R v Glyn Edwards
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE NEWMAN |
| Judgment Date | 30 November 2004 |
| Neutral Citation | [2004] EWCA Crim 2923 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 200401867A3 |
| Date | 30 November 2004 |
[2004] EWCA Crim 2923
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL APPEALS DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON UPON HULL
(Mr Recorder Kirtley)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mance
Mr Justice Newman and
Mr Justice Fulford
Case No: 200401867A3
ANDREW BODNAR appeared on behalf of the Appellant
MUSHTAQ KHOKHAR and PATRIZIA DOHERTY appeared on behalf of the Crown
On 6 th May 2003 the appellant pleaded guilty to a charge of being knowingly concerned in the fraudulent evasion of the duty chargeable on a quantity of tobacco contrary to section 170(2) of the Customs and Excise Act Management 1979 ("CEMA"). He was sentenced to two years' imprisonment. No complaint is made about that sentence. In addition, confiscation proceedings were ordered. They were concluded on 27 th February 2004 when an order was made under section 75 of the Criminal Justice Act 1988 (" CJA") that he pay £30,257.52 and, in default, serve 18 months' imprisonment consecutively to the sentence already imposed. He appeals against the confiscation order.
The total amount of duty payable in respect of the quantity of tobacco was £311,627.48. The sum of £30,257.52 represented the totality of his assessed realisable assets.
The substantive issue at the confiscation hearing was whether the appellant had derived any "benefit" within the meaning of section 71 of the CJA, given that the tobacco had been seized by officers of Customs and Excise on 18 th June 2002, being the date on which the tobacco had been imported by the appellant, and before he had driven out of the port enclosure at Hull. The effect of the submission made in this court and below is that, had he driven out through the gates of the port, he would have evaded the duty payable on the tobacco and it would then have been open to the court to conclude he had obtained a benefit. Put the other way, the submission is that, since he had not left the port enclosure, he had not evaded duty and, as a result, had obtained no benefit.
The facts require a little elaboration. On 18 th June 2002 the appellant arrived at Hull docks on a ferry from Zeebrugge driving his own tractor unit and towing a refrigerated trailer. After the vessel had docked he disembarked, driving his tractor unit and trailer through the area of the port. He was stopped by customs officers and his load was inspected. The appellant, when asked about his load, stated that he was carrying frozen chips and sweetcorn. He produced a false CMR document in respect of his load. He did not disclose he was carrying tobacco. He was asked whether he knew what he could bring into the country by way of tobacco. In response, he produced a holdall containing goods consistent with personal use. Inspection of his vehicle revealed many packages of loose hand rolling tobacco, estimated to weigh 3158.6 kilogrammes, concealed behind frozen chips and sweetcorn.
THE LAW
Time of Importation
Section 5 of the CEMA, in its material part, provides:
"(1)
The provisions of this section shall have effect for the purposes of the Customs and Excise Acts.
(2)
Subject to subsections (3) and (6) below, the time of importation of any goods shall be deemed to be –
(a) where the goods are brought by sea, the time when the ship carrying them comes within the limits of a port;
(b) …
(c) …
(3)
In the case of goods brought by sea of which entry is not required under [regulation 5 of the Customs Controls on Importation of Goods Regulations 1991], the time of importation shall be deemed to be the time when the ship carrying them came within the limits of the port at which the goods are discharged.
(4) …
(5) …
(6) …
(7) …
(8)
A ship shall be deemed to have arrived at or departed from a port at the time when the ship comes within or, as the case may be, leaves the limits of that port".
Section 43(1) of CEMA provides, in its material part:
"Save as permitted by or under the Customs and Excise Acts or section 2(2) of the European Communities Act 1972 or any Community regulation or other instrument having force of law, no imported goods shall be delivered or removed on importation until the importer has paid to the proper officer any duty chargeable thereon, and that duty shall, in the case of goods of which entry is made, be paid on making the entry".
Importations of goods, including tobacco, from other Member States of the European Union have been provided for by Community regulation, namely Council Directive 92/12/EEC. In the United Kingdom special provision, giving effect to the Community regime, has been made for tobacco by the Tobacco Products Regulations 2001 (SI 2001 1712) ("the 2001 Regulations") and generally by the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 (SI 1992 3135) ("the 1992 Regulations").
Liability for Duty
The relevant provisions in the above Regulations governing the payment of duty on tobacco are as follows. Regulation 6(1) of the 1992 Regulations states that "… duty shall be paid on or before an excise duty point". Regulation 4(1) states:
"Except in the cases specified in paragraphs (2) to (6) below, the excise duty point in relation to any Community excise goods shall be the time when the goods are charged with duty at importation".
Importations of tobacco which are outside the regime laid down in the 1992 Regulations for warehousing, holding and Registered Excise Dealer and Shipper (REDS) also fall within the 2001 Regulations, which also state when duty must be paid.
Regulation 14(1) states:
"Except where regulations 17 to 19 below (deferred payment) apply, the duty must be paid at or before the excise duty point":
Regulation 12(1) states:
"Subject to the provisions of this regulation, the excise duty point for tobacco products is the time when the tobacco products are charged with duty".
Regulation 17(1) that:
"Any person liable to pay the duty due on tobacco products to which this regulation is applicable may, subject to regulation 18 and 19 below [deferred payment, application for approval to the Commissioners for the approval of an arrangement], elect to defer payment of that duty until payment day;
(2) This regulation is applicable to –
(a) imported tobacco for which the excise duty point is the time of their importation; …"
In our judgment it is clear that the appellant, not having paid duty on the tobacco in advance of importation, became liable to make payment at "the excise duty point", namely "at importation". Importation occurred when the ship carrying his tractor unit and trailer came "within the limits" of the Port of Hull. The time of importation is finite and not continuous. Once a ship comes within the limits of a port it is then and there at the "excise duty point", although the limits of the port are extensive and, having entered, the ship remains within them.
Mr Bodnar, counsel for the appellant, accepted that the duty on the tobacco imported by the appellant became payable at the "excise duty point", but submitted, by reference to section 43(1) and section 49(1) of CEMA, that until the goods had been removed from the port area the "excise duty point" had not been passed. If this submission is correct, duty had not, as a result, become payable and could not have been evaded. The submission is plainly wrong. It conflicts with the clear and unambiguous language of CEMA and the 1992 and 2001 Regulations, which state that "the excise duty point" for tobacco is at importation. His resort to section 43(1) CEMA cannot assist the argument. These and other sections of CEMA show how the Act distinguishes between an act of "importation" and the resultant status of the goods as "imported". The definition of "importer" in section 1 demonstrates that there is no continuum in an act of importation. "Importer" is defined to include, for example, an owner of the goods "… at any time between their importation and the time when they are delivered out of charge".
Sections 43–48 CEMA are concerned to regulate for goods which have been "imported", not for the time at which duty becomes payable. That said, section 43(1), as well as prohibiting delivery or removal of goods until duty has been paid, states that "… duty shall, in the case of goods of which entry is made, be paid on making the entry".
Section 49(1) enumerates circumstances in which goods...
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