The common law offence of conspiracy to cheat the public revenue was the appropriate charge for the small number of the most serious revenue frauds where the statutory offences did not adequately reflect the criminality involved and where a sentence at large was more appropriate than one subject to statutory restrictions. In such circumstances it was not wrong in principle to pass a sentence on conspiracy to cheat the public revenue that was longer than the maximum penalty available for the equivalent statutory offence or the common law offence of conspiracy to defraud.

The Court of Appeal, Criminal Division, so stated when allowing appeals by the defendants, Sandeep Dosanjh, Navdeep Gill and Ranjot Chahal, against their sentences of 15, 11 and nine years’ imprisonment for conspiring to cheat the public revenue, imposed on 18 June 2012 in the Crown Court at Southwark by Judge Testar, following their convictions on 14 June 2012 in the same court before the same judge, for a major VAT fraud involving a total loss to the public purse of £39m and reducing their sentences to 13 years, ten years and eight years respectively.

HALLETT LJ said, in the reserved judgment of the court, said that had the defendants been convicted of statutory fraud or VAT offences they would have been liable to maximum penalties of ten and seven years respectively. The theme of counsel for the first defendant was that it was wrong in principle to pass a sentence on a common law conspiracy that was longer than the maximum penalty available for the equivalent statutory offence or the cognate common law charge of conspiracy to defraud. The common law offence of cheating the public revenue was generally reserved for the most serious and unusual offences and where a sentence in excess of the statutory maximum would be proper. That coincided with the law and best practice. The Sentencing Council adopted a similar approach in its recently published draft guideline Fraud, Bribery and Money Laundering Offences Guideline Consulation (June 2013). There was no inconsistency with R v Rimmington [2006] 1 AC 459 and both approaches were based on the will of Parliament. In R v Rimmington the court held that where Parliament had created a statutory offence and defined its ingredients, it was not for a prosecutor to thwart Parliament’s clearly expressed intention by charging a common law offence to which none of the restrictions applied. Here, however, Parliament had created the statutory offences of fraud and conspiracy to defraud to which the maximum penalties applied but it had also expressly retained the common law offence of cheating the revenue. The offence had been singled out from the general abolition of common law dishonesty offences by section 32(1)(a) of the Theft Act 1968. Further, despite subsequent reviews of the offences of fraud, Parliament left not only the offence in existence but the penalty at large. This was consistent with the general approach over decades to major frauds on the revenue. They had always been treated as offences of particular seriousness. The court was confident that, as far as Parliament was concerned, the offence of conspiracy to cheat the public revenue retained its established and clearly understood role in the prosecution of revenue cases. It was used to supplement the statutory framework and was recognised as the appropriate charge for the small number of the most serious revenue frauds where the statutory offences did not adequately reflect the criminality involved and where a sentence at large was more appropriate than one subject to statutory restrictions. These were not ordinary cases. Lord Bingham’s assertion of what would ordinarily be appropriate, in R v Rimmington, was premised on the assumption that Parliament imposed the restrictions which it did having considered and weighed up what the protection of the public reasonably demanded. It was reasonably to be assumed that Parliament had deliberately left the common law offence of cheating the revenue untouched by statutory changes in this area, because it recognised that it was appropriate to do so for the protection of the public, for all the reasons set out in the authorities. That was clearly Parliament’s intent at the time of the 1968 Act and there was no reason to think that its intent had changed. Lord Bingham recognised that his general approach did not necessarily apply where there was good reason for charging the common law offence and there was good reason here. However, the sentences were manifestly excessive and would be reduced accordingly.