Inconsistency Can Damage Your Credibility

Inconsistency Can Damage Your Credibility Overview

Inconsistency can not only damage your credibility but could even render you considered to be dishonest.

In an earlier article called The Burden Of Proof we considered what the late Gabriel Moss QC said about inconsistencies in the matter of Stewart & Ors v Watkin [2019] EWHC 1311 (Ch):

‘you cannot prove a case on inconsistencies’

However, as always it will depend upon the facts of the case. In the matter of Gabriel Christopher v Revenue & Customs (EXCISE DUTY – tobacco products seized) [2021] UKFTT 258 (TC) was a case in which Mr Chistopher was considered dishonest because of his inconsistencies and his apparent inability to afford an innocent explanation for the circumstances that had arisen. He had purchased 67,600 cigarettes and brought them into the UK from Nigeria.

He said he smoked around 10 cigarettes a day and at Tribunal he said they were brought in for personal use. If for example, he smoked around 15 cigarettes a day he would have had around 12 years of supplies.

However, when he was stopped by the UK Border Force team upon his return to the UK, he said wanted to sell the cigarettes to make some money and inter alia to help a friend in financial difficulty.

The Tribunal found the inconsistencies indicative of a lack of truthfulness.

Judgment

55. Having considered all of the evidence, cumulatively, we find the Appellant to be an untruthful witness whose account was replete with inconsistencies. We do not accept the Appellant’s account as representing a truthful or accurate description of his intentions on arrival in the United Kingdom whilst in possession of tobacco exceeding the personal allowance. We find that there is considerable force in Ms Bains’ submission that the Appellant’s arguments essentially amount to a plea-in-mitigation.

56. Firstly, we found the Appellant’s inability to maintain a consistent account to be indicative of a lack of any truthfulness in his account. We find that if there were an innocent explanation for the Appellant’s actions, then the Appellant would have maintained a consistent account. The Appellant initially told Officer Campbell that he was intending to declare the cigarettes, in order to find out how much duty he needed to pay. He further added that he had bought the cigarettes for a friend and intended to sell them, in order to make some money. When corresponding with HMRC, the Appellant departed from saying that he had bought the cigarettes for a friend, by saying that he was a smoker and that the cigarettes were for personal use and intended to be given to friends as gifts.

57. The Appellant also departed from his initial claim that he had intended to establish the duty that he needed to pay by saying that he did not, in fact, have any money to pay the duty due. It is therefore unclear how the Appellant why the Appellant would have wanted to find out how much duty he needed to pay if he would not have been able to pay the duty, due to impecuniosity.

58. Secondly, whilst the Appellant claims to have been under duress on arrival in the United Kingdom, we find that there is no evidence before us to show that the Appellant told Officer Campbell that he was experiencing any difficulties that would affect his ability to take part in an interview under caution. Indeed, the Appellant not only responded to all of Officer Campbell’s questions, he was also able to personally collect the bag that remained on baggage belt 6.

59. We have had the benefit of seeing a copy of Officer Campbell’s notebook, which includes a contemporaneous note of her questions to the Appellant and the answers that the Appellant gave to her questions. We further had the benefit of hearing Officer Campbell giving evidence before us. We are satisfied that we can place reliance on Officer Campbell’s note of her conversation with the Appellant and we find her evidence to be reliable. We find that any 16 psychological difficulties or duress that the Appellant may have been experiencing would have been recorded in the notebook, if the Appellant had brought any difficulties to her attention. The Appellant does not suggest that Officer Campbell was aggressive towards him and it is therefore not the case that he felt too afraid to tell her of any difficulties that he would have submitting to an interview. We therefore do not accept that the Appellant was under any duress. Furthermore, by his own admission, the Appellant was the only person involved in bringing the tobacco into the United Kingdom and the Appellant was not therefore a willing lieutenant who was acting under the control and direction of another person.

60. Even if we were to accept that the Appellant was experiencing difficulties when he was apprehended and interviewed by Officer Campbell, we find that such difficulties would have solely been because he had been intercepted by Border Force in circumstances where he knew he had tobacco well in excess of his personal allowance in his possession.

61. Thirdly, we find that the Appellant was apprehended whilst he was walking towards the South End of the exit channels, where there is no Red Channel to declare goods. Whilst the Appellant initially told Officer Campbell that he had wanted to declare the cigarettes in order to see how much duty he would need to pay; we find that this statement by the Appellant does not sit well with the Appellant’s actions in heading towards the South End of the exit channels. We find that if the Appellant had wanted to declare the cigarettes, then it would have been necessary for him to either approach UKBF officers, who were clearly visible, or approach the Red Channel. The Appellant claimed that he believed that the Red Channel was only for those carrying contraband, such as firearms, drugs, money, imports and trafficked persons. We therefore find that this does not therefore sit well with his claim that he wanted to declare the cigarettes. We further find that if the Appellant was not sure if he needed to declare his cigarettes, he could have still approached UKBF via the Red Channel.

62. Fourthly, we find that the Appellant was well aware of the need to declare the cigarettes. The Appellant was able to describe how he determined which lane to go through when he arrived at passport control. He explained that he does this by reading the signs. We find that the Appellant therefore has the ability to check for any signage that would inform the direction that he needs to take on arrival at the airport, right through to exiting the baggage reclaim area. The Appellant was aware that he had a significant number of cigarettes in his possession and we do not accept that he believed that he could simply leave the airport without speaking to anyone, other than the officials at passport control.

63. Fifthly, we find that the Appellant is an experienced traveller who is aware of the protocols in relation to duty free products. This is because we have had the benefit of seeing the answers to the questions that the Appellant was asked by Officer Crozier during HMRC’s investigations. The Appellant’s answers show that he has made numerous trips to Nigeria in the past few years. Moreover, by his own evidence, the Appellant confirms that he is a smoker who has purchased duty free cigarettes in the past. We find that it is not credible that the Appellant would not therefore have been aware of what the personal allowances were.

64. We find that the Appellant has failed to provide an innocent explanation for the circumstances that have arisen. We therefore find that dishonesty has been established in this appeal. 65. In his correspondence with HMRC, the Appellant claimed that he had co-operated with UKBF. We find that this clearly was not the case, as shown above. The Appellant seeks a reduction of the Penalty. We find that the Appellant was advised of the actions that he could take in order to reduce any penalty. He did not however engage with HMRC until a reminder letter was sent and he became aware of the amount that he would have to pay if he continued to fail to co-operate. The reminder letter prompted a response from the Appellant.

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