seizure received special treatment. In such cases a distinction was drawn between "innocent and blameless" owners and "innocent but blameworthy" owners. The former category included cases where enquiries showed that the vehicles had been stolen, or where their owners could not possibly have known the use to which the vehicle had been put. They included rental, finance and leasing companies. The latter category embraced cases where enquiries suggested that the owner was innocent of any involvement in smuggling but had nevertheless been "blameworthy (negligent) in permitting the use of the vehicle", for instance "where no attempt was made to ascertain the use to which the vehicle was to be put". In the former case the vehicle was restored upon payment of £75 towards storage and administrative costs; in the latter case it was restored upon payment of £75 or a sum equivalent to 25% of the duty due, whichever was the greater, subject to a maximum of the value of the vehicle. 15. In mid-2000 the policy on seizure of vehicles became stricter, after senior Customs managers had become aware that some of their officers were electing to take no action in respect of quantities of goods which were well in excess of the MIL's In June 2000 a group of senior Customs staff agreed the terms of operational guidance which was sent to all senior managers, operational managers and senior officers of all teams in "South East England Collection". They issued a single page document headed "Cross Channel Strategy ... Guidance to Efficient and Effective Handling of Excise Suspects ... To Be Adopted By All Multifunctional Anti Smuggling Teams". This Guidance consisted of seven bullet points, in block capitals, as follows: * ZERO TOLERANCE *NOTICE 1s ISSUED. IN ALL CASES WHEN EXCISE GOODS ARE ABOVE THE GUIDANCE LEVELS AND NOT SEIZED *NED's MUST BE COMPLETED WHEN NOTICE 1's HAVE BEEN ISSUED INCLUDING NAME, ADDRESS AND DOB *WHEN SUSPECTS HAVE HAD NOTICE 1 ISSUED BEFORE, THE ASSUMPTION MUST BE SEIZURE NOT SIMPLY ISSUING ANOTHER NOTICE 1 *THE OBJECTIVE IN ANY INTERCEPTION IS TO SEIZE GOODS IN EXCESS OF THE MIL's OFFICERS SHOULD ALWAYS LOOK FOR REASONS FOR SEIZING, NOT SIMPLY ISSUING A NOTICE 1 *WHEN A-J INTERVIEWS ARE CONDUCTED THE EXPECTATION IS THAT A SEIZURE WILL BE MADE *FOR GOODS IN EXCESS OF THE MIL's SEIZURES SHOULD ALWAYS BE MADE WHEN SUSPECTS HAVE HAD EXCISE GOODS SEIZED BEFORE." "A-J interviews" is a reference to the factors set out in Article 5(2) of the PRO (see para 122 below), of which regard was to be taken when deciding whether excise goods were not being held or used for a commercial purpose. "NEDS" is a database of travellers who are stopped and examined. "Notice 1" is a fold out leaflet: "A Customs guide for travellers entering the U.K. " "DOB" means "date of birth". 16. In July 2000 the Commissioners circulated advice to their staff on changes to their vehicle seizure and restoration policy. One of the objectives of their harsher policy was "to support and evidence the Governments new 'get tough' policy". It applied to all cars and light goods vehicles other than those which were rented. The advisory note stated that Customs was now in the process of applying "the toughest possible sanctions in terms of our vehicle seizure policy". "Two strikes and you're out" was being replaced with immediate effect by "if you use it, you will lose it". There were to be no second chances. Thus: "Revised Policy – 'No Second Chances' 8. With immediate effect, our headline policy will be that any car or light goods vehicle (other than rented) used for smuggling or for transporting smuggled or diverted excise goods within the U.K. will be seized and not restored. Restoration will be very much the exception, not the rule, irrespective of whether it is the first time the smuggler has been caught. This policy is to be applied vigorously both at the ports and all inland locations where it can be proved that a vehicle was used to transport goods which are liable to seizure. Vehicles not owned by the smuggler 9. In all cases the vehicle is to be seized. If an owner of a vehicle can subsequently demonstrate to the Senior Officer or Review Officer that he was genuinely innocent of any involvement e.g. his vehicle was stolen and reported to the police prior to seizure, the vehicle should be restored to him at no charge. Restoration will only take place where an owner can demonstrate they are completely innocent/unaware of the cars use. Any person who has consented to the use of their vehicle by others accepts a variety of risks by doing so and in future they should expect to lose their vehicle permanently. 10. The onus should be placed upon the owner of the vehicle to demonstrate why the vehicle should be restored. Staff should not restore the vehicle until they are satisfied. However, Senior Officers/Review Officers should not refuse restoration if they believe that to do so would be indefensible if challenged. ... 