902 RvSissen(CA) [2001] 1WLR

Court of Appeal A

*Regina v Sissen 2000 Nov 17; Kennedy LJ, Longmore and OuseleyJJ

Dec 8

Animal — Endangered species — Fraudulent evasion of restriction on importation — g Endangered parrots imported illegally into European Union — Subsequent importation into United Kingdom from another member state — Whether constituting offence of being knowingly concerned in fraudulent evasion of restriction on importation of goods — Customs and Excise Management Act I979 (c 2)> s i7o(2-)(b) — Council Regulation (EEC) No 36x6/82, art 5 — Council Regulation (EC) No 33 8/97, art 4

The defendant was a breeder of rare parrots. He was charged in an indictment with four counts of being knowingly concerned in the fraudulent evasion of a restriction, by virtue of an enactment, on the importation of goods, contrary to section i7o(i)(b) of the Customs and Excise Management Act 19791. The prosecution alleged that in 1997 and 1998 he had imported into the United Kingdom endangered macaws, trade in which was prohibited or restricted under article 5(1) of Council Regulation (EEC) No 3 626/821 and article 4(1) and (2) of Council Regulation (EC) No 338/97', from Yugoslavia and Slovakia without the required import permit. The prosecution did not contend that the point of entry into the European Union was the UK; it was probably Austria. The defendant denied the offences, contending that where the point of entry into the EU was not the UK the Regulations relied on did not contain any relevant restrictions for the purposes of section 1:70(2)^) of the 1979 Act and therefore did not impose any restriction on the movement of endangered macaws between or within member states. He was convicted.

On the defendant's appeal against conviction— Held, dismissing the appeal, that Council Regulations (EEC) No 3626/82 and

(EC) No 338/97 were "enactments" for the purposes of section 170(2) of the 1979 Act; that the 1979 Act clearly incorporated as restrictions the Council Regulations which restricted entry of certain goods into the EU as a whole without differentiation between member states; that the territorial scope of the 1979 Act turned on the scope of the restrictions in the enactments in question, which took effect under the Act according to their terms rather than being cut down by the Act; and that, accordingly, ^ it was an offence under section 170(2) of the 1979 Act for a person to be knowingly concerned in the fraudulent evasion of the restriction, contained in the Regulations, on the importation of goods into the EU whatever the country of entry into the EU might be (post, PP915A-B, D-G).

Air-India v Wiggins [1980] 1 WLR 815, HL(E) distinguished.

The following cases are referred to in the judgment of the court: C Air-India v Wiggins [1980] 1 WLR 815; [1980] 2 All ER 593, HL(E) Cox v Army Council [1963] AC 48; [1962] 2 WLR 950; [1962] 1 All ER 880, HL(E) NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v

Nederlandse administratie der belastingen (Case 26/62) [19631 ECR 1 R v Green (Harry) [1976] QB985; [1976] 2 WLR 57; [1975] 3 All ER 1011, CA R vjakeman (1982) 76 Cr AppR 223, CA R^Jameso»[i896J2QB425,DC H

R v Manning [1999I QB 980; [1999] 2 WLR 430; [1998] 4 All ER 876, CA

' Customs and Excise Management Act 1979, s i7o(2)(b): see post, p 9060-D. 2 Council Regulation (EEC) No 3626/82, art 5: see post, p 9070-D. ■' Council Regulation (EC) 338/97, art 4: see post, P908G-H.

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RvSissen(CA)

A Rv Markus [1976] AC 3 5; [1975] 2 WLR 708; [1975] 1 All ER 958, HL(E) R vNeal [1984] 3 All ER 156, CA Variola (Flli) SpA v Amministrazione italiana delle Finanze (Case 34/73) [1973]

ECR981

The following additional cases, although not cited, were referred to in the skeleton arguments:

6 Anklagemyndigbeden v Hansen & Son I/S (Case 3 26/88) [1990] ECR 2911 Commission of the European Communities v Hellenic Republic (Case 68/88) [1989I

ECR 2965 RvArdalan [1972] 1 WLR 463; [1972] 2 All ER 257, CA R vBerner (1953) 37 Cr AppR 113, CCA R v Couglan (1997) Archbold News (Issue 8) 2, CA Rv Goldstein [1983] 1 WLR 151; [1983] 1 All ER434,HL(E)

c Rv Henn 11981J AC 850; [1980] 2 WLR 597; [1980] 2 All ER 166, ECJ and HL(E) Rv Smith (Donald) [1973] QB 924; [1973] 3 WLR 88; [1973] 2 All ER 1161, CA R v Wall [1974] 1 WLR 930; [1974] 2 All ER 245, CA

APPEAL against conviction On 14 April zooo in the Crown Court at Teesside, sitting at Newcastle,

before Whitburn J and a jury, the defendant, Henry Sissen, was convicted on D four counts of an indictment of being knowingly concerned in the fraudulent

evasion of a restriction on the importation of goods, contrary to section i7o(2)(b) of the Customs and Excise Management Act 1979- Counts 1 and 2 related to two different Lear's macaws and count 4 to six blue-headed macaws and in each case the restriction relied on was article 5(1) of Council Regulation (EEC) N o 3626/82 since the offences were alleged to have been committed in February 1997. Count 3 related to an offence alleged to have been committed in February or March 1998 concerning a third Lear's macaw and the restriction relied on in relation to that offence was article 4(1) of Council Regulation (EC) N o 338/97. He was sentenced to concurrent terms of 30 months ' imprisonment on each count. He appealed against conviction with the leave to the single judge.

