Attorney General v Anthony Karl Frank Baird Hilton

JurisdictionIreland
JudgeDenham J.
Judgment Date30 July 2004
Neutral Citation[2004] IESC 51
CourtSupreme Court
Docket Number[S.C. No. 18 of 2004]
Date30 July 2004

[2004] IESC 51

THE SUPREME COURT

Denham J.

McGuinness J.

Hardiman J.

NO. 18/2004
AG v. HILTON
IN THE MATTER OF THE EXTRADITION ACTS, 1965 TO 2001
BETWEEN/
THE ATTORNEY GENERAL
APPLICANT/RESPONDENT

AND

ANTHONY KARL FRANK BAIRD HILTON
RESPONDENT/APPELLANT

Citations:

EUROPEAN ARREST WARRANT ACT 2003

HUMPHREYS THE JUSTICE OF THE PEACE FOR IRELAND 8ED 1890 474

JUDGE IRISH INCOME TAX 1999–2000

CHARLTON MCDERMOTT & BODGER CRIMINAL LAW 1ED 1999

TAXES CONSOLIDATION ACT 1997

QUINN CRIMINAL LAW IN IRELAND 3ED 1998 182

BLACKSTONE CRIMINAL PRACTICE 2004 B16.2

ARCHBOLD 2004 PAR 25

LRC REPORT THE LAW RELATING TO DISHONESTY 1992

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S3(2)

Abstract:

Criminal law - Extradition - Corresponding offence - Cheating public revenue - Whether the offence of cheating the public revenue exists in Ireland.

Facts: The applicant appealed from the judgment and order of the High Court granting an order for the rendition of the applicant to England on the basis that there was no corresponding offence in Ireland of cheating the public revenue. Peart J in the High Court held that the corresponding offence to the offence contained in the warrant from the jurisdiction of England and Wales was the common law offence of cheating the public revenue.

Held by the Supreme Court (Denham, McGuinness, Hardiman JJ) in allowing the appeal:

1. That the fact that section 3(2) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 abolished the offence of cheating except in relation to the public revenue did not mean that the offence of cheating the public revenue existed in Ireland. The statute was non-committal as to whether the offence existed and accordingly the reference to the exception did not create or revive the offence, which had not been utilised in prosecutions over the previous 100 years.

2. That the law was so uncertain and vague as to lead to the only possible conclusion being that no Irish common law offence of cheating the public revenue exists.

Reporter: L.O'S.

1

Judgment delivered on 30th day of July, 2004 by Denham J.

2

1. This is an appeal by Anthony Karl Frank Baird Hilton, the respondent/appellant, hereinafter referred to as the appellant, from the judgment and order of the High Court (Peart J.) delivered on 13 th January, 2004 granting an order for the rendition of the appellant to England.

3

2. Essentially, two issues arose on this appeal. First, it was submitted that there was an absence of correspondence, that there is no corresponding offence in Ireland of cheating the public revenue. Secondly, it was submitted that, in any event, the revenue offence exception was not repealed, although it has since been repealed by the European Arrest Warrant Act, 2003.

4

3. The warrant from the jurisdiction of England and Wales, which is before the court, states:

"WHEREAS ANTHONY KARL FRANK BAIRD HILTON formerly of Glasnacardoch Hotel, Glasnacardoch, Mallaig, Invernesshire, Scotland stands indicted in the Crown Court at Southampton charged with the following offence (at Southampton Hampshire, England), namely;"

5

That he on divers days between the 1 st day of January 1991 and the 1 st day of June 2001, in his capacity as director of Hilton Transport Services Limited, Tony Hilton Plant Hire Limited, Southampton Bulk Terminal Limited, Southampton Bulk Transport Limited, Tarhaven Limited, Marchwood Wharfage Limited and Coastal Aggregates Limited and also in his capacity as sole proprietor of Tony Hilton Marine Contracting, having knowledge of his obligation to pay Crown debts and with intent to defraud and to the prejudice of Her Majesty the Queen and the Commissioners of Customs and Excise and the Commissioners of Inland Revenue, failed to pay sums of Value Added Tax, Pay As You Earn Contributions and National Insurance Contributions by;

6

(i) deliberately allowing companies under his control and management to continue trading whilst unable to pay debts as they fell due at the expense of the Crown knowing he had no right to do so;

7

(ii) deliberately setting-up new companies with the objective of defrauding the Crown of monies to which it was entitled;

8

(iii) deliberately delaying the submission of end of year Pay As You Earn returns in order to hide the magnitude of the debts to the Inland Revenue in the knowledge that the debts could not be paid;

9

(iv) deliberately manipulating the Value Added Tax system by claiming inputs of input Value Added Tax on one registration under his control, whilst delaying the submission of the corresponding Value Added Tax returns declaring the corresponding output tax for the associated company also under his control, in the full knowledge that this Value Added Tax would never be paid;

10

(v) deliberately failing to pay Crown debts even when he had the money available to do so;

11

(vi) personally benefiting from company monies and assets to the detriment of the Crown;

12

and thus cheated the public revenue.

