Munir v Revenue And Customs

A person driving a vehicle containing duty-unpaid excise goods may be the person holding them where the driver has de facto control and knows both that the goods are present and that duty has not been paid. A tribunal considering strike-out must assess the whole admissible evidential picture. It must not isolate a conviction from the facts underlying it or accept an unparticularised explanation for a guilty plea without critical scrutiny.

A legally advised guilty plea, supported by unchallenged underlying material, is compelling evidence in tribunal proceedings unless credible evidence could show it should not be accepted. Where that evidence leaves no reasonable prospect of proving lack of knowledge, the appeal may properly be struck out.

The appellant drove a van containing substantial quantities of non-UK duty-paid cigarettes and tobacco. He pleaded guilty to being knowingly concerned in the fraudulent evasion of excise duty. HMRC subsequently assessed him for unpaid excise duty on the basis that he was holding the goods under the Excise Goods (Holding, Movement and Duty Point) Regulations 2010.

The First-tier Tribunal refused HMRC’s application to strike out his appeal. It considered that his conviction did not necessarily establish that he had held the goods and that he might show he lacked knowledge of their contents. The Upper Tribunal allowed HMRC’s appeal, identified errors of law, remade the decision and dismissed the appeal. The appellant brought a second appeal on the proper evidential treatment of his conviction and the prospect of proving lack of knowledge.

1. Appeal dismissed. The Upper Tribunal was right to hold that the First-tier Tribunal had erred in law and that the appellant’s appeal against the assessment had no reasonable prospect of success.

2. The First-tier Tribunal was required to consider all relevant admissible material when applying the strike-out test in rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. It was wrong to consider the conviction in isolation and then ask whether the statutory wording might theoretically permit conviction without holding goods. The proper question was what this appellant had admitted by his guilty plea, considered with the witness statements and interview record.

3. His plea to being knowingly concerned in fraudulent evasion under section 170(2) of the Customs and Excise Management Act 1979 admitted knowledge that the excise goods were in the van and that duty had not been paid. The fact that he was not charged under section 170(1) had no evidential consequence. The same conduct may constitute offences under different provisions, and a prosecutor’s choice of charge does not concede that an uncharged offence was not committed.

4. The tribunal could admit the conviction and underlying material under rule 15(2)(a). Although section 11 of the Civil Evidence Act 1968 did not strictly govern the tribunal, it was entitled to adopt its common-sense approach. A legally advised guilty plea, with unchallenged material showing the prosecution case, was weighty and compelling evidence. The appellant’s inconsistent and unsupported account of advice to plead guilty could not rationally undermine it. Applying Calland v Financial Conduct Authority [2015] EWCA Civ 192, the tribunal was required to scrutinise that assertion rather than accept it without analysis.

5. The appellant, as sole driver, had de facto control over the goods and was therefore their holder under regulation 10(1) of the Excise Goods (Holding, Movement and Duty Point) Regulations 2010. His lack-of-knowledge case was the only live issue and had no real prospect of succeeding. It was unnecessary to decide whether an assessment made under regulation 10(1) could alternatively be upheld under regulation 10(2).

6. It was open to a person seeking to challenge admissions made by a guilty plea to waive legal professional privilege and adduce evidence of the advice received. The court did not decide the circumstances in which such a challenge might amount to an abusive collateral attack on a subsisting conviction.

• Court of Appeal (Civil Division) Dismissed the appellant’s second appeal and upheld the Upper Tribunal’s decision: [2021] EWCA Civ 799.
• Upper Tribunal (Tax and Chancery Chamber) Allowed HMRC’s appeal from the First-tier Tribunal, identified errors of law in the refusal to strike out, remade the decision and dismissed the appellant’s appeal: [2019] UKUT 0280 (TCC).
• First-tier Tribunal (Tax Chamber) Refused HMRC’s application to strike out the appellant’s appeal against the excise-duty assessment.