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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Gary Hyde v The Queen  EWCA Crim 713 (15 April 2014)
Cite as:  EWCA Crim 713
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ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
His Honour Judge Lorraine-Smith
Strand, London, WC2A 2LL
B e f o r e :
(SIR BRIAN LEVESON)
MR JUSTICE KEITH
MRS JUSTICE LANG DBE
| GARY HYDE
|- and -
Mr Stuart Biggs for the Crown
Mr James Berry for the Chief Constable, Lincolnshire Police
Hearing dates : 18 March 2014
Crown Copyright ©
Sir Brian Leveson P :
On 26 October 2012, in the Crown Court at Southwark before His Honour Judge Lorraine-Smith and a jury, Gary Hyde (who is now aged 44) was convicted of two offences of being knowingly concerned in the movement of controlled goods with intent to evade a prohibition on actions done or arrangements made in connection with the movement of controlled goods between third countries contrary to Article 9(2) of the Trade in Goods (Control) Order 2003 and a further offence of concealing criminal property contrary to s. 327 of the Proceeds of Crime Act 2002. On 5 December 2012, he was sentenced to concurrent terms of 7 years imprisonment on the first two counts and 4 years imprisonment on the third count making 7 years in all.
The Approach of the Judge
The Sentence Appeals
"(1) First, an assessment of the goods involved. For example, as here, whether there are military weapons and if so, the nature of the weapon. To some extent also will be relevant the capacity for single use, for example, grenades or for multiple or long-term use, for example, guns. Also relevant will be their relative potential for multiple deaths: for example, pistols as compared to machine guns. (2) Second, the quantities and values of weaponry involved. (3) Third, the intended customer: for example, supply direct to an insurgent group will be an aggravating factor. In addition, the intended location of supply can be relevant, for example, a region which is known as a war zone, or which for example may be adjacent to a war zone in which United Nations troops are engaged. (4) Fourth, the level of involvement of the particular defendant. (5) Fifth, the degree of planning by and length of involvement of the defendant, coupled also with the degree of knowledge of that defendant and his status (for example, whether or not he is a generally licensed arms dealer). Also relevant will be the persistence in effecting the transaction in deliberate breach of export control laws. (6) Sixth, the sophistication of the transaction and any attempts to evade responsibility or to create a false impression. Generally, there would also be matters such as a plea and other personal mitigation to be taken into account in an appropriate case."
"A defendant cannot, as it were, in exculpatory mitigation simply seek to substitute his own view as to the risk for that of the responsible licensing authority."
"adept in the use of corporate vehicles both in pursuance of the substantive offences and in the laundering of the proceeds of crime"
"Where a person
(a) is convicted of a crime for which he is sentenced to imprisonment
the court by or before which he is convicted may make such order as to the forfeiture or disposal of any firearm or ammunition found in his possession as the court thinks fit and may cancel any firearm certificate or shot gun certificate held by him."
"I pay rent for the storage [at Skydock Ltd]. By being a tenant I am technically in control of the weapons which PMS [from whom he bought the Bosnian weapons] are storing and processing In real terms I am the owner of the goods even though PMS was the importer".
In addition, on 5 May 2011, he wrote to the Firearms Licensing Manager at Lincolnshire Police asserting that he was the lawful owner of the firearms.
"In my opinion the purpose of section 1 of the Act of 1968 and its ancillary provisions is to regulate and license not merely those who have physical custody of firearms, or who keep them in the place in which they live, but also those who have firearms under their control at their behest, even though for one reason or another they may be kept at their country cottage, at the local shooting range or indeed at Bisley In the present case the defendant was at all material times the owner of the firearms. He could no doubt obtain them from his mother's flat at any time when he wanted them. She had the barest of custody of them, not because she had any interest in them, but because her flat was safer than the defendant's home in Oxford"
"ownership and control of a company are not of themselves sufficient the company's involvement in impropriety must be linked to the use of the company's structure to avoid or conceal liability a company can be a faηade for such purposes even though not incorporated with deceptive intent".
" there is a limited principle of English law which applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil for the purpose, and only for the purpose, of depriving the company or its controller of the advantage that they would otherwise have obtained by the company's separate legal personality. The principle is properly described as a limited one, because in almost every case where the test is satisfied, the facts will in practice disclose a legal relationship between the company and its controller which will make it unnecessary to pierce the corporate veil. Like Munby J in Ben Hashem, I consider that if it is not necessary to pierce the corporate veil, it is not appropriate to do so, because on that footing there is no public policy imperative which justifies that course. I therefore disagree with the Court of Appeal in VTB Capital who suggested otherwise at para 79."
"On the jury's verdicts this was a deliberate breach of the prohibition over some time by the applicant. The amount of weaponry was huge. The motive was very substantial financial gain. The applicant did not have the mitigation of a plea of guilty. It seems to me that the judge, who of course heard the evidence, was entitled to pass the severe sentences he did."