England and Wales Court of Appeal (Criminal Division) Decisions

SISSEN, R v. [2000] EWCA Crim 67 (8th December, 2000)

IN THE SUPREME COURT OF JUDICATURE Case No. 00/2782/Z2

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London.WC2A 2LL

Friday 8th December, 2000

Before:

LORD JUSTICE KENNEDY

MR JUSTICE LONGMORE

and

MR JUSTICE OUSELEY

REGINA

-v-

HENRY THOMAS SISSEN

Mr. S. Draycott appeared on behalf of the Crown.

Mr. S. Farrell appeared on behalf of the Appellant.

MR.JUSTICE OUSELEY:

1. Lear's Macaw is threatened with extinction; it is listed in Appendix I of the Convention on International Trade in Endangered Species 1973, ("CITES"). Trade in such critically endangered species is generally prohibited. The Blue Headed Macaw, although not necessarily threatened with extinction in 1973, may become subject to such a threat; it is listed in Appendix II of CITES. Trade in such species is strictly regulated. Council Regulation (EEC) No.3626/82 applied CITES throughout the European Community, with effect from 1st January 1984. Council Regulation (EC) 338/977 continued to apply CITES throughout the Community, with varied controls, with effect from 1st June 1997.

2. On 14th April 2000, the Appellant, Henry Sissen was convicted in the Crown Court at Teesside, sitting at Newcastle before HHJ Whitburn, on four counts. Each alleged that Sissen had been knowingly concerned in the fraudulent evasion of a restriction on the importation of goods contrary to s.170(2)(b) of the Customs and Excise Management Act 1979, ("CEMA").

3. Counts 1 and 2 related to two different Lear's Macaws; because the offence was alleged to have been committed in February 1997, the restriction relied on was Article 5(1) of EC Regulation 3626/82. Count 4 related to six Blue Headed Macaws; the offence was also alleged to have been committed in February 1997, and Article 5(1) was again the restriction relied on. Count 3 related to a third Lear's Macaw but because the offence was alleged to have been committed in late February to early March 1998, the restriction relied on was Article 4(1) of the later EC Regulation 338/97.

4. The issues in this appeal require that the different Regulations be identified but nothing turns on the differences between them. This was, we were told, the first prosecution in the U.K. concerning the EC Regulations and CITES.

5. Upon conviction, Sissen was sentenced to 30 months imprisonment on each count concurrent and was ordered to pay £5000 towards the costs of the prosecution. The maximum sentence for an offence under s.170(2) of CEMA is 7 years.

6. He appeals with leave against conviction on one ground and renews his application on the ground upon which the Single Judge refused leave; his application for leave to appeal against sentence was referred to the Full Court by the Single Judge.

7. In summary, Sissen was granted leave to argue that the Judge wrongly rejected the defence application at the outset of the trial to quash the Indictment; it was submitted that it disclosed no offence known to English law. He was refused leave to argue that his interviews with Customs and Excise should have been excluded from the trial pursuant to s.78 of the Police and Criminal Evidence Act 1984.

No offence known to English law.

8. There was a good deal of quite complicated evidence, with differing versions from the prosecution and defence as to the origin of three Lear's Macaws and six Blue Headed Macaws which were among a number of live birds seized by Customs and Excise from the appellant's farm on 2nd April 1998. The appellant is an internationally renowned breeder of rare parrots, at his home, at Cornhill Farm, Northallerton, known as Cornhill Conservation Centre. It is unnecessary for the purposes of this appeal to go into the details and a short summary will suffice.

9. The prosecution case was that the appellant imported the birds from the then Yugoslavia and Slovakia without the import permit which was required by the EC Regulations. It was said that he had travelled to Yugoslavia by car in 1997 to visit a dealer from whom he had bought the first two Lear's Macaws and had travelled on to Slovakia to buy the six Blue Headed Macaws from another person. He had then smuggled the birds back into the European Union possibly in a concealed compartment in a petrol tank and eventually into England. He did not have enough money for all the birds and had made a later journey to collect the third Lear's Macaw at some other date. That other Lear's Macaw is the subject matter of Count 3. The prosecution relied on documentary evidence seized from the appellant's home largely in the form of faxes sent and received by him and on evidence from witnesses about the history of those parrots which the appellant had legally acquired over the years. However, and this is the crucial point for the defence in relation to this Ground of Appeal, the prosecution did not contend that the point of entry of any of the birds into the European Union was the United Kingdom. The point of entry was probably Austria.