The facts are stated in the judgment of the court. F

Simon Farrell and Anya Lewis (assigned by the Registrar of Criminal Appeals) for the defendant.

Simon Draycott and Vivian Walters for the Crown.

Cur adv vult

C 8 December. OUSELEY J handed down the following judgment of the court.

1 Lear's macaw is threatened with extinction; it is listed in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 ("CITES"). Trade in such critically endangered species is generally prohibited. The blue-headed macaw, although not necessarily threatened with extinction in 1973, may become subject to such a threat; it is listed in Appendix II of CITES. Trade in such species is strictly regulated. Council Regulation (EEC) N o 3626/82 applied CITES throughout the European Community, with effect from 1 January 1984. Council Regulation (EC) N o 338/977 continued to apply CITES throughout the Community, with varied controls, with effect from 1 June 1997.

904 RvSissen(CA) [2001] 1WLR

2 On 14 April 2000, the defendant, Henry Sissen, was convicted in the A Crown Court at Teesside, sitting at Newcastle before Whitburn J, on four counts. Each alleged that Sissen had been knowingly concerned in the fraudulent evasion of a restriction on the importation of goods contrary to section i7o(2)(b) of the Customs and Excise Management Act 1:979.

3 Counts 1 and 2 related to two different Lear's macaws; because the offence was alleged to have been committed in February 1997, the restriction relied on was article 5(1) of EC Regulation 3626/82. Count 4 related to six blue-headed macaws; the offence was also alleged to have been committed in February 1997, and article 5(1) was again the restriction relied on. Count 3 related to a third Lear's macaw but because the offence was alleged to have been committed in late February to early March 1998, the restriction relied on was article 4(1) of the later EC Regulation 338/97.

4 The issues in this appeal require that the different regulations be c identified but nothing turns on the differences between them. This was, we were told, the first prosecution in the UK concerning the EC Regulations and CITES.

5 Upon conviction, Sissen was sentenced to 30 months' imprisonment on each count concurrent and was ordered to pay £5,000 towards the costs of the prosecution. The maximum sentence for an offence under section 1:70(2) of the 1979 Act is seven years.

6 He appeals with leave against conviction on one ground and renews his application on the ground upon which the single judge refused leave; his application for leave to appeal against sentence was referred to the full court by the single judge.

7 In summary, Sissen was granted leave to argue that the judge wrongly rejected the defence application at the outset of the trial to quash the £ indictment; it was submitted that it disclosed no offence known to English law. He was refused leave to argue that his interviews with Customs and Excise should have been excluded from the trial pursuant to section 78 of the Police and Criminal Evidence Act 1984.

No offence known to English law 8 There was a good deal of quite complicated evidence, with differing

versions from the prosecution and defence as to the origin of three Lear's macaws and six blue headed macaws which were among a number of live birds seized by Customs and Excise from the defendant's farm on 2 April 1998. The defendant is an internationally renowned breeder of rare parrots at his home, at Cornhill Farm, Northallerton, known as Cornhill Conservation Centre. It is unnecessary for the purposes of this appeal to go C into the details and a short summary will suffice.

9 The prosecution case was that the defendant imported the birds from the then Yugoslavia and Slovakia without the import permit which was required by the EC Regulations. It was said that he had travelled to Yugoslavia by car in 1997 to visit a dealer from whom he had bought the first two Lear's macaws and had travelled on to Slovakia to buy the six blue headed macaws from another person. He had then smuggled the birds back into the European Union possibly in a concealed compartment in a petrol tank and eventually into England. He did not have enough money for all the birds and had made a later journey to collect the third Lear's macaw at some other date. That other Lear's macaw is the subject matter of count 3. The

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A prosecution relied on documentary evidence seized from the defendant's home largely in the form of faxes sent and received by him and on evidence from witnesses about the history of those parrots which the defendant had legally acquired over the years. However, and this is the crucial point for the defence in relation to this ground of appeal, the prosecution did not contend that the point of entry of any of the birds into the EU was the United

„ Kingdom. The point of entry was probably Austria. 10 The defence case was that the Lear's macaws seized on the z April

1998 had all been legitimately acquired by him in the past and were not the ones which the customs officers alleged had been imported into the UK from Yugoslavia. Although Sissen had attempted to buy and indeed had paid for three Lear's macaws from Yugoslavia he had not imported them. He had arranged with his dealer there to remove the birds from war-torn Yugoslavia

C and he thought that they had been taken to safety in Slovakia from where he hoped to import them legitimately at some future date. Sissen had bought the six blue-headed macaws from a German who had brought them to his farm in Northallerton. Of course it follows from the jury's verdict that the defence case was disbelieved and rejected.

11 However, for the purposes of this ground of appeal the defence says D that even taking the prosecution case at its highest against him he could not

be prosecuted in England for failing to present an import permit within the EU if the point of entry into the EU were not the UK, because article 5(1) of EC Regulation 3626/82 and articles 4(1) and 4(2) of Regulation 338/97 did not contain any relevant restrictions for the purposes of section iyo(2)(b) of the Customs and Excise Management Act 1979. This submission had three components:

f (1) Those articles were not sufficiently clear, unambiguous and unconditional so as to have direct effect in the UK.

