Chambers, R. v

In confiscation proceedings, an offender obtains a pecuniary advantage through evaded excise duty only if he was personally liable for that duty and dishonestly avoided it. Assisting another person to evade duty does not transfer that benefit to the accessory, although payment for the assistance may itself be a recoverable benefit.

A basis of plea binds the confiscation court only where the Crown agreed it. Where liability under the applicable regulations depends on an untried factual issue, an appellate court of review should not make that finding for the first time. The prosecution must identify the governing provisions and seek the necessary findings at first instance.

The appellant pleaded guilty at Maidstone Crown Court to being knowingly concerned in dealing with dutiable goods with intent to defraud the Crown. A Recorder subsequently made a confiscation order of £66,120 under the Proceeds of Crime Act 2002, representing unpaid excise duty on tobacco found in a storage container.

On appeal, the appellant contended that his written basis of plea confined his role and bound the confiscation court. The prosecution initially relied on the wrong regulations. It was later discovered that tobacco products were governed by the Tobacco Product Regulations 2001, not the earlier regulations. The central issues were whether the appellant had obtained a benefit through evaded duty and whether the Court of Appeal could determine the factual condition required for liability under the applicable regulations.

1. Appeal allowed. The confiscation order was quashed. The prosecution could not establish on the findings made below that the appellant had obtained a pecuniary advantage equal to the unpaid excise duty.

2. The court rejected the contention that the Recorder was bound by the appellant’s written basis of plea. A basis binds the Crown and the confiscation court where it has been agreed by the Crown. Where it has not been agreed, the confiscation court must determine the offender’s part from the evidence. The absence of a Newton hearing at sentence did not make the unagreed basis binding in later confiscation proceedings. The Recorder had therefore adopted a proper approach in considering the evidence and admissions before him.

3. For confiscation purposes, evasion of excise duty is a pecuniary advantage only for an offender who was personally under a liability to pay that duty and dishonestly avoided it. An accessory who helps another person evade that person’s liability may commit a serious offence, but does not thereby obtain the amount of the other person’s evaded duty. Any payment or other gain received for the assistance is a separate potential benefit.

4. The prosecution had relied below on the wrong regulatory regime. The Excise Goods Regulations 1992 had been superseded for tobacco products by the Tobacco Product Regulations 2001. The prosecution’s new case depended on whether the appellant caused the tobacco to reach an excise duty point under paragraph 13(3)(e). No first-instance finding addressed that factual question.

5. It would have been unjust for a court of review to make that fact-finding decision for the first time. The appellant might have given evidence had the prosecution advanced the correct statutory case below. It was the prosecution’s responsibility to identify the applicable provisions and invite the trial court to make the findings needed to establish liability.

The court also expressed grave concern that the prosecution and court had been misled by inaccessible and incomplete legislative information. It expected an urgent review of potentially affected confiscation cases.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the confiscation order: [2008] EWCA Crim 2467.

• Maidstone Crown Court: The appellant pleaded guilty on 11 October 2007 to an offence under section 170(1)(b) of the Customs and Excise Management Act 1979. On 8 April 2008, the Recorder made a confiscation order of £66,120 under the Proceeds of Crime Act 2002.