R v Early (John)
| Jurisdiction | England & Wales |
| Judge | The Vice President,THE VICE PRESIDENT |
| Judgment Date | 26 July 2002 |
| Neutral Citation | [2002] EWCA Crim 1904 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No:200100174 S3 200200397 S3 200202543 S3 200105358 X2 200105359 X2 200201484 X2 200103094 Y4 |
| Date | 26 July 2002 |
[2002] EWCA Crim 1904
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Vice President of the Court of Appeal Criminal Division
(Lord Justice Rose)
Mr Justice Colman and
Mr Justice Roderick Evans
Case No:200100174 S3
200103761 S3
200200397 S3
200202543 S3
200105358 X2
200105359 X2
200201484 X2
200103094 Y4
Mr I C Bridge & Mr D A Stein appeared for EARLY
Mr PL Guest & Mr A M Jenkins appeared for BAJWA
Mr B Reece appeared for VICKERS
Mr A Lakha & Miss S Cohen appeared for DOWELL
Mr NJM Lucas & Mr M Rainsford appeared for the Crown
Mr J Carter-Manning QC & Miss P Mcatasney appeared for R PATEL & N PATEL
Mr D Batcup appeared for PEARCY Mr J Gompertz QC & MR Ashley-Norman appeared for the Crown
Mr A Arlidge QC & Mr K Galvin appeared for M M PATEL
Mr A Glass QC & Mr TVM Kark appeared for the Crown���
The Vice President:
Introduction
These 8 appellants, with leave of the single judge or this court, appeal against their convictions. They appeared, at different times, at three different Crown Courts, before three different Crown Court Judges. They all pleaded guilty to an offence or offences involving fraud on the revenue by virtue of the improper diversion to the UK market, from a bonded warehouse, London City Bond (LCB), of large quantities of duty suspended alcohol, ostensibly intended for other countries in the European Community. For over two years, before Customs & Excise (C&E) put an end to matters in April 1998, some 30 or 40 separate scams were being conducted through LCB. These resulted in a loss to the revenue of �300 million. The consequential impact of unlawfully cheap alcohol on the domestic market was great. Tension developed in C & E between those whose primary concern was lost revenue and those whose primary concern was investigating and obtaining evidence of fraud. Codenames were given to the separate investigations. Operations Fallover, Fusion and Fajita led to these three groups of defendants.
Their appeals have been heard together because, common to all of them, are the contentions that, first, they pleaded guilty on the false assumption that full and proper disclosure had been made to them by the prosecution and, secondly, non-disclosure of the true roles of the brothers Alfred and Edward Allington at LCB, plus, in the cases of M M Patel and Nilam Patel, lying evidence by prosecution witnesses to judges, on the voir dire, precluded them from making an effective application to stay proceedings as an abuse of process.
History of the litigation and the relevant facts
The first appellant dealt with was M M Patel (Operation Fallover). At Kingston Crown Court on 18th February 1999, after a hearing over many days in which HH Judge Hucker, having held PII hearings, rejected submissions that to proceed with his trial would amount to an abuse of process, the appellant changed his plea to guilty to two of the four counts in the indictment (counts 1 and 3) which alleged conspiracy to cheat the public revenue. The other two counts were ordered to lie on the file on the usual terms. On 19th March 1999, he was sentenced to 30 months imprisonment on each count concurrently and disqualified for 5 years under s2 of the Company Directors Disqualification Act 1986. On 27th April 2000, a confiscation order was made against him in the sum of �600,000, with 4 years imprisonment, consecutively, in default of payment within 6 months. Three co-accused, S Bhandal, Khan and P Patel, were all sentenced to 30 months imprisonment, each having changed his plea to guilty to one similar count in the indictment. Following the decision of this court in Villiers CACD transcript 9th November 2001, the single judge granted M M Patel leave to appeal against conviction on grounds relating to that case and the necessary extension of time was granted.
The case against M M Patel was that he and Bhandal had provided a safe haven and onward sale for goods obtained from LCB with falsified documents, particularly Accompanying Administrative Documents (AADs), part of which was returned to, LCB bearing a forged stamp purporting to show the goods had reached a foreign destination. The counts related to such activity through a company called Richview Ventures Ltd in count 1 and Culvane Ltd in count 3. M M Patel was the sole director of Multi-Rush. He ran a cash and carry business and had two warehouses in Southeast London as well as a number of retail outlets. Bhandal had a cash and carry business in Hanwell. On 15th December 1996, a lorry was seen by customs officers to go from Bhandal's premises to Multi-Rush and back again. On 19th December, following a raid on all the cash and carry premises, duty-suspended goods diverted from LCB were found at each. At Multi-Rush, goods identified as having come via Richview and Culvane were found. In interview, M M Patel claimed that his stock came from Avtar Singh and had been bought in good faith. He produced invoices to support this which the crown alleged were fraudulent.
