Robert Edward Coghlan was a British Diplomat who appealed against his 3 year prison sentence for a large collection of indecent and obscene video cassettes, including videos involving children, as well as indecent and obscene articles, such as magazines and photographs. The goods were moving from Japan to Madrid for a change of post in approximately late 1995/6, against a prohibition on importing.
He applied for leave to appeal against conviction and he appeal against sentence. The sentence was reduced to 2 years.
Some court reports have had victims names redacted and some assault details redacted.
This is a difficult balance – normally I would think that I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.
In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.
Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.
Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive. Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.
If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.
This appeal is unredacted by cathy fox blog
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 EWCA Crim J0512-28
IN THE COURT OF APPEAL CRIMINAL DIVISION
Monday 12th May 1997
Lord Justice Otton
Robert Edward Coghlan
Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 180 Fleet Street, London EC4A 2HD Tel No: 0171 831 3183 Fax No: 0171 831 8838 (Official Shorthand Writers to the Court)
MR R HOUSTON appeared on behalf of the Appellant
JUDGMENT (As Approved by the Court)
Transcript  EWCA Crim J0512-28 Monday 12th May 1997
LORD JUSTICE OTTON: On 5th September 1996, in the Crown Court at Southwark, before His Honour Judge Butler QC, the applicant was convicted of being knowingly concerned in a fraudulent evasion of a prohibition on the importation of goods contrary to section 170(2) of the Customs and Excise Management Act 1979, namely a quantity of indecent or obscene material. On the following day he was sentenced to three years’ imprisonment. He now renews his application for leave to appeal against conviction, he having been given leave to appeal against sentence by the single judge.
The background to this offence can be stated quite briefly. The applicant was a member of the British Diplomatic Service. He has had a distinguished career, rising to the post of First Secretary at the Embassy in Tokyo. In about August or September 1995, as he reached the end of that posting, he was aware that he would be leaving Tokyo to take up another posting. He received a letter from the Foreign Commonwealth Office dated 29th September indicating that his next appointment was to be First Secretary Commercial in Madrid and indicating various matters of administration to bring that posting into effect, including that he should aim to arrive at the post in May 1996.
Consequently, his personal belongings had to be moved to Madrid. The shipping costs were paid up to a maximum by the Foreign Commonwealth Office. In due course a list of items he possessed was sent to Amertrans, the shippers employed by the Office to the British Embassy in Tokyo. The destination was shown as “UK/Madrid, Spain”. The shippers confirmed the shipping details on 15th December in the following terms:
“Please make sure we receive all original documents well in advance of vessel arrival in UK. Please confirm the shipping details as soon as you have them.”
The applicant packed his belongings in Tokyo or, if not he himself, under his general supervision on 13th December 1995. Two days later he left Tokyo and made his way back to the United Kingdom through Bangkok, Perth and Zurich. On 12th January the shippers received an amended movement authority saying that the applicant’s next posting was in Madrid and the estimated arrival date was May 1996. This document was passed to the applicant. The Foreign and Commonwealth Office chose the route by which the belongings were to be transported, namely by boat from Japan to the United Kingdom and then for onward shipment to Madrid.
The ship carrying the applicant’s goods and chattels left Tokyo on 10th February 1996 and duly arrived in England on 5th March. The applicant arrived home from his holiday on 22nd February 1996. As his goods were due to arrive in the United Kingdom the shippers required the applicant to complete what is known as a Customs and Excise Form C3. This is a formal document and is headed: “Bringing your personal belongings to the United Kingdom from outside the European Community”. So there was no doubt that the Form C3 was required and the purpose was to cover the bringing into the United Kingdom of personal belongings. The form required the signator to make a declaration whether he was importing any “prohibited and restricted goods”. These were defined, among other things, as “indecent or obscene video cassettes, films, books, magazines and any other articles”. On the face of the form it was indicated that “imports are examined by Customs and there are heavy penalties for making false declarations, including possible forfeiture of goods”.
The signator had to declare:
“I have read the notes on this form. All the answers given on the form, [and] the packing listâ€¦are true and complete. I am personally aware of what is contained in the packagesâ€¦”
Against the words “prohibited and restricted goods” on the C3 form the applicant had written the word “none”. The form was signed and dated 5th March and Customs received the form on 12th March. The applicant subsequently admitted that his declaration was false, in that amongst his personal belongings was a large collection of indecent and obscene video cassettes, including videos involving children, as well as indecent and obscene articles, such as magazines and photographs. He admitted that he knew about the prohibition on the importation of such material. At trial there was no dispute regarding the indecency and obscenity of the video cassettes and the other articles.
