Summary of the ruling in the Appeal Court by a barrister

Summary of the ruling in the Appeal Court by a barrister

ANIMAL -Endangered species-Fraudulent evasion of restriction on importation -Endangered parrots imported illegally into European Union-Point of entry not United Kingdom-Whether subsequent importation into United Kingdom from another Member State constituting offence of being knowingly concerned in fraudulent evasion of restriction on importation of goods-Customs and Excise Management Act 1979, s170(2)(b)-Council Regulation (EEC) No 3636/82, art5-Council Regulation (EC) No 338/97, art 4

R v Sissen

CA: Kennedy LJ, Longmore and Ouseley JJ: 8 December 2000

It was an offence under s170 of the Customs and Excise Management Act 1979 for a person to be knowingly concerned in the fraudulent evasion of the restriction contained in Council Regulation (EEC) No 3626/82 and Council Regulation (EC) No 338/97 on the importation of endangered species into the European Union, whatever the country of entry into the European Union might be.

The Court of Appeal (Criminal Division) so held in a reserved judgment, dismissing an appeal by Henry Thomas Sissen against his conviction on 14 April 2000 in the Crown Court at Teesside sitting at Newcastle (Judge Whitburn and a jury) of four counts of being knowingly concerned in the fraudulent evasion of a restriction on the importation of goods, contrary to s170(2)(b) of the Customs and Excise Management Act 1979.

OUSELEY J, giving the judgment of the court, said that the Lear’s Macaw and the Blue Headed Macaw were listed as endangered species in the Convention on International Trade in Endangered Species 1973 which generally prohibited or restricted trade in such species. The appellant was an internationally renowned breeder of such rare parrots. The prosecution alleged that the appellant had imported three Lear’s Macaws and six Blue Headed Macaws from Yugoslavia and Slovakia, without the import permit required by EC Regulations, although it was not contended that the point of entry of any of the birds into the European Union was the United Kingdom; it was probably Austria. The appellant denied the offences and said that he had imported the macaws legitimately.

The appellant contended that, although the 1982 Regulation applied the Convention throughout the European Community from 1984 and the 1997 Regulation continued to apply it with varied controls from 1997, failing to present an import permit within the European Union was not an offence in England if the point of entry into the European Union were not the United Kingdom, because the restriction contained within art. 5 of the 1982 Regulations and art 4 of the1997 Regulations respectively only applied so as to prevent importation of specimens such as these parrots into the European Union without the requisite permits at the point of entry: it did not impose any restriction on the movement of such specimens to or within other Member States.

The Crown submitted that the offence under s170(2) was a continuing offence and the evasion extended to a continuing series of events both before and after the moment of importation itself in breach of the restriction; the evasion continued until the goods ceased to be prohibited or possibly until they were exported.

The appellant submitted that there was no authority for the proposition that one could be prosecuted in England for being knowingly involved in fraudulently evading the restriction on importation of goods into another country.

In their Lordships’ judgment the offence created by s. 170(2) of the 1979 Act was one of being knowingly concerned in the fraudulent evasion of a restriction contained in an enactment. There was no doubt but that the two Council Regulations were ’enactments’ for the purposes of the 1979 Act. That Act could not be interpreted as applying to an enactment only to the extent that the enactment prohibited or restricted the entry of goods into the United Kingdom. The territorial scope of the Act turned on the scope of the restriction in the enactment in question, ie in these Regulations. These were part of United Kingdom law and took effect under the 1979 Act according to their terms rather than being cut down in their terms by the Act.

Appeal dismissed.

Appearances: Simon Farrell and Anya Lewis (Registrar of Criminal Appeals) for the appellant; Simon Draycott and Vivian Walters (Solicitor, Customs & Excise) for the Crown.

Reported by: Clare Barsby, barrister

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( If you drive out nature with a pitchfork, she will soon find a way back)

Horace (65-8 BC)