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Modernising the Common Law Offence of Cheating the Public Revenue

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Journal of Politics and Law; Vol. 8, No. 1; 2015 ISSN 1913-9047 E-ISSN 1913-9055 Published by Canadian Center of Science and Education Modernising the Common Law Offence of Cheating the Public Revenue Graham McBain1,2 1 Peterhouse, Cambridge, UK 2 Harvard Law School, USA Correspondence: Graham McBain, 21 Millmead Terrace, Guildford, Surrey GU2 4AT, UK. E-mail: [email protected] Received: December 22, 2014 Accepted: January 9, 2015 Online Published: February 13, 2015 doi:10.5539/jpl.v8n1p40 URL: http://dx.doi.org/10.5539/jpl.v8n1p40 1. Introduction A previous article1 considered the common law offence of misconduct in a public or judicial office. As well as proposing that this offence become a statutory one, the article asserted that the statutory offence should not cover offences by public officers involving the dishonest handling of money.2 Rather, it should be restricted to cases of public officers neglecting their duty or exercising oppressive conduct - especially in the legal field.3 This purpose of this article is to consider the following common law offence, in the context of its modernisation: Cheating the Public Revenue. This offence was a category of the wider common law offence of ‘cheating’. Although cheating as an offence was abolished by the Theft Act 1968, there was a saving for cheating the public revenue.4 The conclusion to this article in respect of this offence may be stated at the outset. It is asserted that the offence of ‘Cheating the Public Revenue’ should become a statutory offence - one of ‘Defrauding the Public Revenue’. In analysing this offence, regard is had to the following legal texts in particular: H Bracton, On the Law and Customs of England (c. 1240); 5 Britton (c. 1290); 6 Fleta (c. 1290);7 Mirror of Justices (c. 1290);8 E Coke, Institutes of the Laws of England (1628-41);9 W Hawkins, A Treatise of the Pleas of the Crown (1716-1824);10 M Hale, The History of the Pleas of the Crown (published 1736, written 1640’s);11 W Blackstone, Commentaries on the Laws of England (1765-9);12 1 GS McBain, Modernising the common law offence of Misconduct in a Public or Judicial Office. 2 Ibid. See also 29. 3 The early caselaw shows that it mainly covered JP’s corruptly, arbitrarily, maliciously or partially exercising their discretion. 4 Theft Act 1968, s 32(1)‘The following offences are hereby abolished for all purposes not relating to offences committed before the commencement of this Act, that is to say (a) any offence at common law of… , except as regards offences relating to the public revenue, cheating.’ 5 H Bracton (trans Thorne), On the Law and Customs of England c.1240 (Cambridge UP, 1968-76). Bracton is now online, see bracton.law.harvard.edu 6 FM Nichols (ed), Britton (John Byrne & Co, 1901). 7 Fleta, see Selden Society (‘SS’), vols 72, 89 and 99. 8 Mirror of Justices, SS, vol 7. 9 E Coke, Institutes of the Laws of England (W Clarke & Sons, London, last ed, 1824). 10 W Hawkins, A Treatise on Pleas of the Crown (E & R Nutt & R Gosling, Savoy (1st ed 1716-21, last ed (8th ed), 1824). 11 M Hale, The History of the Pleas of the Crown (printed for E & R Nutt & R Gosling, 1736). 12 W Blackstone, Commentaries on the Laws of England (Oxford, Clarendon Press, 1st ed, 1765-9, University of Chicago Press rep 1979). 40 www.ccsenet.org/jpl Journal of Politics and Law Vol. 8, No. 1; 2015 WO Russell, A Treatise on Crimes and Misdemeanors (1819-1964);13 W Archbold, Criminal Pleading, Evidence and Practice (1822-2014);14 Halsbury, Laws of England. 15 It may be noted, in respect of this offence, that - apart from Archbold, Halsbury and Blackstone’s Criminal Practice16 - modern criminal texts contain no (or little) detailed analysis of it.17 Reference is also made to various Abridgments, major and minor, viz. N Statham, Abridgment of the Law (c. 1490);18 A Fitzherbert, La Graunde Abridgment (3rd ed, 1577);19 R Brooke, La Graunde Abridgment (1586);20 W Hughes, Grand Abridgment of the Law (1660-3);21 W Sheppard, Grand Abridgment of the Common and Statute Law of England (1675);22 H Rolle, Abridgment des plusieurs Cases et Resolutions del Common Ley (1668);23 W Nelson, Abridgment of the Common Law (1725-6);24 E Viner, A General Abridgment of the Law and Equity (1st ed, 1741-57); 25 M Bacon, New Abridgment of the Law (5th ed, 1798); 26 J Comyns, Digest of the Laws of England (last ed, 1822).27 In conclusion, this article considers the common law offence of cheating the public revenue.28 2. Cheating the Public Revenue: Present Offence Prior to analysing the history of this offence its present incarnation may be referred to. This is best summarised in Archbold (2014).29 It states, as to this offence: 13 WO Russell, A Treatise on Crimes and Misdemeanors (1st ed, 1819; last ed, 12th ed, 1964). 