Gillies, R. v [2011] EWCA Crim 2140

[2011] EWCA Crim 2140Case No 201102374/D2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 6th September 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE WILKIE
MR JUSTICE HOLROYDE
Between
R E G I N ACrownv
Between
RYAN GILLIES
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss F Levett appeared for AppellantMr N Palmer appeared for Crown
J U D G M E N T

LORD JUSTICE PITCHFORD:

On

[1]4th April 2011 before His Honour Judge Shanks at Snaresbrook Crown Court the appellant was convicted by the jury of a single offence committed contrary to section 328(1) of the Proceeds of Crime Act 2002. He was in consequence sentenced to a term of 12 months' imprisonment.[2]Section 328(1) provides as follows:
"328 Arrangements (1) A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person."
The interpretation section is section 340, subsection (3) of which provides:
"(3) Property is criminal property if— (a) it constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and (b)the alleged offender knows or suspects that it constitutes or represents such a benefit."
[3]There are two grounds of appeal advanced on behalf of the appellant by Miss Levett:(i) there was no evidence at the close of the prosecution case or indeed at the close of all the evidence the appellant not having given evidence, that the property in the appellant's possession was the proceeds of any specific criminal conduct;(ii) the learned judge failed to direct the jury that they must be sure that when the property entered the appellant's possession it was already the proceeds of criminal conduct. The appellant has leave to advance these grounds to the Full Court.[4]The evidence adduced by the prosecution, largely by agreement, was as follows. On 25th March 2010 the appellant, driving a white Astra van, entered a car park at the Underground Station at Brent Cross at approximately 9.30 pm. There he met Mr Mohammed Imran. Imran had travelled to Brent Cross in a minicab. He was seen to arrive at the rendezvous empty-handed, to enter the white van and sit in the front passenger seat. A few seconds later he emerged from the van carrying a large Next paper carrier bag. Mr Imran then returned to his cab and travelled to Leytonstone, where he was searched by the police. Inside the Next bag was found €200,050 in notes contained within clingfilm and further plastic carrier bags.[5]The police made checks as to the registered keeper of the white Astra van and on 27th September 2010 enquiries linked the vehicle to Mr Gillies. Shortly afterwards he attended Luton police station where he was arrested on suspicion of money laundering. He was cautioned and he made no reply. He was interviewed and he made no comment.[6]A forensic practitioner examined the bags containing the money. Marks identified as those of the appellant were found on 23 locations on the bag and film.[7]An officer giving evidence at trial confirmed a financial investigation into the appellant. He was 21 years old. He had no savings, and he had no assets save for the white van. He was unemployed and in receipt Job Seekers Allowance which he had collected on the very morning of the offence.[8]The witness stated that no one had come forward to claim the sum of cash seized; no legitimate source for the cash could be identified. On the other hand, he made the inevitable concession that there was no direct evidence of the crime which the police suspected had generated the cash.[9]The jury were not told, during the appellant's trial, that Mohammed Imran appeared before Snaresbrook Crown Court on 20th December 2010, when he entered a guilty plea to a charge of becoming concerned in a money laundering arrangement also contrary to section 328 of the 2002 Act.[10]The prosecution case presented to the jury was that the circumstances we have described gave rise to the inevitable inference that the cash did represent proceeds of criminal conduct which had taken place before the transaction witnessed by police officers carrying out the surveillance.[11]Miss Levett, for the appellant, made a submission of no case to answer at the close of the prosecution case. She submitted that there was no evidence from which the jury could infer that the cash was the proceeds of criminal conduct. As to the law, she submitted, relying on R v W(N) & Ors [2008] EWCA Crim 2, [2009] 1 WLR 965 that it was necessary for the prosecution to prove at least the type of criminal conduct which the alleged proceeds represented. At paragraph 38 of the judgment of the court given by Laws LJ the court concluded:
"In short, we do not consider that Parliament can have intended a state of affairs in which, in any given instance, no particulars whatever need be given or proved of a cardinal element in the case, namely the criminal conduct relied on..."
[12]Judgment in W(N) was given on 23rd January 2008. In Anwoir [2008] EWCA Crim 1354, [2008] 2 Cr App R 36, heard in May 2008, the Vice-President (Latham LJ) gave the judgment of this court. It was clear that the court in W(N) had not been invited to consider a previous decision of the court in R v Craig [2007] EWCA Crim 2913, in which a contrary conclusion had been reached (see in particular paragraphs 26 to 29) and R v F [2008] EWCA Crim 1868. In Anwoir Latham LJ carried out an examination of the conflicting authorities and concluded at paragraph 21 as follows:
"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. This in our judgment gives proper effect to the decision in Green, and is consistent with the decisions of this court ..."
[13]The court on that occasion certified for the appellant a question for consideration by the House of Lords, that is, whether section 328 and section 340 of the Proceeds of Crime Act 2002 required the prosecution to prove at least the class or type of criminal conduct which it was alleged generated the proceeds of crime. The House of Lords refused leave to appeal in order to consider that question in December 2008.[14]The matter again arose for consideration in R v MK and AS [2009] EWCA Crim 952. Hallett LJ said at paragraph 12:
"... In our judgment, the law as it applies to this case is now settled. It is conveniently set out in paragraph 21 of Anwoir, to which we have already referred. We declined to hear any further argument from Mr Sharpe, who appeared before us on behalf of AS, to the effect that Anwoir was wrongly decided. We approach this case, therefore, on the basis that it is open to the prosecution to try to prove guilt from the 'evidence of the circumstances in which the property was handled' which it is said 'give rise to the irresistible inference that it can only be derived from crime'. They do not have to prove the specific kind of crime. There was an error of law in court below..."
It is instructive to note that the facts in the case of MK and MS concerned police observations of a meeting in a supermarket car park during the course of which a carrier bag containing £22,000 in cash was handed from one defendant to the other. When asked to give an explanation for this conduct, they gave conflicting accounts but there was otherwise no explanation as to the crime or the nature of the crime, which those proceeds may have represented. Nevertheless, the court held, as we have observed, that it was open to the jury to draw an inference that the proceeds were in fact the proceeds of crime.[15]We have earlier described the nature of the prosecution evidence in the present case. In our judgment there was plainly a case to answer. The jury properly directed could conclude that this large quantity of cash in the Euro denomination represented the proceeds of previous criminal conduct. They could infer that is the only reason why a man in the appellant's position would have been entrusted with it. It was not for the prosecution to exclude every other possible inference. The question for the judge at half time was whether upon the evidence the jury had heard, they could properly conclude, so that they were sure, that the prosecution had established its case.[16]In his ruling His Honour

