“1. Excise duty shall become chargeable at the time of release for consumption … Release for consumption of products subject to excise duty shall mean: (a) any departure, including irregular departure, from a suspension 20 arrangement ….”
“Diversions at Aldi after the goods were unloaded would have involved at least one dishonest employee at Aldi and very probably more than one. Although such insiders would no doubt have been 5 informed by TAG and Cyber that the individual consignments had been ordered from England, the insiders could not know when the goods would arrive. All of the drivers gave evidence that they went to the office on arrival. The insider would have needed to ensure that the AADs and CMRs were not processed by anyone 10 not involved in the conspiracy and that the consignment was not entered into Aldi’s stock records.”
“[452] … the maximum driving time per day was 9 hours which could be extended to 10 hours on no more than two days in a week. A break of 45 minutes was required every 4½ hours, but this could be split into three 25 breaks of 15 minutes each; time spent on a train counted as a break provided a bed or couchette was available. Time spent waiting to load or unload counted as a break if no work was performed. One break of at least 9 hours was required each day or of at least 8 hours if there were 3 separate breaks. [453] Thus, for example, if a driver took a 9 hour break before boarding a 30 train at Folkestone, he could legally drive 4½ hours from Coquelles to Vaux without a break, spend 15 minutes waiting and ½ hour being unloaded and drive straight back to Coquelles giving a return time Coquelles to Coquelles of under 10 hours, however he would then need another long break.”
“[57] The evidence of Mr Cranny, Mr Waters and Mr Wild was that the 10 journey between Coquelles and Vaux-sur-Sûre took between 4 and 4½ hours. Mr Blunsden initially said that the journey to Vaux-sur-Sûre would take 4 or 4½ hours but then said that he could do it in 3½ hours in the best conditions and exceeding the speed limits as he sometimes did. Mr Parnham seemed less sure of the length of time required and accepted a time of 15 between 3½ and 4½ hours. At [453], the FTT calculated the time required for the round trip from Coquelles to Vaux-sur-Sûre and back to Coquelles as follows: ‘… if a driver took a 9 hour break before boarding a train at Folkestone, he could legally drive 4½ hours from Coquelles to Vaux 20 without a break, spend 15 minutes waiting and half an hour being unloaded and drive straight back to Coquelles giving a return time Coquelles to Coquelles of under 10 hours, however he would then need another long break.’ [58] Thus the FTT appears to have accepted that the minimum time for a 25 round trip was 9 hours 45 minutes. That calculation, however, ignored the fact that on many journeys, including all the ones alleged by HMRC to be impossible, the drivers were required to pick up a return load on the way back to Coquelles. That would add a minimum of 15 minutes waiting and 30 minutes being loaded to the journey time. Thus, adopting the findings of the 30 FTT, with the addition of 45 minutes for the return load, the minimum time required for the round trip would be 10½ hours.”
“[33] … this was not a re-hearing in the true sense. I had before me the relevant documentary evidence from the original hearing before the FTT, and a transcript of the hearing. I heard submissions from Mr Barlow and Ms 20 Simor on those materials. But, unlike the original FTT, I did not hear the witnesses. As directed by the UT, I have regard to the findings made by the original FTT, except in relation to the allegedly impossible journeys. [34] In these circumstances it was perhaps inevitable that disputes would arise as to the nature of the submissions made by the parties. This manifested 25 itself most particularly in the submission by Ms Simor that I should refuse to entertain any argument on the part of SDM that the timings on documents produced by SDM as part of the evidence of the drivers were not in fact correct. Ms Simor argued in this respect that no evidence had been adduced to support such a submission, and that no such evidence would be admissible 30 at a second hearing when it could have been provided at the first hearing. For his part, Mr Barlow argued that the relevant documents were produced by SDM to corroborate merely the fact that, as the drivers testified, they were in on the relevant occasions in Belgium, and no reliance had been placed on them by SDM to prove precise timings. 35 [35] As a general matter it is clear that the UT expected, and indeed directed, that this tribunal should re-consider the question of the allegedly impossible journeys by reference only to the evidence that had been before the original FTT. However, it was at the same time envisaged that this tribunal would have a hearing so that the parties could put forward their rival submissions 40 on that issue. The extent to which new evidence might nevertheless be admitted is a matter for this tribunal; I shall in that connection refer to certain evidence concerning the purchase of vignettes at Folkestone, and useful information derived from various searches of Google Maps. But submissions that go to the weight to be attached to particular evidence that 45 was before the original FTT are to be given due regard. It is inevitable, and accordingly must have been envisaged by the UT when it made its directions, that the parties’ submissions at this renewed hearing would not follow precisely the lines adopted at the original FTT hearing. I view SDM’s submissions concerning the reliability of document timings as falling into 24 that category, and it is on that basis that I do have regard to those submissions.”
