Further to my last post about importing ivory, a recent
judgment on a similar case caught my eye.
In Juliet Forster-Copperi v Director of Border Revenue [2016] UKFTT 0157 (TC), UK
Border Force had seized a whalebone sculpture at Felixstowe Docks in September
2014, and that was challenged by an appeal to the First Tier Tribunal.
The appellant was the creator and owner of the sculpture.
She was a British born artist and sculptress, now in her 80s, who had lived in
South Africa and decided to return to the UK. She had been wrongly told by her
shippers that no licence was needed to export the sculpture from South Africa,
and she did not even think about whether a licence was needed to import into
the UK. Whales and their derivatives are protected by CITES and
hence the seizure. The bone was very old and had been gathered from the
seashore. Ironically, in the current circumstances, the appellant told
the tribunal that the sculpture was part of a series she had been working on
which “make a strong statement on man’s destruction of the environment,
flora, birds and creatures of the sea”. The tribunal accepted that and that
it was “a serious work of art”.
As in my ivory case, UKBF unrealistically invited the appellant to
obtain a retrospective export permit. That could not happen, as the South
African authorities would have to inspect the sculpture and, UKBF having seized
it, they would not release it.
An important issue was whether or not the sculpture was being
imported for commercial purposes. If it was, the UKBF
would have had less discretion, as an import licence would not have been
granted even if applied for. The evidence was that the appellant
occasionally allowed the sculpture to be exhibited, but not sold, where she had
other works for sale, and so any commercial purpose was indirect, and the
tribunal accepted that it was more of a personal belonging.
The original review and decision by UKBF had placed an emphasis on
the commercial nature of the sculpture and the lack of licences and concluded
incorrectly that to restore the sculpture would be ultra vires, that is
beyond the reviewing officer’s legal power. The judgment sets out the
complicated statutory provisions, and the tribunal found that it had to ask the
questions set out by the Court of Appeal in Customs and
Excise v JH Corbett
[1980] STC 231, namely:
Did the officer reach a decision which no reasonable officer would
have reached?
Did the decision betray an error of law material to the decision?
Did she take account of all the relevant considerations?
Did she leave out of account all relevant considerations?
In addressing those questions, the tribunal found in favour of the
appellant. No reasonable officer could have reached such a
decision. She had made an error in law, in failing to give appropriate
consideration to the question of proportionality. Furthermore, in
deciding that there was nothing exceptional, the officer had failed to take
account of the appellant being misled by the shipper; the impossibility of the
retrospective permit; that she acted honestly and in good faith; the whalebone
was very old and found on a beach; it was now a serious work of art; and that
the primary purpose was not commercial. Accordingly it was ordered that
UKBF should review its decision in light of the judgment, which ought to result
in the return of the sculpture to its owner.
These cases demonstrate a difference of approach between customs
officers and the tribunals. The customs officers will tend to be
blinkered and not ‘see the wood for the trees’ and so apply rules strictly and
close their minds to exceptional and broader circumstances. On the other
hand, the tribunal is likely reach a common sense conclusion, and then find the
technical provisions to justify it. The lesson is that, if the legal
costs can be justified, it is worth challenging UKBF decisions when they
appear to have acted unreasonably and unfairly.