Evasion of excise duty with intent to defraud Her Majesty, Fraudulent evasion of excise duty, Taking steps with a view to fraudulently evade excise duty, Improper importation of goods

Date Updated: January 2012
Title: Revenue Offences
Offence:

Evasion of excise duty with intent to defraud Her Majesty,
Fraudulent evasion of excise duty,
Taking steps with a view to fraudulently evade excise duty,
Improper importation of goods

Legislation:

Evasion of excise duty with intent to defraud Her Majesty (Customs and Excise Management Act 1979, s.170(1)(a)(i), (ii), (b)),
Being knowingly concerned in the fraudulent evasion of excise duty (Customs and Excise Management Act 1979, s.170(2)(a),
Taking steps with a view to fraudulently evade excise duty (Customs and Excise Management Act 1979 s.170B),
Improper importation of goods (Customs and Excise Management Act 1979, s.50(1) (a), (2))

Commencement date: 1 April 1979
Mode of Trial: Either way
Statutory Limitations & Maximum Penalty: 7 years imprisonment
Sentencing range: Fine to 7 years imprisonment

Seriousness and Aggravating factors:

Number involved in the offence and the role of the offender
Offending carried out over a significant period of time
The use of another person's identity
Number involved in the offence and role of the offender
Use of a legitimate business as a front
'Professional Offending'
Use of children or vulnerable adults
Making repeated importations, particularly in the face of warnings from the authorities
Dealing in goods with an additional health risk
Disposing of goods to under-aged purchasers
Threatened violence to those seeking to enforce the law

Mitigating Factors:

A prompt plea of guilty
Peripheral involvement
Behaviour not fraudulent from the outset
Misleading or incomplete advice
Voluntary cessation of offending
Complete and unprompted disclosure of the extent of the fraud
Voluntary restitution
Financial Pressure

Relevant Sentencing Guidelines (If Any)

The Sentencing Guidelines Council Sentencing for Fraud (statutory offences)

Guidelines to Fraudulent Evasion of Duty

Amount obtained or intended to be obtained

Note: Where the actual amount is greater or smaller than the figure on which the starting point is based, that is likely to be one of the factors that will move the sentence within the range (see paragraph 6 on page 28).

Nature of offence: Fraudulent from the outset, professionally planned and either fraud carried out over a significant period of time or multiple frauds

£500,000 or more (Starting point based on: £750,000) - Starting point: 5 years custody. Range: 4 - 7 years custody
£100,000 or more and less than £500,000 (Starting point based on: £300,000) - Starting Point: 4 years custody. Range: 3 - 5 years custody
£20,000 or more and less than £100,000 (Starting point based on: £60,000) - Starting point: 2 years custody. Range: 18 months - 3 years custody

Nature of offence: Fraudulent from the outset and either fraud carried out over a significant period of time or multiple frauds

£500,000 or more (Starting point based on: £750,000) - Starting point: 4 years custody. Range: 3 - 7 years custody
£100,000 or more and less than £500,000 (Starting point based on: £300,000) - Starting point: 3 years custody. Range: 2 - 4 years custody
£20,000 or more and less than £100,000 (Starting point based on: £60,000) - Starting point: 15 months custody. Range: 18 weeks - 30 months custody
£5,000 or more and less than £20,000 (Starting point based on: £12,500) - Starting point: 12 weeks custody. Range: Community order (HIGH) -12 months custody
Less than £5,000 (Starting point based on: £2,500) - Starting point: Community order (HIGH). Range: Community order (LOW) - 6 weeks custody

Nature of offence: Not fraudulent from the outset and either fraud carried out over a significant period of time or multiple frauds

