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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> James & Anor v R [2011] EWCA Crim 2991 (21 December 2011) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/2991.html Cite as: [2012] 1 WLR 2641, [2011] EWCA Crim 2991, [2012] Lloyd's Rep FC 168, [2012] Crim LR 307, [2012] 2 Cr App R (S) 44 |
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ON APPEAL FROM THE CROWN COURT AT IPSWICH
HHJ GOODIN
T20067220
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE EDWARDS-STUART
and
HIS HONOUR JUDGE METTYEAR
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
____________________
MICHAEL JAMES RAYMOND FRANCIS BLACKBURN |
Appellants |
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- and - |
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THE CROWN |
Respondent |
____________________
MR. N. WAYNE and MR. A. FITCH-HOLLAND appeared for the 2nd Appellant.
MR. A. ABELL appeared for the Respondent.
Hearing date: 2nd December 2011
____________________
Crown Copyright ©
Lord Justice Hooper :
45. ... There might be circumstances in which orders for the full amount against several defendants might be disproportionate and contrary to article 1 of the First Protocol, and in such cases an apportionment approach might be adopted, but that was not the situation here and the total of the confiscation orders made by the judge fell well below the sum of which the Revenue had been cheated.
Facts
Who is liable to pay the excise duty?
The appellant James- was he liable to pay the duty?
"He wasn't plainly located often on the scene of Unit 15 but he was in my view a visitor for planning meetings for the furtherance of the conspiracy to those premises. [He was] responsible for causing the tobacco to arrive at the duty point where indeed it seems to me [he] helped".
The appellant Blackburn - was he liable to pay the duty?
Statement as to role
Raymond Blackburn was described by HHJ McKitterick as the local manager, when sentencing him.
There is no evidence that Mr Blackburn financed the purchase of the raw leaf tobacco.
Mr Blackburn accepts the following:
He was first observed on the 29th June 2006 at the unit.
He was made aware that the tobacco cutting machinery was being delivered to the Unit and assisted in putting it into the unit.
He loaded tobacco onto the machinery, for the machine to process the tobacco. There is no evidence that the machinery was operated in the absence of Eric Cuerton.
He was responsible for running, safety and security at Unit 15.
He was responsible for preparation/modification of the unit so that processing could take place.
He recruited labour to assist in processing of the tobacco – Mr Warr and Mr Chuter.
He assisted in the transportation of the raw leaf tobacco from its stored location, said in evidence to be in Grimbsy.
He obtained and paid for materials for the day to day running of the unit (see Albany notebook).
He liaised with the landlord of Unit 15 including on occasions the payment of rent on the unit.
He wrote on the wall the recipe for blending the hand rolling tobacco. Mr Blackburn said he obtained this recipe from another.
Did Blackburn obtain a benefit?
D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers.
13. ... It is, however, relevant to remember that the object of the legislation is to deprive the defendant of the product of his crime or its equivalent, not to operate by way of fine. The rationale of the confiscation regime is that the defendant is deprived of what he has gained or its equivalent. He cannot, and should not, be deprived of what he has never obtained or its equivalent, because that is a fine. This must ordinarily mean that he has obtained property so as to own it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else.
The way in which he sought to deploy that sentence illustrates the need for care in the way that courts approach judicial commentary, the purpose of which is to elucidate and not stand in the place of the underlying principle.
Mr Justice Edwards-Stuart
(1) Criminal conduct is conduct which(a) constitutes an offence in England and Wales. . .(3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs
(a) conduct which constitutes the offence or offences concerned. . .(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.
(5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage. (Emphasis added)
The purchase of equipment or materials for the purpose of the venture
"The court should proceed by asking the three questions posed above: (i) Has the defendant (D) benefited from the relevant criminal conduct? (ii) If so, what is the value of the benefit D has so obtained? (iii) What sum is recoverable from D? . . . These are separate questions calling for separate answers, and the questions and answers must not be elided."
"(6) [The defendant] ordinarily obtains property if in law he owns it, whether alone or jointly which will ordinarily come out a power of disposition will control, as where a person directs a payment or conveyance of property to somebody else."
"Our third reason for accepting the contentions of the respondent flows from the wording of the statutory provisions because the court has to ask itself two questions. The first is whether the defendant has benefited from his criminal conduct. In this case, the answer must be in the affirmative, as the appellant obtained tobacco which he purchased. The second question, based on s. 76(4) is whether the appellant obtained property "as a result of or in connection with" the conduct of evading excise duty. In this case the answer must be that the appellant obtained property, namely the tobacco. This was the only property that he obtained and in reaching that conclusion, we have noted the width of the words used in the statutory provision because they talk about a person obtains property "as a result of or in connection with his conduct". The words "as a result of" apply to any consequence, while the words "in connection with" widen that meaning. In our view, the acquisition of property and this tobacco falls clearly within both categories."
Payments by way of rent for the factory building
Payments for casual labour for work in connection with the venture
"The section [section 71(1A) of the 1988 Act, the precursor to s 6 of POCA] is not to be construed so that a person may be held to have obtained property or derived a pecuniary advantage when a proper view of the evidence demonstrates that he has not in fact done so."
This passage was cited with apparent approval by the House of Lords in May, at paragraph 19.
Conclusion in relation to expenses
Conclusion
Note 1 No or no meaningful confiscation orders were made against the convicted co-defendants. [Back] Note 2 See for example CPS v N and other cases [2009] EWCA Crim 1573, [2010] 1 Cr App R (S) 82. [Back] Note 3 See Tinsley v Milligan [1994] 1 AC 340. Where property has passed pursuant to an illegal contract, relief will not ordinarily be refused to the person who acquired the property on the ground of illegality unless he has to rely on the illegal conduct in order to establish his title. [Back] Note 4 We note that a very similar metaphor (“tainted with illegality”) has attracted judicial criticism for its imprecision: see Euro-Diam v Bathurst [1990] 1 QB 1, Staughton J at 15. [Back] Note 5 By analogy with the now repealed section 16(2)(c) of the Theft Act 1968. [Back]