R v Churchill (No 2)
| Jurisdiction | UK Non-devolved |
| Judge | Viscount Dilhorne,Lord MacDermott,Lord Pearce,Lord Upjohn,Lord Pearson |
| Judgment Date | 01 February 1967 |
| Judgment citation (vLex) | [1967] UKHL J0201-1 |
| Date | 01 February 1967 |
| Court | House of Lords |
[1967] UKHL J0201-1
Viscount Dilhorne
Lord MacDermott
Lord Pearce
Lord Upjohn
Lord Pearson
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Churchill against Walton (on Appeal from the Court of Criminal Appeal), that the Committee had heard Counsel, as well on Monday the 24th as on Tuesday the 25th, days of October last, upon the Petition and Appeal of Victor George Churchill, of 142 Addiscombe Road, East Croydon, in the County of Surrey, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Criminal Appeal, of the 21st of March 1966, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of Francis Gordon Walton (an Officer of Her Majesty's Customs and Excise), the Respondent in the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Criminal Appeal, of the 21st day of March 1966, complained of in the said Appeal, be, and the same is hereby, Discharged, and that the Conviction be, and the same is hereby, Quashed: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Court of Criminal Appeal to do therein as shall be just and consistent with this Judgment.
My Lords,
The Appellant was tried with others on an indictment containing two counts, each charging conspiracy. The first count charged him with conspiracy to cheat and defraud, the particulars of the offence alleging that he and the other accused had with others conspired to cheat and defraud Her Majesty of the rebate duty due to be repaid on diesel fuel used in road vehicles. On this count the Appellant was acquitted and the other accused convicted.
The second count charged conspiracy to contravene section 200(2) of the Customs and Excise Act, 1952, the particulars of the offence alleging that the Appellant and the other accused had conspired together and with others to use in road vehicles to which section 200(2) of the Customs and Excise Act, 1952 applies, heavy oils in respect of which the rebate of duty had been allowed but a sum equivalent to the current rebate had not been paid to the Commissioners of Customs and Excise. The Appellant was convicted on this count. As the other accused had been convicted on the first count, the jury did not return a verdict on the second count in relation to them.
A type of heavy oil can be used for domestic purposes and in road vehicles. It bears a tax of 2s. 9d. a gallon. This oil is called gas oil when it is used for domestic purposes and it then bears a tax of 2d. a gallon. In respect of gas oil a rebate of 2s. 7d. is therefore allowed. Since July, 1961, gas oil on which the rebate has been allowed has been coloured red. This heavy oil when used in road vehicles is called Derv and is uncoloured.
The object of the conspiracy charged in the first count was the procurement of gas oil uncoloured and its sale for use in road vehicles without payment to the Commissioners of a sum equivalent to the rebate allowed.
Section 200(2) of the Customs and Excise Act, 1952, reads as follows:—
"No heavy oils on the delivery of which for home use rebate has been allowed shall be used as fuel for a vehicle to which this section applies unless there has been paid to the Commissioners, in accordance with regulations made for the purpose of this subsection, an amount equal to the rebate on like oils at the rate for the time being in force."
For breach of this subsection a pecuniary penalty was imposed by section 200(3) and by the Finance Act, 1953, section 33 breach of it was also made a criminal offence.
It is not necessary to prove that the fuel in respect of which a rebate has been allowed, and in respect of which there has been no payment to the Commissioners as required, has been used in a road vehicle with any special intent or with the knowledge that such use is contrary to the law. Proof that such fuel has in fact been so used by the accused is all that is required.
The question for determination in this case is what is the proper direction to be given to a jury in relation to a charge of conspiracy to contravene section 200(2).
The Appellant complained of the direction given by Thesiger, J. in relation to the second count. He said:—
"Each" (count) "charges a conspiracy. As you have been told, but I must repeat, a conspiracy is an agreement or arrangement between two or more men, or a man and a company, to do something unlawful. It would be unlawful, and I so direct you, first to take part in an arrangement to cheat the Revenue of 2s. 7d. tax on every gallon of fuel.
"Secondly, it would be unlawful, and I so direct you, to take part in an arrangement, to use unmarked gas oil in road vehicles, when it had not, in fact, borne the fuel tax and was not going to do so. That is the second charge."
A little later he said:—
"The second charge, the less serious charge, accuses the defendants of agreeing together … to do an unlawful act, and that act was to use in road vehicles fuel which, in fact, had been allowed the rebate of 2s. 7d., and therefore ought not to have been used in road vehicles, but should have been marked with dye and kept for other uses. That second charge simply involves an agreement to use such fuel in road vehicles as Derv when it had not, in fact, borne the fuel tax. It does not involve any proof of dishonest intent or of knowledge that such use would cheat the Revenue out of 2s. 7d. a gallon."
The Appellant's appeal to the Court of Criminal Appeal on the ground that this direction was erroneous in point of law was dismissed, but the Court certified that there was a point of law of general public importance and gave leave to appeal to your Lordships' House.
The Court stated the point of law as follows:—
"Whether mens rea is an essential ingredient in conspiracy to commit the absolute offence charged in Count 2 of the indictment and, if so, what knowledge of the facts and/or law on the part of the defendant must be established to prove the charge."
At the trial the prosecution put the case against the Appellant on the second count on the basis that he should be found guilty if he was a party to an arrangement to use fuel in road vehicles and the fuel in fact used was, without his knowledge, fuel the use of which was prohibited by section 200(2). Thesiger, J., as the passages from his summing-up which I have quoted show, directed the jury in the same way.
Hinchcliffe, J., in the course of delivering the judgment of the Court of Criminal Appeal said that the Court felt that there was great force in the submission made on behalf of the Appellant but that the Court felt that they were constrained by the authorities, to which I shall refer, to dismiss the appeal. By their verdicts in relation to the Appellant, he said the jury, in returning a verdict of not guilty on the first count, were acquitting him "of any dishonest intention or knowledge and were convicting him merely as joining in an agreement to do an unlawful act: that is to say, to have fuel used in road vehicles which had not in fact (albeit not to his knowledge) been fully taxed as Derv.".
As has often been said, the offence of conspiracy is the making of an agreement to do an unlawful act. It is the character and content of the agreement that matters, and the accused's knowledge of what in fact has been done is relevant if it throws light on that. Proof of a conspiracy in most cases depends on inferences to be drawn from the conduct of the parties. Proof that fuel, on which the rebate had been allowed and no repayment had been made, had been used by a number of persons acting together in a number of road vehicles could lead to the inference being drawn that they were parties to an agreement to use such fuel and so to do an unlawful act and were, therefore, guilty of conspiracy. The jury were not in this case invited either by the prosecution or the Judge to consider whether such an inference could properly be drawn. They were told...
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