AKHTAR HUSSAIN, SHAHID BHATTI AND NAZIR BHATTI v R [2002] EWCA Crim 6

[2002] EWCA Crim 6

Case No Case No: 2001/05762: 05847:05849

Between

AKHTAR HUSSAIN, SHAHID BHATTI AND NAZIR BHATTIAppellant

RRespondent

Before

Lord Justice May

Mr Justice Goldring

Mr Justice Gross

R Thomas QC and A Iqbal (instructed for Nazir Bhatti)

P Collier QC and S Bassra (instructed for Shahid Nazir Bhatti)

B Singh (instucted for Akhtar Hussain)

D Perry, M A Khokhar and A P Haslam (instructed for the Crown)

Date 16 January 2002

Lord Justice May:

Introduction

[1]These are appeals from a decision of His Honour Judge Wolstenholme sitting in the Crown Court at Leeds at a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996. The appeals are brought, by leave of the judge, under section 35 of the 1996 Act, being appeals against the judge’s ruling on a question of law relating to the case within section 31(3).

[2]There are three indictments involving a large number of defendants some of whom feature on more than one of the indictments. The cases have features in common and they are listed for hearing before the judge consecutively in early 2002. They all concern allegations of money laundering and each of the indictments is in similar form. Each indictment includes, as count 2, a charge of conspiracy to contravene section 49(2) of the Drug Trafficking Act 1994 contrary to section 1(1) of the Criminal Law Act 1977. They also include, as count 3, a separate charge of conspiracy to contravene section 93C(2) of the Criminal Justice Act 1988. In addition, each currently has as count 1 an offence which is expressed as:

“Conspiracy to contravene section 49(2) of the Drug Trafficking Act 1994 alternatively section 93C(2) of the Criminal Justice Act 1988, contrary to section 1(1) of the Criminal Law Act 1977.”

[3]Particulars are then given in each indictment in support of this statement of the offence. The question is whether a count in this form is permissible. The judge held that it was. In this appeal, the defendants contend that he was wrong. Relevant statutory provisions

[4]Section 3 of the Indictments Act 1915 provides:

“(1) Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge. (2) Notwithstanding any rule of law or practice, an indictment shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the rules under this Act.”

[5]The Indictment Rules 1971 provide:

“4(2) Where more than one offence is charged in an indictment, the statement and particulars of each offence shall be set out in a separate paragraph called a count, and rules 5 and 6 of these Rules shall apply to each count in the indictment as they apply to an indictment where one offence is charged. 5(1) Subject only to the provisions of rule 6 of these Rules, every indictment shall contain and shall be sufficient if it contains, a statement of the specific offence with which the accused person is charged describing the offence shortly, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge. 6. Where the specific offence with which an accused person is charged in an indictment is one created by or under an enactment, then (without prejudice to the generality of rule 5 of these Rules) – (a) the statement of the offence shall contain a reference to – (i) the section of, or the paragraph of the Schedule to, the Act creating the offence in the case of an offence created by a provision of an Act; … Section 1 of the Criminal Law Act 1977 as amended provides: “(1) Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct should be pursued which, if the agreement is carried out in accordance with their intentions, either – (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or (b) … he is guilty of conspiracy to commit the offence or offences in question.”

Section 3 of the 1977 Act in effect provides that a person guilty of an offence of conspiracy under section 1(1) of the Act shall be liable on conviction on indictment to the maximum penalty which would apply to the substantive offence or offences which are the subject of the agreement constituting the conspiracy. If there is more than one substantive offence, the maximum penalty is the longer or longest term where the terms differ. Section 49(2) of the Drug Trafficking Act 1994 provides:

“A person is guilty of an offence if, knowing or having reasonable grounds to suspect that any property is, or in whole or in part directly or indirectly represents, another person’s proceeds of drug trafficking, he – (a) conceals or disguises that property, or (b) converts or transfers that property or removes it from the jurisdiction, for the purpose of assisting any person to avoid prosecution for a drug trafficking offence or the making or enforcement of a confiscation order.”

Section 93C(2) of the Criminal

Justice Act 1988 as amended provides:

“A person is guilty of an offence if, knowing or having reasonable grounds to suspect that any property is, or in whole or in part directly or indirectly represents, another person’s proceeds of criminal conduct, he – (a) conceals or disguises that property; or (b) converts or transfers that property or removes it from the jurisdiction, for the purpose of assisting any person to avoid prosecution for an offence to which this Part of this Act applies or the making or enforcement in his case of a confiscation order.”