12. It is important for seizing officers to bear in mind the issues of proportionality and human rights (ECHR) when considering whether restoration is appropriate. It is not intended that restoration will be an option in any other circumstances. ... Disposal 17. Unless the seizure of the vehicle is the subject of condemnation proceedings, or an appeal against the decision not to restore has been received within 45 days, or the defence solicitor has confirmed that it is required as evidence in Court for the defence, the vehicle is to be disposed of forthwith." 17. The application of section 141(b) of the Customs and Excise Management Act 1979 ("CEMA"), which provides for the seizure of goods which are mixed with other goods that are liable for forfeiture, had meanwhile led to complaints to Ministers. In December 2001 the Commissioners issued the following guidance to staff: "Where it is clear goods have been individually purchased and one or more of the travellers satisfy the officer as to own use, then only the excise goods belonging to those travellers who have failed to satisfy the own use criteria are to be seized. Those goods which are identifiable to travellers who have satisfied the own use criteria should not automatically be seized under CEMA Section 141(1)(b)." Mr. and Mrs. Andrews were to benefit from this change of policy (see para 59 below). 18. Greater efforts were now to be made to identify which goods belonged to which traveller, and whether goods were held or used for a commercial purpose as a joint venture. The guidance concluded, however: "In all cases where any excise goods are seized, the vehicle is also to be seized, regardless of who owns the vehicle (Section 141(1)(a) CEMA refers)." We were unimpressed by that part of the Commissioners' evidence to this Court which sought to equate the risk of automatic seizure with the risk that a registered keeper of a vehicle may be pursued for a parking fine incurred by someone to whom he has lent it. 19. On 20 February 2002, the Court of Appeal gave judgment in Lindsay v. Customs and Excise Commissioners [2002] EWCA Civ 267, [2002] 1 WLR 1766. We will describe the effect of this judgment in paragraphs 135-141 below. 20. This judgment caused the Commissioners to review their July 2000 policy. In April 2002, internal guidance referred to the Court of Appeals ruling. It said that the Court had confirmed that in cases of commercial (i.e. for profit) smuggling, Customs were typically justified in not restoring seized vehicles, but in cases of not-for-profit smuggling the Court concluded that it was not necessarily proportionate to refuse restoration. Seized vehicles belonging to third parties would, as before, be treated in the same way as they would if they had belonged to the person doing the smuggling. The revised seizure policy summarised the "restoration terms in future" as follows: "... in cases where we are satisfied that the intention is to smuggle goods with a view to making a profit any vehicle involved is ordinarily to be seized and not offered for restoration other than in highly exceptional circumstances (e.g. humanitarian situations as per existing guidance), the Court having confirmed that in such cases those involved 'cannot reasonably complain'. In cases where we consider that the smuggling attempt was not made with a view to making a profit or feel that we have insufficient evidence to challenge a claim to that effect then any vehicle involved is seized but will be offered for restoration on the new Lindsay restoration terms." 21. It said, in conclusion: "It is interesting to note that over the past two years Customs have seized in excess of 20,000 vehicles and only a small percentage of those involved have chosen to contest that seizure ... Although each case has to be considered on its merits the overall impact of these changes to our restoration policy will be kept under close review and it is not our present expectation that they will lead to a large proportion of seized vehicles being offered for restoration." 4. Recent events at Dover Hoverport 22. So much for the Commissioners' evolving policies. The background to the operation of these policies at Dover Hoverport was largely common ground. Hoverspeed uses fast catamarans and mono-hulled ships to sail to Calais and Ostend. It is principally engaged in tourist traffic, as the vessels only carry small freight vehicles, less than six metres in length. This restricts the carriage of freight to small vans. Its service, however, is particularly vulnerable to abuse by individual smugglers because it provides inexpensive, quick access to French or Belgian retailers, or to Hoverspeed's own shop on French soil, all of which sell cigarettes and tobacco at a fraction of the U.K. price. Its trips between Dover and Calais take less than an hour. 23. Hoverspeed has always co-operated with Customs, providing it with intelligence, information and facilities, but along with other cross-Channel carriers it advertises the savings to be made by using its services to buy tobacco products and alcohol on the continental mainland Its fares are inexpensive, particularly the "French Flyer" which restricts landing in France to the area of Hoverspeed's shop. In March 2001, a trip from Dover to Calais and back could cost as little as £1 during the week and £5 at weekends. Until January 2002, the identification of passengers who were travelling frequently was not helped by the fact that the names of purchasers were not recorded on the daytime standby French Flyer tickets. 