10. The defence case was that the Lear's Macaws seized on the 2nd April 1998 had all been legitimately acquired by him in the past and were not the ones which the Customs officers alleged had been imported into the United Kingdom from Yugoslavia. Although Sissen had attempted to buy and indeed had paid for three Lear's Macaws from Yugoslavia he had not imported them. He had arranged with his dealer there to remove the birds from war-torn Yugoslavia and he thought that they had been taken to safety in Slovakia from where he hoped to import them legitimately at some future date. Sissen had bought the six Blue Headed Macaws from a German who had brought them to his farm in Northallerton. Of course it follows from the jury's verdict that the defence case was disbelieved and rejected.

11. However, for the purposes of this Ground of Appeal the defence says that even taking the prosecution case at its highest against him he could not be prosecuted in England for failing to present an import permit within the E.U. if the point of entry into the E.U. were not the U.K., because the relevant Articles 5(1) of EC Regulation 3626/82 and Articles 4(1) and 4(2) of Regulation 338/97 did not contain any relevant restrictions for the purposes of s.170(2)(b) Customs and Excise Management Act 1979. This submission had three components:

(1). Those Articles were not sufficiently clear, unambiguous and unconditional so as to have direct effect in the U.K.

(2). If the Articles did have direct effect, they restricted the introduction into the E.U. of the listed species at the point of introduction which was probably Austria and certainly not the United Kingdom; they did not restrict the introduction of the species into the U.K. when those species had already arrived within some other member state of the E.U. He could only be prosecuted for failing to present the import permits at the point of entry to the E.U. and as that was acknowledged not to be within the United Kingdom there was no offence committed within the United Kingdom. Failing to present an import permit at a crossing point into the E.U. within a different member state from the United Kingdom could not constitute an offence under English law.

(3). The Articles created a criminal offence punishable with 7 years imprisonment which was unlawful because s.2(2) European Communities Act 1972 prohibited the creation of new offences by Statutory Instrument punishable with imprisonment for more than two years.

12. In order to examine these submissions it is necessary now to set out the relevant legislation.

Article 189 Treaty of Rome, as amended, provides:

"In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.

A regulation shall have general application. It shall be binding in its entirety and directly applicable in Member States.

A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."

Section 2(1) European Communities Act 1972 provides:

"2. General implementation of Treaties.

(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law and be enforced, allowed and followed accordingly; and the expression 'enforceable Community right' and similar expressions shall be read as referring to one to which this subsection applies."

Customs and Excise Management Act 1979 s.170(2):

"Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion ... - (b) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment; ... he shall be guilty of an offence under this section ...."

13. Council Regulation No. 3626/82 contains within its preamble a number of relevant paragraphs. It provides:

"Whereas a Convention on international trade in endangered species of wild fauna and flora (hereinafter referred to as 'the Convention') was opened for signature on 3 March 1973; Whereas the Convention is intended to protect endangered species of wild fauna and flora by regulating international trade in these species and in readily recognizable parts and derivatives thereof;

Whereas to attain its objectives the Convention mainly employs commercial policy instruments by laying down restrictions on and a strict control of international trade in specimens of endangered species of wild fauna and flora;

Whereas, in order to protect endangered species of wild fauna and flora, it is necessary at Community level to ensure that certain commercial policy instruments to be employed under the Convention are uniformly applied; whereas, because of its scope, this Regulation should not affect national powers to adopt protective measures of a different nature;

Whereas the measures relating to the application of the Convention to trade must not affect the free movement of products within the Community and must apply only to trade with third countries;

Whereas in certain cases it may be necessary in order to permit the most effective conservation possible ..., for Member States to maintain or take, in compliance with the Treaty, stricter measures than those laid down in this Regulation;

Whereas implementation of this Regulation necessitates the introduction of a Community procedure for the issue and presentation of permits for the export, re-export, import and introduction from the sea of specimens of the species covered by the Convention; ...

Whereas, to ensure that the prohibition of importation is fully effective, rules should be drawn up concerning the conditions of trade in specimens and species listed in Appendix I to the Convention ...;

Whereas, to facilitate customs procedures, there must be provision to permit Member States to designate one or more places of entry and exit where the goods in question must be presented;"

Article 1

"The Convention, as set out in Annex A, shall apply throughout the Community under the conditions laid down in the following Articles":

Articles 5(1) and 5(3).

"1. The introduction into the Community of specimens covered by Articles 2 and 3 shall be subject to presentation of an import permit or import certificate provided for in Article 10 at the customs office at which the customs formalities are completed.

3.Customs offices at which permits have been presented in accordance with paragraphs 1 and 2 shall forward the permits to the management authority of the Member State in which they are situated."

There is provision for certain derogations in Article 5(4). The parrots in question are covered by Article 2(a) (Lear's Macaws) and Article 2(b) (Blue Headed Macaws).

