KETAN THAKRAR v RIZWAN YUSOOF [2008] EWCA Crim 2359

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
SITTING AT CROYDON
HHJ AINLEY
T20060507 : T20060676
[2008] EWCA Crim 2359Case No Case No: 2007/04478 Bl +2008/01019 BlVenue Royal Courts of Justice, Strand. London. WC2A 2LL
Between
KETAN THAKRARAppellantRIZWAN YUSOOFAppellantREGINARespondent
Before
Lord Justice HooperMr Justice NelsonMr Justice MaddisonMr G Cockings and Mr B Gordon (instructed by the Registrar) for Ketan ThakrarMr J Samuels (instructed by the Registrar) for Rizwan Yusoof Mr Andrew Bird and Miss V Walters (instructed by RCPO) for the RespondentHearing date: 19/09/2008Appellant ApplicantRespondent

LORD JUSTICE HOOPER :

On

[1]26 th July 2007 at the Crown Court at Croydon (H.H.J. Ainley) the appellant, Ketan Thakrar ["Thakrar"], was convicted of acquiring criminal property contrary to s.329(l)(a) Proceeds of Crime Act 2002 ["POCA"] (Count 13) and possession of criminal property contrary to s.329(l)(c) of POCA (Count 14). He was acquitted of a further offence of acquiring criminal property (Count 12). The jury were discharged from returning a verdict in relation to the offence of money laundering (Count 11).[2]He appeals his conviction by leave of Openshaw J.[3]Also on 26 th July 2007 the applicant Rizwan Yusoof ["Yusoof] was convicted of possession of criminal property contrary to s.329(l)(c) POCA (Count 1) and money laundering contrary to s.328(1) POCA (Count 2). He was sentenced on Count 1 to 5 years imprisonment and on Count 2 to 10 years imprisonment, concurrent. He renews his application for leave to appeal sentence following refusal by Openshaw J.[4]There is another applicant, Omar Ali. His renewed application for leave to appeal a total sentence of eight years had been adjourned and has now been dismissed [insert reference].[5]We shall first give our reasons and decision in the case of Thakrar and then give brief reasons for our decision in the case of Yusoof.[6]It is submitted in the case of Thakrar that he did not receive a fair trial because a juror had discovered on the internet prejudicial information about him and passed that information on to the other jurors, being information which was not, it was agreed, relevant and admissible.[7]At the outset of the trial the judge told the jury not to talk to anyone outside their number or allow anyone to talk to them. He did not give the jury a specific warning about the internet as recommended by the Judicial Studies Board. But he did say that this was going to be a complicated case and:
"You are the only people who are going to see and hear the evidence. No-one else is going to do that so no one else's opinion on the evidence can be of the least value to you. It can only get in the way. Nor of course should you seek anyone else's opinion about the case for obvious reasons."
[8]Just over six weeks into the trial, and at the conclusion of the appellant's examination-in-chief, the following jury note was received:
"Around the third week into this trial a fellow juror announced to us all that he had been looking on the internet and found on www.bbc.co.uk information that related to one of the defendants. The defendant, Ketan Thakrar, is alleged to have been arrested, tried and found guilty of money laundering in 2001. The juror said to us all that he felt it was fair that we knew all this."
[9]It was not clear when the "fellow juror" had found the information. What is clear is that the jurors had waited for three weeks to reveal the information and had only done so when the appellant had finished giving evidence in chief and had made no reference to any previous conviction. The obtaining and dissemination of the information was in breach of the spirit if not the letter of the judge's direction at the outset of the trial.[10]Mr Bird rightly conceded that we should proceed on the assumption that the jurors had seen a copy of the item on the BBC website. That read as follows: Eight people charged over money laundering £200,000 was seized from homes and business across the capital Eight people are to appear in court charged with laundering up to £100m for criminals around the world. Customs and Excise officers seized £200,000 from homes and business premises cross London Tuesday. Five Iranians and three Indians, who are all UK residents, were charged under the Drugs Trafficking Act 1994 and the Criminal Justice Act 1998 They are expected to appear at Horseferry Magistrates' Court. The seven men and one woman are: Javad Ghotbi-Ravandi, a money broker, of St John's Wood, north London. Gholam Ali Sacki of New Southgate, north London. Hooshang Lanjani Abbaspour, of Hampstead, north west London. Ketan Thakrar, director of a computer chip company, of Rayners Lane, north west London. Kaushik Tailor, a director of a computer hardware company, of Palmers Green, north London. Rajnikant Tailor, a director of a computer hardware company, of Luton, Bedfordshire. Rajesh Tailor, of Harrow, north-west London, also a director of a computer hardware company. On 6 November 2003, Mr Javad Ghotbi-Ravandi and Mr Gholam Ali Sacki were discharged with "not guilty" verdicts. Hooshang Lanjani Abbaspour was sentenced to 18 months imprisonment. Ketan Thakrar was sentenced to 15 months; Kaushik Tailor to 10 months; Rajnikant Tailor to 12 months; and Rajesh Tailor to 8 months in prison.[11]There was an inaccuracy in the item. The Appellant had been charged with money laundering but the matter was not proceeded with and the appellant was in fact convicted of offences relating to VAT fraud.