A Heppenstall Potter Third v The Queen
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses |
| Judgment Date | 25 October 2007 |
| Neutral Citation | [2007] EWCA Crim 2485 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2006/6172/B2, 2006/6245/B2 AND 2006/6232/B2 |
| Date | 25 October 2007 |
[2007] EWCA Crim 2485
Lord Justice Moses
Mr Justice Jack and
Mr Justice Owen
Case No: 2006/6172/B2, 2006/6245/B2 AND 2006/6232/B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
THE CROWN COURT AT KINGSTON UPON THAMES
Royal Courts of Justice
Strand, London, WC2A 2LL
J Turner QC and A Baughan (instructed by Clarke Kiernan) for the First Appellant,
P Field QC and Miss J Ashworth (instructed by Petherbridge, Basra, Opus Hus) for the Second Appellant and I Howard (instructed by Petherbridge, Basra, Opus Hus) for the Third Appellant
G Grenfell QC and Miss M Nelson (instructed by Revenue and Customs Prosecution Office) for the Crown
Hearing dates: 2 nd-3 rd October, 2007
Judgement
Introduction
The appellants were convicted of conspiracy to contravene s.170 of the Customs and Excise Management Act 1979. The case against them was not complicated. It was alleged that A had purported to sell some 74 loads of drink to customers overseas within the European Community. Alcoholic drink was removed from bonded warehouses within the United Kingdom under the pretence that they it was to be delivered to other bonded warehouses overseas and thus free from a liability to excise duty. None of the loads arrived; they were diverted for sale within the United Kingdom. False documents were prepared, designed to deceive Customs into believing that the drink had reached the designated bonded warehouses overseas.
The trial was estimated to last 4 months. It lasted 235 available sitting days, approximately 11 months. But the court sat on only 132 days and rarely did a hearing occupy a full day. All three appellants argue, with the leave of a single judge, that so lengthy and disrupted was the hearing and so inadequate the summing up that the trial was unfair and their convictions unsafe.
The Facts
A and the two other appellants, Heppenstall and Potter, were alleged to have conspired with a co-defendant, Jewkes, to evade excise duty on alcoholic drink between 1 st July and 31 st December 2001. Jewkes pleaded guilty. The first appellant, A, acted as a broker, buying alcoholic drink within the United Kingdom and selling it overseas through a company called Westwood Vintners. The subject of the indictment was 74 loads, mostly spirits. Heppenstall was the haulier of most of the loads. Heppenstall sub-contracted some of the loads to Potter, a close associate. Jewkes also hauled some loads.
In order to suspend liability to duty the exporting bond or the haulier is required to carry dutiable goods under a movement guarantee. This is discharged when paperwork designed to establish carriage to a receiving bond is returned from that receiving bond. Delivery is proved by a four-part document known as an Administrative Accompanying Document, which must be stamped by the receiving bond and by the local fiscal authority. It is the return of what was known as the copy 3/AAD to the exporting bond which discharges that bond from liability. The goods must also be accompanied by the transport document, CMR, which must also be stamped by the receiving bond as proof of delivery.
The 74 loads of drink covered by the indictment ostensibly went to four countries, Belgium, Portugal, Italy and Spain. The loads were hauled out of two bonds in Essex. The documents purported to show delivery to four receiving bonds, one in each of the four countries within the Community, to be held to the account of four customers.
The unchallenged evidence showed either that the bonds within those four countries were not entitled to receive the goods or did not receive them. Further unchallenged evidence showed that such administrative accompanying documents as were returned to the exporting bond (not all were) bore false bond and fiscal authority stamps, as did the CMRs. There was direct observation evidence of one physical diversion in respect of one load.
Of the four supposed customers for the 74 loads, the customer for loads consigned to Portugal was not licensed to deal wholesale in bond alcohol and had ceased to trade, the Italian company was not trading, the Belgian company was genuine but was not engaged in the alcohol trade at all and the Spanish customer was a Belgian company who could not be traced; its name, Brainstorm, had however been used solely for the purposes of criminal activity.