The material was found during what the prosecution maintained was a random check by Customs officials. If the material had not been found by the Customs, the shippers would have stored it for the applicant in its warehouse for some months until the date on which it had to be trans-shipped to Madrid in anticipation of his arrival at the beginning of May. In essence it was the prosecution’s case that, by 22nd February, at the very latest, the applicant knew that goods which he knew were prohibited were destined for a UK port, albeit that they were subsequently to be trans-shipped to Madrid. He filled in the Form C3 with that knowledge. He lied on the C3 form because he wanted the prohibited goods and he knew that once they cleared Customs in the United Kingdom, if they cleared, the goods could easily be moved to Spain. The goods did not clear Customs but were technically imported goods.
At trial the applicant gave an account similar to that which he had given to the police, namely that he did not expect to see his goods until he got to Madrid. He did not fill in the Form C3 initially as he did not expect them or want them to come to the United Kingdom. He had expected the goods to be sent direct to Spain. With regard to the videos involving children, he did not know what the position was when he bought them and he did not want to watch them. He would not have bought them if he had known that they involved children. He saw no reason to complete the C3 form initially. However, as a result of the way that matters transpired, he realised he had no choice but to complete the Form C3. He was taken aback and tried to resist or delay signing the form, but he realised that he had no choice; in other words, he realised that what he was putting on the form was in fact false. He knew that if the C3 form was accepted by Customs and Excise without the goods being examined the goods would have cleared customs. He had no intention of taking the videos out of storage. He let the packers include the videos because he did not know how to get rid of them. In the event the jury convicted.
In the original grounds of appeal three other grounds were advanced but Mr Russell Houston, who appeared in the court below and before us, indicated that he no longer sought to pursue them.
The point taken on this application is that the judge wrongly failed to direct the jury that the applicant would not be guilty of the offence charged if the prohibited goods had already been innocently imported before any fraudulent act had been committed by the applicant; the goods were innocently imported by other persons with no knowledge of the fact that they were imported. The applicant, on the basis of the argument advanced, would not have been concerned in the fraudulent evasion of the prohibition on importation; the goods were innocently imported by persons with no knowledge that they were prohibited and that the applicant had not been party to the importation. As the judge wrongly failed to direct they in the way that is indicated, they were deprived of considering an alternative to the way that the case was presented by the Crown.
In considering that submission it is necessary to consider the precise terms in which the indictment was laid and upon which the applicant was arraigned:
” STATEMENT OF OFFENCE Being knowingly concerned in a fraudulent evasion of a prohibition on the importation of goods contrary to section 170(2) of the Customs and Excise Management Act 1979.
PARTICULARS OF OFFENCE
Robert Edward Coghlan was on or about the 12th March at Containerbase, Barking, in the county of Essex, in relation to prohibited goods, namely a quantity of indecent or obscene material, knowingly concerned in a fraudulent evasion of the prohibition on importation thereof imposed by section 42 of the Customs Consolidation Act 1876.”
Section 170(2) provides as follows:
“Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion—-
(b) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment he shall be guilty of an offence under this section and may be arrested.”
In furtherance of his argument Mr Houston drew our attention to section 170(1):
“Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person—-
(a) knowingly acquires possession of any of the following goods, that is to sayâ€¦(b) is in any way knowingly concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any such goods
and does so with intent to defraud [counsel would wish me to emphasise] Her Majesty of any duty payable on the goods or to evade any such prohibition or restriction with respect to the goods he shall be guilty of an offence under this section and may be arrested.”
Counsel correctly draws our attention to the fact that in order to constitute an offence under section 170(1)(b) the prosecution has to establish an intent to defraud or to evade any such prohibition or restriction etc. He submits that what in effect happened was that an indictment was laid under subsection (1)(b) and not under subsection (2).
We cannot accept that as a basic proposition. The indictment made it perfectly clear that the offence was laid under subsection (2).
The Court has on previous occasions had to consider the relationship between subsection (1) and subsection (2). In R v Neal and Others 77 Cr App R 283 , Griffiths LJ, giving the Court of Appeal’s judgment, said (at page 288) that the language of subsection (1):
“â€¦is so embracing and casts the net so wide that one is left to wonder what purpose is served by subsection (2), for it is difficult to think of any behaviour aimed at defrauding the Customs and Excise that would not be caught by subsection (1). However, subsection (2) has consistently appeared in a similar form in a succession of Customs and Excise Acts as a final and sweeping up provision. We are satisfied that it was inserted by the draftsman with the intention of casting his net as widely as words enabled him.”