These two sections are materially the same, except that section 49(2) of the 1994 Act refers to the proceeds of drug trafficking, but section 93C(2) of the 1988 Act refers to the proceeds of criminal conduct. The statutory maximum sentence for an offence under each of the sections on conviction or indictment is the same, that is fourteen years imprisonment or a fine or both. By section 93A(7) of the 1988 Act, “criminal conduct” means conduct which constitutes an offence to which Part VI of the Act applies. By section 71(9), references to an offence to which Part VI of the Act applies are references to any offence which is an indictable offence, other than a drug trafficking offence or an offence under any of sections 15 – 18 of the Terrorism Act 2000 - see paragraph 6 of Schedule 15 of the Terrorism Act 2000. Sections 15 to 18 of the 2000 Act include money laundering offences in relation to terrorist property as defined in section 14 of that Act. R. v. El-Kurd In R v. El-Kurd , a decision of this court of 26 th July 2000, the appellant had been charged with two counts of conspiracy to remove from the jurisdiction property which represented the proceeds of criminal conduct and two counts of conspiracy to convert property which represented the proceeds of criminal conduct. He was convicted of those counts but acquitted of alternative counts of conspiracy to remove from the jurisdiction property which represented the proceeds of drug trafficking, and conspiracy to convert property which represented the proceeds of drug trafficking. He appealed against his convictions. Latham LJ, who gave the judgment of the court, pointed out that it was the dichotomy between drug trafficking offences and criminal conduct, as defined for the purposes of the Criminal Justice Act 1988, which had caused the problem in that case. There was an overwhelming inference that the money which was laundered came from criminal activity of some kind, but the Crown faced the difficulty of being unable to pinpoint its precise source. The submission was that, without proof that the money was the proceeds of drug trafficking on the one hand or criminal conduct as defined on the other, none of the counts of the indictment were made out. In the result, the court concluded that there was on the facts of that case sufficient evidence to justify a conclusion by the jury that the appellant was guilty of either of each pair of counts, or indeed of both pair of counts. The appeal was dismissed. Latham L.J. explained how the dichotomy came about as follows:

“30. Before coming to the way in which the appellant and the respondents put their respective cases, we would like to express our concern that Parliament has created this dichotomy with the attendant difficulties which this case exemplifies. There is good reason for there to be a separate regime for dealing with drug trafficking offences. The drug trafficking legislation accords with the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, known as the Vienna Convention and which was adopted on the 19 th December 1998. This Convention was intended to provide a framework both for minimum standards relating to the enforcement of the control of drugs, and a framework for international co-operation. The international obligations of the United Kingdom are recognised in the Act by giving the courts, as it does, extra territorial effect in some respects. 31. The amendments made to the Criminal Justice Act 1998 by the Criminal Justice Act 1993, inserting the sections with which we are concerned, reflect the United Kingdom’s obligations under the European Community Council Directive No. 91/308/EEC. This Directive is specifically concerned with money laundering. Article 2 requires that money laundering as defined in the Directive be prohibited. The definition is in fact the same as for the Vienna Convention. … 32. It is clear from one of the preambles that the Directive was intended to require states to extend money laundering provisions of the Vienna Convention so as to cover other criminal activity. More important, for the purposes of this part of our judgment, is that the phrase “criminal activity” is expressed to be taken in its normal meaning so as to include drug trafficking. It is unfortunate that this was not achieved in our domestic legislation.”

Having determined the appeal before the court, Latham LJ then said:

“47. Before we leave this appeal we would express some concern that the matter proceeded before the jury on an indictment which, perhaps understandably, reflected the dichotomy which we have referred to, when it seems to this Court that the appropriate course to take, when confronted with problems in relation to the provenance of the proceeds in relation to which it is said that the defendant has carried out the activity of money laundering, is by way of a compendious count of conspiracy which would avoid the necessity for any choice to have to be made so that in a case such as the present if the jury were satisfied, as they would have been bound to have been, that the proceeds were the proceeds of illicit activity; the jury should be provided with the opportunity to conclude that the conspiracy was a conspiracy by the conspirators to launder money illicitly obtained, whether it be by way of drug trafficking or other criminal activity. That seems to us to have been the reality in the present case and would, therefore, perhaps have been more appropriately reflected by a count drawn in such terms.”

We understand that Part 7 of the Proceeds of Crime Bill , currently before Parliament, eliminates the dichotomy which Latham L.J. describes. Put shortly, the subject of Part 7 is money laundering; there are offences relating to “criminal property”; and clause 329 of the Bill defines “criminal conduct” and “criminal property” in inclusive terms. The judge’s decision In the present cases, the judge referred to paragraph 47 of the judgment in El-Kurd , correctly observing that it was not necessary to the decision. He said that the defendants had deployed a number of logically sophisticated arguments, which boiled down to a submission that the count is bad for duplicity because it charges two offences and therefore offends against the Indictment Rules. He said that the Court of Appeal was aiming to prevent the unsatisfactory result of a jury being sure that the defendants had conspired to launder money obtained from crime, but being unable to convict of any offence because they were unsure that the money was not either exclusively from drug trafficking or exclusively from other crime. There is no problem if the jury conclude that the money came from a mixture of those two because either of the other counts on the indictment would cover the situation. He said that there was no authority apart from El Kurd directly on the point whether it is permissible to have a count alleging a conspiracy to commit one offence or alternatively another. He accepted that such a count might be bad where the offences are dissimilar, for example a conspiracy to commit rape or robbery. But, with money laundering, the two statutory provisions are in identical terms, where the criminal act is concealing illicitly acquired money, the only difference being that one deals with the proceeds of drug trafficking only, whereas the other deals with the proceeds of all other criminal conduct. The judge referred to the terms of section 1 of the Criminal Law Act 1977 which creates the statutory offence of conspiracy. He then said:

“I have no difficulty with the proposition that there can be one conspiracy to launder illicit money whether the proceeds are from drug trafficking or other criminal conduct. It is not necessary, in my judgment, for the conspiracy charge to charge a conspiracy to launder both kinds of illicit money. I accept the guidance of the Court of Appeal and refuse to quash the count.”

