R v Mulligan
| Jurisdiction | England & Wales |
| Judgment Date | 13 December 1989 |
| Date | 13 December 1989 |
| Court | Court of Appeal (Criminal Division) |
Court of Appeal (Criminal Division).
Watkins LJ, Mars-Jones and Owen JJ.
Mr Peter Codner (assigned by the Registrar of Criminal Appeals) for the appellant.
Mr Douglas Blair QC (instructed by the Solicitor of Inland Revenue) for the Crown.
The following cases were referred to in the judgment:
R v Ayres ELR[1984] AC 447
R v Downes TAX(1983) 57 TC 681
R v Duru & Anor WLR[1974] 1 WLR 2
R v Hudson ELR[1956] 2 QB 252
R v Redford TAX[1988] BTC 5252
R v Warner UNK(1970) 55 Cr App R 93
Income tax - Conviction for conspiracy to cheat the revenue - Appeal against conviction - Certificate and vouchers issued to sub-contractor in the construction industry enabling holder to receive payment without deduction of tax - Appellant in possession of stolen certificate and vouchers - Whether common law offence of cheating the revenue existed - Whether statutory offence of conspiracy as charged appropriate or whether appellant should have been charged with common law conspiracy -Theft Act 1968 section 6 subsec-or-para (1)Theft Act 1968, sec. 6(1); section 1 subsec-or-para (1) section 15 subsec-or-para (2)Criminal Law Act 1977, sec. 1(1), 5(2).
This was an appeal against conviction by a jury in the Crown Court at Wood Green on 7 July 1987 on several counts. Count 1 charged that, under the section 1Criminal Law Act 1977, sec. 1, the appellant had conspired to cheat the public revenue.
The evidence before the jury was that in June 1986 a certificate and vouchers issued under the Income Tax (Sub-Contractors in the Construction Industry) Regulations 1975 (SI 1975/1960) to a company, Briskwind Ltd, was stolen from their premises. On 20 July 1986 the appellant was arrested outside the home of a Mr O'Connell. Some documents relating to Briskwind Ltd were found in the appellant's car, other relevant documents including the stolen vouchers were found in O'Connell's house and the stolen certificate was found in the appellant's left sock.
The appellant's defence at the trial was that he was only keeping the documents for one Mick Walsh who was his employer and he had no reason to think that there was anything illegal about them. The jury did not accept that explanation.
The appellant contended that the charge of conspiring to cheat the public revenue was not appropriate because the common law knew no such offence as cheating the revenue, and that a charge under section 1 subsec-or-para (1)sec. 1(1) of the 1977 Act was precluded by section 5 subsec-or-para (2)sec. 5(2). A conspiracy to cheat the revenue would amount to a conspiracy to defraud which had to be charged under the common law, and since common law conspiracy to defraud and a statutory conspiracy contrary to section 1sec. 1 were mutually exclusive offences, a common law conspiracy, if it existed, had to be charged as such and not as a statutory conspiracy under section 1sec. 1.
The appellant also contended that the trial judge had erred in allowing count 1 to go to the jury since no evidence had been adduced that the alleged conspiracy did, or might, result in any loss to the Revenue.
Counts 6 and 7 alleged the theft of vouchers which the appellant intended to sell. He contended that the vouchers, once stolen, were merely worthless pieces of paper which, if used, would eventually be returned to the Revenue so that no charge of theft could be made out.
Held, dismissing the appeal:
1. A common law offence of cheating the revenue existed and was effectively preserved by the section 32 subsec-or-para (1)Theft Act 1978, sec. 32(1). There was thus a common law offence of conspiring to cheat the revenue. (R v RedfordTAX[1988] BTC 5252 and R v Hudson ELR[1956] 2 QB 252 followed.)
2. The phrase "conspiracy to defraud" in section 5 subsec-or-para (2)sec. 5(2) of the 1977 Act must be construed as limited to fraudulent agreements which, if carried into effect, would not necessarily involve the commission of any substantive criminal offence. Where the evidence supported the commission of a criminal offence, if the agreement constituting the conspiracy had been performed, the only proper charge would be conspiracy under section 1sec. 1. Here, if the agreement between the appellant and Walsh had been carried into effect, it would necessarily have resulted in the commission of the substantive criminal offence of cheating the revenue. Accordingly, the only proper charge was, as alleged, conspiracy contrary to section 1sec. 1. (R v Ayres ELR[1984] AC 447 explained.)
3. It could be inferred from the evidence at the trial that all the appellant's dealings with the stolen certificate and vouchers were intended to be and would have been a fraud on, and would have caused a loss to, the Revenue. There was no reason why count 1 should not have been considered by the jury.
4. The appellant's intention to sell the vouchers was to treat them as his own regardless of the rights of the Revenue. That amounted to an intention permanently to deprive the Revenue of the vouchers within theTheft Act 1968 section 6 subsec-or-para (1)Theft Act 1968, sec. 6(1). (R v Downes TAX(1983) 57 TC 681.)
Watkins LJ: On 7 July 1987 in the Crown Court at Wood Green, Patrick Joseph Mulligan, the appellant, was convicted of conspiring to cheat Her Majesty the Queen and the public revenue (count 1), going equipped to cheat (count 2), handling stolen goods (counts 3 and 4) and theft (counts 6 and 7). Before sentence medical and psychiatric reports on the appellant were prepared. They were before him on 13 August 1987, when the judge made a hospital order under section 37sec. 37 of the Mental Health Act 1983. The appellant is no longer in hospital.
He has the leave of the single judge to appeal against his convictions.
The evidence before the jury, briefly stated, was as follows. The difficulty of collecting income tax from...
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Regina v Charlton, Cunningham, Kitchen and Wheeler. Court of Appeal, Criminal Division [1995]
...5. (4) 'Hawkins' Pleas of the Crown', 8th edn, Vol. 1, p. 322; R . v Bradbury [1921] 1 KB 562; R v Hudson [1956] 36 TC 561; R v Mulligan [1990] STC 220. (5) R v Less and Depala [1993] (unreported); R v Hunt [1994] STC 819. (6) Section 32(l)(a) Theft Act 1968. (7) Section 93A(7) Criminal Jus......