Case No. EWCA-Crim-2366

; R v Goldstein [2006] 1 AC 459. 16.As the law stands, there are four categories of offence, all of which may apply to the same fraudulent conduct: i)Common law conspiracy to defraud where sentence was originally at large but which now carries a maximum of 10 years imprisonment, see s.12 of the Criminal Justice Act 1987. ii)Common law conspiracy to cheat which was abolished by s.32(1)(a) of the Theft Act 1968 ‘except as regards offences relating to the public revenue’. Sentence remains at large.iii)The fraudulent evasion of VAT contrary to s.72 of the Value Added Tax Act 1994, which carries a maximum sentence on indictment of seven years’ imprisonment.iv)A statutory fraud offence, carrying a maximum sentence of ten years’ imprisonment. 17.Here, the Appellants were convicted of conspiracy to commit the common law offence of cheating the public revenue. Had they been convicted of statutory fraud or VAT offences they would have been liable to maximum penalties of ten and seven years respectively. Miss Montgomery’s theme was that it is wrong in principle to pass a sentence on a common law conspiracy that is longer than the maximum penalty available for the equivalent statutory offence or the cognate common law charge of conspiracy to defraud. 18.In support of this assertion, Miss Montgomery placed heavy reliance upon the decisions in Rimmington and Goldstein. The appellants Rimmington and Goldstein were each charged with the common law offence of public nuisance for sending out racially offensive material in Rimmington’s case and salt in Goldstein’s case. The House of Lords considered the ingredients of the offence of public nuisance and the extent to which it is still known to the common law in the light of statutory developments. 19.Lord Bingham of Cornhill, in the leading speech, reviewed its history. He noted that conduct formerly chargeable as the crime of public nuisance has become the subject of express statutory provision. Where that is so, the general rule should be that conduct which might amount to an offence under both common law and statute should be charged under statute. At paragraph 30 he gave his reasons: “Where Parliament has defined the ingredients of an offence, perhaps stipulating what shall and shall not be a defence, and has prescribed a mode of trial and a maximum penalty, it must ordinarily be proper that conduct falling within that definition should be prosecuted for the statutory offence and not for a common law offence which may or may not provide the same defences and for which the potential penalty is unlimited. … It cannot in the ordinary way be a reason for resorting to the common law offence that the prosecutor is freed from mandatory time limits or restrictions on penalty. It must rather be assumed that Parliament imposed the restrictions which it did having considered and weighed up what the protection of the public reasonably demanded. I would not go to the length of holding that conduct may never be lawfully prosecuted as a generally-expressed common law crime where it falls within the terms of a specific statutory provision, but good practice and respect for the primacy of statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise.”20.Miss Montgomery accepted it does not follow that it is necessarily wrong per se for a prosecutor to charge a common law offence where a statutory offence is available. Lord Bingham’s concern related to cases where the decision to do so creates a disadvantage to the defendant, for example by avoiding a statutory time limit or a maximum penalty. However, there must be ‘good reason’ for charging the common law offence. In the context of public nuisance, Lord Bingham considered that ‘the circumstances in which, in future, there can properly be resort to the common law crime of public nuisance will be relatively rare.’ (See paragraph 31). 21.The principles in Rimmington were recently applied in R v Dady [2013] EWHC 475 (QB) in which Coulson J considered a prosecution application to prefer a voluntary bill of indictment. The defendant was alleged to have operated a website that facilitated the illegal downloading of football matches. The draft bill contained three counts: conspiracy to defraud at common law, an offence under s.107(2A) of the Copyright, Designs and Patents Act 1988 and an offence under s.297 of the 1988 Act. Coulson J held that the second count was not properly available on the evidence. At paragraph 21 he considered the relationship between counts 1 and 3 and observed: “I consider that s.297 catches precisely the criminal conduct which is now alleged against Mr Dady. He was providing his subscribers, for a fee, with a means to get round the encryption. For present purposes, I am prepared to accept that this amounted to a conspiracy to breach s.297. In those circumstances, it seems that his offending should have been charged as such. The matters of difficulty created by s.3 of the Criminal Law Act 1977, such as the six month time limit and the need for permission from the DPP, are procedural safeguards which were plainly regarded by Parliament as important. In my judgment, it would be wrong to allow the Crown now to ignore these safeguards, and to charge what would otherwise be a precise statutory offence under the wide common law offence of conspiracy to defraud. In addition, of course, to allow the Crown to prefer this voluntary Bill would be contrary to Lord Bingham’s guidance in R v Rimmington, because it would be depriving the defendant of the protection of being charged with an offence which was summary only.”22.Coulson J was also a member of the Courts Martial Appeal Court in R v Armstrong [2012] EWCA Crim 83. The appellant had been charged with four counts contrary s.69 of the Army Act 1955 (conduct to the prejudice of military discipline). The alleged conduct could also have formed the basis of substantive charges under the Criminal Law: under the Firearms Act 1968, the Misuse of Drugs Act 1971 and the Official Secrets Act 1989. At paragraphs 20 and 21, the Court noted that: “Beyond recording the position of the Crown, it is neither necessary nor desirable that this Court should comment on the scope of comment under s.69, save to say that where conduct constitutes an offence under the ordinary criminal law, it must be charged as such save in wholly exceptional circumstances. As Mr Mably rightly submitted [for the Attorney General], there can ordinarily be no justification for using s.69 in such circumstances and it would be outside the lawful exercise of the prosecutor’s discretion; its use might well circumvent the statutory sentencing regime imposed by Parliament on the courts either to the detriment of the defendant by enabling a harsher sentence to be passed or to the detriment of the public interest in preventing the court passing a sentence within the range specified by Parliament and imposing ancillary orders.”23.Miss Montgomery acknowledged that there is at least one decision of the Court of Appeal in an appeal against conviction for revenue fraud which appears to contradict her argument (namely