R v Aidan Grew and Hilary Patrick McLaughlin and R v Patrick Mackle, Plunkett Mackle and Benedict Mackle
| Jurisdiction | Northern Ireland |
| Judge | Girvan LJ |
| Judgment Date | 2011 |
| Neutral Citation | [2011] NICA 31 |
| Date | 30 June 2011 |
| Court | Court of Appeal (Northern Ireland) |
Neutral Citation No. [2011] NICA 31
Ref:
GIR8189
Judgment: approved by the Court for handing down
Delivered:
30/06/11
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_______
REGINA
-v-
AIDAN GREW and HILARY PATRICK McLAUGHLIN
AND
REGINA
-v-
PATRICK MACKLE, PLUNKETT MACKLE and BENEDICT MACKLE
________
Before: Morgan LCJ, Girvan LJ and Coghlin LJ
________
GIRVAN LJ (giving the judgment of the court)
[1] There are before the court two separate sets of appeals arising out of
two trials. In each case the appellants were convicted of fraudulent evasion
of duty contrary to section 170(2) of the Customs and Excise Management
Act 1979 (“the 1979 Act”). In each set of proceedings the appellants played
varying roles in relation to two unrelated cigarette smuggling operations.
In each set of proceedings the trial judge made confiscation orders against
the appellants on their consent. The appeals raise the question whether the
trial judges erred in imposing the confiscation orders. The central
contention of the appellants is that the courts in imposing the confiscation
orders failed to properly recognise the effect of the Tobacco Regulations
2001 and fell into the error identified in R v. Chambers [2008] EWCA Crim
2467 (“Chambers”).
[2] In our judgment we shall deal at the outset with the factual
background to the appeals in the two sets of proceedings, firstly, in relation
to the case involving Aidan Grew and Henry Patrick McLaughlin and,
secondly, in relation to the cases of Patrick, Plunkett and Benedict Mackle.
We shall then consider the key submissions made by the appellants, each
set of appeals raising similar issues. We shall then consider the Crown’s
case in the light of the appellant’s case. Finally we will set out the
conclusions which we have reached on the issues raised by in the appeals.
R v. Grew and McLaughlin
[3] Grew and McLaughlin each pleaded guilty on 18 November 2008
before Weatherup J to one count of being concerned in the fraudulent
evasion of duty under the 1979 Act in respect of some 5 million cigarettes
seized from a lorry at premises at Battleford Road, County Armagh.
McLaughlin also pleaded guilty to possession of criminal property, namely
19 separate amounts of cash. Another party Abernethy was involved in the
enterprise but was not a party to the appeal.
[4] Weatherup J in his sentencing remarks stated that:
“The defendants Grew and Abernethy were present
at the time of the recovery of the items. The matter is
put forward on the basis that neither was an importer
or organiser in respect of the matter but were present
at the time the contraband was recovered.
McLaughlin on the other hand was not present. It is
the case that is (sic), that the lorry which carried the
contraband had stopped at his premises earlier in the
day. He was not present when the lorry called at his
premises but then connections were made between
the contraband and McLaughlin and eventually that
led to searches which led to the recovery of other
items which it is agreed were the proceeds of
criminal, were in fact criminal property.”
[5] Grew was sentenced to 3 years imprisonment suspended for 2 years.
McLaughlin was sentenced to 2 years suspended for 2 years. The judge in so
sentencing took account of the sentencing guideline given by the Court of
Appeal in R v. Czyzewski [2004] 1 Crim. App. R (S) 49. He concluded that
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