F & Anor, R v [2008] EWCA Crim 1868

Case No 200803486 B5

[2008] EWCA Crim 1868

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 17th July 2008

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE LATHAM

VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION

MR JUSTICE GRIGSON

MR JUSTICE MACDUFF

Between

R E G I N ACrown

Between

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Mr A Bird, Ms V Walters and Mr J Fletcher appeared for Revenue and Customs Prosecution Office

Mr N Griffin appeared on behalf of F

Mr S Baker appeared on behalf of B

J U D G M E N T

(PROSECUTION APPEAL AGAINST A TERMINATING RULING UNDER SECTION 58 OF THE CRIMINAL JUSTICE ACT 2004)

LORD JUSTICE LATHAM:

The

[1]appellant, the Revenue and Customs Prosecution Office, is in the process of prosecuting these two respondents in the Crown Court at Isleworth. The indictment contains three counts: firstly, count 1, being concerned in a money-laundering arrangement contrary to section 328(1) of the Proceeds of Crime Act 2002; count 2, transferring criminal property contrary to section 327(1)(d) of the Proceeds of Crime Act 2002; count 3, attempting to the commit the offence of removal of criminal property from England and Wales contrary to section 1(1) of the Criminal Attempts Act 1981. The appeal arises out of a ruling of the trial judge, HHJ Katkhuda, on 19th June 2008 when, on a submission by defence counsel, he ruled that there was no case for these defendants to answer on counts 1 and 2 of the indictment.

[2]In order to understand the ruling, it is necessary to say something, but not in extenso, about the circumstances which gave rise to the charges. On 15th January 2002, the two respondents checked in at Heathrow Airport to board an Iran Air flight to Tehran in Iran. They were due to return on 17th January 2008. They had in their possession four suitcases or bags which were all checked in under the name of the first respondent. Whilst they were being transferred on to the aircraft, a Customs sniffer dog, trained to detect currency, indicated to two of the respondents' bags. All four bags were retrieved and the two respondents stopped before boarding. The respondents said that they were travelling together and jointly owned all four bags. They both presented boarding cards and Iranian passports. The second respondent said that she was carrying £600 on her. When asked if she had any money in her suitcase she said no. When asked who had packed which bag, the second respondent starting talking in a foreign language to the first respondent and they had a conversation which the Customs Officers could not understand. The first respondent then told them in English that he had packed the bags and there was money inside. The second respondent had the four baggage reclaim tags and also the British passport for each of them.

[3]The cases were opened using keys in the possession of the first respondent and searched. The baggage contained a small amount of clothing but the majority of the room was taken up by cash totalling £1,184,670.

[4]They were interviewed. Essentially their answer was that they had been asked by a friend to carry the money; and it appeared that the first respondent had done it two or three times before and had been paid for each trip. He did not know where the money was coming from but knew that it was wrong and only did it because he was on benefits and he had financial problems. As far as the second respondent was concerned, she said that she was in a relationship with the first respondent and she had made many trips with him. She did not know who bought the tickets and nothing in the cases was hers. She had never been told what the bags contained and was shocked when she saw the bags opened by the Customs Officer to disclose the cash. The prosecution case was that the money constituted criminal property within the meaning of the Act.

[5]The short point for the purposes of today is that the defence submission to the judge was based on the decision of this court in the case of R v NW and others

[2008] EWCA Crim 2

, which it was submitted established that in order to prove that the money or property in a case was criminal property the prosecution had to be able to establish at least what type of criminal conduct was involved which had produced the property. The judge, having heard that submission and having been supplied also with the authority of R v Craig

[2007] EWCA Crim 2913

, which would appear to say to the contrary, concluded that he was required to follow the decision in R v NW and could not say that the prosecution had been able to establish in this case what type of criminal conduct had been involved and, accordingly, he ruled that there was, as we indicated, no case to answer in respect of counts 1 and 2 on the indictment.

[6]Since the ruling by the judge, this court has given judgment in the case of R v Anwoir, McIntosh, Meghrabi and Elmghrabi

[2008] EWCA Crim 1354

, where, in paragraph 21 of the judgment, I set out what the court considered to be the correct position in law:

"We consider that in the present case the Crown are correct in their submission that there are two ways in which the Crown can prove the property derives from crime, a) by showing that it derives from conduct of a specific kind or kinds and that conduct of that kind or those kinds is unlawful, or b) by evidence of the circumstances in which the property is handled which are such as to give rise to the irresistible inference that it can only be derived from crime."

Prima facie it would appear that this case fell into category (b), in which the prosecution are entitled to ask the jury to consider the facts and to submit that the facts established without doubt that the property is criminal property from the circumstances that we have outlined in this judgment.

[7]On behalf of the respondents, it is submitted that, whilst it is accepted that a case can be proved by inference, it is necessary for the purposes of procedural fairness for at least some background material to be available to enable the jury to conclude that criminality of some sort is involved.

[8]We have considered that submission in the light of the views expressed by this court in R v Anwoir but conclude that the statement of principle which we set out in paragraph 21 is one upon which the prosecution is entitled to rely in this case. We can see no procedural unfairness arising out of the fact that the prosecution at this stage is unable to point to any particular criminality. The fact is that, certainly as far as the first respondent is concerned, the answers he gave to the Customs Officers suggest (one says no more than this at this stage because obviously he may well wish to give a full explanation) that he knew full well that criminality of some sort was involved in the production of that money. The second respondent's participation in the matter is also a matter which would clearly be one for the jury; but nonetheless it seems to us that there is clearly material here which justifies the matter being put before the jury without there being any procedural difficulty for the respondents to be able to answer the charges in this case.