Judge Shanks said this:

"I am not going to get involved in seeking to reconcile the case drawn to my attention, namely R v W [2008] EWCA Crim 2. I have been shown a number of other authorities and as far as I am concerned in this court the law is clear that the prosecution can succeed in this case by evidence of the circumstances in which the relevant property is handled which is such as to give rise to the irresistible inference that it can only be derived from crime."
In our view, for the reasons we have given the judge was plainly right.[17]Section 328(1) requires the prosecution to prove that the property in question represented the proceeds of earlier criminal conduct. It is not enough that the property is in the hands of the defendant for the purpose of committing a criminal offence (see R v Geary [2010] EWCA Crim 1925, [2011] 1 Cr App R 8). As to this requirement

the judge directed the jury as follows in his summing-up at page 5E of the transcript:

"The main concept that you are concerned with is the words, 'Criminal property'. What the prosecution allege and you must be sure of is that those two hundred thousand euros in that white paper bag contained in other plastic bags was criminal property. What is criminal propriety, members of the jury? It is properly derived from criminal conduct which the defendant in any particular case, but in this case it is obviously Mr Gillies, knows or suspects to be derived from criminal conduct."
The judge was there making it perfectly clear that the money had to be the proceeds of earlier criminal conduct. The judge then explained that the jury was entitled to consider whether the prosecution had proved that case by examining the circumstances in which the money was handled. He then came to the question of inference. He continued at page 6D:
"What is an inference? It is just a common-sense conclusion based on all of the circumstances that you know and that is what you have to consider in this case. What is a crime for the purposes of the legislation is a crime under the law of England or the law of a foreign country as long as that would also amount to a crime under the law of England. Members of the jury, the types of things that are crimes you will as a matter of common-sense be well aware of, but, as I say, you do not have to be sure of any particularly crime. You have to be sure that it must have come from some crime of that nature. The crime can have been committed by anyone. You do not have to be sure that it was Mr Gillies who was responsible for the criminal conduct that brought about that money coming into existence provided, of course, you are sure that he must have known or suspected that that money that he appears to have carried down to London and delivered to somebody in that car park was the proceeds of a crime by somebody else."
[18]It seems to us that the jury cannot have misunderstood the force of the learned judge's direction to the effect that they had to be satisfied that previous criminal conduct had created the proceeds later transferred to the hands of Mr Gillies. Miss Levett has submitted that it was incumbent upon the judge to put the reverse of the same question, that is to say to warn them against convicting if they thought that the cash may have been innocently obtained before it came into the possession of Mr Gillies and that he intended to use it for the purpose then of committing crime.[19]In our judgment, the direction given by the trial judge was entirely accurate. It was not incumbent upon him to put precisely the same issue to the jury in another way. He was making it abundantly clear that the prosecution must prove that the cash represented the proceeds of earlier crime of some sort, by someone and that the appellant knew or suspected it. There is nothing of merit in this appeal and it is dismissed.[20]At the conclusion of our judgment Ms Levett invited the court to reconcile decisions in the civil jurisdiction as to the application for sections 240 and 242 of the 2002 Act. We declined to do so. The meaning and effect of the offence created by section 328(1) of the Act have been authoratively settled. Different provisions relating to civil recovery are not, in our view, relevant to this appeal.

Cited in 1 later judgment