Middlecote, R. v [2011] EWCA Crim 548

[2011] EWCA Crim 548Case No 201002620/C5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 11th February 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE OPENSHAW
MR JUSTICE SWEENEY
Between
R E G I N ACrownv
Between
ANDREW DAVID MIDDLECOTE
Computer Aided Transcript of the Stenograph Notes ofQWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr P Roche appeared for AppellantMr A Bird appeared for Crown
J U D G M E N T

MR JUSTICE SWEENEY: Introduction

[2]On 21 February 2005, in the Bristol Crown Court, the appellant pleaded guilty to an offence of conspiracy to fraudulently evade excise duty chargeable on the importation of tobacco products, and was sentenced to 2 years' imprisonment.[3]On 24 November 2005, during confiscation proceedings in the same court, Her Honour Judge Hagen ruled that the appellant had benefited from the offence in the sum of £568,477.59, and that he had realisable assets to the value of £78,184.90. She therefore made a confiscation order in the sum of £78,184.90p.[4]On 14 January 2011 we granted an extension of time and leave to appeal against that confiscation order, and subsequently gave our reasons for doing so - see [2011] EWCA Crim 6.[5]The confiscation order was made under the provisions of the Criminal Justice Act 1988 ("the Act") in respect of apportioned amounts of what was alleged to be evaded excise duty on the relevant tobacco products. The evasion of such duty is, in law, a pecuniary advantage.[6]Section 71(5) of the Act provides that if a person derives a pecuniary advantage as a result of, or in connection with, the commission of an offence he is to be treated, for confiscation purposes, as having received a sum of money equal to the pecuniary advantage. The subsequent legislation contains similar provisions.[7]The transcript of the confiscation proceedings demonstrates that, unfortunately, no one applied their mind to the question of whether the appellant had himself obtained a pecuniary advantage either directly, because he was liable for the duty himself, or indirectly, because he had the necessary causal link with the non payment of the duty by another which the Court of Appeal (Civil Division) in Jennings [2005] EWCA Civ 746, [2006] 1 WLR 182, had held (wrongly as it turned out) was sufficient.[8]In addition, the transcript shows that it is likely that the wrong regulations governing liability for duty on tobacco goods were applied, namely the Excise Goods (Holding, Movements Warehousing and REDS) Regulations 1992 instead of the significantly narrower Tobacco Products Regulations 2001 ('the 2001 Regulations'). In any event, it is plain from the transcript that it was wrongly assumed by all that the appellant, having conspired to fraudulently evade duty, must have been liable for it - thereby conflating the breath of the offence with the much narrower issue of proof of benefit.[9]This is thus one of a number of similar cases that have come before this court since the discovery of the potentially widespread reliance on the wrong regulations in Chambers [2008] EWCA Crim 2467, and Khan [2009] EWCA Crim 588, and since the exposition in White, Dennard & Ors [2010] EWCA Crim 978 of the correct test to apply in the light of the decisions of the House of Lords in May [2008] 1 AC 1028 and Jennings [2008] 1 AC 1046 (including the rejection of apportionment), and the proper construction of the 2001 Regulations.[10]It was against that background that, when granting leave, we quashed the confiscation order and indicated that we would ourselves re-determine the issue, based on the material before the learned judge, and giving the appellant the opportunity to give evidence if he wished to do so, though in the event he did not.[11]The smuggling in this case was done in four containers from the Far East, each of which was brought into the country by sea. Liability to duty thus arose as each ship entered the port of destination here.[12]On behalf of the Respondent, Mr Bird has not, save in one respect which is of no significance, sought to argue that the original apportionment of the excise duty was wrong, as to do so would involve a massive increase in the benefit figure above that found by the learned judge. Mr Bird submits that, correctly assessed, the benefit obtained by the appellant amounted, in all, to at least £599,548.34 - made up of £568,477.59 in evaded excise duty, (i.e. the original benefit figure found by the learned judge), and an additional £31,070.75 representing the value of the flat pack beds (the cover loads in which the smuggled cigarettes were hidden in three of the containers), and of rewards obtained by the appellant as a result of his participation in the conspiracy which were in evidence at the original hearing. He also argues that the appellant must have obtained further benefit by way of reimbursement of rent and van hire costs, but is unable to put a figure on it.[13]On the appellant's behalf Mr Roche concedes that the appellant obtained the flat pack beds and the rewards, and that he is thus liable to the imposition of a confiscation order, in the sum of £31.070.75. Mr Roche asserts, however, that the appellant is not liable for any of the evaded excise duty, or (given the lack of evidence about it) for any benefit for any reimbursement of costs.