(2) If the articles did have direct effect, they restricted the introduction into the EU of the listed species at the point of introduction which was probably Austria and certainly not the UK; they did not restrict the introduction of the species into the UK when those species had already

P arrived within some other member state of the EU. He could only be prosecuted for failing to present the import permits at the point of entry to the EU and as that was acknowledged not to be within the UK there was no offence committed within the UK. Failing to present an import permit at a crossing point into the EU within a different member state from the UK could not constitute an offence under English law.

(3) The articles created a criminal offence punishable with seven years' c imprisonment which was unlawful because section 2(2) European

Communities Act 1972 prohibited the creation of new offences by statutory instrument punishable with imprisonment for more than two years.

12 In order to examine these submissions it is necessary now to set out the relevant legislation. Article 189 of the EC Treaty, as amended (now article 249 EC), provides:

"In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions. A regulation shall have general application. It shall be binding in its

906 RvSissen (CA) [2001]1 WLR

entirety and directly applicable in all member states. A directive shall be A binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods."

The European Communities Act 1972. provides by section 2(1):

"2. General implementation of Treaties. (1) All such rights, powers, e liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression 'enforceable Community right' and similar expressions shall be read as c

referring to one to which this subsection applies."

The Customs and Excise Management Act 1979 provides by section 170(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 . . . (b) of any prohibition D 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 . . . "

13 Council Regulation (EEC) No 3626/82 contains within its preamble a number of relevant paragraphs. It provides:

"Whereas a Convention on international trade in endangered species of wild fauna and flora (hereinafter referred to as 'the Convention') was opened for signature on 3 March 1973; whereas the Convention is intended to protect endangered species of wild fauna and flora by regulating international trade in these species and in readily recognisable parts and derivatives thereof. . .

"Whereas, to attain its objectives, the Convention mainly employs F

commercial policy instruments by laying down restrictions on and a strict control of international trade in specimens of endangered species of wild fauna and flora;

"Whereas, in order to protect endangered species of wild fauna and flora, it is necessary at Community level to ensure that certain commercial policy instruments to be employed under the Convention are uniformly Q applied; whereas, because of its scope, this Regulation should not affect national powers to adopt protective measures of a different nature;

"Whereas the measures relating to the application of the Convention to trade must not affect the free movement of products within the Community and must apply only to trade with third countries . . .

"Whereas in certain cases it may be necessary, in order to permit the most effective conservation possible . . . for member states to maintain or take, in compliance with the Treaty, stricter measures than those laid down in this Regulation;

"Whereas implementation of this Regulation necessitates the introduction of a Community procedure for the issue and presentation of

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A permits for the export, re-export, import and introduction from the sea of specimens of the species covered by the Convention . . .

"Whereas, to ensure that the prohibition of importation is fully effective, rules should be drawn up concerning the conditions of trade in specimens and species listed in Appendix I to the Convention . . .

"Whereas, to facilitate customs procedures, there must be provision to permit member states to designate one or more places of entry and exit where the goods in question must be presented . . .

"Article i

"The Convention, as set out in Annex A, shall apply throughout the Community under the conditions laid down in the following articles . . .

c "Article j

"(i) The introduction into the Community of specimens covered by articles 2 and 3 shall be subject to presentation of an import permit or import certificate provided for in article 10 at the customs office at which the customs formalities are completed . . .

"(3) Customs offices at which permits have been presented in accordance with paragraphs (1) and (2) shall forward the permits to the management authority of the member state in which they are situated."

There is provision for certain derogations in article 5(4). The parrots in question are covered by article 2(a) (Lear's macaws) and article 2(b) (blue-headed macaws).

E "Article 10

"(i)(a) The introduction into the Community from third countries or from the sea of the specimens referred to in articles 2(a) and 3 shall be subject to the presentation of an import permit.

"(2) The introduction into the Community from third countries or from the sea of specimens of all other species covered by the Regulation shall be subject to presentation either of an import permit or of an import certificate endorsed by the customs services and certifying that the formalities required under the Convention have been fulfilled."

14 Mr Farrell, for the defendant, highlights the phrase in articles 5, 10(1) and (2): "The introduction into the Community". He contrasts it with the provisions of article 13(2) on transportation which provides: "Any transportation within the Community of live animals of the species referred to in articles 2(a) . . . shall be subject to prior authorisation . . .". This, he submits, is wholly consistent with the preamble, in particular the fourth paragraph cited above identifying that the application of the Convention must not affect free trade within the Community but only applies to trade with third countries.

H "Article 8

"The competent authorities of the member states shall: (a) issue the permits and certificates provided for in article 10 or endorse the import certificates referred to in article 10(2). . .

908 RvSissen(CA) [2001] 1WLR

"Article 9 A

". . . (2) With the exception of the document referred to in article 11(a), permits and certificates referred to in this Regulation issued by a member state shall be valid throughout the Community.

"(3) The applications for import permits referred to in article 10(1) shall be submitted to the management authority responsible for the place of destination of the specimen."

Thus the destination state, not necessarily the same as the state of entry, has to provide documentation necessary for the importation into the EU via the state of entry.

15 Article 15 permitted a member state to take stricter measures for conservation purposes provided that they did not contravene the Treaty of Rome.

16 By Commission Regulation (EEC) No 3418/83, details were set out as to the relevant forms which were prescribed for the purpose of uniformity in the operation of the Council Regulation throughout the Community.