The judge accepted submissions on behalf of the Crown that the compendious count should be available to the jury as a fall back position in the event that they were satisfied that there was a conspiracy to launder money, the proceeds of drug trafficking or other crime, but that they were not sure which. Submissions Counsel on behalf of the defendants submitted in writing that the judge’s decision was wrong. They submitted that there are two separate statutory regimes for the prosecution of money laundering offences. These are separate and mutually exclusive. An indictment which purports to charge a statutory conspiracy to commit an offence under either one or the other regime is either not a conspiracy to commit a crime or it is a conspiracy to commit two crimes. The count is therefore either an allegation of an offence unknown to the law or it is bad for duplicity. What was said in El Kurd is wrong. Mr Collier Q.C. for the defendants elaborated these submissions. He explained that the prosecution had indicated that it was intended to rearrange the order of the counts in the indictment so that what is now count 1 would stand as count 3. The jury would be invited to consider counts 2 and 3 first, that is those which allege separate conspiracies to contravene section 49(2) of the 1994 Act on the one hand and section 93C(2) of the 1988 Act on the other. Only if the defendants were acquitted of each of those two counts would the present count 1 be reached: so that it would not have been established which offence was the subject of the conspiracy. The two substantive offences were intended to be mutually exclusive. The expression, “offence or offences”, in section 1(1) of the 1977 Act embraced a conspiracy to commit more than one offence, but did not extend to a conspiracy to commit one of two offences in the alternative. In other words, the “or” is conjunctive, not disjunctive. The count in the indictment has to define the substantive offence or offences and does not do so by putting up alternatives in the present cases. In reality the Crown is not alleging an agreement to commit one of two offences in alternative possible circumstances: but seeking to cover a factual situation where they cannot show which of two possible offences was the subject of the agreement. If the Crown cannot establish either count 2 or count 3, they would not be able to establish count 1, because they could not establish either alternative. There is, as Mr Collier put it, a black hole resulting from the legislation. In so far as authorities relating to drugs offences (to which we refer below) might suggest otherwise, this is because the drugs legislation creates offences which are unspecific as to the Class of drug. In the present cases, although the maximum sentence under each of the two regimes is the same, in practice drugs offences are regarded as more serious and attract higher sentences. The jury should make the decision from which the level of sentence follows. Further, the statutory provisions relating to confiscation proceedings following conviction are not the same. Mr Bethel QC, on behalf of the Crown, submitted in writing that section 1 of the 1977 Act makes it clear that the offence of conspiracy can be committed where the agreement is to commit a number of offences. An indictment which alleges one conspiracy (“to launder money illicitly obtained”) contrary to section 49(2) of the 1994 Act or section 93C(2) of the 1988 Act is not duplicitous. He accepted that there are two separate statutory regimes for the prosecution of money laundering offences. But the two sections are virtually the same. The criminal intention for the two offences is the same. The maximum penalty for the two offences is the same. The object of the conspiracy charged in these cases is to launder proceeds obtained from illicit activity, it being immaterial whether they represent the proceeds of drug trafficking or the proceeds of criminal conduct. In further written submissions, Mr Perry, on behalf of the Crown, submitted that a statutory conspiracy, contrary to section 1(1) of the Criminal Law Act 1977 may properly allege a single agreement to commit one or more offences. This is apparent from the terms of the section itself. The count which is the subject of this appeal properly alleges an agreement to conceal the proceeds of drug trafficking or criminal conduct and is not bad for duplicity. The appellants’ arguments fail to distinguish between a single agreement to commit one or more offences, which is unobjectionable, and separate agreements to commit different offences where it may not be possible to prove the parties entered into a single agreement. Mr Perry submitted to the court that an agreement to commit crime A or crime B is entirely possible as an agreement. For example, two or more people might agree that, if the next person that walks round the corner is a man, they will kill him: but if the next person is a woman, they will rape her. Such an agreement is in form within section 1(1) of the 1977 Act. In other words, “offence or offences” is not exclusively conjunctive. The count is not duplicitous, since what is alleged is a single agreement constituting a single offence of conspiracy. What has to be proved is the agreement. If the prosecution do not prove the agreement as alleged, the count will fail. Hence three counts are necessary, since there are three possible versions of the agreement constituting the conspiracy. The defence submissions confuse the conspiracy offence with the substantive offences which would be the end product of the course of conduct agreed upon. Mr Perry also made submissions about confiscation proceedings under the two statutory schemes in which he eventually accepted that there were differences. Discussion and decision This court has no knowledge of the details of what is alleged against the defendants other than the (rather uninformative) material in the indictments. For this reason, we shall confine ourselves to the narrow decisions necessary to determine the appeals. The appeals are concerned only with the form of count 1 of the indictments. Duplicity in a count is a matter of form. A conspiracy count is bad in law if it charges the defendants with having been members of two or more conspiracies – see R. v. Greenfield [1973] 1 W.L.R. 1151 at 1155G and 1156B). Section 1 of the 1977 Act creates the statutory offence of conspiracy. The essence of the offence is an agreement between two or more persons to pursue a course of conduct. The agreed course of conduct has to have the nature which the section requires, that is it has to be such as will necessarily amount to or involve the commission of an offence or offences by one or more of the parties to the agreement. Subject to that, the essence of the offence is the making of the agreement (see R. v. Siracusa

