England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NEWCASTLE
HIS HONOUR JUDGE WOOD
T20070247

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/02/2010

The Hon. Mr. Justice Saunders:

1. These Applicants are fish merchants. On 11^th May 2007, at Newcastle Crown Court they pleaded guilty to 5 counts of failing to submit sales notes and landing declarations relating to purchases of fish that they made. They pleaded on a basis that they were not intending to deceive anyone but they were not aware of the requirements of the legislation because they were so busy. These are offences of strict liability so that would not provide a defence but might affect sentence. They were sentenced by HH Judge Wood on 21^st February 2008 to fines of £400 on each count and confiscation orders were made in the sum of £188,195 against Ian Perkes and in the sum of £150,000 against Sean Perkes. The Judge made it clear that he had moderated the level of the fines because of the size of the Confiscation Orders.
2. The Applicants seek leave to appeal against the Confiscation Orders, their applications for leave having been referred to the full Court by the single Judge.
3. The offences were contrary to the Sea Fishing (Enforcement of Community Control Measures) Order which is designed to prevent over fishing of fish stocks in relation to certain species. These Defendants were only two of a number of people before the Court facing similar charges and the overall picture before the Court revealed widespread disregard of the provisions which, as the Judge said, not only threatened fish stocks but also was unfair on those who did obey the Regulations and whose livelihoods were thereby threatened. The Regulations required the first purchasers of fish to produce sales invoices to the Authorities to enable them to maintain the quota so that fish stocks can be preserved. The requirement is not limited to protected species but there was an exemption in relation to the purchase of fish from boats of less than 10 metres in length.
4. The Confiscation Proceedings against the 2 Applicants were originally contested. Indeed all the evidence on which the parties wished to rely was called before the Judge over 2 days. The Prosecution were claiming just over £950,000 in the Confiscation Proceedings, covering purchases made over a 6 year period prior to the offences. Although it was not conceded at the hearing by the Applicants, this case came within the criminal lifestyle provisions as the Judge would have been bound to conclude. The Court would then have had to apply the statutory presumptions. The main thrust of the Applicants' argument before the Judge was that it would be unfair to make the order asked by the Prosecution because not only were they ignorant of the requirements made by these Regulations but also the relevant Ministry had completely failed to inform the trade of their existence. However they did give evidence of their knowledge of the people from whom they purchased fish and whether the fish was caught using boats which were under 10 metres in length and whether they were first purchasers. As they effectively conceded on oath they had very little knowledge as to where the fish had come from. The hearing did not go well for the Applicants although they both had the opportunity to give evidence and did so. On the morning when the Judge was due to rule on the amount of the benefit, a discussion took place between the Judge and Counsel. The Judge was concerned that if he was driven to order the full amount claimed by the Prosecution, it would effectively destroy their business. He therefore encouraged a negotiation to agree a lesser figure. As a result a total figure of just over one third of the claim was agreed.
5. As is conceded by the Applicants, it is not easy to appeal an agreed Order. They argue, however, that they had no option but to do the best deal they could because, as a result of inadequate advice they had been given by their legal team, they were not aware of the difficulties they faced, and, in particular, the evidential burden that fell on them arising from the assumptions which had to be made, as this was unquestionably a criminal lifestyle case. Therefore, not having had appropriate advice, the Applicants argue that through no fault of their own they were unprepared for the hearing and because the Judge was likely to calculate the benefit at just under £1m, they had no alternative but do the best deal that they could.
6. We have been shown numerous attendance notes which give some indication of the advice being given to the Applicants by their Solicitor and Counsel. While not making any finding on the matter, and this is only an application for leave, we are prepared to accept that there is an arguable case that the Applicants were not being made fully aware of the difficulties that they faced especially in relation to the assumptions, and that as a consequence they did not prepare for the case as fully as they should. It is fair however to point out that as from the service of the s. 16 statement in July 2007 the Applicants were well aware of the amount claimed by the Prosecution and the basis for it. It is also clear that the Applicants knew or ought to have known that key issues at the hearing would be whether they were first purchasers of the fish and, if they were, whether the fish came from boats of under 10 metres in length.