14 W Archbold, Criminal Pleading, Evidence and Practice (Sweet & Maxwell, 2014). See also JF Archbold, A Summary of the law relative to Pleading and Evidence in Criminal Cases (London, 1822, being the 1st ed). 15 Halsbury, Laws of England (5th ed, with updates). 16 Blackstone’s Criminal Practice 2013 (eds. A Hooper & D Ormerod)(‘Blackstone CP’). See also Archbold, Magistrates Courts Criminal Procedure (‘Archbold Procedure’). 17 See, for example: (a) C McAlhone & R Huxley-Binns, Criminal Law.The Fundamentals (3rd ed, 2013); (b) MJ Allen, Textbook on Criminal Law (12th ed, 2013); (c) A Ashworth & J Horder, Principles of Criminal Law (7th ed, 2013); (d) R Card et al, Criminal Law (20th ed, 2012); (e) CMV Clarkson & HM Keating, Criminal Law, Text and Materials (7th ed, 2010); (f) C Elliott & F Quinn, Criminal Law (8th ed, 2010); (g) R Heaton, Criminal Law (2nd ed, 2006); (h) J Herring, Criminal Law (8th ed 2013); (i) M Jefferson, Criminal Law (9th ed, 2009); (j) Lacey, Wells & Quick, Reconstructing Criminal Law. Text and Materials (4th ed, 2010); (k) J Loveless, Complete Criminal Law. Text. Cases and Materials (3rd ed, 2012); (l) N Padfield, Criminal Law (7th ed, 2010); (m) A Reed & B Fitzpatrick, Criminal Law (4th ed, 2009); (n) AP Simester, Simester & Sullivan’s Criminal Law: Theory and Doctrine (5th ed, 2013); (o) D Ormerod, Smith & Hogan’s Criminal Law (13th ed, 2011); (p) DJ Baker, Glanville Williams Textbook of Criminal Law (3rd ed, 2012); (q) MJ Allen & S Cooper, Elliott & Woods’ Cases and Materials on Criminal Law (11th ed, 2013); (r) M Molan, Cases and Materials on Criminal Law (4th ed, 2008); (s) J Martin & T Storey, Unlocking Criminal Law (3rd ed, 2010); (t) P Hungerford-Welch & A Taylor, Sourcebook on Criminal Law (1997); (u) M Molan et al, Bloy & Parry’s Principles of Criminal Law (4th ed, 2000); (v) W Wilson, Criminal Law (4th ed, 2011). For older 20th century texts, see JW Cecil Turner, Kenny’s Outlines of Criminal Law (19th ed, 1966) and R Cross & PA Jones, An Introduction to Criminal Law (2nd ed, 1949). 18 N Statham, Abridgment of the Law (Pynson, c. 1490). This has been reprinted by the Law Book Exchange. For a translation, see MC Klingelsmith, Statham’s Abridgment of the Law (Boston Book Company, 1915). 19 A Fitzherbert, La Graunde Abridgment (Tottell, 3rd ed 1577). This has been reprinted by the Law Book Exchange. 20 R Brooke, La Graunde Abridgment (Tottell, 1586). 21 W Hughes, Grand Abridgment of the Law (Henry Twyford et al, 1660-3). This has been reprinted by the Law Book Exchange. 22 W Sheppard, Grand Abridgment of the Common and Statute Law of England (sold by George Sawbridge et al, 1675). 23 H Rolle, Abridgment des plusieurs Cases et Resolutions del Common Ley (A Crooke et al, 1668). 24 W Nelson, Abridgment of the Common Law (E & R Gosling, 1725-6). This has been reprinted. 25 E Viner, A General Abridgment of the Law and Equity (GCJ & J Robinson, 1st ed, 1741-57, 2nd ed 1791). This has been reprinted by the Law Book Exchange (there is also a CD with wordsearch). 26 M Bacon, New Abridgment of the Law (H Gwillim (ed), 5th ed, 1798). 27 J Comyns, Digest of the Laws of England (A Hammond, last ed, 1822). See also J Lilley, Practical Register (2nd edn, 1765). 28 See also D Ormerod, Cheating the Public Revenue [1998] Crim LR 627. 29 Archbold, n 14, para 25-409. 41 www.ccsenet.org/jpl Journal of Politics and Law Vol. 8, No. 1; 2015 To make a false statement (whether written or not) relating to income tax with intent to defraud the Revenue, or to deliver or cause to be delivered a false document relating to income tax with similar intent, amounts to a common law offence and is indictable as such: R v Hudson 30… Hudson was applied in R v Mavji 31 in which the Court of Appeal held that a deception is not a necessary ingredient of the offence of cheating the public revenue. Cheating could include any form of fraudulent conduct which resulted in diverting money from the Revenue and depriving the Revenue of money to which it was entitled. In Marvji, the appellant had a statutory duty to make VAT returns and to pay over to the Crown the VAT due: he had done neither. Accordingly, he was guilty of cheating the Crown and the public revenue. No further act or omission was required to be alleged or proved. The court said that, notwithstanding the existence of a statutory offence of fraudulently evading the payment of VAT,32 the common law offence may properly be charged for serious and unusual offences rather than conventional cases of value added tax fraud.
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