(1990) 90 Cr. App. R. 340

), not any subsequent giving effect to the course of conduct agreed. It is therefore necessary to distinguish between the offence which constitutes the statutory offence (which we will call the “Conspiracy Offence”) and the offence or offences which the agreement contemplates (which we will call the “Agreed Offence or Offences”). The terms of section 1 of the 1977 Act show that there can be an agreement constituting a Conspiracy Offence where the agreed course of conduct, if it is carried out in accordance with the conspirators’ intentions, will necessarily amount to or involve the commission by one or more of the conspirators of more than one Agreed Offence. This court so held in Siracusa and R. v. Roberts

[1998] 1 Cr. App. R. 441

at 449B. Burglars may agree to burgle three houses on the same or consecutive nights. If they then proceed to burgle the three houses, they would commit three Agreed Offences. If they were to be indicted with each of the three burglaries, rule 4(2) of the Indictment Rules would require three counts in the indictment. But if they were to be indicted with the statutory conspiracy constituted by the making of the antecedent agreement, that would be a single Conspiracy Offence and it could only be the subject of a single count in an indictment. A count in an indictment charging such a Conspiracy Offence would not be duplicitous. It would only charge one offence – conspiracy. In our judgment, Mr Perry is correct in his submission that an agreement to commit crime A or crime B is entirely possible. We also accept his submission that such an agreement is capable of falling within section 1(1) of the 1977 Act. Given that, outside the subject matter of the present appeals, an agreement of the kind which he postulated is rather unlikely, there is no reason why, if such an agreement were made and proved, it should not constitute the statutory offence. There is no compelling reason why “offence or offences” should be construed exclusively conjunctively. It follows that count 1 of the present indictments is not in form duplicitous and we reject Mr Collier’s submissions to the contrary. We also accept Mr Perry’s submission that count 1 may, depending on the evidence, be necessary because it charges a different agreement. It is here necessary, we think, to postulate limited possible facts, simply to clothe the discussion in some reality. The postulated facts may or may not be, or approximate to, those in the present cases. For this purpose only, we postulate a prosecution case alleging that cash is brought by a courier to a money changer who changes the money and disperses the cash he has received. Both the courier and money changer know or have reasonable grounds to suspect that the source of the money is illicit (but not connected with terrorism) and in this knowledge they act in concert. There are three possibilities: Case A – they each know that the provenance of the money is drug trafficking; Case B – they each know that the provenance of the money is not drug trafficking; Case C – they neither of them know the provenance of the money, but they each know or have reasonable grounds to suspect that its provenance is illicit. We will assume that the jury would infer from these facts that there was in each Case an agreement sufficient (subject to Mr Collier’s second point) to constitute a statutory conspiracy. In Case A, the conspiracy would fall within count 2. In Case B, the conspiracy would fall within count 3. The agreement in Case C would be an agreement to launder illicit money irrespective of its provenance. The postulated agreement in Case C is a different agreement from that postulated in Cases A or B. To establish a charge of conspiracy, the Crown have to prove an agreement as charged and particularised in the indictment – see Siracusa and R. v. Barnard

(1980) 70 Cr. App. R. 28

. Accordingly, a count in the form of count 1 is necessary, if the different agreement there charged is an agreement which the evidence may sustain. The discussion in the previous paragraph is consonant with passages in the judgment of this court in R. v. Patel (CACD, 7 th August 1991). In that case, defendants were convicted of an offence of conspiracy to contravene section 4(1) and (2) of the Misuse of Drugs Act 1971, contrary to section 1 of the Criminal Law Act 1977. The drug which they were alleged to have conspired together to produce was described in the particulars of the offence as “a controlled drug of Class B, namely amphetamine sulphate.” They were also convicted of an offence conspiracy to contravene section 4(1) and (3) of the 1971 Act contrary to section 1 of the 1977 Act. The particulars of offence alleged that the conspiracy was “to supply a controlled drug of Class B to others, namely amphetamine sulphate.” Their appeal raised questions of what had to be proved to establish mens rea on the part of those who had joined, but played a subsidiary role in, a large scale conspiracy. One question was whether the relevant defendants could be guilty of the offence of conspiracy with which they were charged if they may not have known that the drug which was to be manufactured and/or supplied was amphetamine sulphate. The judgment of the court was given by Woolf LJ, as he then was. He cited passages from Siracusa, in particular passages from the judgment of O’Connor L.J. in which he considered the mens rea required for the offence of conspiracy. Woolf L.J. then said at page 14A of the transcript:

“We consider that the effect of the Siracusa decision is that if a count in an indictment identifies the specific drug which it is alleged is the subject of the conspiracy, then if a defendant joined a conspiracy believing it involved one Class of drug, he is not guilty of that conspiracy if he believes the drug involved is a drug which belongs to a lesser Class to that named. This is because the conspiracy in which the defendant intended to become involved would then relate to a different and less serious offence. … What the Siracusa case establishes is that if you believe you are joining one conspiracy with one objective, that does not make you guilty of a conspiracy which has a different and less serious objective. … Particularly in relation to drugs, there are going to be many conspiracies where some of the conspirators will know exactly what drug is to be manufactured or supplied but others, who play a subsidiary role, will not know. This situation may be due to deliberate policy or inadvertence. It would be highly unsatisfactory if it is necessary to have a multiplicity of different counts in the indictment designed to deal with all possible degrees of knowledge of different conspirators in the one conspiracy. In our judgment, this is not necessary. … [The judgment then quotes section 1 of the 1977 Act.] The reference to “offences” means that it would be in order to indict a defendant with a conspiracy which related to prohibited drugs in all three classes even though this would be a conspiracy to commit three offences. However, by referring to a single drug in the Particulars of Offence the prosecution are identifying which Class of drugs is involved. If heroin is specified, a Class A or hard drug; if cannabis is specified, a Class B or soft drug. The naming of the drug is a material allegation because it makes clear the gravity of the offence which is the objective of the conspiracy. This will be relevant to sentence. … A defendant could have entered into a conspiracy, knowing that prohibited drugs were involved, but without knowing that the precise drug named in the indictment was involved. The position would then be that he intended to join the conspiracy involving whatever prohibited drug was in fact the subject of that conspiracy and this being the case his ignorance of the precise drug, be it Class A, B or C. would not affect his guilt. The reason for this is that he would have intended to be a party to the conspiracy irrespective of the category of the drug involved.”