24. The effect of this was that the names of a significant minority of passengers were not available for Customs checking. French Flyer passengers were required to write their names on their tickets, but this requirement was not always enforced, and some names, "D Duck" for instance, were less than convincing. Since January 2002 all standby passengers' surnames have been booked straight into Hoverspeed's computer and have thereby become available to Customs, but the absence of forenames or initials may still leave doubt as to whether a particular passenger has travelled recently. Although other carriers provide just as many cross-Channel services in a 24 hour period, and also have very cheap tickets and special deals, Hoverspeed's crossings are packed into the daytime, making them preferable to smugglers who wish to make repeat trips in a "working day". 25. Identifying the risk of smuggling among Hoverspeed passengers still leaves Customs officers with the task of identifying the actual smugglers. Mr. Leslie Smith, the anti-smuggling manager covering the Dover Hoverport, calls this "targeting to risk". He says that it is "not a precise science". In reality there is specific intelligence of comparatively few smuggling attempts. What Mr. Smith calls "trend intelligence" is used much more often to assist in the selection of travellers who may be of interest to Customs. Such information may be general and historic. For example, experience on the Dover-Calais route has identified trends in smuggling. For instance, the use of a recently acquired vehicles is relatively common amongst smugglers, presumably because they do not wish their movements to be tracked. The use of hire cars (after the tightening in Customs' policies on vehicle seizure), frequent trips abroad for short stays or, conversely, frequent short trips to the U.K. made by overseas residents, are among the factors which are of use in deciding which vehicles to intercept. 26. Intelligence may be more focused. Prior knowledge from manifest information of who is about to arrive on a particular ship is an important aid in the selection of travellers as a result of both specific and trend intelligence. Checks can be made by Customs against the NEDS database and recent intelligence reports. Research of this kind allows officers to try to identify patterns of travel, for instance a traveller who has made a day trip five times in the last month, or other factors which appear to fit risk profiles, for instance an individual who has previously identified himself as unemployed, but is making a cross-channel trip soon after a previous trip. In this way travellers who appear to pose a risk can be targeted, allowing Customs to concentrate their resources on those travellers identified as posing the greatest risk. 27. Risk profiles are essentially patterns of behaviour, or features, which together indicate an increased risk. They are developed from experience and recent results, which identify new or re-emerging smuggling methods. A common long-lived risk profile is a single male in a Dutch hired car. Although apparently stereotypical, use of this profile still generates a number of drug seizures every year. Another profile is an unemployed or disabled person who is claiming benefits, but is making regular short-stay day trips and importing significant quantities of tobacco products. Experience has shown that such a profile is a clear indicator of a potential bootlegger, primarily because of the obvious question of how he can afford to make his purchases. 28. Such profiles are not written down, but they are known by all anti-smugglers. Where new factors or smuggling trends are detected, the information is shared between teams and locations by word of mouth and, where a seizure is particularly unusual or significant, details will be referred to Customs intelligence teams for them to distribute more widely as they see fit. Such a system may appear to be haphazard, but it is said to be surprisingly effective. The members of virtually every team, as they arrive for duty at the start of their shift, will ask their departing colleagues for information of any unusual seizures since they were last on duty. An example of a risk which was quickly brought to officers' attention in this way was the smuggling of HRT in giant boxes of washing powder, which is cheaper in France than in this country. 29. When a vehicle is selected for investigation, it is directed into a search area where officers speak in more detail to the driver and any passengers, covering topics such as details of travel arrangements, places visited, and length of journey. The officers assess the answers and reactions to questioning. Checks are made of the NEDS database and manifest information to see whether there are records of recent travel. A search of the vehicle is then undertaken if the officers believe this may be productive, the extent of the search being at the officers discretion. The information provided during questioning is compared with what is found during the search. 