[12]Following the receipt of the note, an application was made to discharge the jury. The application was refused. The judge then said this to the jury, according to the transcript: "Ladies and gentlemen, I received a note from one of your number this morning which reads as follows and everybody has read it: ... That was not the first intimation of what is in the note because I was told at the end of our sitting yesterday that that was the position. But that was the first that I or anyone else knew, anyone else at the Bar or of the defendants knew that that was the situation. This obviously happened early on in the trial. Counsel have been informed in the case and there has been a discussion in your absence. I do not invite you to blame yourselves for the fact that one of you has looked on the internet, I should probably have given you a specific warning not to look elsewhere and insofar as that is a failure I shall take responsibility for it. But it is highly undesirable that any of your should try to gain information about the facts of the case or about the defendants independently. If you do that and the prosecution and the defence do not know about it, there is no check on the accuracy of the information that you have received. Nor on the fairness to the prosecution or the defence of your knowing about it. For example, information could be true in whole or in part, but irrelevant to the real issues that arise in this case. Now here the report that you received from the BBC, and I have copies of it, which does say: 'eight people charged over money laundering back in 2001' is inaccurate. Mr Thakrar was not tried for money laundering. In fact he pleaded guilty to two matters that have no bearing whatsoever on any of the issues that arise in this case. So, you now see the danger. That is information that comes to you unfiltered and it gives a wrong impression. Disregard what you have heard about Mr Thakrar The fact that he, on his own admission, has been convicted of two criminal offences is of no assistance to you whatsoever in determining the issues in this case. Judge him only on the evidence that you have heard in court in his favour and against him It is your duty to try the case on the evidence and not to be influenced by any external matters, such as any media reports that any of you may have come across. The evidence, I repeat, is what you hear in court and nowhere else and you are the only people who are going to assess it. I am going to repeat a warning that I have given earlier: don't speak to anyone outside your number, including family or friends, about the case, nor let them speak to you. In addition, and now I am re-emphasising something that is pretty plain from what I have said already, do not try to obtain information from elsewhere, including on the internet, but it does not matter what the source is about the case in general or about other matters that have been raised during the trial. If you were to conduct that research, as you now know, nobody else has the ability to comment on it, to point out to where it would be unfair for you to receive this information or where the information would be flat wrong [sic]. … Now it maybe that something happens, or has happened in this case, relating to research that has been carried out by anybody up till now that causes any of your number real concern. If that be the case let me know about it. I can only emphasise that it was very proper for the juror, whom I am not in a position to identify and shall not do so, it was very proper of that juror to bring this matter to my attention so that I could discuss it with counsel. Very well." (Underlining added)[13]The judge, in an impeccable summing-up, gave a good character direction for all the other defendants and then said:
"Now, you have also heard, accidentally as it turns out, in the sense that it is not by anybody's deliberate intent in the course of this trial, that Mr. Thakrar does have a previous conviction. I have already told you, and you must accept from me, that that conviction is of no relevance whatsoever to the issues that arise in this case. You must not hold it against him. Insofar as you can, put it out of your mind; and if it is something that you do remember, I direct you specifically it is to be a factor of no weight whatsoever in the case against him."
[14]By the time that they came to their deliberations, the jury were aware as a result of reading the BBC website item and as a result of what the judge had told them, that Thakrar had been convicted of and sentenced to 15 months' imprisonment for some unspecified offences and were aware that he had been charged originally with money laundering offences. But they had been told in the clearest terms that this information was "of no weight whatsoever in the case against him".[15]The presumption is that jurors follow the directions which they receive: Montgomery v. HM Advocate; Coulter v. HM Advocate [2003] 1 AC 641 , and in particular the speech of Lord Hope. That presumption may be rebutted: see e.g. Paris and others (1993) 97 Cr App R 99 (the "Cardiff Three" all of whom were much later proved to be innocent when another person pleaded guilty to the murder of which they had been convicted).[16]In this case, it is agreed that the question we must ask is along these lines:
"Is there a real possibility that a member or members of the jury did not follow the direction set out in paragraph 14 above?"
If so the conviction is, as Mr Bird conceded, unsafe.[17]Mr Cockings submits that there is such a real possibility. He relies, in particular, on three matters. First, he says, one member of this jury had already shown a failure to comply with at least the spirit of the judge's direction at the beginning of the trial by researching the internet to see what he could find out about the appellant. Secondly, all members of the jury had had already shown a failure to comply with at least the spirit of the judge's direction at the beginning of the trial by receiving and not disclosing to the judge the information from the internet and, even more seriously, keeping quiet about it until the appellant had given evidence in chief. Thirdly, when the appellant gave evidence and did not disclose his previous convictions, there is a real risk that the jurors formed at that time an adverse view of him and his evidence and would be unable to divest themselves of that adverse view.