17 The provisions of Council Regulation (EC) No 338/97 are similar. The preamble provides:

"(2) Whereas, in order to improve the protection of species of wild fauna and flora which are threatened by trade or likely to be so threatened, Regulation (EEC) No 3626/82 must be replaced by a Regulation taking account of the scientific knowledge acquired since its adoption and the current structure of trade; whereas, moreover, the abolition of controls at internal borders resulting from the Single Market necessitates the adoption of stricter trade control measures at the £ Community's external borders, with documents and goods being checked at the customs office at the border where they are introduced . . .

"(5) Whereas the implementation of this Regulation necessitates the application of common conditions for the issue, use and presentation of documents relating to authorisation of the introduction into the Community and the export or re-export from the Community of F specimens of the species covered by this Regulation; whereas it is necessary to lay down specific provisions relating to the transit of specimens through the Community. . ."

The language of the preamble paragraph (5) which refers to "introduction into the Community" and paragraph (6) which refers to "introduction of specimens into the Community" may again be contrasted with paragraph Q (10) which refers to the need to provide "for controlling trade and movement of specimens within the Community".

Article 4, "Introduction into the Community", provides:

"(1) The introduction into the Community of specimens of the species listed in Annex A shall be subject to completion of the necessary checks and the prior presentation, at the border customs office at the point of H introduction, of an import permit issued by a management authority of the member state of destination."

Lear's macaw is listed in Annex A. Articles 4(2), 4(3) and 4(4) use similar language in dealing with the control of specimens listed in other annexes.

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A "Article 16

"(i) Member states shall take appropriate measures to ensure the imposition of sanctions for at least the following infringements of this Regulation: (a) introduction into, or export or re-export from, the Community of specimens without the appropriate permit or certificate or with a false, falsified or invalid permit or certificate or one altered without

6 authorisation by the issuing authority. . ."

As with the earlier Council Regulation, a new Commission Regulation 939/97 prescribed in detail the form and content of relevant documents for Community-wide uniformity and other detailed conditions to be complied with.

18 There are additional legislative provisions which relate to the C submission as to the lawfulness of the seven-year maximum sentence under

section 170(2) of the 1979 Act. Article 6(1) of Council Regulation 3626/82 provides:

"The display to the public for commercial purposes and the sale, keeping for sale, offering for sale or transporting for sale of the specimens referred to in articles 2(a) and 3(1) shall be prohibited, subject to

D exemptions which may be granted by the member states for the following reasons, account being taken of the objectives of the Convention and the requirements of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds . . ."

There then follows various reasons permitting exemptions. Article 8 of Council Regulation 3 3 8/97 is in similar terms:

£ "Provisions relating to the control of commercial activities

"(1) The purchase, offer to purchase, acquisition for commercial purposes, display to the public for commercial purposes, use for commercial gain and sale, keeping for sale, offering for sale or transporting for sale of specimens of the species listed in Annex A shall be prohibited."

Section z( 2) of the European Communities Act 1972 provides:

"2. General implementation of Treaties . . . (2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by regulations,

C make provision—(a) for the purpose of implementing any Community obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or (b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above; and in the exercise of any such statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the Communities and to any such obligation or rights as aforesaid."

910 RvSissen(CA) [2001] 1WLR

Schedule 2, paragraph 1(1) and (i)(d) deals with subordinate legislation so A far as material:

"The powers conferred by section 2(2) of this Act to make provision for the purposes mentioned in section 2(2)(a) and (b) shall not include power . . . (d) to create any new criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine B of more than level 5 on the standard scale (if not calculated on a daily basis) or with a fine of more than £100 a day."

The Control of Trade in Endangered Species (Enforcement) Regulations 1985 (SI 1985/1155) were made pursuant to section 2(2) of the European Communities Act 1972. Regulation 3(1) makes it an offence for someone to contravene article 6 of Council Regulation (EEC) No 3626/82; and C regulation 3(8) provides for maximum sentence of two years' imprisonment.

19 Similarly, the Control of Trade in Endangered Species (Enforcement) Regulations 1997 (SI 1997/1:372), again made under section 2(2) of the European Communities Act 1972, provides in regulation 8(8) for a maximum sentence of two years' imprisonment.

20 As a further example of specific statutory controls, we were referred to the Import of Seal Skins Regulations 1996 (SI 1996/2686), also made under section 2(2) of the European Communities Act 1972. These regulations implement certain European Council Directives. By regulation 4(2), an amendment is made to section 170 of the 1979 Act so as to provide that the maximum penalty under that section for breaching the prohibition on the importation of seal skins is two years not seven years.

21 We now turn to deal with Mr Farrell's submissions on behalf of the E defendant. Two of them can be dealt with quite shortly: those relating to the direct effect of the Council Regulations and to the unlawfulness of the penalty.

22 First, direct effect. It is indisputable that article 189 makes Council Regulations directly applicable within member states; it expressly provides that that is so. Section 2(1) of the European Communities Act 1972 gives article 189 legislative effect: Council Regulations fall within that category of obligations and restrictions which "in accordance with the Treaties are without further enactment to be given legal effect. . . in the United Kingdom [and] shall be recognised and . . . enforced . . . accordingly".

23 The essence of a regulation is that it becomes part of national law without the need for national legislation. It enters into force without any measure of national reception: Flli Variola SpA v Amministrazione italiana C delle Finanze (Case 34/73) [1973] ECR981.

24 Mr Farrell's submission that a regulation can only take direct effect if it is clear, unambiguous, unconditional and not dependant upon further action by the EU or a national authority, wrongly seeks to apply to a regulation, tests relevant to the direct effect of Treaty provisions, as for example in NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Nederlandse administratis der belastingen (Case 26/62) [1963] ECR 1, or relevant to the direct effect of Directives.