30. Customs officers make their own selection of individual foot passengers or small groups of foot passengers. They take them to a nearby baggage search area and then ask questions about their baggage and travel arrangements. 31. Should examination reveal quantities of excise goods above the MIL's set out in the PRO, the officer will consider whether or not to require the traveller or travellers to answer questions to satisfy him that the goods are not being held for a commercial purpose, taking account of such matters as the quantities of goods found, whether the traveller had told the officer that he was carrying goods of that quantity, whether there are indications that the traveller travels frequently, whether he has previously been stopped by Customs and, if so, with what result. The NEDS database and manifest information are again available to identify regular travellers, and to compare the reasons given for travel, quantities imported and claimed consumption rates with those previously stated. 32. The claimants adduced evidence about Customs' actual checking practices from individual travellers, and this evidence often conflicted with Customs' records. However, a sufficiently clear picture emerged for the purpose of the decisions of principle we have been invited to make. 5. Checks and lock-ins 33. The main areas of complaint by individual travellers can be divided into two categories. The first embraced the nature of the checks of passengers arriving at Dover Hoverport, including some intensive checks which led to "lock ins" and undue delays. The second related to the unjustified seizures of goods (sometimes accompanied by travel bans), and seizures of vehicles, and Customs' failure to restore vehicles even when the owner of the seized vehicle had taken no part in the questionable import. 34. The evidence of checks and "lock-ins" was derived from statements made by respectable travellers and by representatives of Hoverspeed, as well as from travellers whom Customs had reason to suspect of being professional smugglers. We were shown statistics for a two-month period in July-September 2001. These revealed that out of 683 arrivals from Ostend and Calais, on 117 occasions 10% of foot passengers were stopped and questioned, and on 34 occasions 20% or more were stopped and questioned. Mr. Smith did not dispute the accuracy of the statistics. For his part, he drew attention to the fact that on over 40% of the arrivals no Customs officers were present at all. 35. There is no doubt that Mrs. H and Mrs. P were respectable travellers. They are both retired. Mrs. P travelled to Ostend on Hoverspeed on 16 January 2001. She bought two bottles of vodka and 800 cigarettes on board. On arrival back at Dover, by her account, passengers were forced to queue up and wait on the gangway between the hovercraft and Immigration for nearly an hour. No information was given to them about what was happening. After eventually passing through Immigration control she found the arrivals hall very congested – packed full of passengers. There were approximately 15 Customs and police officers present. Most of the passengers were being stopped and their baggage searched. There were no refreshments, toilets or chairs. Passengers were tired and stressed, pushing and shoving. Mrs. P was frightened. She was delayed between two and a half and three hours. She has been reluctant to travel with Hoverspeed since. 36. By Mrs. H's account she arrived as a foot passenger at Hoverspeed's arrivals hall on 4 April 2001, after a day trip to Ostend. She had not purchased any tobacco products or alcohol. Her partner had bought £70 worth of cigars. A large number of passengers were detained in the arrivals hall. There had been no announcement to say what was happening, but people were queuing up to go through Customs. Six officers were going through nearly everyone's bags. Fire doors were locked. There was a lot of pressure from people pushing, and a degree of panic. There were elderly people and children in the crowd. She had to hold on to her partner to prevent him from falling and being crushed. She was very upset. They were caught in the crowd for 20 to 30 minutes. 37. Hoverspeed's new Customs Advisor spoke of an intensification exercise on 16 January 2002. The Customs team were dressed like a police tactical team, in dark uniforms, carrying police tool belts. A hundred or more passengers were herded or filtered into lines and directed to a six foot wide door with a Customs officer placed on either side. All the passengers who tried to pass through were questioned and their bags searched. Some were directed into the Customs area for further questioning. A queue of passengers backed up almost to the Immigration desks. He said that the same team has attended the Hoverport since, and it is aggressive in its approach. The Commissioners' case is that a CCTV video showed that the whole movement on 16th January 2002 took less than ten minutes to clear. 