Togher v HM Revenue and Customs Prosecution Office

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Thomas,Lord Justice Dyson,Lord Justice Chadwick
Judgment Date05 Jul 2007
Neutral Citation[2007] EWCA Civ 686
Docket NumberCase No: C1/2006/0887

[2007] EWCA Civ 686

[2006] EWHC 1212 (Admin)

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

The Hon Mr Justice Collins

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Chadwick

Lord Justice Dyson and

Lord Justice Thomas

Case No: C1/2006/0887

Between
Kenneth Togher
Appellant
and
The Revenue and Customs Prosecutions Office
Respondent
and
Brian Doran
Applicant Intervenor

Michael Beloff QC and Andrew Bodnar (instructed by Hughmans) for the Appellant

Andrew Mitchell QC, Mark Sutherland Williams and Rupert Jones (instructed by The Revenue and Customs Prosecution Office) for the Respondent

Austen Morgan and Paul Williams (instructed by Watson Woodhouse) for the Intervenor

Hearing date: Tuesday 3 April 2007

Lord Justice Thomas
1

The appellant, Mr Togher, a convicted drug trafficker, appeals against an order of Collins J made on 3 April 2006 refusing to discharge an order dated 22 February 1995 made by Hidden J under the drug trafficking legislation restraining Mr Togher from dealing with his assets.

2

In circumstances which I shall describe in more detail, a confiscation order against Mr Togher was made under the Drug Trafficking Act 1994 (DTA 1994) in July 1997 in the sum of £800,000 with a default term of 4 years imprisonment (as amended by the Court of Appeal Criminal Division in October 2000). He did not pay. On 20 July 2005, he commenced the prison term to which he was committed in default of paying that sum. As a result of a payment of about £210,000 in October 2005, in circumstances I shall also describe more fully, the default term was reduced to approximately 2 years and 10 months. On 5 January 2007, Mr Togher was released under s. 258 of the Criminal Justice Act 2003 (and its transitional provisions) which obliged the Home Secretary to release unconditionally a person who had served half of the term for which he was committed to prison after 4 April 2005 in default of a sum adjudged to be paid on conviction. Mr Togher has therefore served his sentence of imprisonment in default.

3

The Drug Trafficking Offences Act 1986 (DTOA 1986) was in force at the time the offences were committed between August 1993 and February 1994. The material sections of the DTA 1994 were brought into force (under the provisions of s.66 and schedule 2 to that Act) in relation to all offences in which charges were preferred after the date the Act came into force, 3 February 1995. The relevant charges were preferred in July 1995. It was common ground that:

i) A confiscation order under the DTOA 1986 ceased to have effect once a defendant had served the period of imprisonment in default.

ii) Under the provisions of the DTA 1994, the service of a sentence of imprisonment in default did not discharge the liability under a confiscation order.

4

As he had served his sentence in default, Mr Togher contended before us that any further enforcement of the confiscation order would be a retrospective penalty which would contravene his Convention rights under Article 7(1):

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

He submitted that, as he can be under no further liability to pay the amount of the confiscation order by reason of the provisions of Article 7(1), the court should in the exercise of its discretion discharge the restraint order made by Hidden J.

5

On 28 March 2007, after Brian Doran, who was convicted of drug trafficking along with Mr Togher, had heard of these proceedings, an application was made to this court that he be joined as the second respondent to the appeal on the basis that he was in an equivalent position to Mr Togher and wished to avail himself of any remedy achieved by Mr Togher. His application was wider in scope to that made by Mr Togher, as he sought to challenge the making of the confiscation order against him.

6

Before considering the contentions, it is necessary to set out the facts and the legislative provisions in force at the different times in a little more detail.

The Factual Background

7

Mr Togher, Mr Doran and others were alleged by the then Customs and Excise Prosecution Authority to have been involved in two separate large scale criminal enterprises in relation to trafficking in cocaine:

i) The Frugal indictment: Mr Togher and Brian Doran and others were charged with the importation of over 300 kilograms of cocaine which was seized as it was being landed by the catamaran Frugal at Pevensey Bay, Sussex on 10/11 January 1995. The cocaine was said to have a street value of £50m. The charge under this indictment is not relevant to the issue in these proceedings.

ii) The Madrid indictment: This related to the seizure of 33 kilograms of cocaine by the Spanish police at a hotel in Madrid on 4 February 1994. Mr Togher and Brian Doran were charged with an offence under s.20 of the Misuse of Drugs Act 1971, an offence punishable with 14 years imprisonment or a fine or both if tried on indictment (see s.25 and schedule 4 to the Act). It is the charge preferred in this indictment that is the relevant offence for the purpose of these proceedings.

