R v Martin (Ellis)
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 20 February 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J0220-6 |
| Date | 20 February 1998 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 9603139/S2-9604173/S2 |
[1998] EWCA Crim J0220-6
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Vice President
(Lord Justice Rose)
Mr Justice Holland
and
Mrs Justice Smith
No: 9603139/S2-9604173/S2
MR LAWSON QC and MR A LLOYD-ELEY appeared on behalf of the Appellant MARTIN
MR D COCKS QC and MR D WILLIAMS appeared on behalf of the Appellant WHITE
MR SELLS QC appeared on behalf of the Crown
Friday 20th February 1998
On 3rd April 1996 at Southwark Crown Court, following a 3 month trial before Her Honour Judge Pearlman, the appellants were convicted of 2 offences, counts 1A and 1B, of being knowingly concerned in the fraudulent evasion of duty chargeable on alcoholic drinks. Martin was convicted on 3 further counts of fraudulent evasion of VAT. Subsequently, White was sentenced to 4 years' imprisonment on each count concurrently, a confiscation order in the sum of £20,000 was made under section 71 of the Criminal Justice Act 1988 with 12 months' imprisonment consecutively in default and he was disqualified for 7 years under section 2 of the Company Directors Disqualification Act 1986. Martin was sentenced to 5 years' imprisonment on count 1A and on each of the three VAT offences and 82 months' imprisonment on count 1B, all concurrently, making a total sentence of 6 years 10 months. A confiscation order in the sum of £3,320,000 was made under section 71 with 4 years' imprisonment consecutively in default. He was also ordered to pay £146,000 towards the prosecution costs and he was disqualified for 10 years under section 2.
Following refusal of leave by the Single Judge, both appellants appeal against conviction with leave of the Full Court, who referred applications for leave to appeal against sentence to this Court.
In the original indictment, count 1 charged a single offence of fraudulent evasion between November 1993 and June 1994 contrary to section 170(2) of the Customs and Excise Management Act 1979. The prosecution opened the case on the basis that there were two methods of evasion, referred to as A and B. No objection was taken to the form of the indictment on behalf of either of the appellants, or the two co-accused called Suki Vindar Singh and Julie Court who were ultimately acquitted, until 2 months into the trial when Martin's defence case had been completed. At that stage, prior to the opening of White's defence, Mr Cocks QC submitted on White's behalf that the count was duplicitous and that the allegation should be charged in individual counts relating to each of the importations which had taken place. No such submission was made on behalf of Martin. On the contrary, leading counsel then appearing for Martin resisted Mr Cocks' application on the ground that it was too late for amendment. The judge ruled that the count was not duplicitous but ordered that count 1 be split into 1A and 1B, the former relating to method A in relation to beer between 1st November 1993 and 31st January 1994 and the latter to method B in relation to beer and wine between 1st January and 30th June 1994. The form of the indictment gives rise to the single ground of appeal advanced on behalf of White, in submissions adopted on behalf of Martin, and we shall return to this matter later.
The prosecution case, which the jury clearly accepted, was that between November 1993 and June 1994 Martin, with the help of White, obtained large quantities of beer and wine from bond and sold it without paying duty or VAT. The total loss to the Revenue was approximately £5 million of which some £3.5 million was attributable to duty.
By method A, Martins company EA Martin & Company arranged for 27 loads of beer to go from Whittals bonded warehouse in Walsall to Medway Bond, where White was Managing Director. Instead of going to Medway Bond, the beer went straight to Martin's Dagenham premises or to cash & carry outlets as respectively directed by EA Martin & Company. Medway Bond, at White's behest, created the necessary false documentation to make it appear that the goods had gone via Medway Bond to France. Martin's defence was that, although the goods emanating from Walsall went to the destinations alleged by the Crown, he had also supplied mirror loads of goods which were exported to various European countries so that there was no revenue loss.
Method B involved a company in Calais, Euro Beers and Wines which had been acquired by Martin. Beers and wines were exported to France and other countries and then re-imported into the United Kingdom without duty being paid at any stage. There were 227 such loads. Martin's explanation was much the same as in relation to method A, save that it did not involve the use of White's Medway Bond warehouse.
The documentation in relation to 201 of the 227 loads named Medway Bond as the competent authority for the purposes of the re-importation of the goods. This meant that if, by chance, any of the vehicles were intercepted, there would be confirmation from White that the consignments were destined for a bonded warehouse. In fact, duty was paid by Medway in relation to 7 loads in respect of which there had been a query by Customs and Excise.
The prosecution relied on evidence from a variety of sources including Whittals, the hauliers, observation of Martin's premises at Dagenham, purchasers from Martin's company, Customs and Excise officers and from a bonded warehouse operator as to what ought to have been done. Employees at Medway Bond described what happened there. On 28th June 1994 Martin was arrested. He had in his possession a substantial amount of cash totalling over £100,000 in his desk, briefcase and safe. White had in his possession the stamp of ASH, a French company, which had been used for falsifying documents.