38. More generally, Hoverspeed's representatives say that the number of passengers who have been stopped and questioned and searched has increased, and that exits have been blocked by Customs officers, creating a funnel effect for passengers. Customers have complained of being intimidated by Customs officers, and being made to feel like criminals. Those who are selected for further questioning have to wait in sight of other passengers. The arrivals hall is designed only as a temporary area of passage from ship to port, and it does not have the facilities for an extended stay. The "lock-in" is indiscriminate. There is no advance warning, so delay causes nervousness, confusion and panic, particularly among older passengers and children. Customs interviews take time, and cause delay. 39. In their evidence in reply the Commissioners accept that, in addition to particular exercises to deal with violent gangs "steaming" Customs, there has been an increase in the visible Customs presence, in order to deter smuggling, from May 2000 onwards. They also accept that they have been operating "intensification or filtering exercises" on a regular basis at the Dover Hoverport as well as at Dover Eastern Docks, and the Channel Tunnel, and at Folkestone while it carried tourist traffic. They say, however, that such exercises have normally lasted for short periods – less than an hour. They have involved Customs officers speaking briefly to every passenger in order to establish the quantity of excise goods they are carrying. Where it is apparent that passengers are carrying alcohol, cigarettes or tobacco at or below the guidance levels (MIL's), they are not delayed. Most of the passengers who are of no apparent interest to Customs therefore leave the port quickly. 40. In the early part of 2001, because of the significant risk of smuggling at the Hoverport, such checks may have taken place as often as twice a day, but not more frequently than five or six times a week on average. Since the summer of 2001, they have probably taken place not more than once or twice a week, and no intensification exercise has been performed at the Hoverport since January 2002. Fire exits have never been locked by Customs, although they notice that they are now locked by approved "break glass" bolts; nor have they denied access to the toilets in the Hoverspeed concourse. They accept that the evening boat from Ostend on which Mrs. P arrived back at Dover was the subject of an intensification exercise. It was an arrival known to be favoured by bootleggers. There were approximately 280 passengers on board. 41. It appears to be commonground that Customs officers refuse to give reasons for stopping and questioning passengers, even when asked, save to say that the route travelled by the passenger matches a known smuggling route. 42. Despite the conflict in some areas of the evidence, it is clear to us that on a significant number of occasions over the last two years large numbers of passengers with limited quantities of excise goods, or none at all, must have been detained in Hoverspeed's arrivals hall at Dover for periods of as long as an hour (and sometimes longer) and then questioned and their baggage searched. This practice occurs for no reason which relates to the individual passenger save that he has taken a route known to be taken by smugglers in the company of many other honest and innocent travellers. 43. In the absence of oral evidence it is not easy for us to form any clear view about the extent to which these checks are intimidating to passengers. Large numbers of uniformed officers may well be intimidating to those who are not used to them. No doubt the manner of some officers is more abrupt than that of others. Everything else being equal, the innocent traveller is unlikely to be intimidated by questioning. A search of baggage for no reason specific to the individual traveller is no doubt offensive to many. The question we have to decide is not whether it is offensive but the circumstances in which it may be lawful. 6. Seizure of innocent travellers' goods and travel bans 44. Hoverspeed also relied on the statements of a number of passengers for its contention that Customs officers confiscate innocent travellers' goods and impose travel bans for the future. 45. Five particular travellers, P, R, W, C and M, were selected to make this point. They typically lived in Kent, and travelled by Hoverspeed from Dover to Calais or Ostend with varying frequency – between two or three times a week and once every three or four weeks – bringing back tobacco products which were often on or near the guidelines (MIL's), and which they said, and told Customs Officers, were for their own consumption or to be given to members of their immediate family, or to a close friend. A number of them had their goods confiscated by Customs on occasions in late 2000 or in 2001, and they w
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