[9]Slightly faintly, it was submitted that this case might fall foul of the principle in Brown that the jury in certain circumstances should be directed ultimately to be sure of all matters which are necessary to complete the offence and that that would require the jury to be directed that they have to be unanimous about the type of criminality which had produced the monies in this case. That is not a proper understanding of the case of Brown and, in particular, a proper understanding of its effect in relation to these offences. The question in this case is whether or not the property is criminal property. That is the sole issue; and if the jury conclude that it is criminal property it matters not upon what basis they have come to that conclusion: the jury will have been unanimous or a majority will have been agreed that it is indeed criminal property. Accordingly, there is no basis upon which the principle in the case of Brown could have any application ultimately to the consideration by the jury of this prosecution.

[10]For those reasons we allow the appeal.

[11]MR BIRD: My Lord, the relief available under section 61 of the Criminal Justice Act 2003: firstly, if the court can confirm, reverse or vary the ruling. So we ask the court to reverse the ruling.

LORD JUSTICE LATHAM: We reverse the ruling.

[13]MR BIRD: Secondly, it seems the most obvious order is under subsection (4)(b), that you order that a fresh trial may take place in the Crown Court on both counts 1 and 2 and count 3, which is going to happen anyway.

LORD JUSTICE LATHAM: I was about to say, what is happening on count 3?

[15]MR BIRD: Count 3 is still there and there is going to be a retrial in any event on count 3. There will now be a retrial on all three counts.

LORD JUSTICE LATHAM: Then we order that there be a retrial of the indictment containing all three counts. Are there any other subsidiary orders at this stage?

[17]MR BAKER: My Lord, I understand from your clerk that the legal aid order in these cases is dealt with by a rather hybrid system in that it is still covered by the Crown Court in an appeal against a terminatory ruling and in such circumstances I think taxation is automatic by the Crown Court.

LORD JUSTICE LATHAM: That is right.

[19]MR BAKER: So I do not think I ask for any order for that. The only other question is that I have been handed a document, I think from your Lordship's clerk, indicating that a point was certified on 27th June of this year in the following terms:

"Whether in a prosecution under section 327 or 328 of the Proceeds of Crime Act 2002 section 340 requires the Crown to prove at least the class or type of criminal contact that it is alleged generated the proceeds of crime"

. My Lord, if that is the case --

LORD JUSTICE LATHAM: I think it is coming back to me, I think it was -- obviously -- I think what happened was I said could you put it down in writing, and they did and we thought it was a proper question to certify.

[21]MR BAKER: Well, my Lord, I would respectfully agree with the formulation of the question and I would ask that it be allowed to join in the certificate.

LORD JUSTICE LATHAM: Well, what we will do, subject to anything Mr Bird has to say --

[23]MR BIRD: My Lord, the only slight difference between the certified question and our ground 1 of appeal is we put in whether it is necessary for the prosecution either to plead or to prove on the basis that NW arguably is a point on which we are pleading. But I am fairly sure that proving will do.

LORD JUSTICE LATHAM: I think prove will do. We will certify in that case. We will certify the question in exactly the same form as in Anwoir. We will refuse leave to appeal but then we do get into the area of representation orders. I think we would grant -- I think it is the same point, really, for each of the respondents, is it not? There is no distinction.

[25]MR GRIFFIN: That is correct, my Lord.

LORD JUSTICE LATHAM: I think in those circumstances what we ought to do is to grant a representation order simply for one counsel in relation to the application for leave to appeal and, if the matter proceeds to appeal, single counsel on the appeal. I think you will find that there may be a -- yes, there will be leading counsel in Anwoir and so I do not think you will need leading counsel presumably for yourself.

[27]MR BAKER: My Lord, I see the point, although I do make the application for it simply on the grounds that the point that we seek to argue is a slightly different point from that in Anwoir, namely, as I understand it, and, of course, my Lords will correct me if I am wrong, the safety valve argument is not, as I see it, something that was taken by the court in Anwoir and it is a point that in my submission is meritorious of leading counsel to assist.

LORD JUSTICE LATHAM: I am sure you are perfectly entitled to stimulate Mr Clegg or Mr Milliken-Smith to -- or Mr Clegg anyway -- to take that point on your behalf.

[29]MR BAKER: My Lord, both more than able and I am sure they will be able to take the point. I am grateful.

MR JUSTICE MACDUFF: You would not need to stimulate them, you will be able to do it yourself.

[31]MR BIRD: My Lord, can I just raise one point in terms of the order. My Lord has directed a retrial on all three counts of the indictment. I think technically the order should be for a retrial on counts 1 and 2.

LORD JUSTICE LATHAM: Fine. Yes.

[33]MR BIRD: If we can just amend it to that effect and then count 3 we can do what we want with once we get to the trial.

LORD JUSTICE LATHAM: Thank you very much. (pause) What do people say about reporting restrictions?

[35]MR BIRD: I would have thought that, so long as the names are anonymised, this case could properly be reported.

LORD JUSTICE LATHAM: I would have thought so too.

[37]MR BAKER: I respectfully agree. (pause)

LORD JUSTICE LATHAM: Do you want solicitors? That is perhaps the only other question.

[39]MR BAKER: My Lord, I would ask for the solicitors in this case, yes. (pause)

LORD JUSTICE LATHAM: One solicitor.

[41]MR BAKER: Thank you.