Tatham v R.
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- MR JUSTICE PHILLIPS
Areas of Law
- Criminal Law and Procedure
- Tax Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
Philip Tatham was convicted of evading tobacco import duty and received a 45-month sentence and a confiscation order. He appealed, arguing incorrect application of excise duty liability. The court upheld the confiscation order, citing his role in the conspiracy and applicable legal standards.
Judgment
Sir Brian Leveson P:
On 5 February 2004, in the Crown Court at Nottingham before His Honour Judge Bennett, Philip Tatham (‘the appellant’) pleaded guilty on re-arraignment to a single count of being knowingly concerned in the fraudulent evasion of the duty chargeable upon the importation of goods (tobacco products) (“the offence”), contrary to section 170(2) of the Customs & Excise Management Act 1979 (“the CEMA”). The substance of the offence was that between 25 June 2002 and 5 February 2003, the applicant was party to a joint enterprise to import cigarettes into the UK from continental Europe, without paying the duty mandated by the Tobacco Products Duty Act 1979 (“the TPDA”) and its subsidiary regulations.
On 26 January 2005, he was sentenced to a term of 45 months imprisonment, and made the subject of a confiscation order dated the same day for £88,873.81. This order was imposed pursuant to section 71 of the Criminal Justice Act 1988 (“CJA”), section 71(4) of which required that the offender ‘obtains property as a result of or in connection with’ the commission of the relevant offence, and section 71(5) is the equivalent provision in respect of ‘pecuniary advantage’. Some 6½ years out of time, following a series of appeals in such cases, he now seeks leave to appeal the confiscation order.
The justification for this late appeal flows from the decision of the House of Lords in R v May [2008] UKHL 28 in which, by an Endnote at paragraph 48, the test was set out for determining whether or not a particular offender had obtained a pecuniary advantage or benefit of property from offences for which he had been convicted. Of the six principles then enunciated, the final reads:
“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.” (our emphasis)
Thus, in order to make a confiscation order in relation to duty evasion offences, the offender against whom the confiscation order was made would have