[14]It seems to us that the Respondent's claim in relation to the reimbursement of rent and van hire costs is purely speculative, and thus requires no further consideration.[15]In the result, the principal issue that we have to determine is whether the Respondent has proved, on the balance of probabilities and in relation to the tobacco content of all or any of the four containers, that the appellant was himself liable for the excise duty that should undoubtedly have been paid - whether as a person who was holding the tobacco products at the excise duty point, or who had caused tobacco products to reach the excise duty point and (at that point) retained a connection with them (see Regulations 13(1) and 13(3)(e) of the 2001 Regulations, and White, Dennard & Ors (above) at paragraph 61.) The Facts The conspiracy took place between 1st January 2002 and 9th August 2003. There were six co-defendants including John Owens (aka Sean Quinn), Andrew Smith and George Grassick. Four additional conspirators were named in the indictment, which also asserted that other persons unknown were involved.[16]The conspiracy was concerned, overall, with 21 containers shipped from the Far East to this country. Each contained a cover load of flat pack beds of one sort or another, or other furniture, and a large quantity of cigarettes in re-inforced boxes. Ten of the containers were delivered to addresses in this country, the other eleven were intercepted on arrival in port - some in Belfast, others in Southampton. The loss of excise duty was in the order of £9 million.[17]The concept of the conspiracy was simple. Owens, in his guise as Quinn, was employed by a legitimate company called Seconique, which was based in the West Midlands, and which specialised in the importation of container loads of flat pack furniture from the Far East. It had a sister company in Northern Ireland. Seconique used P&O Nedlloyd as its shippers, and King International as its Customs Clearing Agents. It imported about 25 containers of furniture per week. The great majority were delivered direct to Seconique's premises, where they were unloaded and the furniture then sold on. However a small percentage of the containers were delivered direct to Seconique's customers. It was that part of their business which was exploited without their knowledge.[18]Owens placed furniture orders, ostensibly on behalf of Seconique, or on occasion on behalf of Seconique's sister company, with bogus companies claiming to be based in the Far East - mainly in Taiwan, Malasyia and Hong Kong. Either the order itself would on its face specify the delivery of the relevant container to a business other than Seconique in this country, or after the container had arrived King International would be given instructions by Seconique to arrange such a delivery. The relevant container would first be delivered to a port in the Far East and then transported in one of Nedlloyd is ships to Belfast or Southampton, where King international would deal with the necessary formalities including overseeing or arranging onward transport. The businesses to which the ten containers were actually delivered were, or were used as, fronts to enable the deliveries to take place. After a delivery the cigarettes would be removed and sold on, as would the furniture. Seconique's invoices to the front companies for the furniture were paid, in order to ensure the continuance of supply.[19]The Prosecution's Final Opening Note makes clear, unsurprisingly, that Owens's was pivotal to the success of the conspiracy. The note also asserted, in terms, that the co-defendants Smith and Grassick were both active importers of the containers under cover of imports to their respective businesses, Furniture Express and Birmingham Furniture Imports. Indeed, the note asserted that Smith had been suspected to be a major cigarette importer for a considerable period before the commencement of the conspiracy. In contrast, it was not asserted that the appellant was an importer.[20]As we have touched on already, the conspiracy began in January 2002. By the time that the appellant became involved in the summer of 2003, seven containers had already been imported. The appellant was involved in relation to containers 8 to 11.[21]The appellant was an old friend of his co-defendant, Smith. In the mid 1990s he had been employed by Smith as a salesman in Smith's furniture business. At some point thereafter the appellant had run his own furniture business called Discount Furniture, for a short time, from premises in Cinderford. By 2003 the appellant was the landlord of the Swan public house in Cinderford.[22]The appellant's explanation as to how he became involved in the conspiracy, and the extent of his role within it, was set out in his detailed Basis of Plea. Mr Bird accepts that the prosecution positively accepted the Basis of Plea without reserving its position in relation to confiscation. The only qualification was as to paragraph 6(f) which did not require a Newton hearing, and is of no significance in relation to the issues with which we are concerned.[23]It is equally clear that, at the confiscation hearing on 24 November 2005, the learned judge was invited to decide the issues in accordance with the Basis of Plea and that, without objection by the Prosecution, she did so. Indeed, for its part, the Prosecution placed emphasis on the appellant's admitted role in taking part in receiving and disposing of the loads in containers 8 to 10, and being ready to take part similarly in relation to container 11 (which was, in fact, intercepted in port at Southampton).[24]Paragraphs 1 and 2 of the Basis of Plea were in the following terms:
