Rowbotham, R v

For confiscation under section 76 of the Proceeds of Crime Act 2002, evasion of excise duty constitutes a pecuniary advantage and therefore a benefit. A defendant who knowingly provides storage that assists the continuing concealment of duty-unpaid cigarettes participates in the continuing evasion of duty, even if he was neither the importer nor an organiser. A written basis of plea describing the defendant as a storeman does not prevent that conclusion where the plea necessarily admits duty evasion.

The appellant pleaded guilty to two offences of being knowingly concerned in the carrying or keeping of dutiable cigarettes with intent to evade duty, contrary to section 170(1)(b) of the Customs and Excise Management Act 1979. One offence concerned over two million cigarettes stored at his property. The other concerned cigarettes found in a van he was driving.

Following sentence, the Crown Court made a confiscation order under section 6(2) of the Proceeds of Crime Act 2002 for £249,252. The appellant contended that his accepted basis of plea limited him to a storeman’s role and prevented a finding that he had obtained a pecuniary advantage through the evasion of duty.

1. Appeal dismissed. The appellant’s guilty plea necessarily admitted that duty on the cigarettes had been evaded. His provision of storage enabled the cigarettes to remain concealed and formed part of the continuing process of evading that duty.

2. Under section 76(5) of the Proceeds of Crime Act 2002, an evasion of duty is the obtaining of a pecuniary advantage, and that advantage is a benefit. It was immaterial that the appellant was not the importer or an organiser. His admitted participation in the continuing evasion was sufficient.

3. Olubitan [2004] 2 Cr App R(S) 70 was clearly distinguishable because it was not a Customs and Excise case. The governing authorities were David Cadman Smith [2002] 2 Cr App R(S) 144 and Bakewell [2006] EWCA Crim 2, which conclusively determined the issue.

4. The sentencing judge was therefore correct to treat the duty evaded as the appellant’s benefit and to make the confiscation order.

• Court of Appeal (Criminal Division): Appeal against the confiscation aspect of sentence dismissed: [2006] EWCA Crim 747.
• Wolverhampton Crown Court: The appellant pleaded guilty to the further offence, was sentenced, and Judge Onions made a confiscation order under the Proceeds of Crime Act 2002.
• Cannock Magistrates’ Court: The appellant pleaded guilty to the first offence and was committed to the Crown Court for sentence.