Woolf L.J.’s summary of the position where a defendant is charged with an offence of conspiracy and the Particulars of Offence identify the drug involved included, on page 18 of the transcript:

“(iii) a defendant will be guilty if he joins the conspiracy knowing that prohibited drugs are involved but without knowing what drugs are involved. In such a situation he would in fact have agreed to be a party to the conspiracy irrespective of what drugs are involved.”

In R. v. Taylor

[2001] EWCA Crim. 1044

, this last passage in Patel was explained as follows:

“In our judgment, the correct interpretation of paragraph (iii) is that, if the prosecution were able to prove any particular defendant joined a conspiracy to import drugs and in his own mind cared not whether they were heroin or cannabis, he would be guilty of whatever drugs were in fact imported. To put it another way, when the learned judge used the phrase, “he would in fact have agreed to be a party to the conspiracy irrespective of what drugs were involved”, in the word, “irrespective”, what was being referred to was the state of mind of the conspirator, rather than the objective fact of the identity of the drugs.”

We turn to Mr Collier’s second submission, that is that the count has to define the substantive offence or offences and does not do so in the present cases by putting up alternatives neither of which the Crown can establish. There is thus a black hole. We were initially impressed with this submission, but on further consideration consider it to be wrong in the present cases. First, as we have already said, the Crown have to establish the Conspiracy Offence comprised in the making of the agreement. They do not have to establish as such that one or other of the Agreed Offences was committed, although they may incidentally do so as part of the evidence from which they would ask the jury to infer the agreement. They do have to establish that the Agreed Offences would, if the agreed course of conduct was carried out, be offences. As charged in count 1, they plainly are offences. Second, on the facts postulated for Case C, there is no necessary black hole because of the definition of the statutory offences in the present cases. Under each of the sections, the offence includes “ having reasonable grounds to suspect ” that the money is the proceeds of drug trafficking or criminal conduct as the case may be. A person who makes an agreement to launder money which he suspects has an illicit provenance may not know that the money is the proceeds of drug trafficking or of criminal conduct. He may not in fact have reasonable grounds to suspect anything illicit, in which case his agreement will not be an agreement to pursue a course of conduct which will necessarily amount to or involve the commission of any offence relevant to the present discussion. But, if he has reasonable grounds to suspect that the provenance of the money is illicit, he must by definition have reasonable grounds to suspect that its provenance is either drug trafficking or criminal conduct and quite possibly both. This is because the threshold of having reasonable grounds to suspect precludes the possibility (which could exist with knowledge) that he did not have the requisite mental state for at least one, and perhaps both, of the offences which the agreement contemplated. Mr Collier was, we think, eventually constrained to acknowledge this. Finally, we do not consider that count 1 is objectionable because it would be likely to cause difficulties with sentencing, if any defendant is convicted on that count. The statutory maximum penalties are the same for each substantive offence. If the jury convict a defendant on count 1, the offence will be that of conspiracy comprising an agreement to launder illicit money whatever its precise provenance. The sentencing judge, knowing the facts, will be properly able to judge the appropriate sentence in all the circumstances. As to confiscation proceedings, the Crown might or might not get into difficulties, if defendants against whom they would want to take confiscation proceedings are convicted on count 1. We say nothing one way or the other about that possibility. But it would not, in our judgment, be a reason for striking down the count. Rather would it be a misfortune for the prosecution. We reject Mr Collier’s submission that the passage in paragraph 47 of the court’s judgment in El-Kurd is wrong. We would, however, caution against an easy assumption that cases of alleged money laundering may readily and in any case be indicted in the form of count 1 in the present case and that it presents an easy option for the Crown. If conspiracy is charged, the facts will need careful examination to see whether they really do sustain a conspiracy agreement as charged. And juries will need to be directed with equal care. We also emphasise that the form of count 1 in the present cases arises from, and is peculiar to, the legislation with which it is concerned. For these reasons, these appeals are dismissed.

[6]Section 1 of the Criminal Law Act 1977 as amended provides:

[7]Section 3 of the 1977 Act in effect provides that a person guilty of an offence of conspiracy under section 1(1) of the Act shall be liable on conviction on indictment to the maximum penalty which would apply to the substantive offence or offences which are the subject of the agreement constituting the conspiracy. If there is more than one substantive offence, the maximum penalty is the longer or longest term where the terms differ.

[8]Section 49(2) of the Drug Trafficking Act 1994 provides:

[9]Section 93C(2) of the Criminal

Justice Act 1988 as amended provides:

[10]These two sections are materially the same, except that section 49(2) of the 1994 Act refers to the proceeds of drug trafficking, but section 93C(2) of the 1988 Act refers to the proceeds of criminal conduct. The statutory maximum sentence for an offence under each of the sections on conviction or indictment is the same, that is fourteen years imprisonment or a fine or both.