“[48] On the question of timings generally, I should at this stage address a submission made by Ms Simor that the UT had, at [58], found that the 25 minimum time for a round trip from the Eurotunnel terminal at Coquelles, France, to the Aldi depot at Vaux-sur-Sûre and back to Coquelles, including the picking up of a return load on the way back to Coquelles, was 10½ hours, and that I must proceed on that basis, as it was binding on this tribunal. 30 [49] I do not accept that submission. The starting point for the figure of 10½ hours was the original FTT’s own finding, at [453], that a round trip, including only unloading at Vaux-sur-Sûre, and without a break during the trip, could legally be achieved in 9 hours 45 minutes. The decision of the original FTT has been set aside, and accordingly there is no appropriate 35 starting point for the UT’s own calculation. In any event, it is perfectly clear from the directions made by the UT on its referral back that the issue of the impossible journeys is to be considered by me only by reference to the evidence that was before the FTT, and the findings of the FTT (and not any of the UT) on matters other than the impossible journeys. I do not therefore 40 consider that my task is constrained as submitted by Ms Simor.”
“[50] … the question before me is not one of likelihood 5 or of probability. It is whether the journeys described by the drivers could have been made. If such journeys were indeed possible (or, to put it another way, not impossible), then, however unlikely it might be that the journey took place as so described, the finding would be that the journey could have been made. 10 Thus, to the extent that it was possible that drivers would not comply with the law, by driving faster than the relevant speed limit, or by failing to take the necessary breaks, those factors should not inhibit a finding that a journey could have been made. Issues of compliance with the law are nonetheless relevant to the cases of individual drivers where those drivers gave evidence 15 as to their own behaviour. [51] The test of possibility must be considered by first establishing a benchmark time for the journey and comparing that with the evidence of the actual timings. In the absence of any evidence directly addressing the issue of impossibility of particular journeys, that benchmark time falls to be 20 ascertained from a consideration of all the relevant evidence. Having then applied the benchmark to the particular journey, if it is found that the journey could not have been completed by the time of check-in at Coquelles, a judgment has to be made as to whether that time could possibly have been made up, or whether there could be some other explanation for the apparent 25 impossibility.”
