R v Mackle (Plunkett Jude)
| Jurisdiction | Northern Ireland |
| Judge | Lord Kerr,Lord Neuberger,Lord Mance,Lord Hughes,Lord Toulson |
| Judgment Date | 29 January 2014 |
| Neutral Citation | [2014] UKSC 5 |
| Court | Supreme Court |
| Date | 29 January 2014 |
[2014] UKSC 5
Lord Neuberger, President
Lord Mance
Lord Kerr
Lord Hughes
Lord Toulson
Appellant (Plunkett Jude Mackle)
Ronan Lavery QC Michael Duffy BL
(Instructed by Rafferty & Donaghy Solicitors)
Respondent
Liam McCollum QC David McDowell BL
(Instructed by Public Prosecution Service of Northern Ireland)
Appellant (Benedict Mackle)
David A. Scoffield QC Donal Sayers BL
(Instructed by Rafferty & Donaghy Solicitors)
Respondent
Liam McCollum QC David McDowell BL
(Instructed by Public Prosecution Service of Northern Ireland)
Appellant (Patrick Mackle)
Julian Knowles QC Frances Lynch
(Instructed by McNamee McDonnell Duffy Solicitors LLP)
Respondent
Liam McCollum QC David McDowell BL
(Instructed by Public Prosecution Service of Northern Ireland)
Appellant (Henry McLaughlin)
Julian Knowles QC Frances Lynch BL
(Instructed by McNamee McDonnell Duffy Solicitors LLP)
Respondent
Liam McCollum QC David McDowell BL
(Instructed by Public Prosecution Service of Northern Ireland)
Heard on 11 December 2013
Lord Kerr (with whom Lord Neuberger, Lord Mance, Lord Hughes and Lord Toulson agree)
On 22 November 2007, three brothers, Patrick Mackle, Plunkett Jude Mackle (commonly known as 'Jude') and Benedict Mackle, all pleaded guilty to the offence of being knowingly concerned in the fraudulent evasion of duty on goods contrary to Section 170(2)(a) of the Customs & Excise Management Act 1979. In a separate trial, on 18 November 2008, Henry McLaughlin pleaded guilty to a similar offence. He was also convicted of a second offence, on his plea of guilty, but that is not relevant to this appeal.
On 13 December 2007 Deeny J sentenced Patrick Mackle to three years' imprisonment, suspended for a period of five years. Jude Mackle and Benedict Mackle were sentenced to two and a half years' imprisonment. Again that sentence was suspended for five years. At a later hearing, on 29 October 2008, confiscation orders were made in respect of each of the defendants as follows: Patrick Mackle —£518,387.00; Jude Mackle and Benedict Mackle —£259,193.00 each. The aggregate sum produced by these three amounts was equal to the amount of duty and Value Added Tax which had been evaded. The confiscation orders were made with the consent of each of the Mackle brothers.
Henry McLaughlin was sentenced by Weatherup J on 19 November 2008 to one year's imprisonment suspended for two years. The judge also imposed a serious crime prevention order for a period of five years. A confiscation order for £100,000 was made against Mr McLaughlin on the same date. This sum, taken together with other confiscation orders made against co-defendants, represented the total amount of duty and VAT said to have been evaded. The confiscation order against Mr McLaughlin was also made with his consent.
On 16 January 2003 a cargo ship, MV Hyundai Fortune, arrived in Southampton from Malaysia. Customs officers carried out routine screening of a container on board the ship. It was found to contain cigarettes. (Subsequently, it transpired that the cigarettes had been manufactured in the United Kingdom. They had been exported without duty having being paid on them.) The container was not intercepted at this stage. It was allowed to proceed to its destination. It was taken first from Southampton to Belfast docks on the MV Celtic King on 25 January 2003. It was then collected at Belfast by a haulier on 27 January 2003 and taken to premises at Ballynakilly Road, Coalisland, County Tyrone.
On the same date, police and customs officers went to the premises to which the container had been delivered. There they found Jude Mackle and his brother Benedict unloading boxes from the container. They were being assisted by two other men. It was discovered that the boxes which were being unloaded contained cigarettes. These had been concealed under wooden flooring in the container. All four men were interviewed by police officers. They were subsequently charged with revenue offences.
