TC09584 - [2025] UKFTT 00866 (TC)

The primary issue in this appeal is that there is a fundamental disagreement between the appellant and Officer Nchanji about what happened when the appellant was interviewed by Border Force.

The starting point for the Tribunal is to decide whether the appellant has engaged in dishonest conduct in trying to evade excise duty and her credibility is at the heart of that issue.

A key part of that is her assertion that Mr Christie had run off whilst the bags were being searched.

Unfortunately for her, as the Review Officer had observed there were a number of discrepancies in her disclosures to HMRC and there were also conflicts with the record in Officer Nchanji’s notebook.

There is one slight discrepancy between Officer Nchanji’s notebook and the Seizure Notice. As can be seen, the timing of the seizure in the notebook was 7.40am whereas it was 9.40am on the Seizure Notice. I only noted that when writing this decision, so did not have an opportunity to put that to the officer.

The appellant’s evidence was that she was waiting in the Green Channel for half an hour whilst a search was made for Mr Christie. Even if I accepted that, the total time involved in the interception would not then have amounted to more than two hours. Accordingly, on the balance of probabilities, I find that the timing on the Seizure Notice is a clerical error.

The appellant’s evidence was to the effect that Officer Nchanji was lying “to save his own skin” and his witness statement was not “the reality”.

She insisted that Mr Christie had run off with his passport and the passports had never been checked. When faced with the officer’s notebook which had details of both passports and the names and the dates of birth of the appellant and Mr Christie, she argued that it had been altered.

I do not accept that and pointed out to her the lines in the otherwise blank spaces.

In oral evidence, she said that Mr Christie had left with his rucksack before her bags were searched.

The account given in the email of 22 April 2024 was that Mr Christie had called her over to the desk where he was being searched. He explained to Customs that she was travelling with him and her bags were searched. He had left her with all of the bags and Customs could not find him.

Firstly, although it might just be a loose use of language on her part, there is no other suggestion that anyone was searched.

Secondly, I accept the officer’s explanation that when 5000 or 6000 passengers disembark at the same time to go through Customs they are regularly split up so that would not be recorded in a notebook. I also accept that seeing a single man with a large amount of luggage on a trolley, the officer would have asked if he was travelling with someone.

I find the officer’s account that having asked that, the appellant having been identified by Mr Christie and she having been called back by Mr Christie, no bags were searched until she was present.

I also accept the officer’s account that both were present whilst the bags were being searched. As I have indicated, the notebook clearly records answers to questions being given by both the appellant and Mr Christie. It is clear that Mr Christie was present when the first bag containing the goods was opened.

As I have indicated, the appellant argued that she was kept waiting in the Green Channel for 30 minutes while a search was made for Mr Christie. However, I am well aware that because of the large numbers of passengers passing through customs and the limited space (which the officer did give evidence about) customs officers have at their disposal other interview rooms where they can take passengers if matters are likely to take a longer period of time.

I consider it very unlikely that she would have been allowed to take up precious space in the way that she describes and for 30 minutes.

The appellant states that Mr Christie was waiting for her outside and she gave him his belongings.

There are a number of challenges in the appellant’s evidence. It was put to her that in the email of 22 April 2024 she had said that Mr Christie had been carrying one of her bags and she explained that saying that he had kept that when they spilt up on the cruise. However, the officer’s clear evidence was that they did not have “his and her” bags and clothing belonging to both of them was included in all of the bags. She conceded that some of her clothing was in “his” bags.

A bigger problem was that her oral evidence was that the three counterfeit Chanel bags (which the officer allowed her to retain) were in her bag. The Officer was clear that they had been found in the second of the bags containing tobacco. The appellant again says he was lying.

I do not propose to address every conflict in the evidence but looking at the totality of the evidence, I accept that the officer’s contemporaneous written notes are an accurate account.

I also accept his oral evidence and specifically his evidence that:

The appellant had previously travelled abroad more than once. It is clear from the notebook that the appellant knew the amount of the duty free allowance and she conceded as much in cross-examination.

The appellant had said that she was aware of the contents of the bags. It was only after the luggage was searched that goods, very substantially in excess of the permitted allowance, were found.

In all these circumstances we find that HMRC have discharged the burden of proof and have established that the appellant’s conduct was dishonest if one applies the objective standards of ordinary honest, decent people which is the standard specified in Ivey.

I have considered the level of mitigation and consider it to be appropriate and reasonable. I agree with HMRC that the appellant did not provide sufficient information to address who was involved in the smuggling attempt, what she did, why she did it, or how the smuggling attempt was carried out. She did not provide the signed declaration requested in the letter of 5 April 2024. She gave very little information, and only belatedly, about Mr Christie who had been her partner for approximately a year.

The penalties were imposed well within the statutory two year time limit.

Section 29 FA03 makes it clear that not having the money to pay a penalty cannot be taken into account.

In part, the appellant argues that it is not fair that the penalty was imposed on her and not Mr Christie. Since we have found that the penalty was timeously and competently issued, as is made explicit in HMRC v Hok [2012] UKUT 363 (TCC), the Tribunal has no jurisdiction to consider whether or not the law is fair.