[11]By section 93A(7) of the 1988 Act, “criminal conduct” means conduct which constitutes an offence to which Part VI of the Act applies. By section 71(9), references to an offence to which Part VI of the Act applies are references to any offence which is an indictable offence, other than a drug trafficking offence or an offence under any of sections 15 – 18 of the Terrorism Act 2000 - see paragraph 6 of Schedule 15 of the Terrorism Act 2000. Sections 15 to 18 of the 2000 Act include money laundering offences in relation to terrorist property as defined in section 14 of that Act.

[12]In R v. El-Kurd , a decision of this court of 26 th July 2000, the appellant had been charged with two counts of conspiracy to remove from the jurisdiction property which represented the proceeds of criminal conduct and two counts of conspiracy to convert property which represented the proceeds of criminal conduct. He was convicted of those counts but acquitted of alternative counts of conspiracy to remove from the jurisdiction property which represented the proceeds of drug trafficking, and conspiracy to convert property which represented the proceeds of drug trafficking. He appealed against his convictions. Latham LJ, who gave the judgment of the court, pointed out that it was the dichotomy between drug trafficking offences and criminal conduct, as defined for the purposes of the Criminal Justice Act 1988, which had caused the problem in that case. There was an overwhelming inference that the money which was laundered came from criminal activity of some kind, but the Crown faced the difficulty of being unable to pinpoint its precise source. The submission was that, without proof that the money was the proceeds of drug trafficking on the one hand or criminal conduct as defined on the other, none of the counts of the indictment were made out. In the result, the court concluded that there was on the facts of that case sufficient evidence to justify a conclusion by the jury that the appellant was guilty of either of each pair of counts, or indeed of both pair of counts. The appeal was dismissed.

[13]Latham L.J. explained how the dichotomy came about as follows:

[14]Having determined the appeal before the court, Latham LJ then said:

[15]We understand that Part 7 of the Proceeds of Crime Bill , currently before Parliament, eliminates the dichotomy which Latham L.J. describes. Put shortly, the subject of Part 7 is money laundering; there are offences relating to “criminal property”; and clause 329 of the Bill defines “criminal conduct” and “criminal property” in inclusive terms.

[16]In the present cases, the judge referred to paragraph 47 of the judgment in El-Kurd , correctly observing that it was not necessary to the decision. He said that the defendants had deployed a number of logically sophisticated arguments, which boiled down to a submission that the count is bad for duplicity because it charges two offences and therefore offends against the Indictment Rules. He said that the Court of Appeal was aiming to prevent the unsatisfactory result of a jury being sure that the defendants had conspired to launder money obtained from crime, but being unable to convict of any offence because they were unsure that the money was not either exclusively from drug trafficking or exclusively from other crime. There is no problem if the jury conclude that the money came from a mixture of those two because either of the other counts on the indictment would cover the situation. He said that there was no authority apart from El Kurd directly on the point whether it is permissible to have a count alleging a conspiracy to commit one offence or alternatively another. He accepted that such a count might be bad where the offences are dissimilar, for example a conspiracy to commit rape or robbery. But, with money laundering, the two statutory provisions are in identical terms, where the criminal act is concealing illicitly acquired money, the only difference being that one deals with the proceeds of drug trafficking only, whereas the other deals with the proceeds of all other criminal conduct. The judge referred to the terms of section 1 of the Criminal Law Act 1977 which creates the statutory offence of conspiracy. He then said:

[17]The judge accepted submissions on behalf of the Crown that the compendious count should be available to the jury as a fall back position in the event that they were satisfied that there was a conspiracy to launder money, the proceeds of drug trafficking or other crime, but that they were not sure which.

[18]Counsel on behalf of the defendants submitted in writing that the judge’s decision was wrong. They submitted that there are two separate statutory regimes for the prosecution of money laundering offences. These are separate and mutually exclusive. An indictment which purports to charge a statutory conspiracy to commit an offence under either one or the other regime is either not a conspiracy to commit a crime or it is a conspiracy to commit two crimes. The count is therefore either an allegation of an offence unknown to the law or it is bad for duplicity. What was said in El Kurd is wrong.

[19]Mr Collier Q.C. for the defendants elaborated these submissions. He explained that the prosecution had indicated that it was intended to rearrange the order of the counts in the indictment so that what is now count 1 would stand as count 3. The jury would be invited to consider counts 2 and 3 first, that is those which allege separate conspiracies to contravene section 49(2) of the 1994 Act on the one hand and section 93C(2) of the 1988 Act on the other. Only if the defendants were acquitted of each of those two counts would the present count 1 be reached: so that it would not have been established which offence was the subject of the conspiracy. The two substantive offences were intended to be mutually exclusive. The expression, “offence or offences”, in section 1(1) of the 1977 Act embraced a conspiracy to commit more than one offence, but did not extend to a conspiracy to commit one of two offences in the alternative. In other words, the “or” is conjunctive, not disjunctive. The count in the indictment has to define the substantive offence or offences and does not do so by putting up alternatives in the present cases. In reality the Crown is not alleging an agreement to commit one of two offences in alternative possible circumstances: but seeking to cover a factual situation where they cannot show which of two possible offences was the subject of the agreement. If the Crown cannot establish either count 2 or count 3, they would not be able to establish count 1, because they could not establish either alternative. There is, as Mr Collier put it, a black hole resulting from the legislation. In so far as authorities relating to drugs offences (to which we refer below) might suggest otherwise, this is because the drugs legislation creates offences which are unspecific as to the Class of drug. In the present cases, although the maximum sentence under each of the two regimes is the same, in practice drugs offences are regarded as more serious and attract higher sentences. The jury should make the decision from which the level of sentence follows. Further, the statutory provisions relating to confiscation proceedings following conviction are not the same.

