Gill & Anor, R. v, Court of Appeal - Criminal Division, July 31, 2003, [2003] EWCA Crim 2256,[2004] 1 WLR 469

Resolution Date:July 31, 2003
Issuing Organization:Criminal Division
Actores:Gill & Anor, R. v
 
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Case Nos: 2002/02208/Z2 and 2002/02211/Z2

Neutral Citation No: [2003] EWCA Crim 2256

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM

THE CROWN COURT AT SNARESBROOK

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31 July 2003

Before :

LORD JUSTICE CLARKE

MR JUSTICE ASTILL

and

THE COMMON SERJEANT

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Between :

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Mr Anthony Abell and Ms Valerie Charbit (instructed by the Commisioners of Inland Revenue) for the Respondent

Mr Phillip Sapsford QC (instructed by Stringer Saul) for the Appellants

Hearing date: 15 July 2003

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JUDGMENT Lord Justice Clarke:

Introduction

  1. This is the judgement of the court. The appellants are brothers. Sewa Singh is now aged 52 and Paramjit Singh is now 40. On 15 March 2002 in the Crown Court at Snaresbrook before His Honour Judge Bing and a jury, after a lengthy trial, Sewa Gill was convicted of six counts of cheating the Inland Revenue (the Revenue''), namely counts 2, 3, 4, 6, 8 and 10, and Paramjit Gill was convicted of three counts of cheating the Revenue, namely counts 7, 9 and 11. Sewa Gill was acquitted of counts 1 and 5 and found not guilty by direction of count 12 and Paramjit Gill was acquitted of count 13. All those counts also alleged cheating the Revenue. On 15 May 2002, Sewa Gill was sentenced to three years imprisonment on each count concurrent and Paramjit Gill was sentenced to twenty months imprisonment on each count concurrent.

  2. The appellants appeal against conviction pursuant to leave granted by the single judge, Sachs J, who granted leave on one ground only. They renew their applications for leave to appeal on the remaining three grounds. Paramjit Gill's application for leave to appeal against sentence was refused by Sachs J and has not been renewed.

  3. The ground upon which leave was granted relates to the use made at the trial of answers given by the appellants at an interview which took place on 8 March 1995. It was a type of interview which is sometimes known as a ``Hansard interview''. The other three grounds in respect of which leave to appeal is sought allege misdirection by the judge in respect of the law of domicile and the legal concept of cheat and a failure by the judge to give clear directions as to the issues which the jury had to decide in relation to each count on the indictment. Mr Sapsford made detailed oral submissions in relation to the Hansard interview and domicile but otherwise relied upon the written materials before the court. Before considering each of the grounds relied upon we summarise the underlying facts and issues at the trial.

    The Underlying Facts and Issues

  4. This is taken from the Criminal Appeal Office Summary. The appellants were brothers and ran a business in partnership, sharing the profits equally. The business dealt in clothing manufacture and investment in property for rent. Its profits for the years 1983 to 1993 were said to have been between £13,648 and £61,229. However, the prosecution case was that in tax returns and other documents submitted to the Revenue during the period 1984 to 1995 the appellants failed to disclose the existence of various bank and building society accounts in the United Kingdom and bank accounts in Switzerland and Jersey, thus concealing the extent of their financial assets and evading payment of the tax that would have been payable. The prosecution case may be shortly summarised in this way.

  5. The Gills were a close family and some of the accounts in which assets were held were in the names of both one or other of the appellants and another family member. The lengths to which they went to conceal these accounts, for example in creating false documentation, and the lies they told both when interviewed and at the trial of their former solicitor Ivor Gerber (at which they gave evidence for the Crown) showed an intent to defraud.

  6. The prosecution maintained that the money in the case was generated in the United Kingdom by the appellants' commercial activities and so was taxable here, wherever they were domiciled and whether or not it was kept offshore. It did not accept that any of the money came from India. In particular, it did not accept that it could realistically have been generated by the farm about which a good deal of evidence was given. However it was not accepted that the appellants retained Indian domicile. They lived and worked in the United Kingdom and never claimed that they were not domiciled in the United Kingdom in their dealings with the Revenue in connection with this case. The purpose of doing so would have been in order to establish a claim that they were not liable for tax payable here on that basis.

