Law report: 24 February 1998: Count charging evasion was not duplicitou s

Regina v Martin and another; Court of Appeal (Criminal Division) (Lord Justice Rose, Vice President, Mr Justice Holland and Mrs Justice Smith) 20 February 1998

A defendant could be indicted in one count of being knowingly concerned in the fraudulent evasion of duty on goods, contrary to section 170(2) of the Customs and Excise Management Act 1979, where the allegation related to a series of separately identifiable incidents over a period of months, without the count being bad for duplicity.

The Court of Appeal dismissed the appeals of Ellis Anthony Martin and James White against their convictions at Southwark Crown Court of two offences of being knowingly concerned in the fraudulent evasion of duty chargeable on alcoholic drinks contrary to section 170(2) of the Customs and Excise Management Act 1979.

The appellants had originally been indicted in count 1, charging a single offence of fraudulent evasion between November 1993 and June 1994, and the prosecution had opened its case on the basis that there had been two methods of evasion, referred to as method A and method B. After Martin's defence case had been completed, a submission was made on behalf of White that count 1 was duplicitous.

The judge ruled that it was not, but ordered that it should be split into 1A, relating to method A, and 1B, relating to method B. The appellants appealed against conviction on the ground that counts 1A and 1B were bad for duplicity, and Martin also appealed on the ground that there had been an irregularity in the use made of a disclosure affidavit he had sworn in restraint proceedings.

Edmund Lawson QC and Andrew Lloyd-Eley (Registrar of Criminal Appeals) for Martin; David Cocks QC and David H.A. Williams (Registrar of Criminal Appeals) for White; Oliver Sells QC (Solicitor, Customs and Excise) for the Crown.

Lord Justice Rose (VP) said that it had been submitted for the appellants that when indicting for an admittedly continuous offence, good practice demanded the drafting of counts to reflect so far as possible "acts" rather than "activity".

However, the offence created by section 170(2) of the 1979 Act was an "activity" offence, to be defined by the nature of the evasion and of the "knowing concern". In some cases the evasion and the knowing concern would arise in relation to only one transaction; in others there would be many transactions giving rise to continuous activity. In both types of case, the language of the section was such as properly to permit charging the offence in one count. Accordingly, neither count was bad for duplicity. The nature of the offence created by section 170(2), taken in conjunction with the facts alleged by the Crown, had properly justified one count to reflect method A and one to reflect method B.

Count 1 as originally drawn had, however, been duplicitous because s 170(2) did not permit one count to cover two different activities. The wide scope given by the section did not obviate the need to draft indictments so as to avoid duplicity and to achieve, so far as the facts allowed, counts that were substantive and specific. More than one count might be necessary to identify differing aspects of the prosecution case and to avoid overlap.

It had been submitted for Martin that reference during his cross-examination to an affidavit he had sworn in earlier restraint proceedings in the High Court had constituted a breach of the terms of the order pursuant to which the affidavit been made, namely that "no disclosure made in compliance with this order shall be used as evidence in the prosecution of an offence alleged to have been committed by the person required to make that disclosure", and had thus amounted to a serious irregularity.

Although not prepared to contemplate the prosecution being kept in ignorance of any such affidavit until a confiscation order was sought, the court could not envisage circumstances in which it could become admissible in evidence during a criminal trial at the behest of the Crown. It was to be hoped and expected that in future cases the Crown and the court would be alert to the limitations subject to which such an order for disclosure was made. The Crown was not, however, prevented from cross-examining the accused as to credit, in reliance upon the content of an affidavit sworn pursuant to a restraint order.