The alleged trade was worth millions of pounds but A's records showed no paperwork or correspondence with the four overseas customers. There were a few inbound faxes which were false. There were two short fax calls to Belgium, but these were to a mobile telephone number completely unconnected with the real Belgian company and two to the Italian company using two different numbers. Payment was recorded in A's business records but was wholly in cash, in sterling and in tranches of up to £200,000. At one stage, the cash involved amounted to £1 million a week. A man named Denkmeyer, who was called as a prosecution witness, had been employed by A to collect cash from men (known as “money men”) and deliver that cash either to A's own suppliers or pay it in to the Westwood Vintners' bank account, after deducting £100 for himself in respect of each transaction. A had told Customs on a number of occasions that he was paid sometimes by electronic transfer or by inter-bank transfer or sometimes in cash.
The first appellant said he used only one pay-as-you-go mobile “the 885 mobile” for the purposes of this trade. He did not use the office landline or a company-registered mobile in respect of which there were full records.
The analysis of the mobile telephone the first appellant did use showed that it had been used both to make and receive calls to those who were carrying the cash. All three of the first appellant's co-defendants had been in contact with the numbers of the “money men”. A load removed by Jewkes from the exporting bond to a customer to whom both Heppenstall and Potter were delivering was observed whilst being physically unloaded and diverted on 9 th October 2001. On 2 nd November 2001 a load being hauled by Potter, allegedly to Portugal, was seen on a lay-by to the west of London near a junction with the M25. The driver's mobile telephone records showed fifteen contacts on that very day with one of the “money men”. A himself telephoned that driver.
The first appellant's business had operated at a loss over the previous two years. The accounts in the year 1999–2000 showed a turnover of £915,000 and in 2000–2001 £1.6 million. But in less than half a trading year between August and December 2001 the turnover was £5.8 million.
The first appellant told a number of lies in relation to documentation, payment and haulage.
A's defence was that although there may have been a diversion fraud he was merely an innocent dupe. Legitimate negotiations with the customers had been conducted on the 885 mobile telephone which, had the call history been available, would have shown the legitimacy of those contacts.
He had used cash because he wanted to ensure speed and believed that banking transfers would take too long. He had recorded the cash he received in his accounts. Although he accepted that the mobile telephone numbers used by the “money men” had been registered with false details he did not know that at the time. He accepted that the mobile pay-as-you-go number had been registered with false details but said he had not known that. Where his answers in interview were inconsistent with the evidence, this was only because he had forgotten the position or was confused. He called evidence to show his difficulty in comprehending and dealing with such questions. He explained the huge increase in his turnover as the consequence of the purported customer using him as an innocent means of undertaking diversion fraud.
Both Heppenstall and Potter denied being knowingly involved in any diversion. Their defence was that they had not undertaken any haulage beyond the United Kingdom but had, as is not unusual in the trade, swapped trailers so that the loads were carried overseas “by French sub-contractors”. Potter's case as to the inadequacy of the trial process was the same as that advanced on behalf of A and Heppenstall.
The Chronology
The chronology is of vital importance in this appeal. It presents a dispiriting picture. The diversions took place in 2001. The appellants were arrested on 7 th February 2002 and committed to Kingston Crown Court in April 2003. A preparatory hearing was commenced before His Honour Judge Haworth, the trial judge, on 24 th October 2003 and continued on various other days. There was an interlocutory appeal before the Court of Appeal on 24 th February 2004 at which the lists of admissions prepared by the prosecution, not counsel subsequently engaged, were ruled inappropriate. There were three aborted trial dates in April 2004 and April and September 2005. In a second interlocutory appeal before the Court of Appeal on 2 nd December 2005 the Court of Appeal upheld the judge's ruling as to the admission of documents containing hearsay.
On 5 th December 2005 the jury was empanelled and the prosecution opening started on 7 th December 2005 and was completed on 16 th December 2005. We were told that the opening did not last as long as the dates would suggest. There were interruptions. There was a break between 23 rd December 2005 and 3 rd January 2006.
The court did not sit between 7 th and 15 th January 2006. We were told that during at...
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