  7. The defence accepted that the bank and building society accounts in question had not been disclosed but denied any intent to defraud. The appellants were not domiciled in the United Kingdom but retained their domicile of origin, which was India. They always had a clear and settled intention to return to India, where they had been born. Not being domiciled in the United Kingdom, they were under no obligation to disclose the offshore accounts, the money in which came from India (especially from their mother's farm in the Punjab). They were able to provide good explanations for the failure to disclose the accounts in this country. They produced financial records and accounts which they said showed that the business was not capable of generating the sort of money attributed to it and a schedule of rental income which showed that it had all been declared. They admitted lying, but only in order to protect their elderly mother from investigation by the Indian Authorities, a consideration which lasted until her death in 2001.

  8. The appellants' family were Sikhs from the Punjab. Their grandparents lived in the UK and their parents came here when Sewa Gill was quite young. Their father Naranjan Singh Gill, then returned to India and acquired a farm in the Punjab, while their mother, Surjit Kaur Gill, brought up the appellants and their sister Balbir. Balbir worked as a dental assistant, then in 1976 married a Mr Ghuman and went to Canada, but returned to England following her divorce. Naranjan Gill came back to England in 1981 but the farm remained in the family. In the early 1980s Sewa Gill, who had previously worked as a diesel fitter, set up in business as a clothing manufacturer. He originally did so under the name of Smaks of London, although the name was changed to Club Tropicana in 1986. He banked at the National Westminster Bank in Barking. Paramjit Gill (also referred to as ``Bob'') was not involved in setting up the business but joined it as Sewa Gill's partner at an early stage. He dealt with the bookkeeping and the receipt of money.

  9. The Revenue first made enquiries as a result of tax returns submitted by Sewa Gill at the end of 1984 because they showed an unexplained injection of capital into the business. Further investigations followed tax returns submitted in March 1994. The accounts specified in the indictment were: accounts in the joint names of the two appellants at the Woolwich Building Society, the Bank of Ireland in Ilford, the Royal Bank of Scotland AG in Zurich, Handelsbank (a subsidiary of the NatWest) in Zurich and the Bank of Ireland in Jersey; an account at the Royal Bank of Scotland AG in Zurich in the name of Firola, a Luxemburg registered company (the documentation for which was signed by the appellants); an account at the Bank of Ireland in Jersey in the joint names of Sewa Gill and his mother; and two National Savings Bank accounts, one in the joint names of Paramjit Gill and his sister, and one in his sole name.

  10. Counts 2, 6 and 7 concerned tax returns submitted in 1984 and 1994, on which interest earned from certain bank and building society accounts was not declared. Counts 3, 4, 10 and 11 concerned statements of assets and liabilities delivered to the Inspector of Taxes in 1985 and 1995, on which details of certain bank and building society accounts were not disclosed. Counts 8 and 9 concerned statements of bank and building society accounts delivered to the Inspector of Taxes in 1995, on which details of certain bank and building society accounts were not disclosed.

  11. The loss to the Revenue (according to evidence in the related confiscation proceedings) was stated to be £511,177.35 in the case of Sewa Gill and £23,457.21 in the case of Paramjit Gill. We understand that confiscation orders made in those proceedings are the subject of applications for leave to appeal but they are not relevant to the issues in this appeal. With that introduction we turn to consider the points raised in the appeal.

    Hansard Interview

  12. So far as we are aware, a Hansard interview is unique to investigations carried out by the Inland Revenue. As already stated, a Hansard interview took place on 8 March 1995. Present were both the appellants and three representatives of the Revenue, namely Mr Cole, Mr Fellows and Mr Cooper, all of whom worked for the Special Compliance Office (``SCO''), which is the Revenue's investigation branch charged with investigating serious fraud. Mr Cole and Mr Fellows were investigators and Mr Cooper was an accountant. Although the interview was not recorded on tape, Mr Cole made notes.

  13. The relevance of the interview in this appeal is that in the course of it the appellants made a number of statements which the prosecution (which was of course the Revenue) sought to rely upon at the trial. It is important to note that it did not rely upon what was said as evidence of truth which amounted to a confession or an admission or a statement against interest. It relied upon the statements as lies which supported the conclusion that the appellants dishonestly failed to disclose accounts...

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