R v Tonner
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WATKINS |
| Judgment Date | 28 June 1984 |
| Neutral Citation | [1984] EWCA Crim J0628-3 |
| Judgment citation (vLex) | [1984] EWCA Crim J0628-2 |
| Docket Number | Nos. 2983/A/83: 3282/A/83: 3412/C/83: 859/C/84 |
| Court | Court of Appeal (Criminal Division) |
| Date | 28 June 1984 |
[1984] EWCA Crim J0628-2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Watkins
Mr. Justice Kenneth Jones
and
Mr. Justice Waterhouse
Nos. 2983/A/83: 3282/A/83: 3412/C/83: 859/C/84
MR. S. LESLIE appeared as Counsel on behalf of the Appellants Tonner, Rees and Harding.
MR. ARLIDGE QC and MR. ROOK appeared as Counsel on behalf of the Crown.
MR. W. CLEGG and MR. R. WHITTAM appeared as Counsel on behalf of the Appellant Evans.
MR. P. PURNELL QC, MR. A. GLASS and MR. P. FINEGAN appeared as Counsel on behalf of the Crown.
The appellants Tonner, Rees and Harding, on 6th May, 1983 at the Central Criminal Court, after a trial lasting 41 days were convicted, and sentenced by his Honour Judge Lowry, as follows: Tonner, for conspiracy to defraud, seven years' imprisonment and a fine of £300,000; on a second count for a like offence, seven years' imprisonment concurrent and a fine of £100,000. He was also ordered to pay £20,000 prosecution costs and £10,000 legal aid costs. Those fines were ordered to be paid by 5th November, 1983, with 12 months' imprisonment consecutive in default. A suspended sentence of 18 months' imprisonment imposed on 5th June, 1981 for handling stolen property was ordered to take effect as six months' imprisonment consecutive. That meant a total term of imprisonment of seven and a half years. Rees, for conspiracy to defraud, was sentenced to two years' and six months' imprisonment consecutive to a sentence which he was ther serving. His parcle licence, which had been effective until then, was revoked, and by order he was deprived of two rough cast fine gold bars. Harding, for conspiracy to defraud, was sentenced to two years' imprisonment, and he too was by order deprived of two rough-cast fine gold bars.
A number of counts on the indictment were left, by order of the judge, on the file. They were count 3, conspiracy to defraud, against Tonner alone of these appellants; count 5, conspiracy to contravene s. 38 (1) of the Finance Act 1972; count 6, a like offence, those two counts being laid against all three appellants; and count 7, conspirac to contravene the provisions of s. 170 (2) of the Customs and Excise Management Act 1977, against Turner alone. All three appellants appeal against conviction.
There were a number of co-accused. One Bingham was found not guilty of conspiracy to defraud and ot other conspiracies, as also was a man called Falco. One Furness was sick; the learned judge discharged the jury from returning a verdict in respect of him. Stahl pleaded guilty to count 1, conspiracy to defraud, and was sentenced to two years' imprisonment, 3 2 months' of which was suspended. Another man, Tryniszewski, was not to be found, despite the issue of a bench warrant, so he was not tried.
The facts are these. Between June, 1981 and April, 1982 the three appellants were involved in a conspiracy to evade payment of Value Added Tax by obtaining gold without paying tax upon it and selling it and charging tax upon the sale. That tax they failed to account for to the Customs and Excise. It was asserted that Tonner was the prime mover and succeeded in respect of a few companies in depriving the Revenue of a total of £3 million in Value Added Tax. Rees and Harding co-operated effectively to the extent of playing notable roles in the operation of one company.
This was an extremely well-conceived, artful and daring plan to deprive the Revenue of vast sums of money. In effect, they or someone on their behalf smuggled into this country gold on which no tax was paid, melted it down and sold it on to bullion dealers in Hatton Garden. In addition, they bought a substantial number of Krugerrand and Canadian coins which they also melted down into gold bars and sold at very substantial cost to bullion dealers in Hatton Garden.
As for some of the transactions a scheme of self-invoicing was resorted to by the buyers, and as for others there was direct invoicing to one or more of the three companies to which reference has already been made. In relation to part of the very substantial amount of gold which was dealt with in those different ways false invoices were created. An account was rendered to the Revenue by the use of false invoices relating to the buying of gold on which it was said that Value Added Tax had been paid. The amount of that was set off against Value Added Tax on true invoices given by bullion dealers in Hatton Garden. That set-off falsely revealed that the companies owed the Revenue a very trifling sum of money.
