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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> The Lord Chancellor v Woodfines Solicitors LLP & Ors [2019] EWHC 2821 (QB) (24 October 2019) URL: http://www.bailii.org/ew/cases/EWHC/QB/2019/2821.html Cite as: [2019] Costs LR 1825, [2019] EWHC 2821 (QB) |
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QUEEN'S BENCH DIVISION
On Appeal from Costs Judge Whalan
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting with Master Brown as assessor)
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THE LORD CHANCELLOR |
Appellant |
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WOODFINES SOLICITORS LLP |
Respondent (1) |
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MR KANNAN SIVA Respondent (1) MR TOMAS QUINN |
Respondent (2) Respondent (3) |
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(Instructed by the Government Legal Department)
Mr Sailesh Mehta for the First Respondent
The Second and Third Respondents appeared in person
Hearing dates: 15 October 2019
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Crown Copyright ©
Mr Justice Stewart:
Introduction
Background Facts.
"Ayanleh Hosh, Ikram Zaman and Khalid Hussain between the first day of January 2016 and the 31st day of May 2016, conspired together with Muzaffer Ali, Haroon Kahatab, Sajid Khan, Stewart Fitzimmons and other persons to evade the prohibition on the importation of firearms contained within Article 1 of the Import of Goods (Control) Order 1954, in contravention of Section 170 (2) of the Customs and Excise Management Act 1979."
[There is in the Appeal Bundle a different copy of the indictment which is particularised somewhat differently to include other co-Defendants. However, in respect of Mr Hosh, the difference is not material.]
"The Defendants were all involved in an ongoing agreement to import firearms and ammunition into the United Kingdom (UK) between February and May 2016. Firearms and ammunition, supplied by criminals in Holland, were smuggled into the country of two occasions during that period… the firearms and the compatible ammunition, must have been destined for those who were prepared to use them; they were weapons that would inevitably have been used to threaten, seriously injure, and even kill in the advancement of crime."
i. Muzaffer Ali: Life imprisonment on Count 1 with a notional determinate sentence of 22 years. The reason a sentence of Life Imprisonment could be passed on this Defendant was that the guns were prohibited by the specific "restriction on the importation or exportation of any weapon or ammunition that is of a kind mentioned in Section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or (1A) (a) of the Firearms Act 1968". The maximum sentence had been 7 years imprisonment, but was amended on 14th July 2014, pursuant to Section 111 of the Anti-Social Behaviour Crime and Policing Act 2014, by Article 6(d) of SI 2014/949. Other sentences passed on Mr Ali were determinate concurrent sentences or less.
ii. Haroon Kathatab: 19 years imprisonment in respect of Count 1.
Master Whalan's Judgment
"18…First, by any reasonable interpretation of the Table of Offences, conspiracy to import firearms, specifically automatic weapons that "would inevitably have been used to threaten, seriously injury and even kill in the advancement of crime", must come within "Class B; offences involving serious violence or damage, and serious drug offences", rather than Class F, which, in this context, is concerned predominantly with the fraudulent invasion of excise duty. Although the indictment specifies section 170(2) of the 1979 Act, the contravention constituted simultaneously offences under the Firearms Act 1968, most of which (e.g. possession of firearms with intent to endanger life, use of firearm to resist arrest, possession of firearm with criminal intent, possession or acquisition of certain prohibited weapons etc.), are categorised as Class B. Compared to Class F, G and K, where the distinction turns on whether the value involved exceeds £30,000 (G), £100,000 (K) or otherwise (F), it is preferable undoubtedly. HHJ Carroll's sentencing remarks refer to the Defendants intending to use the weapons in "terrorising, intimidating and causing serious injury and death", meaning that the weapons were of the type categorised in section 5(1) of the 1968 Act. Secondly, so far as the Defendant was charged under section 170(2) of the 1979 Act, he was simultaneously brought within the ambit of section 4A of the Act, which was an amendment introduced by the … ("the 2014 Act"), and which increased the maximum term of imprisonment from 7 years to life imprisonment. Insofar as the 2014 Act post-dated the 2013 Regulations, it is not surprising altogether that he latter does not address the categorisation of these offences adequately, or at least leaves the issue open to confusion or doubt. Put simply, a conspiracy involving the importation of prohibited, automatic firearms and ammunition, in circumstances where the weapons were intended to be used for serious criminality and violence, in circumstances where a co-defendant convicted of the same offences alleged against the Defendant was sentenced to 19 years' imprisonment, should be classified as Class B, offences involving serious violence or damage, and not Class F, other offences of dishonesty."