Martin gave evidence before the jury in which he agreed that he had cut corners, but he denied any fraud in relation to duty or VAT. He explained his activities as an entrepreneur and referred to Anthony Martin International which he said he had set up after Christmas 1993 and registered for VAT. He referred to an extensive trade with Russia, Portugal and other foreign countries. He claimed that his lack of original supporting documentation was attributable in part to a burglary at his Dagenham premises and in part to the theft of his van, (which had contained much documentation) a week before his arrest. In cross examination, it was suggested that the documentation which he had produced was false and that Anthony Martin International was not an effective trading company at any material time. He was shown invoices in the possession of the prosecution and also an affidavit, sworn by him in earlier restraint proceedings in the High Court, which made no reference to the existence of, or any income from, Anthony Martin International. The use of this affidavit gives rise to Martin's second ground of appeal and we shall return to this aspect later.
A number of defence witnesses of varying quality were called on Martin's behalf. By reason of the nature of his defence, no inkling of which had emerged during the course of the prosecution case, the Crown were permitted to call a good deal of evidence in rebuttal. This included evidence from Russian and British customs officers, carriers and British Telecom.
White gave evidence saying, in effect, that he was unaware of any sort of impropriety. £20,000 in his possession had come from investment in a wine bar. He had been used by Martin and had not participated in any fraud. A chartered accountant testified as to his good character.
The summing up lasted two-and-a-half days and the jury deliberated for approximately 23 hours.
We turn to the grounds of appeal.
The Indictment
As originally drawn the particulars to count 1 alleged against the appellants and the two acquitted co-accused that "between 1st day of November 1993 and 30th day of June 1994 (they) were in relation to a quantity of beer and wine knowingly concerned in the fraudulent evasion of the duty chargeable thereon".
Following the partly successful submission of Mr Cocks QC, the particulars to count 1A alleged that "between 1st day of November 1993 and 31st day of January 1994 (they) were in relation to a quantity of beer knowingly concerned in the fraudulent evasion of the duty chargeable thereon". Count 1B referred to the period 1st January 1994 to 30th June 1994 and to a quantity of beer and wine: the wording was otherwise identical.
On behalf of the appellant White, Mr Cocks submitted that both these fresh counts were bad for duplicity. As to this, his initial submissions were as to law. He referred to a number of authorities including R v. Thompson (1914) 2 KB 99 and R v. Tomlin (1954) 2 QB 274 in support of the undoubted general proposition that separate offences should not be charged in the same count. The reason is set out in the judgment of Mann J cited with approval by Lord Mackay of Clashfern in Gee v. General Medical Council (1987) 1 WLR 564 at 570 H:
"'A person should know of what it is he has been found guilty (if guilty he should be found). He cannot know if he has been found guilty on a duplicitous charge whether he has been found guilty of one offence or of many. He should have the opportunity of submitting that there is no case to answer in relation to a particular occasion. That he cannot do if he is confronted with a duplicitous charge. A person cannot make a sensible plea in mitigation unless he knows the number of his offences. The rule concerning duplicity seems to me to be a rule of elementary fairness…'"
Mr Cocks accepted that...
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...pRogers(1999) 1 WLR 832 410R v Manning (1998) 4 All ER 876 318R vMarshall,Coombesand Eren (1998) 162JP 288 38R v Martin and White (1998) 2 Cr App R385 129R vMaryleboneMCandMPC,ex p AmdrellLtd and others (1998) 162 JP 719 188611 The JournalofCriminal LawR v Mills andothers[1998] 2 Cr App R (......
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Cases
...pRogers(1999) 1 WLR 832 410R v Manning (1998) 4 All ER 876 318R vMarshall,Coombesand Eren (1998) 162JP 288 38R v Martin and White (1998) 2 Cr App R385 129R vMaryleboneMCandMPC,ex p AmdrellLtd and others (1998) 162 JP 719 188611 The JournalofCriminal LawR v Mills andothers[1998] 2 Cr App R (......
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Cases
...ER 805309ex pRogers[1999] 1 WLR832410R v Manning(1998)4All ER876318R vMarshall,Coombesand Eren [1998] 162JP 288 38R v Martin and White (1998) 2 Cr App R385 129R v Marylebone MC andMPC,ex p AmdrellLtd and others (1998) 162 JP 71 9 188RvMillsandothers[1998] 2 Cr App R (5)128 208R v Millward (......
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Cases
...ER 805309ex pRogers[1999] 1 WLR832410R v Manning(1998)4All ER876318R vMarshall,Coombesand Eren [1998] 162JP 288 38R v Martin and White (1998) 2 Cr App R385 129R v Marylebone MC andMPC,ex p AmdrellLtd and others (1998) 162 JP 71 9 188RvMillsandothers[1998] 2 Cr App R (5)128 208R v Millward (......