That, clearly, was the purpose of that subsection and creates a catch-all situation. An offence laid under subsection (2) does not require the element of mens rea which is required under subsection (1)(b). As the editors of Archbold state at 25–455:
“However, whereas section 170(1)(a) requires proof that the accused acquired possession of the goods, and section 170(1)(b) requires proof that the accused performed any of the activities listed in subsection (1)(b), subsection (2) imposes no such limits on its application. For the purposes of subsection (2), the word ‘fraudulent’ means dishonest conduct ‘deliberately intended to evade the prohibition or restriction with respect to, or the duty chargeable on, goods as the case may be’: per Lord Lane CJ in Attorney General’s Reference (No 1 of 1981)  QB 848 .”
In the present case we merely substitute for “duty chargeable on” in (a) the language of (b) as in the indictment.
There has always been a distinction between evasion and importation. In Archbold at chapter 25–410 it is stated:
“By ‘evade’ Parliament meant no more than there must be an intention on the part of the accused to ‘get around’ the prohibition or restriction. ‘Evade’ in this context does not carry the connotation of fraud or dishonesty as it does in revenue laws: see Hurford-Jones , 65 Cr App R 263 , CA. Evidence of an intention to take the imported goods elsewhere without landing them, or to keep the vessel, carrying the goods, in an anchorage only long enough to buy fuel for a voyage into international waters is irrelevant once it is proved that the accused knew that the goods were being imported contrary to a prohibition on importation.”
Counsel points out that the actual bringing ashore of these goods occurred when a perfectly innocent dock employee would have handled the goods to effect that. This sort of situation has been considered on more than one occasion by the courts. It is well established that such offences are continuing offences because, by definition, the evasion of a prohibition or a restriction often involves a continuing series of events and is rarely limited to the moment of importation itself (see also section 57 MacNeill v HM Advocate (1986) SCLR 288 .) In R v Neal and Others (supra) Kenneth Jones J gave a helpful illustration in his summing-up at page 286-7:
“Now the words, ‘the evasion of the prohibition on the importation’,â€¦ are wider than simply the single word ‘importation’. Let me give you a very simple example. A boat arrives in a port in this country and it has on board cannabis resin. One of the sailors,â€¦actually carries that cannabis resin ashore. He hands it over to another man who is waiting, who loads it into a van.
The van is driven off to some place where the drug is unloaded and is stored away in some building and there you have someone who helps in that unloading—perhaps the owner of the building in which it is stored. Maybe, at a later stage, it is transported to yet another building and is stored there and it may be that behind all this operation, controlling it and supervising it, is some organising person. Now you see, of all those men—the sailor, the van driver, the store keeper, the organiser—strictly speaking, only the sailor has imported the drug into this country. He is the only person who has carried it into this country, and that is what importation means, but he and each of those other persons have all taken part in evading the prohibition on the importation of that drug and taken their part in getting round it, in setting at nought the ban which the law imposes on the importation of the drug.”
Griffiths LJ, delivering the judgment of the Court of Appeal said at page 288:
“Subsection (1) clearly includes those who are not a part of the original smuggling team. For example, it includes anyone who acquires possession of goods unlawfully removed from a warehouse, or anyone who hides goods on which duty has not been paid, or anyone who carries goods the importation of which is forbidden; and there could be no warrant for reading into the language of the subsection the qualification ‘provided they are part of the original smuggling team’.”
In those circumstances, we have to consider how the learned trial judge directed the jury. He did so in the following terms:
“So then, what are the matters that the prosecution must prove before you convict this defendant? Well they have to prove each of the following: firstly—I will take them in turn—that prohibited goods were imported into the United Kingdom. You will have no difficulty about that; they were. That happened when the ship came into Southampton or perhaps even a little earlier, but that does not matter very much. They have been imported, they had entered the United Kingdom by 5th March, 1996. Secondly, the prosecution have to prove that this defendant was knowingly concerned in the evasion of a prohibition on their importation.
As I have already told you, goods of this kind must not be imported; it is illegal to do so. Now—and this is important—the evasion of a prohibition or restriction will often involve a continuing series of events. You do not look only at the moment of importation. So, for example, if prohibited goods are brought ashore by a person, when another person who knows the prohibited goods have been brought ashore drives them away in his car, he is evading the prohibition on importation. It does not matter a jot that the goods are already in this country. He is taking part in the process.”