Article 10

"1.(a) The introduction into the Community from third countries or from the sea of the specimens referred to in Articles 2(a) and 3 shall be subject to the presentation of an import permit.

2. The introduction into the Community from third countries or from the sea of specimens of all other species covered by the Regulation shall be subject to presentation either of an import permit or of an import certificate endorsed by the customs services and certifying that the formalities required under the Convention have been fulfilled."

14. Mr. Farrell, for the Appellant, highlights the phrase in Articles 5, 10(1) and (2):

"The introduction into the Community ...".

He contrasts it with the provisions of Article 13(2) on transportation which provides:

"Any transportation within the Community of live animals of the species referred to in Articles 2(a) ... shall be subject to prior authorisation..."

This, he submits, is wholly consistent with the preamble, in particular the fourth paragraph cited above identifying that the application of the Convention must not affect free trade within the Community but only applies to trade with third countries.

Article 8

"The competent authorities of the Member States shall:

(a) issue the permits and certificates provided for in Article 10 or endorse the import certificates referred to in Article 10(2)":

Article 9

"2. With the exception of the document referred to in Article 11(a), permits and certificates referred to in this Regulation issued by a Member State shall be valid throughout the Community.

3. The applications for import permits referred to Article 10(1) shall be submitted to the management authority responsible for the place of destination of the specimen."

Thus the destination state, not necessarily the same as the state of entry, has to provide documentation necessary for the importation into the EU via the state of entry.

15. Article 15 permitted a Member State to take stricter measures for conservation purposes provided that they did not contravene the Treaty of Rome.

16. By Commission Regulation 3418/83, details were set out as to the relevant forms which were prescribed for the purpose of uniformity in the operation of the Council Regulation throughout the Community.

17. The provisions of Council Regulation 338/97 are similar. The preamble provides:

"(2). Whereas, in order to improve the protection of species of wild fauna and flora which are threatened by trade or likely to be so threatened, Regulation 3626/82 must be replaced by a Regulation taking account of the scientific knowledge acquired since its adoption and the current structure of trade; whereas, moreover, the abolition of controls at internal borders resulting from Single Market necessitates the adoption of stricter trade control measures at the Community's external borders with documents and goods being checked at the customs office at the border where they are introduced;

(5). Whereas the implementation of this Regulation necessitates the application of common conditions for the issue, use and presentation of documents relating to authorisation of the introduction into the Community and the export or re-export from the Community of specimens of the species covered by this Regulation; whereas it is necessary to lay down specific provisions relating to the transit of specimens through the Community."

The language of the preamble paragraphs (5) and (6) "introduction of specimens into the Community" may again be contrasted with (10) which refers to the need to provide "for controlling trade and movement of specimens within the Community."

Article 4(1) "Introduction into the Community" provides:

"1. The introduction into the Community of specimens of the species listed in Annex A shall be subject to completion of the necessary checks and the prior presentation, at the border customs office at the point of introduction, of an import permit issued by a management authority of the Member State of destination."

Lear's Macaw is listed in Annex A. Articles 4(2), 4(3) and 4(4) use similar language in dealing with the control of specimens listed in other Annexes.

Article 16

"1.Member States shall take the appropriate measures to ensure the imposition of sanctions for at least the following infringements of this Regulation:

(a) introduction into, or export or re-export from, the Community of specimens without the appropriate permit or certificate or with a false, falsified or invalid permit or certificate or one altered without authorisation by the issuing authority."

As with the earlier Council Regulation, a new Commission Regulation 939/97 prescribed in detail the form and content of relevant documents for Community-wide uniformity and other detailed conditions to be complied with.

18. There are additional legislative provisions which relate to the submission as to the lawfulness of the seven year maximum sentence under s.170(2) CEMA 1979.

Article 6(1) of Council Regulation 3636/82 provides:

Article 6

"1. The display to the public for commercial purposes and the sale, keeping for sale, offering for sale or transporting for sale of the specimens referred to in Articles 2(a) and 3(1) shall be prohibited, subject to exemptions which may be granted by the Member States for the following reasons, account being taken of the objectives of the Convention and the requirements of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds:"

There then follows various reasons permitting exemptions.

Article 8 of Council Regulation 338/97 is in similar terms:

Article 8

"Provisions relating to the control of commercial

activities.

1. The purchase, offer to purchase, acquisition for commercial purposes, use for commercial gain and sale, keeping for sale, offering for sale or transporting for sale of specimens of the species listed in Annex A shall be prohibited."

Section 2(2) of the European Communities Act 1972 provides:

"General implementation of Treaties.

(2). Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision--

(a) for the purpose of implementing any Community obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or

(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above;

and in the exercise of any such statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the Communities and to any such obligation or rights aforesaid."

