Parker, R v

For confiscation purposes, a person who takes delivery of excise goods for commercial resale, or who has actual or constructive control of goods intended for delivery, may be liable for the evaded duty under The Excise Goods (Holding, Movement and Duty Point) Regulations 2010. Holding does not require physical possession or beneficial ownership.

Where the offender is liable for the duty, the benefit may equal the duty evaded. Cash later forfeited cannot be deducted from benefit or the recoverable amount merely because it was recovered by the state; it either has no connection with the offending or represents an additional benefit, and does not reduce the revenue loss.

The respondent pleaded guilty at the Crown Court at Luton to offences involving the unlawful importation and intended distribution of hand-rolling tobacco, and to possessing criminal property. He admitted taking delivery of tobacco consignments for resale and was sentenced on the basis that he played a leading role in the United Kingdom operation.

At a later confiscation hearing, the judge held that the respondent shared in the profits but assessed benefit by reference to purchase monies and deducted forfeited cash from his beneficial interest in a property. The prosecution appealed, contending that the respondent was liable for all evaded excise duty and that the cash should not have been deducted. The central issue was the effect of regulation 13 of The Excise Goods (Holding, Movement and Duty Point) Regulations 2010 on benefit and recoverable amount.

1. The prosecution appeal was allowed. The confiscation order was quashed and replaced.

2. Under regulation 13, the respondent was a person liable for the evaded duty. His admissions and the judge’s findings established that he took, or was to take, delivery of the tobacco for profitable resale and financed its acquisition. He was therefore the person to whom the goods were delivered or being delivered under regulation 13(2)(c), and/or a person holding goods intended for delivery under regulation 13(2)(b).

3. Applying R v Tatham [2014] EWCA Crim 226, holding is not confined to physical possession. It includes actual or constructive control, whether de jure or de facto, exercised directly or through another. The respondent actually held the tobacco and, in any event, controlled it for sale. The judge therefore erred in law by not treating him as liable for the duty.

4. Once that liability was established, the respondent’s benefit was the duty evaded: £846,276.77. The unpressed proportionality point under Article 1 of the Protocol to the European Convention on Human Rights failed. This was not a case of a deemed benefit exceeding the offender’s real benefit, as discussed in R v Waya [2012] UKSC 51.

5. The judge also erred by deducting forfeited cash from available assets. Following R v Crisp & Berry [2010] EWCA Crim 355, recovery of the cash did not reduce HMRC’s loss. The cash was either unconnected with the earlier offending or an additional benefit from it.

6. The court fixed the recoverable amount at £304,694.49, credited £17,072 already paid, and made a confiscation order for £287,622.49. Payment was allowed within three months, with four years’ imprisonment in default.

• Court of Appeal (Criminal Division): In R v Parker [2018] EWCA Crim 1057, the prosecution appeal was allowed. The Crown Court confiscation order was quashed and replaced with an order reflecting the correct benefit and recoverable amount.

• Crown Court at Luton: The respondent pleaded guilty and was sentenced to four years’ imprisonment. At the confiscation hearing, His Honour Judge Kay QC assessed benefit at £205,645 and made an order for £17,072.