25 However, even were those tests relevant, they would be satisfied by the provisions of this regulation. The restriction is quite clear. The fact that the necessary documents had to be prescribed in form and content is wholly

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A insufficient to alter the legal nature of the regulation or, at all events once the Commission Regulations were made, to create any precondition to the enforcement of the regulation. No national legislative action was necessary. It is sufficiently clear in language to be a restriction breach of which has penal consequences. In so far as article 16 of Council Regulation (EC) No 3 3 8/97 requires action, the 1979 Act sufficed.

26 The other short point relates to penalty. It was submitted that as the offence was said to arise under section 170(2) of the 1979 Act, and was therefore subject to a seven-year maximum prison sentence, the enactment relied on was in conflict with section 2(2) of the European Communities Act 1972. That only empowered a two-year maximum sentence for breaches of European controls; hence no offence could arise under section 170 of the 1979 Act and separate domestic legislation was required to create the

C necessary offence. The regulations restricting the import of seal skins were instanced to show how the statutory provisions should have been fashioned to deal with the import of endangered species.

27 The flaw in this submission is that section 2(2) of and schedule 2 to the European Communities Act 1972 do not deal with the effect of provisions directly applicable by virtue of section 2(1). Section 2(2) does not provide an exclusive route whereby European legislation takes effect in domestic criminal law. The use of the 1979 Act, and the treatment of the Council Regulations as enactments containing restrictions or prohibitions within the 1979 Act, and thus subject to that Act's normal penalties, is entirely appropriate for a regulation under article 189 and section 2(1) European Communities Act 1972. That is not to say that the government could not give legislative effect to Council Regulations, for example to

E article 6 of (EEC) No 3636/82, by regulation under section 2(2). But it is not obligated to act that way.

28 Mr Farrell's main point however is that the restriction contained within articles 5 and 4 of the 1982 and 1997 Regulations respectively only applies so as to prevent importation of specimens such as these parrots into the EU without the requisite permits at the point of entry. It does not impose any restriction on the movement of such specimens to or within other member states. If the point of entry into the EU had been the UK, an offence within the UK would have been committed. Where, however, as is accepted to be the case here, the point of entry was not the UK, no offence was committed by their importation into the UK from the member state of entry. The offence was committed and triable in Austria, if that was the member state of entry. Were the law otherwise, the UK would be claiming an extra-

C territorial jurisdiction. 29 In support of the first part of that submission, Mr Farrell relied upon

the way in which the Council Regulations deal with the point of entry, the references to "the introduction into the Community" by contrast to eg controls on movement "within the Community". The preambles with their concern to regulate trade with third countries but not to restrict trade within the Community are prayed in aid. The recognition of the separate role of destination states supported that conclusion. The restrictions on sale were clearly directed to all states by contrast with the provisions restricting importation.

30 In support of the territoriality component of that submission, Mr Farrell referred to Air-India v Wiggins [1980] 1 WLR 815, in the House

912 RvSissen(CA) [2001] 1WLR

of Lords. In that case an Air-India flight left India for London with a cargo A of 2000 live parakeets in 12 crates and arrived with 89 live parakeets and over 1900 dead parakeets; these probably died during a long stop in Kuwait. Air-India was charged with offences of contravening article 5(2) of the Transit of Animals (General) Order 1973 (SI 1973/1377) made under the Diseases of Animals Act 1950. Section 23 of the 1950 Act, as amended by section 11 of and paragraph 1(1) of Schedule 2 to the Agriculture R (Miscellaneous Provisions) Act 1954, empowered the Minister to make an order creating criminal offences:

"The Minister may make such order as he thinks fit. . . (b) for ensuring for animals carried by sea or by air a proper supply of food and water and proper ventilation during the passage and on landing; (c) for protecting them from unnecessary suffering during the passage and on landing." c

Article 5(2) of the Transit of Animals (General) Order 1973 provided:

"No person shall carry any animal by sea, air, road or rail, or cause or permit any animal to be so carried, in a way which is likely to cause injury or unnecessary suffering to the said animal."

Article 3(3) provided: D

"In relation to carriage by sea or air, the provisions of this Order shall apply to animals carried on any vessel or aircraft to or from a port or airport in Great Britain, whether or not such animals are loaded or unloaded at such port or airport."

It was this provision which was relied on by the Divisional Court as making things done or omitted to be done by foreign nationals in foreign countries E offences under the Act; there was nothing in article 5(2) itself to suggest that it was intended to have extra-territorial effect. In his speech, Lord Diplock said, a tp 819:

"My Lords, in construing Acts of Parliament there is a well-established presumption that, in the absence of clear and specific words to the contrary, an 'offence-creating section' of an Act of Parliament (to borrow F

an expression used by this House in Cox v Army Council [1963] AC 48, 67) was not intended to make conduct taking place outside the territorial jurisdiction of the Crown an offence triable in an English criminal court. As Viscount Simonds put it, at p 67: 'apart from those exceptional cases in which specific provision is made in regard to acts committed abroad, the whole body of the criminal law of England deals with acts committed Q in England.' Cox v Army Council was concerned with a statute which in the plainest possible words made acts committed abroad by serving members of the British Army offences triable by court-martial. The presumption against a parliamentary intention to make acts done by foreigners abroad offences triable by English criminal courts is even stronger. As Lord Russell of Killowen CJ said in R v Jameson [1896] 2 QB 425, 430: 'One other general canon of construction is this—that if any construction otherwise be possible, an Act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting.' Two consequences follow from these principles of statutory construction: the first is that if the

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A minister had power to make an Order under the statute, making acts done by foreigners abroad offences triable in English criminal courts, such power must have been conferred upon him by words in the statute so clear and specific as to be incapable of any other meaning; the second is that the words of the Order must themselves be explicable only as a clear and unambiguous exercise of that power. If either the empowering words of section 23(b) of the Act or the enacting words of article 3(3) of the Order would have a sensible content if restricted to acts done within the territorial jurisdiction of the Crown, they must be so construed."