13

Contrary to Common Law.

14

AND WHEREAS the said Anthony Karl Frank Baird Hilton, having been released on bail subject to a duty to surrender to the custody of the Crown Court at Southampton on the 19 th day of April 2002 at 10.30 am, has failed to surrender as required.

15

ALL CONSTABLES in England and Wales are ordered to arrest the said Anthony Karl Frank Baird Hilton and bring him forthwith before the Crown Court or a Magistrates Court in England or Wales to appear at the Crown Court at Southampton there to surrender himself into custody."

16

4. On the issue of the corresponding offence, the High Court held the Irish corresponding offence to be the common law offence of cheating the public revenue. Peart J. stated:

"The Criminal Justice (Theft and Fraud Offences) Act has specifically excluded the offence of cheating the public revenue from the abolition of the offence of cheating. This court must therefore conclude that the legislature did so for a particular purpose, and that purpose must include the possibility that a person can still be charged with such an offence."

17

5. Thus the Irish offence for consideration is cheating the public revenue. It is, apparently, a common law offence in England. The question is whether it is a corresponding offence in Ireland.

18

6. The fact that it was a common law offence in Ireland prior to 1922 does not necessarily mean that it is a common law offence today. I am satisfied that there was an offence at common law of cheating, recognised in Ireland before 1922. Mr. E. Comyn S.C., counsel for the respondent, furnished to the court a copy of The Justice of the Peace for Ireland by Henry Humphreys, 8 th Ed, 1890, which, at p. 474, contained a reference to an indictable offence of cheating. It provided:

"Cheating – at play or by any other deceitful and illegal practice which may affect the public."

19

It is referred to as a common law offence, punishable by fine and imprisonment. However, it is notable that there is no reference to it as an offence of cheating the public revenue.

20

Counsel informed the court that there is no record of any person having been prosecuted in Ireland in the last 100 years for cheating the public revenue. However, the mere fact that there was not a prosecution does not necessarily mean that the offence does not exist, although it must be a weighty factor. It is indicative and a factor relevant to an analysis of the situation.

21

Counsel informed the court that the leading texts on the topic of the law of taxation in Ireland neither refer to, nor analyse, a common law offence of cheating the public revenue. (See Judge Irish Income Tax 1999–2000 by J. Ward, and K. Corrigan, Revenue Law).

22

On the other hand, Charlton, McDermott and Bolger, Criminal Law, 1 st Ed., (Dublin, 1999), at paragraph 10.22 states:

"At common law it is an offence for the accused to defraud or to endeavour to defraud another out of what is rightfully his. It appears that the cheat must be public in nature. In modern times the most common form of the offence is cheating the public Revenue. Typically, the accused falsely states the profits of his business to the Revenue or files a deliberately deceptive VAT return. The offence is committed where there is deliberate conduct by the accused to prejudice, or take the risk of prejudicing, the Revenue's right to the tax in question, knowing that he has no right to do so."

23

However, it appears that there has been no prosecution of this offence in the last century and no common law extant in this State.

24

At paragraph 10.23 of Charlton, McDermott and Bolger, it states:

"Tax cheating is a statutory offence. A large number of offences are set out in the Taxes Consolidation Act 1997. Typically, the accused files a false tax return or makes a pretence in a return that an allowance was payable for an expenditure, when in fact the expenditure was non-allowable."

25

It would appear that this is the framework in which Irish courts have heard cases of tax cheating in modern times.

26

In Quinn, Criminal Law in Ireland, 3 rd Ed., (Dublin, 1998), at p. 182 it is stated:

"Cheating is a misdemeanour at common law for which the penalty is imprisonment, it has been defined as "...deceitful practices, in defrauding or endeavouring to defraud another of his own right by means of some artful device, contrary to the plain rules of common honesty.""

27

This offence had its roots in common law, probably the same roots as grounded the offence in England. In England it...

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