We have considered the argument advanced by Mr Houston in an attractive and succinct manner, but we have come to the conclusion that there is no substance in it. The judge correctly identified the principles involved and directed the jury in accordance with the law accurately, succinctly and helpfully. A direction in the form suggested by Mr Houston would have been inaccurate and inappropriate. In those circumstances, we conclude that the application to appeal against conviction must be refused.
(Submissions re sentence appeal followed.)
LORD JUSTICE OTTON: It is not necessary to recite the facts upon which this conviction and sentence are based. Suffice it to say, that when the baggage was explored it was found that he was in possession of no less than 109 videos and other obscene and indecent articles, such as magazines and other publications.
We are bound to say that it would have been open to the judge at trial, having heard all the evidence and having seen a sample of the obscene material, to infer that, with such a number and type of articles involved that there would have been a temptation, if not an intention, on the part of the defendant to disseminate this filthy material had it arrived in Madrid. Such dissemination may not necessarily have been for commercial gain. That is neither here nor there.
It was suggested in argument that if this appellant had been found in possession of this obscene material, the sanction, on a summary conviction, would have been a fine. That is not the whole picture, because it is clear that by section 1(1)(c) of the Protection of Children Act that on indictment, an offence of having in possession obscene or indecent photographs of children carries a maximum of three years’ imprisonment or a fine.
When the judge came to sentence he was very careful as to how he approached the sentencing task. It is right to say that, unfortunately, following the conviction and before the judge came to pass sentence this case had received considerable publicity in the press which suggested that this appellant was part of a paedophile ring.
However, the judge, when coming to sentence, said that he totally put out of his mind anything that might have been written about this case and that he was sentencing solely upon the basis of the evidence which he had heard during the trial. In doing so, of course, he was perfectly correct and no criticism can be made of the way that the judge approached this sentencing exercise. He proceeded to sentence on the basis that he accepted counsel’s submission that there was no evidence to suggest that there would have been any dissemination or that there would have been any commercial gain. He was prepared to sentence on the basis that this material was solely for the purposes of the appellant.
That being so, we have to consider whether the sentence of three years is manifestly excessive within the template of fact upon which the judge proceeded. We have come to the conclusion that it is. Moreover, we take into account that this man has had a distinguished career in the British Diplomatic Service, rising from a modest start to the position of a First Secretary, first in Tokyo and then, on reappointment, to Madrid. As a result of these matters he stands in a state of total ignominy. His proclivity has been revealed to colleagues and superiors, who no doubt until then had a high regard for him. He has brought upon himself and his family unutterable shame, which must be part of the punishment and retribution meted upon him.
We have come to the conclusion that the correct sentence in this case should be one of two years’ imprisonment. We therefore propose to quash the sentence of three years and substitute a lesser term. To that extent the appeal against sentence is allowed.
MR HOUSTON: My Lord, may I mention the question of legal aid in relation to the application for leave to appeal against conviction? I do so on this basis: I appreciate that one needs to point to some exceptional circumstances to justify its grant—-
LORD JUSTICE OTTON: I do not think we have power to. I would have thought that, if you were to proceed or your solicitor was to proceed on the basis that this was one composite hearing, your legal aid which has already been granted to you for this purpose would more than cover what you said today.
MR HOUSTON: My Lord, the basis of it was this, namely that the solicitor, as your Lordships will appreciate, I think you will agree properly, we having seen this article appear in the Mail on Sunday, two days later spent a considerable amount of time in liaison with Customs.
LORD JUSTICE OTTON: You are asking us to certify for the solicitor as well?
MR HOUSTON: My Lord, yes.
LORD JUSTICE OTTON: Yes, we are prepared to grant that application, but it must be understood that it is in respect of the appeal against sentence only. We are grateful to your solicitor for the efforts he has made in that regard.
Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.
- The Sanctuary for the Abused [A] has advice on how to prevent triggers.
- National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
- One in Four [C]
- Havoca [D].
- Useful post on Triggers [E] from SurvivorsJustice [F] blog.
- Jim Hoppers pages on Mindfulness [G] and Meditation [H] may be useful.
- Hwaairfan blog An Indigenous Australian Approach to Healing Trauma [J]
- Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
- Voicing CSA group [L] helps arrange survivors meetings in your area
- A Prescription for me blog Various emotional support links [M]
- ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]
 Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/
 Index of Court Appeals EWCA on this blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/
[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html