7. In deciding what test we should apply in determining whether to give leave, we have considered the case of Hirani [2008] EWCA 1463. This was another case where a Defendant was seeking to set aside a Confiscation Order made by consent in reliance on, it was said, incorrect legal advice. The facts are not identical but we have applied the guidance set out at paragraph 35 of the judgment namely that, where an agreed Confiscation Order is said to have been made on incorrect legal advice, the Order should only be set aside 'in the most exceptional circumstances' and 'there would need to be a well founded submission that the whole process was unfair'.
8. We have had to consider what the realities of this case were. The Prosecution case for confiscation was based on invoices recording cash purchases of fish. These did not contain the name of the purchaser in any identifiable form. In some cases they bore the name of a boat which, on enquiry being made by the Prosecution, proved to be fictitious or came from firms which the Prosecution were unable to trace. It is agreed by the Applicants that they came within the criminal lifestyle provisions. It is further agreed that, by virtue of the assumptions, it was for the Applicants to establish their case that the purchases represented by the invoices were legitimate in the sense that they came from boats under 10 metres in length or were not first purchases of the fish. Alternatively the Applicants could seek to demonstrate that the purchases were of non quota fish; in which case there was an argument that it would be unfair to make a Confiscation Order in relation to those purchases.
9. Realistically the only way the presumption could be rebutted would be for the Applicants to identify the sellers of the fish and either call them to support the Applicants' case or at least allow an investigation to be made to see whether those contentions were agreed. When interviewed in relation to the identities of the people who sold them the fish Sean Perkes was evasive and Ian Perkes walked out of the interview. Of course, both were entitled to remain silent but it does not suggest that they would have been prepared to name the sellers to the Judge and indeed neither Applicant did in his evidence. In the evidence they gave before the Judge both indicated that they were not in a position to identify the sellers. Further, on this application, the evidence filed by the Applicants that they wished to call on an appeal, did not include any identification of the sellers or anything like sufficient evidence to rebut the presumption. It is well established that vague generalisations will not be sufficient to displace the assumptions set out in the Act.
10. At the conclusion of the oral hearing we invited the Applicants, if they wished, to put in any evidence that they would be able to call to support their contention that, if properly advised, they would have been able to rebut these presumptions. What has been produced is an affidavit from Sean Perkes and a schedule identifying invoice by invoice the identity of the seller where it is known and also whether it comes from a boat of under 10 metres in length or was not a first time purchase. Looked at in the context of the case as a whole, we have concluded that that evidence, if it had been given, would not have been anything like sufficient to displace the assumptions that the Judge was required to make. Some of the evidence had been given at the hearing, although it is fair to say that more detail has been given in the schedule. One of the difficulties for the Applicants is that, where more detail is given, it is, at least on some occasions, contrary to what was said by one or other of the Applicants either in evidence on oath or in the course of interviews. Having considered that new evidence, we are quite satisfied that the Applicants were aware at the time of the confiscation that the issues it deals with were important to their case and could have been dealt with by them at the hearing before the Judge had they been prepared to give the detail they have included in the schedule. There is no supporting evidence from any of the suggested sellers and in most cases it is impossible to identify who they are.
11. In those circumstances we do not think there is anything like an arguable case that the whole process was unfair. It is apparent from the affidavit that the Applicants believe that they have been very unfairly dealt with. However their real complaint would appear to be with the rigour of the legislation and the way it was enforced by the Ministry. We do not think that the court process was unfair; indeed it could well be argued that they were extremely lucky that the Judge took the humane course that he did which led to the settlement.
12. The Applicants also complain that much of the confiscation hearing was conducted by the Prosecution on a basis that was contrary to the basis of plea. Having considered the cases of Lazurus [2004] EWCA Crim 2297 and Lunnon [2005] 1 Cr. App. R.(S) 24, we are by no means satisfied that this is one of those cases where the Prosecution, by not contradicting a basis of plea, had bound itself in the Confiscation Proceedings. Further we are quite satisfied that, even if the Prosecution were so bound, that it did not render the proceedings unfair.