31 Lord Diplock went on to hold that it was perfectly possible to give sensible content to section Z3 of the 1950 Act by treating the passage of the vessel or aircraft there referred to as being its passage over the territorial airspace or waters of the UK and not beyond and the landing as being landing at a port or airport in the UK and he held that no power to create extra territorial offences had been conferred on the Minister by the Act. Accordingly no offence had been committed by Air-India in respect of the birds which were dead on arrival at Heathrow because it was conceded that they must have died in Kuwait and their suffering must have ceased thereupon. Offences were committed in respect of the 89 birds that were still

D alive but it was not possible to identify which crates they were in and so all twelve convictions were quashed.

32 Mr Farrell submitted that as section 170(2) of the 1979 Act was the relevant offence creating provision and there was nothing in it to suggest that conduct taking place outside the territorial jurisdiction of the Crown should be triable in an English criminal court there could be no offence triable in an English criminal court of being knowingly concerned in evading an import restriction in Austria.

33 Mr Draycott, for the Crown, did not take issue with the principles set out in Air-India v Wiggins [1980] 1 WLR 815. He did not seek to take issue with the construction of the Council Regulations to which we have referred above. Mr Draycott's response to the territoriality submission was that the offence under section 1:70(2) was a continuing offence and the

F evasion of the prohibition or restriction was not limited to the moment of importation itself in breach of the restriction but extended to a continuing series of events both before and after that moment; the evasion continued until the goods ceased to be prohibited or possibly until they were exported.

34 For the purposes of this submission Mr Draycott referred to Archbold's Criminal Pleading, Evidence and Practice 2000, p 2199, para 25-459. As an illustration of his proposition, reliance was placed upon an example given by Kenneth Jones J in summing up to the jury in R v Neal [198413 All ER 156,159:

"Now, the words, 'the evasion of the prohibition on importation' . . . are wider than simply the single word 'importation'. Let me give you a very simple example. A boat arrives in a port in this country and it has on board cannabis resin. One of the sailors . . . actually carries that cannabis resin ashore. He hands it over to another man who is waiting, who loads it into a van. The van is driven off to some place where the drug is unloaded and is stored away in some building and there you have someone who helps in that unloading, perhaps the owner of the building in which it is stored. Maybe, at a later stage, it is transported to yet

Vol 1 39

914 RvSissen(CA) [2001] 1WLR

another building and is stored there and it may be . . . that behind all this A operation, controlling it and supervising it, is some organising person. Now you see, of all those men, the sailor, the van driver, the storekeeper, the organiser, strictly speaking, only the sailor has imported the drug into this country. He is the only person who carried it into this country, and that is what importation means, but he and each of those other persons . . . have all taken a part in evading the prohibition on the R importation of that drug and taken their part in getting round it, in setting at nought the ban which the law imposes on the importation of the drug."

35 Mr Draycott also relied upon R v Green (Harry) [1976] QB 985. This case concerned an attempted offence under the predecessor provision of section 170(2) the 1979 Act. Cannabis arrived in the country at Southampton destined for an address in Hammersmith. In Southampton it c was opened, the cannabis was removed and peat and paper was substituted. The crate was subsequently collected by a firm of removers and taken to a warehouse, collected from there again and removed to a garage in London. The defendant had assisted in various ways in the operation including renting the garage in a false name and paying rent upon it in advance. The defendant submitted that the objective had become impossible to achieve following the seizure of the cannabis in Southampton and that as the D

substratum of the substantive offence had been destroyed none of the inchoate offences connected with it could be established. The Court of Appeal rejected that, holding that, even on the assumption that the defendant had had nothing to do with the importation before the cannabis had been seized and joined the conspiracy only after its seizure, he could properly be convicted of being knowingly concerned in any fraudulent £ evasion or attempted evasion of a restriction applying to cannabis. Ormrod LJ said, at p 993:

"The actus reus in this offence is being concerned in the evasion or the attempted evasion of a prohibition on the importation of the goods in question, not the successful evasion. All the necessary ingredients were proved or admitted: cannabis is a prohibited drug; it was imported in p breach of the prohibition; so evasion was established. We accept Mr Mildon's argument that evasion is a continuing offence, that is, that it does not cease when the cannabis was seized by the authorities. Once imported, the evasion of the prohibition continues until the goods ceased to be prohibited goods or, possibly, are re-exported. The renting of the garage knowing that it was to be used to store the cannabis, completes the offence under section 304(b). The judge's direction to the jury on this count therefore cannot be criticised."

