This article is taken from Paul Howcroft’s blog Art Law London
Further to my last post about importing ivory ‘Challenging customs’, a recent judgment on a similar case caught my eye.
In Juliet Forster-Copperi v Director of Border Revenue  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  STC 231, namely:
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.
Paul Howcroft, Partner, Fladgate LLP (firstname.lastname@example.org)