“In seeking to ascertain a benchmark journey time for this purpose, it would be wrong in my view to place determinative weight on evidence of drivers 10 who were answering a question as to typical journey times. They were not asked, and their answers did not address, the real question of the quickest time at which the journey could be undertaken. Nor, when the question is one of possibility, and not probability or likelihood, would it be right to make any assumption that the journeys would be undertaken without any 15 transgression of the law, such as the speed limit. It must be remembered that the reason the question of the impossible journeys was referred back to this tribunal is that it is only if a journey is impossible that it can cast doubt on the acceptance by the original FTT of the reliability of the drivers’ evidence that the various loads had in fact been delivered to Aldi.” 20 89. He then went on to remark at [63] to [65] that some of the drivers who had given evidence accepted that they would sometimes exceed the speed limit, albeit others denied doing so, and that some did not always respect the requirements of breaks. He made it clear, indeed, that he would proceed from the assumption that the speed limit applicable to heavy goods vehicles on motorways in France and 25 Belgium was consistently broken by the drivers: “[66] In those circumstances, although I accept that the timings ascertained via Google Maps are directed at car journeys and not those by HGV vehicles, there was no evidence that would lead me to conclude that the average speeds revealed by the Google Maps information could not be 30 achieved by the drivers on the journeys at issue in this case. I note that Mr Blunsden at one point in his evidence said that drivers were ‘not always as slow as [these] Google maps make out’, but that was in the context of seeking to show that Movement 29, which was clearly an impossible journey, had taken place. On that basis, there is nothing to persuade me that 35 the base time I should apply for this purpose is in principle materially less than that provided by Google Maps. Furthermore I reach my conclusion notwithstanding that there was evidence that the vehicles would carry over 40 tonnes when loaded; there was no evidence what effect that might have, apart from the fact that such a load would make the vehicle more stable in a 40 cross-wind. To conclude that benchmark times different from those identified by Google Maps should be applied would, it seems to me, require reliance on my own inexpert impression of the speeds at which HGVs, as opposed to cars, could travel on the roads in France and Belgium, which would be inappropriate. 45 [67] Having regard therefore to all the relevant evidence in this connection, I conclude that it is reasonable, as a starting point, to apply as the base times for the journeys set out in the table the shortest of those which are described in the table. Accordingly, I do not accept that the possibility of the relevant journeys must be assessed, as HMRC have done, by reference to a journey 50 time between Coquelles and Vaux-sur-Sûre of four and a half hours. The 29 timing that I have concluded should be applied in that respect is 3 hrs 26 mins. I accept that, if the matter was being considered on the balance of probability, it is unlikely that it would be concluded that all the allegedly impossible journeys would have been achieved on that basis, but that is not the test I have been 5 directed to apply.”
“[69] I have then sought to apply those base timings to the journeys as 30 described in the evidence before the original FTT. The aim has been to ascertain whether, using those base timings, the journey as described could have been undertaken and the driver could have returned to Coquelles by the time of his recorded check-in at the Eurotunnel check-in there. Where the application of the base timings has the result that the driver could have 35 arrived at Coquelles before the relevant time, I have concluded that such a journey was not impossible. [70] In those cases where the base timings lead to the result that the arrival at Coquelles on the return journey would, on that basis, have been after the check-in time, I have reviewed the case to check whether that leads to a 40 conclusion that the journey must be regarded as impossible. I set out the methodology I have adopted in that respect later when considering such journeys.”
“[144] The original FTT had the benefit of seeing the drivers, including Mr Blunsden, give evidence. I have had only the transcripts of the evidence they 10 gave. It is evident from the passage from the transcript of the evidence given by Mr Blunsden that his evidence did not comprise a detailed recollection of the particular journey in question. Of course it is possible that Mr Blunsden recalled the journey perfectly, and was not telling the truth when he asserted that the load had been delivered to Aldi. But that was not the conclusion 15 reached by the original FTT. Having decided themselves that Movement 29 was impossible, the original FTT nevertheless accepted the truth of Mr Blunsden’s evidence about all his other journeys (which, in common with my own findings in those respects, they found not to be impossible), concluding, at [463], that Mr Blunsden simply did not recall the journey 20 related to Movement 29. [145] Having considered the transcript of Mr Blunsden’s evidence, I find that there is no reason to conclude differently from the original FTT. It is not possible, at this distance from the evidence, to conclude that Mr Blunsden recalled Movement 29, that he knew that the goods had not been delivered to 25 Aldi, and that he deliberately misled the tribunal in that respect. Mr Blunsden did not say that he could not recall the journey, but that was the finding of the original FTT, having heard his evidence. His evidence that he had delivered the load must be regarded as simply an assertion on his part that all the loads carried by him that had been destined for Aldi had arrived 30 there. Although that cannot be accepted in relation to Movement 29 on the evidence in relation to that movement, that does not lead to the conclusion that Mr Blunsden’s evidence in relation to the other journeys must be regarded as untrue, or that it must be concluded that SDM have failed to discharge the burden of proving, in relation to those other journeys, that the 35 goods did arrive at Aldi.”