Schedule 2 paragraph 1(1) and (1)(d) deals with subordinate legislation so far as material, as follows:

"1.(1) The powers conferred by section 2(2) of this Act to make provision for the purposes mentioned in section 2(2)(a) and (b) shall not include power--

(d) to create any new criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine or more than [level 5 on the standard scale] (if not calculated on a daily basis) or with a fine of more than [£100 a day]."

The Control of Trade in Endangered Species (Enforcement) Regulations 1985 No.1155 were made pursuant to s.2(2) of the European Communities Act 1972. Regulation 3(1) makes it an offence for someone to contravene Article 6 of Council Regulation 3626/82; and Regulation 3(8) provides for maximum sentence of two years imprisonment.

19. Similarly, the Control of Trade in Endangered Species (Enforcement) Regulations 1997 No.1372, again made under section 2(2) European Communities Act 1972, provides in Regulation 8(8) for a maximum sentence of two years imprisonment.

20. As a further example of specific statutory controls, we were referred to the Import of Seal Skins Regulations 1996 No.2686, also made under section 2(2) European Communities Act 1972. These Regulations implement certain European Council Directives. By Regulation 4(2), an amendment is made to section 170 CEMA 1979 so as to provide that the maximum penalty under that section for breaching the prohibition on the importation of seal skins is two years not seven years.

21. We now turn to deal with Mr. Farrell's submissions on behalf of the appellant. Two of them can be dealt with quite shortly: those relating to the direct effect of the Council Regulations and to the unlawfulness of the penalty.

22. First, direct effect. It is indisputable that Article 189 makes Council Regulations directly applicable within Member States; it expressly provides that that is so. Section 2(1) European Communities Act 1972 gives Article 189 legislative effect: Council Regulations fall within that category of obligations and restrictions which "in accordance with the Treaties are without further enactment to be given legal effect... in the United Kingdom [and] shall be recognised and... enforced accordingly...."

23. The essence of a Regulation is that it becomes part of national law without the need for national legislation. It enters into force without any measure of national reception; Variola SpA -v- Administrazime Italiana della Finanze [1973] ECR 981.

24. Mr. Farrell's submission that a Regulation can only take direct effect if it is clear, unambiguous, unconditional and not dependant upon further action by the European Union or a national authority, wrongly seeks to apply to a Regulation, tests relevant to the direct effect of Treaty provisions, as for example in Van Gend en Loos -v- Nederlandse Administratie der Berlastingen [1963] ECR 1, or relevant to the direct effect of Directives.

25. However, even were those tests relevant, they would be satisfied by the provisions of this Regulation. The restriction is quite clear. The fact that the necessary documents had to be prescribed in form and content is wholly insufficient to alter the legal nature of the Regulation or, at all events once the Commission Regulations were made, to create any precondition to the enforcement of the Regulation. No national legislative action was necessary. It is sufficiently clear in language to be a restriction breach of which has penal consequences. In so far as Article 16 of 338/97 requires action, CEMA sufficed.

26. The other short point relates to penalty. It was submitted that as the offence was said to arise under section 170(2) CEMA, and was therefore subject to a seven year maximum prison sentence, the enactment relied on was in conflict with section 2(2) European Communities Act 1972. That only empowered a two year maximum sentence for breaches of European controls; hence no offence could arise under section 170 CEMA and separate domestic legislation was required to create the necessary offence. The Regulations restricting the import of seal skins were instanced to show how the statutory provisions should have been fashioned to deal with the import of endangered species.

27. The flaw in this submission is that section 2(2) and Schedule 2 European Communities Act do not deal with the effect of provisions directly applicable by virtue of section 2(1). Section 2(2) does not provide an exclusive route whereby European legislation takes effect in domestic criminal law. The use of CEMA, and the treatment of the Council Regulations as enactments containing restrictions or prohibitions within CEMA, and thus subject to CEMA's normal penalties, is entirely appropriate for a Regulation under Article 189 and section 2(1) European Communities Act 1972. That is not to say that Government could not give legislative effect to Council Regulations, for example to Article 6 of 3636/82, by Regulation under section 2(2). But it is not obligated to act that way.

28. Mr. Farrell's main point however is that the restriction contained within Articles 5 and 4 of the 1982 and 1997 Regulations respectively, only applies so as to prevent importation of specimens such as these parrots into the European Union without the requisite permits at the point of entry. It does not impose any restriction on the movement of such specimens to or within other Member States. If the point of entry into the European Union had been the United Kingdom, an offence within the United Kingdom would have been committed. Where however, as is accepted to be the case here, the point of entry was not the United Kingdom, no offence was committed by their importation into the United Kingdom from the Member State of entry. The offence was committed and triable in Austria, if that were the member state of entry. Were the law otherwise, the United Kingdom would be claiming an extra-territorial jurisdiction.

