An Inishowen judge has ruled that customs officers were not entitled to seize a car from a Carndonagh man who was borrowing it from his Welsh brother-in-law.
John Doherty, Glenmakee, appeared at Carndonagh District Court on Tuesday after his case was previously adjourned in June to hear evidence from his brother-in-law Norman Smyth.
Doherty had pleaded not guilty to the charges of having an unregistered vehicle and obstructing/impeding or resisting the seizure of a car on October 20th, 2010 at Convent Road, Carndonagh.
In June, customs officer Anthony Lynch told the court he had stopped Doherty driving the same vehicle, a Range Rover, at Mullins, Carndonagh on April 14th, 2010. He told the court Doherty was “evasive and verbally abusive” and told them the car belonged to Mr Smyth. Officers Lynch and Connelly then encountered the same vehicle in October, during which Doherty refused to hand over the car and told officers they had “no power” to seize it. Officer Lynch said Doherty was also abusive on this occasion. At Tuesday’s sitting of Carndonagh District Court, the case was dismissed after Doherty’s solicitor Gerard Doyle successfully contested the case.
Evidence was first heard from Mr Smyth, who confirmed he had purchased the car in May 1997. He said it had been registered every year in his name since and was fully taxed, insured and MOT’d. Mr Doyle produced documentation to the court to confirm this.
Mr Smyth, who is married to Doherty’s sister, told the court he owns a holday home in Carndonagh and the car was a “holiday car,” which he uses each time he visits.
He said he returns to Carn “every three weeks or so” in the summer. He then brings the car back to Wales in the winter. Mr Smyth said the car had been in Ireland and brought back to the UK on various dates, such as New Year.
Mr Smyth also confirmed Doherty was registered as a named driver on the car’s insurance and “loans it the odd day if he needs it and if his vehicle is unavailable.”
Mr Smyth said he couldn’t recall why Doherty had his car in April 2010. He said that in 2010, Doherty borrowed it as his other brother suffers from arthritis and finds it easier to get in and out of the Range Rover.
When prosecuting solicitor Ciaran Liddy put it to Mr Doherty that his car was in Ireland on a permanent basis between April 2010 and October 2010 as Doherty had been stopped twice. Mr Smyth replied: “I can assure you it was not.”
He added that he sometimes leave the car at Belfast Airport for “two weeks” if he’s flying back and forth.
He added that while he takes the car back to Wales, on occasion, at other times he flies home, as it was cheaper and leaves the car in Ireland temporarily.
Doherty also gave evidence, telling the court he rings Mr Smyth for permission to borrow his vehicle if he needs it.
Doherty said that when stopped by customs officers in 2010, he told them the car belonged to Mr Smyth. He said they held him for 40 minutes, before telling him “that’s ok, you can go.”
He said that in October, he had arranged with Mr Smyth’s wife to borrow his vehicle to take her to the airport. He was then giving to his brother, who was in Carndonagh on holiday from England.
He said: “I was driving back from leaving my sister off at the airport to give it to my brother in Carndonagh. He used the vehicle for the next two or three weeks.”
He added he did not have “frequent use” of the car. He said occasions when he would use it could include when his own car was being serviced.
Doherty also denied he was abusive to the customs officers and said he did not believe they had valid reason to seize the car.
He said: “It was unlawful for me to give them the keys. It wasn’t mine to give,”
Judge Paul Kelly said he accepted the evidence of the customs officers in that Doherty was abusive to them.
He said the evidence was that the vehicle was on “temporary loan” on “several and frequent occasions.”
Judge Kelly said Mr Smyth’s evidence “satisfies” him that the car was not permanently based in the Republic of Ireland.
He referred to a European Court of Justice ruling, which stated borrowed vehicles are not subject to VRT and said a ruling from the Finance Act 1992 makes “no provision for this type and circumstance” and pre-dates the ruling.
Judge Kelly said the customs officers, who were “acting in good faith” were “not entitled to seize the vehicle” and therefore, Doherty could not be guilty of obstruction or impeding their powers, as they did not have these powers in this particular case.
He dismissed the charges.