Practice and Procedure


PUBLISHED November 27, 2003

A conviction for being knowingly concerned in fraudulently evading duty was safe as the judge had correctly ruled diary entries relating to other instances of importation of tobacco were admissible and correctly directed the jury, thus extinguishing any risk of them drawing on prohibitive reasoning. The sentence of four years was manifestly excessive and would be quashed and substituted with a sentence of three years.Appeal, with leave of the single judge, against a conviction for being knowingly concerned in fraudulently evading duty, and renewed application for leave to appeal the sentence of four years' imprisonment. The defendant ('D') was convicted at Bournemouth Crown Court before HH Judge Beashel on 14 February 2003. D and a co-accused ('C') set up a haulage business where C was in charge of driving. Another co-accused ('M') also worked for a haulage company. In October 2001 M arrived in the UK pulling a refrigerated trailer and was stopped by Customs. M said the trailer contained fruit from Italy, however, Customs found 1,926 kgs of tobacco and 48,000 cigarettes. In Spring of 2002 C returned to the UK from France and was stopped and searched by Customs. Six kgs of tobacco was discovered in the cab of his lorry and two palettes of cigarettes and tobacco were discovered in the trailer. There was a huge amount of phone evidence from mobile phone records and of numerous texts between the parties. D was arrested and items seized from his home included phone bills for the mobile phones held in his name, a credit card bill for a fine paid to Customs in France and a diary. The diary was dated 2001 and contained entries relating to transactions for tobacco in substantial quantities with substantial quantities of money noted. The entries were dated January 2001 and December 2001. It was the prosecution's case that D was knowingly concerned with the importations. It was D's case that he had not been involved, the documents found by Customs belonged to C and the entries in the diary related to tobacco bought from C by his family. The prosecution sought to rely on the diary entries and contended that whilst the diaries did not suggest D was inextricably linked it undermined his asserted ignorance of the imports. D appealed conviction on the ground that the diary entries should not have been admitted as they only went to propensity and were likely to prejudice the jury.HELD: (1) The matter had to be examined on basic principles of relevance and admissibility. The diary entries would not have been admissible to show propensity or an inclination to behave in a disreputable way. On the facts the diary entries were admissible and the judge had correctly considered whether the evidence of the diaries had sufficient probative force. (2) When summing up, the judge directed the jury to concentrate on the main evidence and not attach too much weight to the diary entries. The directions given extinguished any risk that the jury might have allowed itself to draw on prohibitive reasoning and convict D on the basis of propensity. (3) Leave would be given to appeal the sentence and taking into account the guideline case of R v Jozef Eugene Czyzewski (2003) LTL 21/7/2003 the sentence of four years was manifestly excessive and would be quashed. A sentence of three years would be substituted.Decision accordingly.