29. In support of the first part of that submission, Mr. Farrell relied upon the way in which the Council Regulations deal with the point of entry, the references to "the introduction into the Community" by contrast to e.g. controls on movement "within the Community". The preambles with their concern to regulate trade with third countries but not to restrict trade within the Community are prayed in aid. The recognition of the separate role of destination States supported that conclusion. The restrictions on sale were clearly directed to all States by contrast with the provisions restricting importation.

30. In support of the territoriality component of that submission, Mr. Farrell referred to Air India -v- Wiggins [1980] 71 Cr.App.R 213, [1980] 1 WLR 815, in the House of Lords. In that case an Air India flight left India for London with a cargo of 2000 live parakeets in 12 crates and arrived with 89 live parakeets and over 1900 dead parakeets; these probably died during a long stop in Kuwait. Air India was charged with offences of contravening Article 5(2) of the Transit of Animals (General) Order 1973 made under the Diseases of Animals Act 1950. Section 23 of the Act empowered the Minister to make an order creating criminal offences; it read:

"The Minister may make such order as he thinks fit ...

(b) for ensuring animals carried by sea or by air a proper supply of food and water and proper ventilation during the passage and on landing;

(c) for protecting them from unnecessary suffering during the passage and on landing."

Article 5(2) of the Transit of Animals (General) Order 1973 provided:

"No person shall carry any animal by sea, air, road or rail, or cause or permit any animal to be so carried, in a way which is likely to cause injury or unnecessary suffering to the said animal."

Article 3(3) provided:

"In relation to carriage provided by sea or air, the provisions of this order shall apply to animals carried on any vessel or aircraft to or from a port or airport in Great Britain, whether or not such animals are loaded or unloaded at such port or airport."

It was this provision which was relied on by the Divisional Court as making things done or omitted to be done by foreign nationals in foreign countries offences under the Act; there was nothing in Article 5(2) itself to suggest that it was intended to have extra-territorial effect. In his speech, Lord Diplock said at p.217, and p.819 respectively:

"My Lords, in construing Acts of Parliament there is a well-established presumption that, in the absence of clear and specific words to the contrary, an 'offence-creating section' of an Act of Parliament (to borrow an expression used by this House in Cox -v- Army Council [1962] 46 Cr.App.R. 258; [1963] A.C.48) was not intended to make conduct taking place outside the territorial jurisdiction of the Crown an offence triable in an English Criminal Court. As Viscount Simonds put it at p.262 and p.67 of the respective reports '... apart from those exceptional cases in which specific provision is made in regard to acts committed abroad, the whole body of the criminal law of England deals only with acts committed in England'.

Cox -v- Army Council [supra] was concerned with a statute which in the plainest possible words made acts committed abroad by serving members of the British Army offences triable by Court-Martial. The presumption against the parliamentary intention to make acts done by foreigners abroad offences triable by English Criminal Courts is even stronger. As Lord Russell of Killowen C.J. said in Jameson [1896] 2 QB.425 at p.430:

"One other general canon of construction is this, that if any construction otherwise be possible, an Act will not be construed as applying to foreigners in respect of acts done by them outside the dominions of the sovereign power enacting.'

Two consequences follow from these principles of statutory construction; the first is that if the Minister had power to make an order under the Statute, making acts done by foreigners abroad offences triable in English Criminal Courts, such power must have been conferred on him by words in the Statute so clear and specific as to be incapable of any other meaning; the second is that the words of the order must themselves be explicable only as a clear and unambiguous exercise of that power. If either the empowering words of section 23(1)(b) of the Act or the enacting words of Article 3(3) of the order would have a sensible content if restricted to acts done within the territorial jurisdiction of the Crown, they must be so construed."

31. Lord Diplock went on to hold that it was perfectly possible to give sensible content to section 23 of the 1950 Act by treating the passage of the vessel or aircraft there referred to as being its passage over the territorial airspace or waters of the United Kingdom and not beyond and the landing as being landing at a port or airport in the United Kingdom and he held that no power to create extra territorial offences had been conferred on the Minister by the Act. Accordingly no offence had been committed by Air-India in respect of the birds which were dead on arrival at Heathrow because it was conceded that they must have died in Kuwait and their suffering must have ceased thereupon. Offences were committed in respect of the 89 birds that were still alive but it was not possible to identify which crates they were in and so all twelve convictions were quashed.

32. Mr. Farrell submitted that as section 170(2) CEMA was the relevant offence creating provision and there was nothing in it to suggest that conduct taking place outside the territorial jurisdiction of the Crown should be triable in an English Criminal Court there could be no offence triable in an English Criminal Court of being knowingly concerned in evading an import restriction in Austria.