[18]Mr Bird does not dispute these submissions but submits that the fact that the jury acquitted the appellant of count 12 shows that they did comply with the direction given to ignore the previous conviction. Mr Cockings points out that in so far as count 12 was concerned the principal issue which the jury had to decide was whether the property was criminal. As far as counts 13 and 14 were concerned, given that the jury knew that named co-defendants had pleaded guilty to these counts, there was very strong evidence that the property was criminal. The principal issue for the jury was whether or not the appellant knew or suspected that the bank notes which he had received were the proceeds of crime. That he says, and we agree, undermines the argument put forward by Mr Bird.[19]Having considered the matter carefully, we are driven to the conclusion, for the reasons given by Mr Cockings, that there is a real possibility that a member or members of the jury did not follow the direction set out in paragraph 12 above. For these reason the appeal is allowed and we shall hear any submissions which Mr Bird wishes to make about a new trial and any response to those submissions.[20]We turn to Yusoof's renewed application for permission to appeal sentence. In passing sentence the judge addressed both defendants, Yusoof and Ali, and then went on to explain the sentence he was passing on Yusoof. The judge said: "Major drug dealers cannot function profitably and therefore will not try to function unless their cash receipts are efficiently laundered. You both performed that function as important participants in the Adam organisation. That organisation, probably under the direction from Dubai and Pakistan of Shakil Isakshi, your cousin, Yusoof, has been engaged in handling the money of drug dealers, including one Robert Dawes, certainly from early 2005 until May 2006. The amounts of money that passed through that part of the organisation with which you were concerned cannot be worked out but they run comfortably into millions. If one looks at the figures, one can see that going to Highstar over a period of six weeks there is a sum of over £1 million being channelled through. During that time you performed differing but major roles. I have no doubt whatever that the money you were handling was almost entirely, certainly from the samples that have been recovered, the proceeds of drug dealing, and I cannot conceive that you were not aware of that. I am sure that you were. Yusoof, undoubtedly you were one of the United Kingdom organisers of this gang. On occasion you picked up deliveries. Count 1 is the only delivery for which I shall sentence you. On that occasion you picked up £400,000 from St Helens; you were arrested with that sum in your possession on your return. Thereafter, although you were not directly dealing with deliveries of money --- albeit there was one occasion when you certainly transmitted money as the telephone traffic makes clear, and as the observation evidence makes clear, and as all the exhibit materials before me make clear --- you were involved in making arrangements, in organising details of pick up and carry. I reject the assertion that you were acting under any form of compulsion at any time that is relevant to the issues with which we are dealing. I also reject the assertions which were made that other people were using the telephones that were connected to you. On occasion perhaps other people were, but it seems to me that the evidence as a whole does not make sense unless you were principally the person using the telephones that had been attributed to you. You yourself boasted, and this may be a good indication of your role in this particular matter, and I am entirely satisfied that you boasted this on the 12 th of May to Thakrar, that you cleared £400,000 in 2005 that could not be connected to you. I am content to accept that at some point, I cannot specify when, there was a violent disagreement between your organisation and another criminal organisation, and I am quite prepared to accept that there may have been threats to you from other criminals. Those are the waters in which you chose to swim. Before any threats were made, before any threats that you allege were made to you it is quite plain that during 2005 you were already fulfilling a role in the Adam organisation before any trip to Dubai took place. It seems to me that for your level of involvement in this level of crime, laundering the proceeds of drugs money and knowing that is what you are doing, only a severe sentence could possibly be justified. The total sentence that I am going to pass on you is one of ten years' imprisonment. On Count 2 it is ten years; on Count 1 it is five years concurrent. Under current legislation what that means is that unless released earlier you will serve one half of that period." (Underlining added)[21]The underlined passages are challenged by Mr Samuels. He submits that he judge was not entitled to find knowledge as opposed to suspicion and not entitled to find that the applicant knew it was drug money, as opposed to criminal property acquired in some other way, e.g. a carousel fraud. He submits that the judge should have found that the applicant was acting under some duress, albeit that his defence of duress was rejected by the jury. To succeed Mr Samuels must show that the findings of fact made by the judge who had heard the long trial were perverse. He has failed to do so.[22]Mr Samuels also points to the applicant's good character, his apparent remorse, the fact that he was on bail for one year and his personal circumstances.[23]In refusing leave, Openshaw J wrote:
"I have considered the papers in your case and your grounds of appeal The judge heard the trial; he was well placed to assess the criminality of the applicant. He found that the applicant had laundered the proceeds of drugs dealing in respect of money 'comfortably running into millions'. It must be plainly understood that those who act for ruthless criminal gangs in this way will receive severe sentences. This application has no merit whatsoever; the application is refused."
[24]We agree. This renewed application is dismissed.

Cited in 2 later judgments