19. I conclude…that the analysis of the Appellants is to be preferred to that of the Respondent. Given, specifically, the facts of this prosecution, it seems clear to me that the offences should be categorised as Class B and not Class F. Conspiracy to import a cache of automatic weapons and ammunition, with the intention of using them to commit crimes of significant criminality and violence, subject to a maximum penalty of life imprisonment, must reasonably be a Class B offence of violence, and not a Class F offence of fraud or dishonesty…. "
"3. Class of Offences
3 (1) For the purposes of this Schedule—
(a) every indictable offence falls within the Class under which it is listed in the Table of Offences and, subject to sub-paragraph (2), indictable offences not specifically so listed are deemed to fall within Class H;
(b) conspiracy to commit an indictable offence contrary to section 1 of the Criminal Law Act 1977 (the offence of conspiracy), incitement to commit an indictable offence and attempts to commit an indictable offence contrary to section 1 of the Criminal Attempts Act 1981 (attempting to commit an offence) fall within the same Class as the substantive offence to which they relate;
(c) where the Table of Offences specifies that the Class within which an offence falls depends on whether the value involved exceeds a stated limit, the value must be presumed not to exceed that limit unless the advocate making the claim under regulation proves otherwise to the satisfaction of the appropriate officer;
……..
(e) where an entry in the Table of Offences specifies an offence as being contrary to a statutory provision, then subject to any express limitation in the entry that entry includes every offence contrary to that statutory provision whether or not the words of description in the entry are appropriate to cover all such offences;…"
Lord Chancellor v Ahmed [2014] 1 Costs LR 21; [2013] EWHC 3642 (QB)
"The paying authority can only interfere if the claim that was made was clearly made under the wrong Class, and in this case the claim made by Mr Ahmed was valid because it was made under one of the two equally apposite Classes that this indictment covered."
Classification of Offence
"(2) Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion –
…
(b) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment…
he shall be guilty of an offence under this section and may be arrested."
(i) The conspiracy counts faced by the Defendants were conspiracies clearly particularised as being in contravention of section 170(2) of the 1979 Act.
(ii) Offences under section 170(2) are to be found in four places in the Table of Offences: (i) Class A and B drugs are in Table Class B, (ii) Class C drugs are in Table Class C and (iii) evasion in respect of counterfeit notes or coins is in Table Class G; (iv) under the heading "Classes F, G and K: Other offences of dishonesty" is:
"The following offences are in Class G if the value involved exceeds £30,000, Class K if the value exceeds £100,000 and in Class F otherwise.
….
Fraudulent evasion: not elsewhere specified Customs and Excise Management Act 1979, s170(2)(b), (c)…"
(iii) by paragraph 3(1)(c) the value is presumed not to exceed the limit unless the advocate/litigator making the claim proves otherwise. In this case no issue is taken about the value. Therefore the Lord Chancellor submits that the offence should be re-classified as Class F.
(i) The increase in the maximum sentence brought in on 14 July 2014, whereby certain firearms importation could be sentenced to life imprisonment rather than a maximum of seven years, was a new type of importation of firearms offence. It fell outside the existing categories of the 2013 Regulations. It therefore should have been classified as Class H and then re-classified as Class B. This would bring Count 1 into line with other firearms offences within Class B which attract life imprisonment.
(ii) Regulation 3(1) provides that indictable offences not specifically listed in the Table of Offences are deemed to fall within Class H. The mechanism then is under Regulation 3(2), whereby an advocate or litigator dissatisfied with the classification within Class H of an indictable offence not listed in the Table of Offences may apply to the appropriate officer to reclassify the offence.
"In the case of:
(a) an offence under subsection (1) or (2) above committed in Great Britain in connection with a prohibition or restriction on the importation or exportation of any weapon or ammunition that is of a kind mentioned in section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or (1A)(a) of the Firearms Act 1968,
…
Subsection (3)(b) above shall have effect as if for the words "imprisonment for a term not exceeding 7 years" there were substituted the words "imprisonment for life"."
(i) The new scheme does not have any impact on the effect of the 2013 Regulations which were in force at the time relevant to this appeal. This is obvious, but is in any event made clear in Regulation 34 of the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018.
(ii) It cannot in any way be inferred from the new system that there was a lacuna in the 2013 Regulations in classifying those section 170 (2) offences which, by the 2014 amendment in s170 (4A) increased the maximum penalty to one of Life Imprisonment
"(e) where an entry in the Table of Offences specifies an offence as being contrary to a statutory provision, then subject to any express limitation in the entry that entry includes every offence contrary to that statutory provision whether or not the words of description in the entry are appropriate to cover all such offences; (my underlining)