The defence submitted that the indictment should be stayed as an abuse of process because removal of the goods from LCB and the evasion of duty had been provoked, encouraged or facilitated by C & E officers working for the National Intelligence Service (NIS) in collusion with the manager of LCB, Alfred Allington. It was said that the offences would not have occurred if that encouragement and facilitation had not taken place. Evidence was heard on the voir dire from Lesley Blackburn, who was in charge of a team of customs officers, Mr Snuggs the manager of the NIS Team, Alfred Allington and others. It was submitted by the defence that there could be no fair trial, or it would be unfair to try the defendant, because his possession of duty- suspended goods called for an explanation which he could not, in the absence of further disclosure, properly provide. NIS had encouraged LCB to facilitate the fraud by giving Allington a nod and a wink, according him special status. It was reasonable to conclude NIS had failed to disclose all relevant material. C & E involvement went beyond passive investigation. At the PII hearings, it was said that Edward Allington was a registered informant, but Alfred Allington was merely a trade source who did not become a participating informant until March 1998. The judge ruled against the defence submission. He found that Alfred Allington's co-operation was not given because he had been positively encouraged to set up despatches to "dodgy" destinations: he simply passed on information of a trade nature which he was contractually bound to do. The conduct of customs was a thousand miles from being unworthy, shameful or an affront to public conscience. There was no sufficient direct link between LCB and M M Patel and no evidence that he was tricked by C & E or anyone at LCB to commit fraud. There was no evidence that Allington was induced or pressured into taking part in unlawful activity. Thereafter, as we have said, the appellant changed his plea. Subsequently, the defence learnt that Allington had made a statement to the effect that he had not told the truth on the voir dire. His portrayal as a trade source of information was not a true reflection of the situation. He had dealt with Bernie Small of NIS, who had repeatedly removed unopened documents from LCB. Allington had no idea what happened to them. He referred to some of the benefits he had received. He had told lies approved by C & E. At a meeting prior to M M Patel's trial he was told what line the defence would take to show that he was an informer, but he was to say that he was a trade source. In effect he was to perjure himself. C & E knowingly allowed the duty fraud to take place because they wanted to catch people. He was encouraged by NIS to open accounts for companies which he knew were taking part in the scam. He was told to keep his relationship with Small and his department secret. It is admitted for the purposes of this appeal that, by 13th August 1996, Alfred Allington was a participating informant with an implied indemnity against liability for excise duty on goods diverted from LCB. He was not registered as an informant. He had no controller and not all his dealings with Small were recorded. It was incorrect to describe him to the trial judge as a trade source. He lied to the trial judge in saying that he could not know if there had been a fraud if a stamped AAD was returned and that he had had no discussion with Small about an indemnity. It is further admitted that Small was a frequent visitor to LCB and often took away returned AADs. C & E actively encouraged LCB to allow goods to leave without duty being paid and knew the Allingtons were facilitating that fraud. In 1996 LCB informed C & E, as a matter of course, when a new account was opened.
The appellants Rahul Patel, (Rahul) Nilam Patel (Nilam) and Pearcy (Operation Fusion) appeared at Southwark Crown Court before HH Judge Mota Singh. On 41 May 1999 Rahul and Pearcy pleaded guilty, on re-arraignment at the start of their trial, to conspiracy to cheat the public revenue. After an adverse ruling on submissions by the defence based on abuse of process, Nilam pleaded guilty on 22nd July 1999. On 21 st December 1999 Rahul was sentenced to 5 years imprisonment, subsequently reduced by the Court of Appeal Criminal Division to 4 years. Nilam was place on probation for 12 months and Pearcy was sentenced to 2 years imprisonment and confiscation orders made. Co-accused called...
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Subject Index
...144R v Doubtfire [2001] Cr App R 12.... 126R v Drummond [2002] EWCA Crim527, [2002] 2 Cr App R 352 ............59R v Early [2002] EWCA Crim 1904 .. 106R v Farrell [2002] EWCA Crim 1223 ... 110R v Finley [1993] Crim LR 50 ........... 256R v Fleckney and Smith [2002] EWCACrim 992 ..................
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