[20]Mr Bethel QC, on behalf of the Crown, submitted in writing that section 1 of the 1977 Act makes it clear that the offence of conspiracy can be committed where the agreement is to commit a number of offences. An indictment which alleges one conspiracy (“to launder money illicitly obtained”) contrary to section 49(2) of the 1994 Act or section 93C(2) of the 1988 Act is not duplicitous. He accepted that there are two separate statutory regimes for the prosecution of money laundering offences. But the two sections are virtually the same. The criminal intention for the two offences is the same. The maximum penalty for the two offences is the same. The object of the conspiracy charged in these cases is to launder proceeds obtained from illicit activity, it being immaterial whether they represent the proceeds of drug trafficking or the proceeds of criminal conduct.

[21]In further written submissions, Mr Perry, on behalf of the Crown, submitted that a statutory conspiracy, contrary to section 1(1) of the Criminal Law Act 1977 may properly allege a single agreement to commit one or more offences. This is apparent from the terms of the section itself. The count which is the subject of this appeal properly alleges an agreement to conceal the proceeds of drug trafficking or criminal conduct and is not bad for duplicity. The appellants’ arguments fail to distinguish between a single agreement to commit one or more offences, which is unobjectionable, and separate agreements to commit different offences where it may not be possible to prove the parties entered into a single agreement.

[22]Mr Perry submitted to the court that an agreement to commit crime A or crime B is entirely possible as an agreement. For example, two or more people might agree that, if the next person that walks round the corner is a man, they will kill him: but if the next person is a woman, they will rape her. Such an agreement is in form within section 1(1) of the 1977 Act. In other words, “offence or offences” is not exclusively conjunctive. The count is not duplicitous, since what is alleged is a single agreement constituting a single offence of conspiracy. What has to be proved is the agreement. If the prosecution do not prove the agreement as alleged, the count will fail. Hence three counts are necessary, since there are three possible versions of the agreement constituting the conspiracy. The defence submissions confuse the conspiracy offence with the substantive offences which would be the end product of the course of conduct agreed upon. Mr Perry also made submissions about confiscation proceedings under the two statutory schemes in which he eventually accepted that there were differences.

[23]This court has no knowledge of the details of what is alleged against the defendants other than the (rather uninformative) material in the indictments. For this reason, we shall confine ourselves to the narrow decisions necessary to determine the appeals.

[24]The appeals are concerned only with the form of count 1 of the indictments. Duplicity in a count is a matter of form. A conspiracy count is bad in law if it charges the defendants with having been members of two or more conspiracies – see R. v. Greenfield [1973] 1 W.L.R. 1151 at 1155G and 1156B).

[25]Section 1 of the 1977 Act creates the statutory offence of conspiracy. The essence of the offence is an agreement between two or more persons to pursue a course of conduct. The agreed course of conduct has to have the nature which the section requires, that is it has to be such as will necessarily amount to or involve the commission of an offence or offences by one or more of the parties to the agreement. Subject to that, the essence of the offence is the making of the agreement (see R. v. Siracusa

(1990) 90 Cr. App. R. 340

[26]The terms of section 1 of the 1977 Act show that there can be an agreement constituting a Conspiracy Offence where the agreed course of conduct, if it is carried out in accordance with the conspirators’ intentions, will necessarily amount to or involve the commission by one or more of the conspirators of more than one Agreed Offence. This court so held in Siracusa and R. v. Roberts

[1998] 1 Cr. App. R. 441

[27]In our judgment, Mr Perry is correct in his submission that an agreement to commit crime A or crime B is entirely possible. We also accept his submission that such an agreement is capable of falling within section 1(1) of the 1977 Act. Given that, outside the subject matter of the present appeals, an agreement of the kind which he postulated is rather unlikely, there is no reason why, if such an agreement were made and proved, it should not constitute the statutory offence. There is no compelling reason why “offence or offences” should be construed exclusively conjunctively. It follows that count 1 of the present indictments is not in form duplicitous and we reject Mr Collier’s submissions to the contrary.

[28]We also accept Mr Perry’s submission that count 1 may, depending on the evidence, be necessary because it charges a different agreement. It is here necessary, we think, to postulate limited possible facts, simply to clothe the discussion in some reality. The postulated facts may or may not be, or approximate to, those in the present cases. For this purpose only, we postulate a prosecution case alleging that cash is brought by a courier to a money changer who changes the money and disperses the cash he has received. Both the courier and money changer know or have reasonable grounds to suspect that the source of the money is illicit (but not connected with terrorism) and in this knowledge they act in concert. There are three possibilities: Case A – they each know that the provenance of the money is drug trafficking; Case B – they each know that the provenance of the money is not drug trafficking; Case C – they neither of them know the provenance of the money, but they each know or have reasonable grounds to suspect that its provenance is illicit. We will assume that the jury would infer from these facts that there was in each Case an agreement sufficient (subject to Mr Collier’s second point) to constitute a statutory conspiracy. In Case A, the conspiracy would fall within count 2. In Case B, the conspiracy would fall within count 3. The agreement in Case C would be an agreement to launder illicit money irrespective of its provenance. The postulated agreement in Case C is a different agreement from that postulated in Cases A or B. To establish a charge of conspiracy, the Crown have to prove an agreement as charged and particularised in the indictment – see Siracusa and R. v. Barnard

(1980) 70 Cr. App. R. 28

. Accordingly, a count in the form of count 1 is necessary, if the different agreement there charged is an agreement which the evidence may sustain.