£500,000 or more (Starting point based on: £750,000) - Starting point: 3 years custody. Range: 2 - 6 years custody
£100,000 or more and less than £500,000 (Starting point based on: £300,000) - Starting point: 2 years custody. Range: 12 months - 3 years custody
£20,000 or more and less than £100,000 (Starting point based on: £60,000) - Starting point: 36 weeks custody. Range: 12 weeks - 18 months custody
£5,000 or more and less than £20,000 (Starting point based on: £12,500) - Starting point: 6 weeks custody. Range: Community order (MEDIUM) - 26 weeks custody
Less than £5,000 (Starting point based on: £2,500) - Starting point: Community order (MEDIUM). Range: Fine - Community order (HIGH)

Nature of offence: Single fraudulent transaction, fraudulent from the outset

£20,000 or more and less than £100,000 (Starting point based on: £60,000) - Starting point: 26 weeks custody. Range: 6 weeks - 12 months custody
£5,000 or more and less than £20,000 (Starting point based on: £12,500) - Starting point: Community order (HIGH). Range: Fine - 18 weeks custody
Less than £5,000 (Starting point based on: £2,500) - Starting point: Community order (LOW). Range: Fine - Community order (MEDIUM)

Nature of offence: Single fraudulent transaction, not fraudulent from the outset

£20,000 or more and less than £100,000 (Starting point based on: £60,000) - Starting point:12 weeks custody. Range: Community order (MEDIUM) - 36 weeks custody
£5,000 or more and less than £20,000 (Starting point based on: £12,500) - Starting point: Community order (MEDIUM). Range: Fine - 6 weeks custody
Less than £5,000 (Starting point based on: £2,500) - Starting point: Fine. Range: Fine - Community order (LOW)

The presence of one or more aggravating factors may indicate a more severe sentence within the suggested range while the presence of one or more mitigating factors may indicate a less severe sentence within the suggested range.

For the purposes of this guideline the Council considered it unlikely that more than £20,000 could be obtained in a single fraudulent transaction against HMRC in circumstances where the offender's intention was not fraudulent from the outset or where the claim was exaggerated.

In addition, it is unlikely that more than £100,000 could be obtained in a fraud against HMRC in circumstances where the offender's intention was not fraudulent from the outset.

The presence of aggravating or mitigating factors of exceptional significance may indicate that the case should move to a higher or lower level of seriousness.

Relevant Sentencing Case Law

R v Czyzewski (2004) 1 Cr App R (S) 49 but The Court of Appeal has indicated in R v Tongue (Ross) [2007] EWCA Crim 561 that "once guidelines have been issued it should be the exception rather than the rule to cite previous cases". In R v Czyzewski the Court of Appeal followed the advice of the Sentencing Advisory Panel and issued the following guidelines, which were valid until the publication of the SGC Guideline:

Circumstances: Duty evaded less than £1,000 and level of profit small
Guideline sentence: A moderate fine
Circumstances: As above, with strong mitigation and provided there had been no earlier warning
Guideline sentence: Conditional discharge
Circumstances: Duty evaded not more than £10,000 (approximately equates to 65,000 cigarettes) and first time offender; or low level offending either within an organisation or persistently as an individual
Guideline sentence: Community sentence or curfew enforced by tagging, or a higher level of fine; the custody threshold is likely to be passed if any of the aggravating features (identified above) are present
Circumstances: Duty evaded between £10,000 and £100,000, whether offender operating individually or at a low level within organisation
Guideline sentence: Up to 9 months custody; some of these cases can be dealt with by magistrates, but others, particularly if marked by any of the aggravating features, should be dealt with by Crown Court

Where the duty evaded is in excess of £100,000, the length of custodial sentence will be determined principally by the degree of professionalism and the presence/absence of aggravating features; subject to this starting points are as follows:

Circumstances: £100,000 to £500,000
Guideline sentence: 9 months to 3 years
Circumstances: £500,000 to £1 million
Guideline sentence: 3 to 5 years
Circumstances: In excess of £1 million
Guideline sentence: Subject to comment made earlier where many millions of pounds are evaded, 5 to 7 years

Ancillary Orders:

Forfeiture of the goods concerned,
Confiscation Orders,
Compensation Orders,
Deprivation Orders and
Disqualification Orders.

Consider Also:

Deportation

How to use this Legal Guidance