33. Mr. Draycott, for the Crown, did not take issue with the principles set out in Air India -v- Wiggins. He did not seek to take issue with the construction of the Council Regulations to which we have referred above. Mr. Draycott's response to the territoriality submission was that the offence under section 170(2) was a continuing offence and the evasion of the prohibition or restriction was not limited to the moment of importation itself in breach of the restriction but extended to a continuing series of events both before and after that moment; the evasion continued until the goods ceased to be prohibited or possibly until they were exported.

34. For the purposes of this submission Mr. Draycott referred to Archbold 2000 at 25-459, p.2199. As an illustration of his proposition, reliance was placed upon an example given by Kenneth Jones J. in summing up to the jury in R. -v- Neal & Ors. [1983] 77 Cr.App.R.283 at pp.286-287:

"Now, the words 'the evasion of the prohibition on importation',... are wider than simply the single word 'importation'. Let me give you a very simple example. A boat arrives in a port in this country and it has on board cannabis resin. One of the sailors ... actually carries that cannabis resin ashore. He hands it over to another man who is waiting, who loads it into a van. The van is driven off to some place where the drug is unloaded and is stored away in some building and there you have someone who helps in that unloading - perhaps the owner of the building in which it is stored. Maybe, at a later stage, it is transported to yet another building and stored there and it may be... that behind all this operation, controlling it and supervising it, is some organising person. Now you see, of all those men - the sailor, the van driver, the store keeper, the organiser - strictly speaking, only the sailor has imported the drugs into this country. He is the only person who carried it into this country, and that is what importation means, but he and each of those other persons... have all taken a part in evading the prohibition on the importation of that drug and taken their part in getting round it, in setting at nought the ban which the law imposes on the importation of the drug".

35. Mr. Draycott also relied upon the case of R. -v- Green [1976] 62 Cr.App.R.74, [1976] QB 985. This case concerned an attempted offence under the predecessor provision of section 170(2) CEMA. Cannabis arrived in the country at Southampton destined for an address in Hammersmith. In Southampton it was opened, the cannabis was removed and peat and paper was substituted. The crate was subsequently collected by a firm of removers and taken to a warehouse, collected from there again and removed to a garage in London. The appellant had assisted in various ways in the operation including renting the garage in a false name and paying rent upon it in advance. The appellant submitted that the objective had become impossible to achieve following the seizure of the cannabis in Southampton and that as the substratum of the substantive offence had been destroyed none of the inchoate offences connected with it could be established. The Court of Appeal rejected that, holding, even on the assumption that the appellant had had nothing to do with the importation before the cannabis had been seized and joined the conspiracy only after its seizure he could properly be convicted of being knowingly concerned in any fraudulent evasion or attempted evasion of a restriction applying to cannabis. At p.79 and 993 respectively, Ormrod L.J. said this:

"The actus reus in this offence is being concerned in the evasion or the attempted evasion of a prohibition on the importation of the goods in question, not the successful evasion. All the necessary ingredients were proved or admitted: cannabis is a prohibited drug; it was imported in breach of the prohibition; so evasion was established. We accept Mr. Mildon's argument that evasion is a continuing offence, that is that it does not cease when the cannabis was seized by the authorities. Once imported, the evasion of the prohibition continues until the goods ceased to be prohibited goods or, possibly, are re-exported. The renting of the garage, knowing that it was to be used to store the cannabis, completes the offence under section 304(b). The learned judge's direction to the jury on this count therefore cannot be criticised."

Mr. Farrell, for the appellant here, did not in his turn take issue with the basic principle contended for by Mr. Draycott but contended that the principle had no application in relation to the restriction relied upon by the Crown here. That was because the restriction here was not a restriction upon the importation of goods into the United Kingdom unless the United Kingdom was the point of entry into the EU; it was a restriction on the importation into the EU. He submitted that there was no authority for the proposition that one can be prosecuted in England for being knowingly involved in fraudulently evading the restriction on importation of goods into another country.

36. In our judgment, the correct answer is this. The offence created by section 170(2) CEMA is one of being knowingly concerned in the fraudulent evasion of a restriction contained in an enactment. There is no doubt but that the two Council Regulations are "enactments" for the purposes of CEMA.

37. The next question to be answered is as to the scope of the restriction contained within Articles 5 and 4 of the earlier and later Regulations respectively. The restriction is on the introduction into the E.U. of these birds without presentation of the relevant permits at the E.U. border. The Regulations do not contain a further restriction on the movement of such birds into other member states. It has not been argued before us that, on a purposive construction, the requirement that introduction into the Community be subject to presentation of customs formalities is itself breached as goods are thereafter kept in the state of entry or moved into another state.

