London, WC2A 2LL
B e f o r e :
MR JUSTICE JEREMY BAKER
THE RECORDER OF CARDIFF
(HER HONOUR JUDGE REES)
|Prosecution Appeal Re: Confiscation Decision s.31 PQCA 2002|
|R E G I N A|
|JOHN ALEXANDER PARKER|
Street London EC4A 2DY, Tel No: 020 7404 1400 Email: email@example.com (Official Shorthand Writers to the Court)
MR HUNTER GRAY appeared on behalf of the Respondent
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LORD JUSTICE FLAUX:
"13.—(1) Where excise goods already released for consumption in another Member State are held for a commercial purpose in the United Kingdom in order to be delivered or used in the United Kingdom, the excise duty point is the time when those goods are first so held.
(2) Depending on the cases referred to in paragraph (1), the person liable to pay the duty is the person—
(a) making the delivery of the goods;
(b) holding the goods intended for delivery; or
(c) to whom the goods are delivered."
"(d) By way of contrast, 'holding' for the purposes of Regulation 13(1) can be a question of law, and does not require physical possession of the goods, and the test is satisfied by constructive possession. The test for 'holding' is that the person is capable of exercising de jure and/or de facto control over the goods, whether temporarily or permanently, either directly or by acting through an agent (see Taylor & Wood [28-40].
(e) There is no need for the person to have any beneficial ownership in the goods in order to be a 'holder' (or indeed to have 'caused' their importation). A courier or person in physical possession who lacks both actual and constructive knowledge of the goods, or the duty which is payable upon them, cannot be the 'holder' within Regulation 13(1) - Taylor & Wood,[30-31],."
"Alternatively, even if (contrary to our assessment of the facts) the appellant contributed no money to the enterprise, and was a mere courier of the cash discovered at Manchester Airport, in our judgment, he falls within the definition of a 'holder' of the goods at excise point, pursuant to Regulation 13(1), where legal, rather than physical, possession is sufficient (see Taylor & Wood and Bajwa). This condition can be satisfied by the appellant being the ordinary consignee of deliveries to the UK; in our assessment, in this case, it is."
I think I have those figures right, Mr Requena?
MR REQUENA: In fact the learned judge in the court below deducted both of the seized cash figures from the benefit figure, but in any event the available amount on the learned judge's findings in fact came to £304,694.49.
LORD JUSTICE FLAUX: I could not quite work that out from the ruling.
MR REQUENA: It is actually quite difficult to work it out.
LORD JUSTICE FLAUX: Yes.
MR REQUENA: There was a certain amounts of assets which were available and then the argument about the 50% share in the house.
LORD JUSTICE FLAUX: Give me that figure again.
MR REQUENA: The total available should be £304,694.49.
LORD JUSTICE FLAUX: Very well. So the order that we will make is that the amount of the benefit was the figure of £846,276.77 and the recoverable amount is £304,694.49.
MR REQUENA: Indeed.
One final consideration is the amount that was ordered and has actually been paid, the £17,702.
LORD JUSTICE FLAUX: So that has to be deducted.
MR REQUENA: That ought to be deducted from the amount of the order. Given that the original order has been quashed rather than varied, I think it ought to be taken into account in the new figure.
LORD JUSTICE FLAUX: That must be right. So, somebody can give the court the calculation.
Do you want to make any submissions about the time for payment?
MR GRAY: I would invite the maximum allowed - three months. There does need to be a period in default for non-payment.
LORD JUSTICE FLAUX: Mr Requena, do you want to say anything about the time? It seems to us that three months is fair.
MR REQUENA: Yes. I do not think I want to make any submissions about that, my Lord.
The period in default for an amount over £500,000/no more than £1 million is up to seven years, the category beneath that being up to five years.
LORD JUSTICE FLAUX: It is five years, is it not?
MR REQUENA: It is in the 'up to five year' band.
LORD JUSTICE FLAUX: This is going to be £287,000 broadly, so it is five years.
MR REQUENA: Up to five years.
LORD JUSTICE FLAUX: Up to five years.
LORD JUSTICE FLAUX: Four years. Do you want to say anything about that Mr Gray?
MR GRAY: Only this, my Lord: the sentence he received was four years. I do not have the table in front of me.
LORD JUSTICE FLAUX: But it is a period in default, though, is it not?
MR GRAY: It is a period in default.
(Table handed to Mr Gray.) So between £10,000 and £500,000 up to five years. It is perhaps in the midpoint there. And perhaps a sentence in default would be slightly lower than the one the court has so far indicated.
LORD JUSTICE FLAUX: Four years, Mr Gray.
So we need somebody to provide us with the net amount.
MR REQUENA: It is £287,622.49.
LORD JUSTICE FLAUX: So that is the net amount?
MR REQUENA: That is the available assets minus the amount already paid.
MR GRAY: Yes.
LORD JUSTICE FLAUX: Thank you both very much.
THE CLERK OF THE COURT: My Lord, the confiscation is made in the amount of the available assets?
LORD JUSTICE FLAUX: Yes.
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