“I have reached the following conclusions on the issues directed by the UT to be considered: 40 (1) Direction 2a. I have determined that none of the allegedly impossible journeys (other than Movement 29) could not have taken place as described in the evidence of the drivers as recorded in the original FTT’s decision; (2) Direction 2c. I conclude that, in relation to Movement 29, which 45 was an impossible journey, the effect of that finding is that the conclusion in the original FTT’s decision that SDM had discharged the burden of proof that Mr Blunsden had delivered that consignment to Aldi cannot be supported. 33 That conclusion does not, on the other hand, have any effect on the conclusions of the original FTT that, in respect of any other journey, the relevant goods were delivered to Aldi, whether those journeys were alleged to be impossible (which I have found could have taken place), or were journeys not alleged 5 to be impossible. (3) Direction 2d. I determine the appeal by dismissing the appeal in relation to Movements 29 and 65, and otherwise allowing the appeal.”
“On a good day, if everything went absolutely perfect, you could probably do it within an hour or an hour and a half.”
“As regards the need for drivers to take breaks required by law, both Mr Cranny and Mr Waters confirmed the legal requirement 5 for minimum breaks. So too did Mr Blunsden. Mr Blunsden’s evidence was that if he had driven a full nine hours to his destination he would be required to take a break there of nine or eleven hours. He would never not bother to take this break and simply head straight back to Coquelles; he would park his vehicle 10 and go to sleep. Although from this evidence I can conclude that Mr Blunsden would generally take a break when he reached his destination, it does not persuade me that I should factor provision for breaks into the base time for journeys generally. It seems to me perfectly possible in practice that a driver could drive for a full nine hours without a break, and possibly longer 15 having regard to the evidence of Mr Parnham. Even Mr Blunsden, in reexamination, admitted that he would not always observe break times.”
“It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which 35 has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and the reasoning to enable the EAT or on further appeal this court to 40 see whether any question of law arises ….”
“It seems to me that there was here a lack of adequate reasons for the decision … failure to give reasons pursuant to the duty imposed by section 20 12 of theTribunals and Inquiries Act 1958 is not per se a ground on which the court could properly allow an appeal under section 9, the right of appeal being conferred on a person who is dissatisfied in point of law with a decision. That language, and, indeed, any analogous language found in the statutes giving a right of appeal on a point of law, to my mind connotes that 25 a successful appellant must demonstrate that the decision with which he is dissatisfied is itself vitiated by reason of the fact that it has been reached by an erroneous process of reasoning.”
“Although Mr Bunce’s evidence overall was not impressive, we found his evidence in respect of the actual movement to Latvia to be credible. He was 10 able to describe how he undertook the journey and to give details of the premises. It was a six-day return journey to a remote destination entirely outwith his usual work. It is not unreasonable that he should remember the journey, even after such a long period of time. The fee paid by SDM to Connie was£1,425 compared with£475 for Movement 11 to Aldi. His 15 evidence was that he did the longer trips himself. A signed CMR was produced stamped ‘UNISTOCK Latvija Riga’. It was never suggested that either the stamp or the signature might be forgeries or where or how they might have been applied other than at Unistock.”
“ … as the FTT rightly recognised, it is not open to the tribunal to make a finding of dishonesty in relation to a witness unless (at least) the allegation has been put to him fairly and squarely in cross examination, together with 10 the evidence supporting the allegation, and the witness has been given a fair opportunity to respond to it.”