Patrick Mackle was the owner of the premises where the cigarettes were being unloaded. He was not present when the police were at the premises on 27 January 2003 but he later presented himself to police and on 25 April 2003 he voluntarily attended Musgrave Street Police Station in Belfast for interview. On that date he was released on bail. He returned on 3 July 2003 for further interview. Following this interview he was also charged with revenue offences.
On 16 November 2005 police officers went to premises at 194 Battleford Road, Armagh. There they discovered 10,434,620 cigarettes stored in two sheds. They also found 4,999,920 cigarettes loaded on a lorry, hidden amongst a consignment of peat moss. They arrested three persons who were at the premises. These persons were subsequently charged with revenue offences in relation to the cigarettes. Henry McLaughlin was not present when the police were at Battleford Road. He had no known connection to the premises there.
On 20 July 2006, however, Mr McLaughlin's home was searched by police officers. Large amounts of cash in different currencies were found. The total value of the cash amounted to something in the order of £65,000. Various documents including documentation relating to the sale and distribution of cigarettes were found. Mr McLaughlin was subsequently interviewed and charged in relation to the items that had been found in his house and in relation to the cigarette seizure on 16 November 2005. It is accepted that the lorry which had been found at Battleford Road loaded with the cigarettes had stopped at the Mr McLaughlin's premises earlier on 16 November 2005. It is also accepted, however, that he was not present at that time.
Each of the Mackle brothers was prosecuted on a single count to which he pleaded guilty, as described in para 1 above. That plea was entered after evidence had been given over the course of a number of days. It also followed what is known as a Rooney hearing ( Attorney General's Reference No 1 of 2005; In re Rooney (Bernard Philip Mary) and others [2005] NICA 44; [2006] NI 218). The purpose of a Rooney hearing is to obtain from the trial judge an indication of the possible sentence in the event that a plea of guilty is entered.
In the course of the Rooney hearing, counsel on behalf of Patrick Mackle asserted that he had not been the organiser of "this matter". Counsel for the Crown submitted that Patrick Mackle had played "… a role in the organisation of this operation". He suggested that conclusions about the extent of the organisational role would depend on the inferences which the court might ultimately draw and "on the extent to which primary facts are established." Understandably, since he did not, in the event, hear all the evidence, the judge did not express a conclusion on the precise role that Patrick Mackle had played. He did say, however, that he was satisfied that he had played some part in the organisation of the evasion of the duty on the cigarettes. In giving an indication of the possible sentence to be imposed the judge said that he would propose to sentence Patrick Mackle on the basis that "he is not a ringleader but has some limited organising role in the matter."
In relation to Jude and Benedict Mackle, their counsel urged on the judge during the Rooney hearing that they had been merely labourers in the unloading of the cigarettes. In response to those submissions, counsel for the Crown said this:
"… the prosecution position is that there is no evidence which suggests anything contrary to the submissions made by counsel on their behalf in this application. So for the purpose of this application I have no contrary submissions."
On the hearing of the appeal before this court, Mr McCollum QC, for the respondent, drew our attention to the fact that in his submissions to the trial judge he had emphasised that the statement that the prosecution had no evidence to counter the claims made by counsel for Jude and Benedict Mackle had been made for the purpose of the Rooney application. This did not amount to a concession, he said, concerning the value of any benefit which they had received for the purpose of the subsequent confiscation proceedings. This aspect of the case will be considered in greater detail below.
In giving his indication of sentence in relation to Jude and Benedict Mackle, Deeny J said that he considered there were no aggravating features in their cases. Since playing a part in the organisation of this type of criminal activity is well recognised as an aggravating feature, it is to be presumed that the judge had accepted that neither of these appellants had performed such a role.
In opening the case to the trial judge for the purpose of sentencing, Crown counsel said that if all the prosecution evidence had been given, "certainly at its height it would have suggested an organisational role by Mr Patrick Mackle". Counsel who then appeared for Patrick Mackle submitted that there was "no suggestion on the evidence of the accused having had any hand, act or part in the financing, funding, importation or other organisational contribution". The judge concluded that since Patrick Mackle had asked his brothers to carry out the unloading of the cigarettes and since this had taken place at Patrick Mackle's yard, he had a limited organising role. He noted that the prosecution had accepted the appellant's plea of guilty on the basis that he was not the...
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