R v Chambers (William)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TOULSON |
| Judgment Date | 17 October 2008 |
| Neutral Citation | [2008] EWCA Crim 2467 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 2008/3020/C2 |
| Date | 17 October 2008 |
[2008] EWCA Crim 2467
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Lord Justice Toulson
Mr Justice Griffith Williams
The Recorder Of Winchester
(His Honour Judge Brodrick)
(Sitting as a judge of the Court of Appeal, Criminal Division)
No: 2008/3020/C2
Mr P Corrigan appeared on behalf of the Appellant
Mr G Cammerman appeared on behalf of the Crown
This was to be hand down judgment, but events have moved on. Mr Cammerman we have had your further submissions. We accept your personal explanation, how you came to misunderstand what the law was and present the appeal on a false basis.
I am much obliged.
But it is a matter of concern. Was this a CPS or a Customs prosecution?
This was a Customs prosecution, my Lord.
So how did it come about that this mistake was spotted only at very much the 11th hour?
An assiduous lawyer at the office of the RCPO, Revenue and Customs Prosecutions Office, came into possession of the knowledge…. ( Pause)
There was a lawyer in Manchester who had noticed that the Regulations, as no doubt did a number of other lawyers in different departments at the Revenue and Customs, that the Regulations had been superseded, or should I say amended. A lawyer for Revenue and Customs, when considering a different case, came upon the consideration of that lawyer yesterday. She was considering a section 16 Proceeds of Crime Act application in respect of another case. When the observations of that lawyer in Manchester came to her attention, she immediately realised the importance of it and left a message on my telephone in chambers yesterday evening.
So effectively it was a fortunate accident?
My Lord, I regret to say it was a fortunate accident.
By fortunate accident the draft judgment came to the attention of a lawyer in the RCPO, who was aware that the Regulations had been superseded and very properly took prompt steps to see that the court was alerted.
Became aware I think yesterday and —
Meanwhile, others in the RCPO have in recent years been proceeding on the erroneous basis.
My Lord, yes, and —
Have you any information how many confiscation orders may have been obtained where the court has not been told what the relevant Regulations are? ( Pause)
In the light of what my Lord describes as a fortunate accident, a review is currently underway to answer the question your Lordship understandably asks. So the answer to the question is that there is no —I do not know —
It is not the only time it has happened in this court this week. As it so happens we had an earlier appeal this week when counsel for the respondent relied on the 1992 Regulations in a cigarette case. The Regulations were introduced only at a very late stage and he made his submissions on instructions, having spoken to the RCPO. That was I think on Wednesday.
I have been made aware of that case, although as I understand it that case in fact was not resolved.
Very fortunately, we thought that there was something which worried us about the fact that these Regulations were being produced at a very late stage and that all might not be entirely straightforward and that it really was not fair for the appellant to have to deal with them on his feet.
My Lord, yes.
That turns out to have been absolutely right.
My Lord, yes. I can also say on a personal note that I am in possession of a number of skeleton arguments of cases that I know my Lord himself is due to hear in due course.
Am I?
It may be that you are, my Lord. I am this afternoon going to write to all those individuals whose skeleton arguments I have seen that rely on those provisions, including counsel of greater esteem than I, and alert them to the difficulty that we have encountered here and hopefully avoid any further submissions being made that are wrong.
Right.
Can I in open court echo the apology that I have communicated in writing to the court.
Yes. ( Pause)
I am just trying to find among the recent cascade of emails that we have had, the one which actually explains the source of the misinformation.
That would be an email from myself, my Lord.
Yes, I think it was. Actually it is in your skeleton additional submissions. Yes, it is paragraph 1 of your addendum skeleton argument. Yes, the OPSI web site.
Yes. My Lord, I checked this morning to see if other sources of information would also mislead and in fact the Lawtel and the Westlaw web sites, which are common sources of statutory instruments, also quote the Regulations in their amended form; that is to say, without the new paragraph 3(4) —
Yes, they are private sector web sites, of course.
My Lord, yes. ( Pause)
Yes, do you want to say anything further on your addendum submissions?
There is nothing further on the submissions themselves, save that those instructing me wish me to invite the court to consider giving some time for two things to happen. First of all, consideration of the impact of the change in Regulations on this particular appeal and, secondly, for any submissions to be made in writing that may assist the court.
Why should you have time? The position is this. You seek to uphold the order on the basis of a factual assertion that Chambers caused the tobacco products to reach an excise duty point. That is a pure assertion of fact. No such finding was made by the judge, nor was the case presented to him in a way which invited him to make such a finding of fact. If the prosecution had presented the case below on the basis that we have to establish a liability to pay duty arose on the part of this defendant, and that turns on the question of whether he caused the products to reach the excise duty point, both the Recorder and Chambers, and more particularly his lawyers, would have had their eye on the ball. We do not know, and it is not for us to speculate, what advice would have been given to Chambers about whether he should give evidence, or what evidence he might have given, or what the finding of fact the court may have made. Why in these circumstances would it be just to put the case over for further argument?
I think the recent nature of the realisation of the way in which Customs have put its case, most particularly before your Lordships, was an erroneous one and the implications that has in respect of the stance that Her Majesty's Revenue and Customs would wish to take in respect of this appellant is the reason why those instructing me wish time to draw breath and consider the position.
I appreciate that, but the short point is they did not seek the appropriate finding of fact when the matter was before the judge, although the relevant Regulations had been in force for over 5 years.
My Lord, my attention is being drawn…. ( Pause)
My Lord has the point that I make. ( Laughter) ( The Bench conferred)
We need not trouble you, Mr Corrigan.
William John Chambers and James Dennard pleaded guilty on 11th October 2007 at Maidstone Crown Court before Judge Patience QC to an offence under section 170(1)(b) of the Customs and Excise Management Act 1979 of being knowingly concerned in carrying, harbouring, depositing, keeping, concealing, removing or in any manner dealing with goods, which were chargeable with a duty which had not been paid, with intent to defraud the Crown of the duty chargeable on the goods. The judge set a timetable for sentence and for confiscation proceedings. On 23rd November 2007, before the same court, Chambers received a community sentence.
On 8th April 2008 Mr Recorder Wilson made confiscation orders against both defendants for £66,120 under the Proceeds of Crime Act 2002, with a period of imprisonment in each case of 20 months in default of payment.
Chambers' application for leave to appeal against his confiscation order was referred by the single judge to the full court. Having heard full argument in the matter from counsel for Chambers and for the prosecution, we formally grant leave.
The evidence for the prosecution showed that the goods which were the subject of the charge were bought in Belgium on 12th September 2006 at 17.44. The evidence leading to the prosecution of the appellant and Dennard was summarised by the Recorder in his full and careful judgment as follows:
“7. On 13 September 2006 at 11.30am, officers of HM Customs & Revenue were at commercial premises at Nickolls Yard, Newing Green, Nr Hythe, Kent. In the yard was a Toyota Carina car. Mr Dennard was in the driver's seat, Mr Chambers in the front passenger seat and Mr Dennard's son was in a rear passenger seat. Messrs Dennard and Chambers were promptly arrested and taken to the Customs Custody Centre at Dover. At about 12.15 a customs officer searched the car and discovered a bunch of 5 keys with an alarm fob in the passenger footwell. The keys were tried in various locks on site and it was found that 2 of the keys opened 2 separate padlocks securing a large metal storage container near to the warehouse on the site. A third key fitted the padlock on one of the entry gates to the yard and a fourth key fitted the padlock on a door to the...
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