Practice and Procedure


PUBLISHED July 4, 2003

In a trial involving conspiracy to evade excise duty, whilst the summing up was poorly prepared and inadequate, the conviction was safe given the overwhelming evidence against the defendant.Appeal with leave of the full court against conviction for conspiracy to evade excise duty contrary to s.170(2) Customs and Excise Management Act 1979 at Lincoln Crown Court on 12 June 2001 before HH Judge Machin. The defendant ('H') was sentenced to four and a half years' imprisonment. H was tried with seven others; three pleaded guilty and four were acquitted. The offence involved a large scale fraud smuggling 136 million cigarettes from Europe avoiding the payment of excise duty and VAT. The cigarettes were imported in containers and trailers that contained a cover load and supporting paperwork. Customs and Excise identified 77 loads and estimated the loss of duty at ?70 million. Once in the UK the cigarettes were taken to locations to be sold for profit. In July 1998 H was stopped, by Customs and Excise, driving a lorry which contained 1.25 million cigarettes hidden in a cover load. H denied all knowledge of the cigarettes and said he had been instructed to get a loaded trailer from a man in a cafe on the M1 motorway. He was driving his own lorry and claimed to be working for a company who had never heard of him. H had made three earlier trips carrying identical loads in the ten days before the seizure. Customs and Excise alleged that once H was stopped his role in the conspiracy changed and he became an organiser and chaperone who supplied lorries and trailers to the co-accused and was involved between 31 March and 21 September 1999 in that capacity. In interviews H stated that he had simply been engaged in buying and selling lorries and trailers and was not part of any conspiracy. At trial the prosecution evidence was summarised in detailed schedules and charts. H gave evidence in accordance with what he said in interview. The trial lasted seven weeks and the summing up lasted two days. At the end of the first day the prosecution expressed concern about the directions given as the judge had not defined the offence faced by each defendant but had merely referred to the indictment and stated that what was alleged was that the defendants agreed to smuggle cigarettes to evade duty. The following day the judge elaborated. However, there was still concern and on the third day the prosecution produced a written direction, agreed by all, for the jury. H appealed conviction on the ground that the summing up was inadequate.HELD: (1) A jury should not be given directions on the law in an incremental way. The first direction by the judge was inadequate, the second was adequate but the direction, along the lines of the written direction provided by the prosecution, should have been given at the start. However, the jury could not be in any doubt regarding the elements of the offence. (2) There was a number of factual errors and omissions in the summing up which added to the picture of a poorly prepared summing up. However, most of the mistakes were corrected and none were damaging. The summing up did not put the prosecution or the defence case as clearly as it should have. (3) The question was whether the quality of the summing up cast doubt on the safety of the conviction. The evidence against H was overwhelming. His defence relied on coincidence upon coincidence making his story implausible. Therefore, despite the regrettable shortcoming of the summing up, the conviction was safe.Appeal dismissed.