"1. During the early summer of 2003, Mr Middlecote was approached by his co-accused, Smith, who asked him to rent an industrial unit in the Cinderford area so as to take delivery of four containers. Mr Middlecote understood that each of the containers would contain a mixture of furniture and smuggled cigarettes. Mr Middlecote was offered £1000 per container. He accepted this offer and thus became party to the indicted conspiracy. 2. In furtherance of the conspiracy Mr Middlecote hired Unit 3 of the Valley Road Industrial Estate Cinderford and gave it the outward appearance of being a furniture retail business."
[25]The wider evidence shows that each of the four containers was imported by Seconique which was the consignee in each instance.[26]The goods in container 8 were, on the face of documents upon which Mr Bird relies, ordered by Seconique from what turned out to be a bogus company called Fortune International Limited of Hong Kong on 29 May 2003. Mr Bird relies on an order form, apparently emanating from Seconique on that date, which on its face indicates that the contents of the container were to be sold to Forest Furniture Direct (the appellant's front company). However, in our judgment this is plainly a bogus document. It is directed to no vendor. There are also other aspects about it which are of concern. The container arrived in Southampton on 7th June 2003. On 19th June Seconique instructed King International to arrange to deliver it to the premises of Forest Furniture Direct, and it was duly delivered on 24th June 2003. Mr Bird submits that it is thereby demonstrated that the appellant knew, in advance of the subsequent deliveries, that they were going to be delivered to that address. The goods in container 9 were also, on the face of another document upon which Mr Bird relies, ordered by Seconique from Fortune International Limited on 5th June 2003. However, in our view, this is plainly as bogus a document as that to which Mr Bird drew attention in relation to container 8. The container arrived in Southampton on 24 June 2003. The following day, Seconique instructed King International to arrange to deliver it to Forest Furniture Direct, and it was duly delivered on the 30th June 2002.[27]The goods in container 10 were ordered by Seconique from what turned it to be another bogus company called MBC Industry Co Ltd of Hong Kong on 9 June 2003. The bogus Seconique document in relation to this purported order indicates that the content of the container had been sold to a firm called Furniture Imports of Birmingham. The container arrived in Southampton on 1 July 2003. Thereafter Seconique instructed King International to arrange its delivery not to Furniture Imports in Birmingham but to Forest Furniture Direct, where it was duly delivered on 4 July 2003.[28]The goods in container 11 were similarly ordered by Seconique from MBC Industry Co purportedly on 19 June 2003. Yet a further bogus Seconique document shows that it was intended for sale to Furniture Imports of Birmingham. The container arrived at Southampton on 8 July 2003. That same day Seconique instructed King International to deliver it to Forest Furniture Direct on 11 July 2003. However, the container was intercepted whilst still in port and the contents were recovered.[29]As to the appellant's role in relation to these containers, paragraphs 3 - 5 of the Basis of Plea were in following terms:
"3. Pending the arrival of each of the four containers, Mr Middlecote would open up the industrial unit. He assisted in unloading each of the three containers that were actually delivered and in loading the cigarettes into smaller lorries and vans for onward distribution i.e. [container 8] on 24th June 2003; [container 9] on 13th June 2003; and [container 10] on 4th July 2003. He was prepared to do the same on 11th July 2003, [container 11]. However, that container was intercepted at the port of entry. He would also open up the industrial unit on other occasions to allow the beds to be removed from the containers to be taken away and for the metal frames that protected the cigarettes to be conveyed to a local scrapyard. Additionally on 4th July 2003 he hired a Gullivers van to assist in the distribution of the cigarettes though he himself did not drive the van to Bristol. 4. Although the four above-mentioned containers all went on Seconique's books in Mr Middlecote's name he was responsible for none of the orders. Nor did he make any cash payments against those orders to Seconique. 5. Mr Middlecote knew nothing of the wider conspiracy beyond the four containers that he arranged to receive through Smith. His intention only to deal with a limited number of containers is manifest from the limited length of the letting period for the industrial unit."