In relation to another and quite substantial part of Value Added Tax kept away from the Revenue the intent ion was that one or more of the appellants, and others, would abscond with the money, no doubt leaving this country to spend the rest of their lives in a sunnier clime.
The respective roles played by the appellants and others were canvassed at length before the jury. There can be no doul whatever that it was for a time a very successful enterprise. It was enabled to be effective because the companies created for the purpose were properly registered for the purposes of Value Added Tax, and had therefore numbers on that register. The third company was however brought into life principally by Rees and Harding, who, using false names, managed to register that company for the purposes of Value Added Tax and improperly thereby to obtain a number on the register, which was thereafter used to further the success of the unlawful enterprise. That was how those three men busied themselves for a number of month's in 1982 and early in 1983.
Turning now to the appellant Evans: on 14th January, 1984 at the Central Criminal Court, after a retrial which lasted three months he was convicted, and sentenced by his Honour Judge Lowry to three and a half years' imprisonment for conspiracy to defraud. He appeals against conviction by leave of Mr. Justice Beldam. Upon the indictment he had co-accused, seven men and a limited company. He alone was convicted. There was a failure to agree in respect of one co-deferdant, Wilson, and verdicts of not guilty in respect of the others including the limited company.
The facts as far as Evans is concerned were these. Four of the men who were found not guilty were directors of a company, Illuminate Ltd, which was forred as a. jewellery business, with prerises in Hatton Garden. A man called Rajnikant Unadkat ("Raj", for short) and his brother traded as jewellery importers and engaged in buying and selling gold.
On 2nd November, 1981 a company named D. Roberts Ltd, with an office in Shoreditch High. Street, was registered for Value Added Tax. On the 4th and 5th of that month David Roberts, its se-called director, opened a number of bank accounts in the company's name. Between early November, 1981 and early January, 1982 nearly 60,000 gold coins were bought by or on behalf of David Roberts at a cost of £17 million. No VAT was paid on those coins. They were delivered to the premises of the company, Illuminate, where they were melted into bars and sold on the open market by Raj, who charged and received VAT at 15 per cent. The value of the bars was less than the equivalent weight of the coins. The profit which was pocketed by those unlawfully dealing in this way was made by not handing over the VAT charged on the sale to the Customs and Excise. The loss to the Commissioners through the dealings of these men was about £2 million.
This fraud was concealed for some time by the production of false invoices. Raj produced invoices to show that he had purchased gold at a slightly lower rate from Illuminate. The rate of profit as running at something like eight per cent of the VAT imposed upon sale and purchase. The investigation into this fraud was hindered for a considerable time because no one was able to find Roberts. He it was, whoever he was, who had registered the business of the company, D. Roberts Ltd. He it was who arranged for payment of the coins and had transactions, at any rate on paper, with Raj.
Eventually Roberts was unmasked. A man was arrested on 30th June, 1982. His name was not Roberts at all; it was Evans. He had been wearing a wig; a commonplace device to try to hide one's identity. It was effective for some while but eventually it was taken off in the manner which has been very briefly outlined. He too therefore stood bis trial and was convicted as already mentioned.
This Court heard the appeals against conviction simultaneously, at the invitation of counsel for the appellants, Mr. Leslie and Mr. Clegg respectively, and with the consent of counsel for the Crown, Mr. Arlidge and Mr. Purnell respectively, in the two cases. We acceded to the invitation because the main ground of appeal of all four appellants is identical in one respect. Much time has been saved by avoiding duplication. That ground of appeal is that the conspiracies to defraud contrary to common law were all wrongly charged; that the statement of offence in each material count should have alleged a conspiracy contrary to s. 1 (1) of the Criminal Law Act 1977: R. v. Ayres, (1984) 2 WLR 257. Consequently, subject to the exercise by this Court of its power to apply the proviso to s. 2 of the Criminal Appeal Act, all convictions must, so it is said, be quashed.
When these appellants were convicted the appeal of Ayres had not been heard in the House of Lords. There existed at that time an unresolved controversy as to the precise effects of the provisions of s. 1 (1) and s. 5 of the Act of 1977, the terms of which are–
"1.–(1) Subject to the following provisions of...
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