R v Thompson (Glyn); R v Hanson (Brian)
Jurisdiction | England & Wales |
Judgment Date | 22 November 2006 |
Neutral Citation | [2006] EWCA Crim 2849 |
Court | Court of Appeal (Criminal Division) |
Docket Number | Case No: 2006 04895 C5 |
Date | 22 November 2006 |
[2006] EWCA Crim 2849
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
An application under section 58 of the Criminal Justice Act 2003
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Mrs Justice Dobbs Dbe and
Sir Charles Mantell
Case No: 2006 04895 C5
Mr Nigel Lickley, Mr Dominic Kay & Mr Rupert Baldry instructed by Revenue and Customs Prosecutions Office appeared for the Applicant
Mr Andrew Mitchell QC & Mr M Lucraft instructed by Messrs Corker Binning appeared for the 1st Respondent
Mr Philip Hackett QC & Mr Graham Brodie instructed by Messrs BCL Burton Copeland appeared for the 2nd Respondent
This is the judgment of the court:
This judgment concerns an application brought by the Crown for leave to appeal the ruling of a Crown Court judge whereby he dismissed a charge and accordingly quashed a count relating to it in an indictment, pursuant to paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998. The application is brought under the new provisions contained in section 58 of the Criminal Justice Act 2003, whereby the Crown is given a general right of appeal in respect of rulings which are recognised by the Crown as so-called "terminating rulings". An initial issue has arisen on this application as to whether there is jurisdiction under section 58 which encompasses a dismissal of this kind. At the conclusion of argument on 6 October 2006, we rendered our decision that there was no jurisdiction for such an appeal under section 58 and we accordingly refused leave to appeal. These are the reasons for our decision.
In these proceedings, brought by the Revenue and Customs Prosecution Office (RCPO), Glyn Thompson and Brian Hanson were charged with various offences against the Revenue. Counts 2 to 12 inclusive charged Mr Thompson alone and are not the subject of this appeal. We need say nothing more about them. Count 13 charged Mr Hanson alone. RCPO conceded before the judge that they did not seek to uphold that count. The judge therefore dismissed it and we are not concerned with it. We are therefore concerned solely with count 1, which charged both Mr Thompson and Mr Hanson (for convenience, the "respondents") with conspiracy to cheat the Revenue between 1 January 1995 and 31 October 2002 in connection with a property transaction or transactions by dishonestly failing to disclose all taxable payments.
The offence alleged in count 1 concerned the property dealings of a Guernsey based company called White Ladies Investments Ltd (the "company") in which it was said that the respondents had significant financial interests. The prosecution case was that the company, although based in Guernsey, was used as a vehicle for the respondents' property transactions in the UK, in particular in relation to the buying and selling of two properties in Bristol on which substantial profits had been made. It was alleged that the company was centrally managed and controlled in the UK by the respondents. Mr Thompson's father was a director of the company, but RCPO alleged that his role had been usurped by the respondents and that as a result the company should be viewed as resident for tax purposes in the UK. In effect, said RCPO, the company's central management and control were exercised in the UK by the respondents and not in Guernsey by the father.
In due course the offence charged under count 1, with the other offences charged, had been sent for trial to the Crown Court, pursuant to section 51 of the Crime and Disorder Act 1998.
It was therefore open to the respondents to challenge the adequacy of RCPO's case in advance of trial by use of the procedure contained in Schedule 3 to the 1998 Act. In effect, the respondents could raise the issue of sufficiency which previously had been available to the defence at an old style committal. Thus paragraph 2 of Schedule 3 provides as follows:
"2.-(1) A person who is sent for trial under section 51 of this Act on any charge or charges may, at any time –
(a) after he is served with copies of the documents containing the evidence on which the charge or charges are based; and
(b) before he is arraigned (and whether or not an indictment has been preferred against him),
apply orally or in writing to the Crown Court sitting at the place specified in the notice under subsection (7) of that section for the charge, or any of the charges, in the case to be dismissed.
(2) The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment preferred against the applicant) which is the subject of any such application if it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him…
(6) If the charge, or any of the charges, against the applicant is dismissed –
(a) no further proceedings may be brought on the dismissed charge or charges except by means of the preferment of a voluntary bill of indictment; and
(b) unless the applicant is in custody otherwise than on the dismissed charge or charges, he shall be discharged."
It will be observed that the paragraph 2(2) test is the same Galbraith test as that which applies to an application of no case to answer at half time at trial; that the paragraph 2 application can only be made before arraignment (paragraph 2(1)(b)); that the result of a successful application is that the charge is dismissed and, if an indictment has been preferred, the relevant count is quashed; and that, where a charge is dismissed, "no further proceedings" may be brought on it except by means of the preferment of a voluntary bill of indictment.
The judge, HHJ Ticehurst, sitting at the Crown Court at Bristol, acceded to the respondents' application under paragraph 2 of Schedule 3. In a written ruling dated 31 July 2006 he explained why he preferred the defence submissions which had been advanced in favour of dismissing the charge under count 1. On 29 September 2006, having heard further submissions, he dismissed the charge and quashed count 1.
It follows, as we think Mr Lickley (now Mr Lickley QC) on behalf of RCPO accepts, that, since the respondents had not yet been arraigned, the dismissal of the charge and quashing of the count did not amount to a formal acquittal of the respondents; and that a voluntary bill of indictment could be sought. Indeed, he submits that the section 58 route of appeal is an alternative to the voluntary bill of indictment route.
It is probably unnecessary for the purposes of the issue over section 58 jurisdiction to go further into the nature of the judge's ruling on the substance of the respondents' application than to say that the judge had to consider both the evidence and the law relating to the residence of the company. RCPO submit, or would have submitted, that the judge erred as a matter of law in applying the wrong test.
The judge was asked by RCPO to grant leave to appeal under section 57(4) of the 2003 Act, but declined to do so. Therefore RCPO applied to this court for leave to appeal. It was on that application that the argument as to jurisdiction has arisen.
The appeal procedure under the 2003 Act
The provisions relating to the new interlocutory right of appeal accorded the Crown under Part IX of the 2003 Act came into force on 4 April 2005. For present purposes, the relevant provisions are as follows:
"Introduction
57.—(1) In relation to a trial on indictment, the prosecution is to have the rights of appeal for which provision is made by this Part.
(2) But the prosecution is to have no right of appeal under this Part in respect of –
(a) a ruling that a jury be discharged, or
(b) a ruling from which an appeal lies to the Court of Appeal by virtue of any other enactment.
(3) An appeal under this Part is to lie to the Court of Appeal.
(4) Such an appeal may be brought only with the leave of the judge or the Court of Appeal.
General right of appeal in respect of rulings
58.-(1) This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.
(2) The prosecution may appeal in respect of the ruling in accordance with this section.
(3) The ruling is to have no effect whilst the prosecution is able to take any steps under subsection (4).
(4) The prosecution may not appeal in respect of the ruling unless –
(a) following the making of the ruling, it
(i) informs the court that it intends to appeal…
(7) Where –
(a) the ruling is a ruling that there is no case to answer, and
(b) the prosecution, at the same time informs the court in accordance with subsection (4) that it intends to appeal, nominates one or more other rulings which have been made by a judge in relation to the trial on indictment at an applicable time and which relate to the offence or offences which are the subject of the appeal,
that other ruling, or those other rulings, are also to be treated as the subject of the appeal.
(8) The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.
(9) Those conditions are –
(a) that leave to appeal to the Court of Appeal is not obtained, and
(b) that the appeal is abandoned before it is determined by the Court of Appeal…
(12) Where the prosecution has informed...
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