Mr Farrell, for the defendant here, did not in his turn take issue with the basic principle contended for by Mr Draycott but contended that the principle had no application in relation to the restriction relied upon by the Crown here. That was because the restriction here was not a restriction upon the importation of goods into the UK unless the UK was the point of entry into the EU; it was a restriction on the importation into the EU. He submitted that there was no authority for the proposition that one can be prosecuted in England for being knowingly involved in fraudulently evading the restriction on importation of goods into another country.

[2001]1 WLR 915

RvSissen(CA)

A 36 In our judgment, the correct answer is this. The offence created by section 170(2) of the 1979 Act is one of being knowingly concerned in the fraudulent evasion of a restriction contained in an enactment. There is no doubt but that the two Council Regulations are "enactments" for the purposes of the 1979 Act.

37 The next question to be answered is as to the scope of the restriction contained within articles 5 and 4 of the earlier and later regulations respectively. The restriction is on the introduction into the EU of these birds without presentation of the relevant permits at the EU border. The regulations do not contain a further restriction on the movement of such birds into other member states. It has not been argued before us that, on a purposive construction, the requirement that introduction into the Community be subject to presentation of customs formalities is itself

C breached as goods are thereafter kept in the state of entry or moved into another state.

38 Next, it has to be asked whether the 1979 Act contains any territorial limits, bearing in mind the principles of statutory construction in Air-India v Wiggins [1980] 1 WLR 815. This case does not hold that a statute cannot provide for an offence of evading a restriction which bites abroad. It does not deal with the context relevant here of the EU as a single market for import controls. As a matter of statutory construction the 1979 Act clearly incorporates as restrictions the Council Regulations which restrict the entry of certain goods into the EU as a whole and without differentiation between states. The 1979 Act cannot be interpreted as applying to an enactment only to the extent that the enactment prohibits or restricts the entry of goods into the UK. The territorial scope of the 1979 Act

E turns on the scope of the restriction in the enactment in question, i e in these Regulations. These are part of UK law and take effect under the 1979 Act according to their terms rather than being cut down in their terms by the Act. It is made an offence under the 1979 Act to be knowingly concerned in the fraudulent evasion of those restrictions. The 1979 Act cannot be interpreted as applying only to acts of evasion of restrictions which take place in the UK; R vjakeman (1982) 76 Cr AppR 223 illustrates the justiciability in England and Wales of acts done in Ghana to bring about import into the UK as acts concerned in the evasion of import restrictions into the UK.

39 It is therefore an offence under English law, the Customs and Excise Management Act 1979, on its true construction, for a person to be knowingly concerned in the fraudulent evasion of the restriction on the importation of these birds into the EU contained in the two Council

C Regulations, whatever the country of entry into the EU may be. 40 The final question, the answer to which was not in issue on the facts

of this case, is whether and if so to what extent any acts of evasion must take place in England and Wales so that there is a territorial connection with England and Wales, in circumstances where the actual importation into the UK is not itself the direct breach of the restriction enacted in the Council Regulations.

41 The gist of the offence under the 1979 Act is concern in the evasion of the EU restriction. Such evasion can involve a continuing sequence or complex of acts done before and after the actual wrongful importation into the EU. The evasion of the restriction and concern in its evasion does not begin or end with the moment of introduction of the goods into the EU. Acts

916 RvSissen(CA) [2001] 1WLR

which are done before and after that moment can be acts of evasion or A concern in the evasion of that restriction. This is demonstrated in R v Heal [1984] 3 All ER 156, R v Green (Harry) [1976] QB 985 and in R vjakeman 76 CrAppR 223. Where a part of that continuing sequence of acts of evasion occurs in England and Wales, the courts of this country have jurisdiction to try the offence on generally accepted principles. These principles are set out most recently \n R v Manning [1999] QB 980, especially at pp 988c and following, and in R v Markus [1976] AC 35.

42 On the facts of this case, as the prosecution asserted and as the jury's verdict clearly accepted, the defendant arranged in England for the birds to be brought into England and received them in England in order to keep them. Had the context been breach of a restriction on importation into the UK, the defendant would undoubtedly have been concerned in the evasion of the restriction even though the act of importation were carried out by c another. Those same acts are no less acts of evasion, undertaken in England, when the restriction evaded happens to be at a border in Austria.

43 This result accords with common sense; it would be an affront to the purpose of the Council Regulations if the arrangements for the importation into the EU could be carried out in England, if the intended destination state were also to be the UK, if the organisers were present in England and yet no offence arose under English law, which incorporates the Council Regulations, simply because the point of entry into the EU were Austria. Prosecution in this country should not be prevented in respect of the evasion of the restrictions on entry into the EU, components of which have taken place in England and Wales, simply because the legally astute smuggler has chosen, for example, a lonely spot on Eire's shoreline as his point of entry into the EU. £

44 We note one further related argument from the defendant. Mr Farrell submitted that the defendant could and perhaps should have been charged with an offence under section 1 of the Endangered Species (Import and Export) Act 1976 which prohibited the import of animals to which Schedule 1 to that Act applied. Schedule 1 applied to all birds except a few species which did not include those with which these charges are concerned. However, he acknowledged, as Mr Draycott pointed out, that the conscious F

purpose of some roundabout secondary legislation had been to render that Act toothless. The combination of the Endangered Species (Import and Export) Act 1976 (Amendment) Order 1996 (SI 1996/2677) in force on 15 and :i: 6 November 1996 and the Endangered Species (Import and Export) Act 1976 (Amendment) Regulations (SI 1996/2684) in force on 16 and 17 November 1996, was to make Schedule 1 inapplicable to anything, Q Therefore, any prosecution had to be brought under the 1979 Act.