8

On 12 January 1995 charges were laid in respect of the Frugal indictment; it was consequent upon those charges that Hidden J made the order dated 22 February 1995 to which I have briefly referred. The order stated it was made under the DTOA 1986. The order identified as many of the assets as the Customs and Excise Prosecution Authority were then aware of, forbade dealing in all his assets and directed that Mr Togher should make an affidavit informing Customs and Excise of the full value of his assets. A similar Order was made by Ognall J against Mr Doran on 10 October 1995.

9

On 19 July 1995 Mr Togher and Mr Doran were charged with the offences under the Madrid indictment. The indictment subsequently preferred was:

Count 2

Statement of offence: Assisting in the commission outside the United Kingdom of an offence punishable under a corresponding law contrary to section 20 of the Misuse of Drugs Act 1971.

Particulars of offence

Anthony Michael White, Brian Peter Doran, Robert Parsons, Kenneth Togher, Madeleine Togher, Paul Hearn between the 1 st day of August 1993 and the 5 th Day of February 1994 assisted in the United Kingdom in the commission in the Kingdom of Spain of an offence punishable under the provisions of corresponding law in force in the Kingdom of Spain, providing for the control and regulation in the Kingdom of Spain of the supply, export and import of drugs, by assisting the possession with intent to supply of 32.312 kilograms of cocaine hydrochloride by Joseph Godwin Tanner and Michael William Cahill.”

10

On 17 March 1997 after an abortive trial of the charges under the Frugal indictment, Mr Togher and Brian Doran were convicted at a second trial before HHJ Foley on that indictment. Both were sentenced to 25 years imprisonment.

11

On 30 April 1997 Mr Togher and Mr Doran pleaded guilty to the Madrid indictment; they were sentenced to 9 years imprisonment concurrent with the sentences passed on the Frugal indictment.

12

On 14 July 1997 after a confiscation hearing before HH Judge Foley a confiscation order was made in the sum of £2.41m against Mr Togher and in the sum of £2.091m against Mr Doran, payable within 5 years; the default terms were 10 years. The order of the Crown Court made on 16 July 1997 specified it was made under the DTA 1994.

13

An appeal against the conviction on the Frugal indictment was heard by the Court of Appeal Criminal Division. On 2 November 1998 the Court quashed the conviction because of misdirections by the trial judge and ordered a re-trial. Prior to the re-trial Mr Togher and Mr Doran contended there had been an abuse of process in relation to the charges under the Frugal indictment as a result of the conduct of officers of Customs and Excise. This contention was upheld by Turner J who stayed all further proceedings on the Frugal indictment on 6 July 1999.

14

Mr Togher and Mr Doran then appealed to the Court of Appeal Criminal Division on the basis that the decision of Turner J applied equally to the Madrid indictment; it was contended that the appellants' plea of guilty to that indictment should not stand.

15

On 13 October 2000, the appeal was heard by Lord Woolf of Barnes CJ, Steel and Butterfield JJ. They dismissed the appeal on the basis that shortcomings on the part of the prosecution were not of the category of misconduct which would justify interfering with the appellants' freely entered pleas of guilty on the Madrid indictment.

16

That court also considered the confiscation orders which had been made in July 1997. It held that, although as a matter of probability the appellants might be guilty of the offence under the Frugal indictment and therefore liable to a confiscation order in respect of that offence, it would not be right on the material before the court to hold there was evidence on which the court could say that the appellants had as a matter of fact benefited from that offence. The Court held:

“5. … We therefore come to the conclusion that, while the confiscation orders can be upheld in part, it would be only right to approach those confiscation orders on the basis that any element which could be attributable to Frugal should be deleted from the calculation. It is impossible to carry out that exercise precisely but,...

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