[29]The discussion in the previous paragraph is consonant with passages in the judgment of this court in R. v. Patel (CACD, 7 th August 1991). In that case, defendants were convicted of an offence of conspiracy to contravene section 4(1) and (2) of the Misuse of Drugs Act 1971, contrary to section 1 of the Criminal Law Act 1977. The drug which they were alleged to have conspired together to produce was described in the particulars of the offence as “a controlled drug of Class B, namely amphetamine sulphate.” They were also convicted of an offence conspiracy to contravene section 4(1) and (3) of the 1971 Act contrary to section 1 of the 1977 Act. The particulars of offence alleged that the conspiracy was “to supply a controlled drug of Class B to others, namely amphetamine sulphate.” Their appeal raised questions of what had to be proved to establish mens rea on the part of those who had joined, but played a subsidiary role in, a large scale conspiracy. One question was whether the relevant defendants could be guilty of the offence of conspiracy with which they were charged if they may not have known that the drug which was to be manufactured and/or supplied was amphetamine sulphate. The judgment of the court was given by Woolf LJ, as he then was. He cited passages from Siracusa, in particular passages from the judgment of O’Connor L.J. in which he considered the mens rea required for the offence of conspiracy. Woolf L.J. then said at page 14A of the transcript:

[30]Woolf L.J.’s summary of the position where a defendant is charged with an offence of conspiracy and the Particulars of Offence identify the drug involved included, on page 18 of the transcript:

[31]In R. v. Taylor

[2001] EWCA Crim. 1044

, this last passage in Patel was explained as follows:

[32]We turn to Mr Collier’s second submission, that is that the count has to define the substantive offence or offences and does not do so in the present cases by putting up alternatives neither of which the Crown can establish. There is thus a black hole.

[33]We were initially impressed with this submission, but on further consideration consider it to be wrong in the present cases. First, as we have already said, the Crown have to establish the Conspiracy Offence comprised in the making of the agreement. They do not have to establish as such that one or other of the Agreed Offences was committed, although they may incidentally do so as part of the evidence from which they would ask the jury to infer the agreement. They do have to establish that the Agreed Offences would, if the agreed course of conduct was carried out, be offences. As charged in count 1, they plainly are offences. Second, on the facts postulated for Case C, there is no necessary black hole because of the definition of the statutory offences in the present cases. Under each of the sections, the offence includes “ having reasonable grounds to suspect ” that the money is the proceeds of drug trafficking or criminal conduct as the case may be. A person who makes an agreement to launder money which he suspects has an illicit provenance may not know that the money is the proceeds of drug trafficking or of criminal conduct. He may not in fact have reasonable grounds to suspect anything illicit, in which case his agreement will not be an agreement to pursue a course of conduct which will necessarily amount to or involve the commission of any offence relevant to the present discussion. But, if he has reasonable grounds to suspect that the provenance of the money is illicit, he must by definition have reasonable grounds to suspect that its provenance is either drug trafficking or criminal conduct and quite possibly both. This is because the threshold of having reasonable grounds to suspect precludes the possibility (which could exist with knowledge) that he did not have the requisite mental state for at least one, and perhaps both, of the offences which the agreement contemplated. Mr Collier was, we think, eventually constrained to acknowledge this.

[34]Finally, we do not consider that count 1 is objectionable because it would be likely to cause difficulties with sentencing, if any defendant is convicted on that count. The statutory maximum penalties are the same for each substantive offence. If the jury convict a defendant on count 1, the offence will be that of conspiracy comprising an agreement to launder illicit money whatever its precise provenance. The sentencing judge, knowing the facts, will be properly able to judge the appropriate sentence in all the circumstances. As to confiscation proceedings, the Crown might or might not get into difficulties, if defendants against whom they would want to take confiscation proceedings are convicted on count 1. We say nothing one way or the other about that possibility. But it would not, in our judgment, be a reason for striking down the count. Rather would it be a misfortune for the prosecution.

[35]We reject Mr Collier’s submission that the passage in paragraph 47 of the court’s judgment in El-Kurd is wrong. We would, however, caution against an easy assumption that cases of alleged money laundering may readily and in any case be indicted in the form of count 1 in the present case and that it presents an easy option for the Crown. If conspiracy is charged, the facts will need careful examination to see whether they really do sustain a conspiracy agreement as charged. And juries will need to be directed with equal care. We also emphasise that the form of count 1 in the present cases arises from, and is peculiar to, the legislation with which it is concerned.

[36]For these reasons, these appeals are dismissed.

AKHTAR HUSSAIN, SHAHID BHATTI AND NAZIR BHATTI v R [2002] EWCA Crim 6

Lord Justice May:

Introduction

Justice Act 1988 as amended provides:

Justice Act 1988 as amended provides:

Cited in 2 later judgments