Edwards v R.

For tobacco brought into the United Kingdom by sea, importation is a finite event occurring when the ship enters the limits of the port. The excise duty point arises then, not when goods leave the port or their place of importation.

A person who dishonestly intends at importation not to pay chargeable duty fraudulently evades it. Later conduct may prove that intention but does not alter the time when the offence is committed. Evasion defers the duty and produces a pecuniary advantage which is a confiscation benefit under the Criminal Justice Act 1988, notwithstanding a prompt seizure of the goods.

The appellant pleaded guilty in the Crown Court at Kingston upon Hull to being knowingly concerned in the fraudulent evasion of duty on imported tobacco, contrary to section 170(2) of the Customs and Excise Act Management 1979. He received two years’ imprisonment.

In subsequent confiscation proceedings, the Recorder ordered him to pay £30,257.52, representing his realisable assets. The tobacco had been discovered and seized while his vehicle was still inside Hull docks. He appealed only against the confiscation order, contending that duty had not been evaded, and that he had obtained no benefit, because he had not left the port enclosure.

1. Appeal dismissed. The appellant became liable for duty when the vessel carrying his vehicle entered the limits of the Port of Hull. Under the relevant provisions of the Customs and Excise Act Management 1979, the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 and the Tobacco Products Regulations 2001, importation and the excise duty point occurred at that finite moment.

2. The statutory restrictions on delivery and removal of imported goods did not postpone the excise duty point until the vehicle left the port. Those provisions regulate goods after importation and facilitate enforcement. They do not redefine the time at which duty becomes payable.

3. Fraudulent evasion occurred if, at importation, the appellant dishonestly intended not to pay the duty. His false CMR document, false account of the load and later lies were evidence capable of establishing that intention. The continuing opportunity to declare the goods while within the port was evidential only; it did not prevent the completed offence.

4. Applying R v Smith (David) [2002] 1 Cr App R 466, evasion deferred the appellant’s liability for duty and thereby gave him a pecuniary advantage. That advantage was treated as property obtained at importation for confiscation purposes. The later seizure, and the fact that it occurred within the port rather than after departure, did not affect the benefit.

5. The court accepted the Customs and Excise undertaking not to pursue civil recovery of the unpaid duty after satisfaction of the confiscation order. No further issue concerning possible double recovery therefore arose.

1. Court of Appeal (Criminal Division) — In [2004] EWCA Crim 2923, dismissed the appeal against the confiscation order.

2. Crown Court at Kingston upon Hull — Following the appellant’s guilty plea, imposed sentence and made a confiscation order under section 75 of the Criminal Justice Act 1988.