45 This legislative vanishing act cannot make the 1979 Act applicable where previously it was unavailing, nor can it detract from the true force of the Act. This schedule is now but a footnote.

The interviews 46 The defendant renews his application for leave to appeal against

conviction on the ground that his interviews with Customs and Excise officers, which founded cross-examination of him and argument to the jury to the effect that he had lied to them, should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 on the grounds that

[2001] 1 WLR 917

RvSissen(CA)

A their admission had such an adverse effect on the fairness of proceedings that they should not have been admitted. The basis for this submission was the accepted fact that, although each of the sequence of interviews was initiated with the appropriate caution, with the defendant's solicitor present, the Customs and Excise officer misrepresented the defendant's legal obligation to answer questions in the first interview on z April 1998. The officer stated during the course of that interview that it was for the defendant to prove that he had obtained lawfully the birds in question seized from him; understandably the defendant's local solicitor was unable to intervene to correct this assertion as to the law, coming as it did from a specialist customs officer. It is now accepted by the prosecution that that approach, in relation to these offences, was mistaken. Answers given at the first interview were relied on at trial as lies; the judge, it was said, erred in

C failing to exclude the interviews because he asked himself whether the defendant's will had been overborne whereas he should have recognised that the defendant had been deprived of the ability to make an informed choice about whether or not to stay silent.

47 The prosecution submits that the answers relied on as lies were largely given before the erroneous assertion was made as to burden of proof. It also submits that the defendant did not give up any right of silence because of what was said; in contrast, he was keen to unburden himself as to the iniquity of the position in which he found himself and his flow of answers and assertions was unaffected by the erroneous advice from Customs and Excise.

48 We agree with the trial judge and the single judge. There was nothing unfair in the admission of the interviews for the reasons given by the prosecution, which we accept are wholly justified on a reading not just of the

£ interview transcript extracts, which we were all supplied with, but of the full interview transcripts. The defendant did not start or continue talking or give explanations because of what was said by Customs and Excise; he wanted to make his position clear anyway. The defendant was also a man who had a good working knowledge of the relevant statutory provisions, albeit that he was not as specialist as the interviewing officer.

49 Accordingly the appeal against conviction is dismissed.

Sentence 50 Mr Farrell submits that 30 months'imprisonment is too severe. The

defendant possessed 500 parrots at the time of the April 1998 raid; he paid £50,000 for the nine birds he acquired, not for profit but as a successful and renowned breeder of very rare parrots. Evidence before the trial judge

C suggested that there were only 20 breeding pairs of Lear's macaw in the wild. He could have bred more. He had saved species from extinction. He had previous convictions nearly 20 years ago for breaking CITES requirements for which he had been fined. He was now 61. He was needed to look after his remaining parrots. A confiscation hearing in respect of other birds was looming. The prison sentence was crushing. Mercy was

H sought. 51 It must be recognised that trade in endangered species is prohibited

or restricted for good reason. Whether the reason for the breach of the restriction is profit, obsession or conservation according to the lights of this defendant, all contribute to the illegal market which underlies the capture of these endangered species from the wild. The law is clear as to where the

918 RvSissen(CA) [2001] 1WLR

interests of conservation lie. These are serious offences. An immediate A custodial sentence is usually appropriate to mark their gravity and the need for deterrence. There is nothing wrong in principle with a sentence of 30 months for an offence such as this. This was, as the sentencing judge put it, a devious and elaborate scheme to smuggle birds into the country, including critically endangered species.

52 We do however consider that it is possible to tailor the sentence more to the circumstances of the offender in view of his age, the fact that this is his first prison sentence, his financial position, having lost £50,000 already in paying for the birds, and his motives, albeit legally misguided, in seeking to breed the birds. It is our judgment that a sentence of 18 months' imprisonment is sufficient; the sentence of 30 months will be quashed and be substituted by a sentence of 18 months.

53 An order for the payment of costs in the sum of £5,000 was imposed. C However, under section 72(5) of the Criminal Justice Act 1988, a costs order has to take account of any confiscation order and a costs order cannot be dealt with until after any confiscation order. A confiscation order application is due to be heard over five days starting on 1 February 2001, and so the costs order will be set aside for consideration after the confiscation order, pursuant to section 72A(4) of the 1988 Act, as amended by section 28 of the Criminal Justice Act 1993.

54 To that extent this appeal is allowed. We have received and read an undated letter from the defendant; it arrived after the conclusion of the hearing of his appeal. It raises matters as to his conviction and in mitigation of sentence. None of those matters is sufficient to warrant reconsideration of the appeal against conviction; they are all issues which were or should have been raised before the jury. We had all the material in mitigation on his E behalf from Mr Farrell. We simply mention the letter to make it clear to the defendant that we did not overlook it.

Appeal against conviction dismissed. Appeal against sentence allowed and

sentence varied accordingly. Certificate under section 33(2) of the F

Criminal Appeal Act 1968 that a point of law of general public importance was involved in the decision, namely: "'Whether article 5(1) of Council Regulation (EE C) No 3 626/82 and article 4 (1) of c Council Regulation (EC) No 338/97 create restrictions for the purposes of section 170 of the Customs and Excise Management Act 1979 when the point of introduction into the EC of the relevant goods is a member state other than the UK." H

Leave to appeal refused.

Solicitors: Solicitor for the Customs and Excise.

Reported by MRS CLARE BARSBY, Barrister