38. Next, it has to be asked whether CEMA contains any territorial limits, bearing in mind the principles of statutory construction in Air India -v- Wiggins (supra). This case does not hold that a statute cannot provide for an offence of evading a restriction which bites abroad. It does not deal with the context relevant here of the E.U. as a single market for import controls. As a matter of statutory construction CEMA clearly incorporates as restrictions, the Council Regulations which restrict the entry of certain goods into the E.U. as a whole and without differentiation between states. CEMA cannot be interpreted as applying to an enactment only to the extent that the enactment prohibits or restricts the entry of goods into the U.K. The territorial scope of CEMA turns on the scope of the restriction in the enactment in question i.e. in these Regulations. These are part of U.K. law and take effect under CEMA according to their terms rather than being cut down in their terms by CEMA. It is made an offence under CEMA to be knowingly concerned in the fraudulent evasion of those restrictions. CEMA cannot be interpreted as applying only to acts of evasion of restrictions which take place in the U.K.; R.-v- Jakeman [1982] 76 Cr.App.R. 223 illustrates the justiciability in England and Wales of acts done in Ghana to bring about import into the U.K. as acts concerned in the evasion of import restrictions into the U.K.

39. It is therefore an offence under English law, CEMA, on its true construction, for a person to be knowingly concerned in the fraudulent evasion of the restriction on the importation of these birds into the E.U., contained in the two Council Regulations whatever the country of entry into the E.U. may be.

40. The final question, the answer to which was not in issue on the facts of this case, is whether and if so to what extent any acts of evasion must take place in England and Wales so that there is a territorial connection with England and Wales, in circumstances where the actual importation into the U.K. is not itself the direct breach of the restriction enacted in the Council Regulations.

41. The gist of the offence under CEMA is concern in the evasion of the E.U. restriction. Such evasion can involve a continuing sequence or complex of acts done before and after the actual wrongful importation into the E.U. The evasion of the restriction and concern in its evasion does not begin or end with the moment of introduction of the goods into the E.U. Acts which are done before and after that moment can be acts of evasion or concern in the evasion of that restriction. This is demonstrated in R.-v- Neal, R.-v- Green and in R.-v- Jakeman, (supra). Where a part of that continuing sequence of acts of evasion occurs in England and Wales, the courts of this country have jurisdiction to try the offence on generally accepted principles. These principles are set out most recently in R.-v- Manning [1998] 2 Cr.App.R.461 especially 467E and following, and in Secretary of State for Trade -v- Markus [1975] 61 Cr.App.R.58; [1976] A.C.35.

42. On the facts of this case, as the prosecution asserted and as the jury's verdict clearly accepted, the appellant arranged in England for the birds to be brought into England and received them in England in order to keep them. Had the context been breach of a restriction on importation into the U.K., the appellant would undoubtedly have been concerned in the evasion of the restriction even though the act of importation were carried out by another. Those same acts are no less acts of evasion, undertaken in England, when the restriction evaded happens to be at a border in Austria.

43. This result accords with common sense; it would be an affront to the purpose of the Council Regulations if the arrangements for the importation into the E.U. could be carried out in England, if the intended destination state were also to be the U.K., if the organisers were present in England and yet no offence arose under English law, which incorporates the Council Regulations, simply because the point of entry into the E.U. were Austria. Prosecution in this country should not be prevented in respect of the evasion of the restrictions on entry into the E.U., components of which have taken place in England and Wales simply because the legally astute smuggler has chosen for example a lonely spot on Eire's shoreline as his point of entry into the E.U.

44. We note one further related argument from the appellant. Mr. Farrell submitted that the appellant could and perhaps should have been charged with an offence under section 1 Endangered Species (Import and Export) Act 1976 which prohibited the import of animals to which Schedule 1 of that Act applied. Schedule 1 applied to all birds except a few species which did not include those with which these charges are concerned. However, he acknowledged, as Mr. Draycott pointed out, that the conscious purpose of some roundabout secondary legislation had been to render that Act toothless. The combination of the Endangered Species (Import and Export) Act 1976 (Amendment) Order 1996 No.2677 in force on 15th and 16th November 1996 and the (Amendment) Regulations No. 2684 in force on 16th and 17th November 1996, was to make Schedule 1 inapplicable to anything. Therefore, any prosecution had to be brought under CEMA.

45. This legislative vanishing act cannot make CEMA applicable where previously it was unavailing, nor can it detract from the true force of CEMA. This Schedule is now but a footnote.

The Interviews.