[30]It is also of significance to note that in the Prosecutor's Statement served for the purpose of the confiscation proceedings, the appellant's role is described in the following terms:
"The role of the Defendant was the receipt of smuggled cigarettes in the United Kingdom, via a bogus business Forest Furniture Direct, operating from an industrial unit in Cinderford. He was also concerned in the onward distribution of the cigarettes to customers and the disposal of the cover loads and of metal frames used to protect a cigarettes in transit."
The Respondent's Arguments[31]The Respondent does not now suggest that the appellant "owned" the cigarettes at any time, or that he "obtained" them (given that he had no power of disposition).[32]Mr Bird submits that the containers were destined for the appellant's premises (with his knowledge and consent) before they were imported at Southampton. He relies, in particular, on the two bogus documents to which we have made reference in relation to containers 8 an 9. He further submits that: i. More than one person can "cause" tobacco products to reach an Excise Duty Point. ii. By lending himself and his premises to the enterprise the appellant was a person who caused the cigarettes to reach the point of importation. iii. The fact that the appellant was not the owner, and had not "ordered" the goods, does not prevent him from being one of those who can properly be said to have caused the goods to reach the Excise Duty Point. vi. The appellant was connected with the goods before, at, and after, the moment of importation and thus had the necessary connection at the time that the goods reached the Excise Duty Point. The Merits We have not found it necessary to call upon Mr Roche to respond to these arguments. It is clear that the appellant was not holding the tobacco products at the excise duty point. Given the evidence and the appellant's Basis of Plea, it is equally clear to us that he had not caused the tobacco products to reach the Excise Duty Point either, let alone retained a connection with them at that point. Indeed, it seems to us that the Respondent has not come within measurable distance of proving that the appellant was liable, given that: i The importer, albeit unknowingly, was Seconique, which was the consignee in each case. ii. By inference, that was brought about by Owens and Smith. iii. Reliance on obviously bogus documents as a foundation stone in the argument is inappropriate.[33]Iv. In relation to each container delivery instructions were given by Seconique only after the tobacco goods had passed the Excise Duty Point. v. By inference that was also brought about by Owens and Smith, after Smith had persuaded the appellant to provide the premises in Cinderford. vi. The respondent accepts that the appellant neither owned or obtained the tobacco products at any time. vii. The Basis of Plea makes clear that the appellant knew nothing of the wider conspiracy beyond the four containers that he arranged to receive, that he was not responsible for any of the orders, and nor did he make any cash payments to Seconique. viii. The Basis of Plea is consistent with the evidence hence, no doubt, its acceptance by the prosecution at the time. ix. The role attributed to the appellant in the prosecutor's statement for the confiscation proceedings is also inconsistent with his having caused the importation and retained any connection with the tobacco goods when they arrived at the Excise Duty Point. Accordingly, we reject the Respondent's arguments that the appellant was liable for any of the excise duty. We therefore assess the appellant's benefit in the sum of £31,070.75p and make a new confiscation order in that same sum.[34]MR BIRD: The money has been paid. You need to say a 7 days in default of payment. You do not need allow time to pay because it has been paid.

LORD JUSTICE HOOPER: Seven days in default, except that it has already been paid. Is there anything further? Thank you Mr Bird. Thank you Mr Roche.

Cited in 1 later judgment