46. The appellant renews his application for leave to appeal against conviction on the ground that his interviews with Customs and Excise officers, which founded cross-examination of him and argument to the jury to the effect that he had lied to them, should have been excluded under section 78 Police and Criminal Evidence Act 1984 on the grounds that their admission had such an adverse effect on the fairness of proceedings that they should not be admitted. The basis for this submission was the accepted fact that, although each of the sequence of interviews was initiated with the appropriate caution, with the appellant's solicitor present, the Customs and Excise officer misrepresented the appellant's legal obligation to answer questions in the first interview on 2nd April 1998. The officer stated during the course of that interview that it was for the appellant to prove that he had obtained lawfully the birds in question seized from him; understandably the appellant's local solicitor was unable to intervene to correct this assertion as to the law, coming as it did from a specialist Customs officer. It is now accepted by the prosecution that that approach, in relation to these offences, was mistaken. Answers given at the first interview were relied on at trial as lies; the Judge, it was said, erred in failing to exclude the interviews because he asked himself whether the appellant's will had been overborne whereas he should have recognised that the appellant had been deprived of the ability to make an informed choice about whether or not to stay silent.

47. The prosecution submits that the answers relied on as lies were largely given before the erroneous assertion was made as to burden of proof. It also submits that the appellant did not give up any right of silence because of what was said; in contrast, he was keen to unburden himself as to the iniquity of the position in which he found himself and his flow of answers and assertions was unaffected by the erroneous advice from Customs and Excise.

48. We agree with the trial judge and the single judge. There was nothing unfair in the admission of the interviews for the reasons given by the prosecution which we accept are wholly justified on a reading not just of the interview transcript extracts, which we were all supplied with, but of the full interview transcripts. The appellant did not start or continue talking or give explanations because of what was said by Customs and Excise; he wanted to make his position clear anyway. The appellant was also a man who had a good working knowledge of the relevant statutory provisions, albeit that he was not as specialist as the interviewing officer.

49. Accordingly the appeal against conviction is dismissed.

Sentence:

50. Mr. Farrell submits that 30 months imprisonment is too severe. The appellant possessed 500 parrots at the time of the April 1998 raid; he paid £50,000 for the 9 birds he acquired, not for profit but as a successful and renowned breeder of very rare parrots. Evidence before the trial judge sugested that there were only 20 breeding pairs of Lear's Macaw in the wild. He could have bred more. He had saved species from extinction. He had previous convictions nearly 20 years ago for breaking CITES requirements for which he had been fined. He was now 61. He was needed to look after his remaining parrots. A confiscation hearing in respect of other birds was looming. The prison sentence was crushing. Mercy was sought.

51. It must be recognised that trade in endangered species is prohibited or restricted for good reason. Whether the reason for the breach of the restriction is profit, obsession or conservation according to the lights of this appellant, all contribute to the illegal market which underlies the capture of these endangered species from the wild. The law is clear as to where the interests of conservation lie. These are serious offences. An immediate custodial sentence is usually appropriate to mark their gravity and the need for deterrence. There is nothing wrong in principle with a sentence of 30 months for an offence such as this. This was, as the sentencing judge put it, a devious and elaborate scheme to smuggle birds into the country, including critically endangered species.

52. We do however consider that it is possible to tailor the sentence more to the circumstances of the offender in view of his age, the fact that this is his first prison sentence, his financial position having lost £50,000 already in paying for the birds, and his motives, albeit legally misguided, in seeking to breed the birds. It is our judgment that a sentence of 18 months imprisonment is sufficient; the sentence of 30 months will be quashed and be substituted by a sentence of 18 months.

53. An order for the payment of costs in the sum of £5,000 was imposed. However, under section 72(5) Criminal Justice Act 1988, a costs order has to take account of any confiscation order and a costs order cannot be dealt with until after any confiscation order. A confiscation order application is due to be heard over 5 days starting on 1st February 2001, and so the costs order will be set aside for consideration after the confiscation order, pursuant to section 72A(4) of the 1988 Act as amended.

54. To that extent this appeal is allowed.

55. We have received and read an undated letter from the appellant; it arrived after the conclusion of the hearing of his appeal. It raises matters as to his conviction and in mitigation of sentence. None of those matters is sufficient to warrant reconsideration of the appeal against conviction; they are all issues which were or should have been raised before the jury. We had all the material in mitigation on his behalf from Mr. Farrell. We simply mention the letter to make it clear to the appellant that we did not overlook it.

NB: The following question is certified point of Law of General Public Importance S33 criminal appeal act 1968.

Whether Article 5(1) of EC Regulation 3626/82 and Article 4(1) of EC Regulation 338/97 create restrictions for the purposes of section 170 Customs and Excise Management Act 1979 when the point of introduction into the EC of the relevant goods is a member state other than the UK.

Order: Leave to appeal to House of Lords refused.