William & Ors v R. [2013] EWCA Crim 1262

[2013] EWCA Crim 1262Case Nos: 201106261B3, 201106273B3 and 201106270B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON-upon- THAMES
HER HONOUR JUDGE TAPPING
T20100943
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/07/2013
Before
LORD JUSTICE ELIASMR JUSTICE MACKAYHIS HONOUR JUDGE FORD QC THE RECORDER OF BRISTOL (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
VENUS WILLIAMAppellantsSOPHIA WILLIAMAppellantSYLVIA WILLIAMAppellantRRespondent
Mr G Summers (instructed by Messrs Russell-Cooke) for Appellant, Venus WilliamMr H Forgan (instructed by Messrs Challinors) for Appellant, Sophia WilliamMr O Del Fabbro (instructed by Messrs Rahman Ravelli) for Appellant, Sylvia WilliamMiss B Cheema QC and Mr T Little (instructed by The Crown) for RespondentHearing Hearing date : 21 June 2013
JudgmentLord Justice Elias :
[1]On 13th October 2011 in the Crown Court at Kingston upon Thames before Her Honour Judge Tapping and a jury, the appellants Venus, Sylvia and SophiaWilliam were convicted of converting and transferring criminal property contrary to section 327 of the Proceeds of Crime Act 2002 (“POCA”). Venus William was sentenced to 16 months’ imprisonment; Sylvia William was sentenced to a suspended sentence order comprising 10 months imprisonment suspended for 12 months and a 100 hours unpaid work requirement to be completed within 12 months; and Sophia received a suspended sentence order comprising 8 months imprisonment suspended for 12 months and a 100 hours unpaid work requirement to be completed within 12 months.[2]Isaac William, the husband of Venus and the father of Sylvia and Sophia, pleaded guilty to 10 counts of cheating the public revenue (counts 1-8 and10-11) and was sentenced concurrently on each count to 4 years’ imprisonment.[3]On 6th December 2012 the full court (Rix LJ, Burton J and Mackay J) refused his renewed application for leave to appeal against sentence. They gave leave to Venus and Sylvia to appeal against conviction on certain grounds. Sophia made an application some eight months out of time in view of the permission given in their case. Since her case was in relevant respects similar to theirs, we extended time and gave permission at the start of the hearing of the appeal.[4]Maria Gunasekera was also convicted but did not renew her application for leave to appeal against conviction after refusal by Sir Christopher Holland. Flavia Srimurugadas was acquitted of converting and transferring criminal property and discharged. These were also daughters of Isaac and Venus. The facts.[5]The prosecution case was that Isaac had set up and run companies providing security guards to the construction industry. Venus was on some of the paperwork as his business partner although her exact role (if any) as to the day to day running of the businesses was unclear.[6]The business apparently started out as Solomon Co-operative Services (SCS) in 1998. In 2004 it was renamed Chris-Solo Co-operative Services and in 2007 Euro Co-Operative Services. These were not incorporated companies. Its existence only became known to Inland Revenue on 10th August 2000 when an agency called Colinson and Co informed the Revenue that they had been instructed by Isaac William to act on his behalf. They also submitted a notice of self employment for him.[7]Between 1998 and 2008 six different construction companies paid Isaac a total in excess of £6 million for the provision of security guards. However, Isaac either failed to supply VAT and tax returns for the business and employees or when he did, he failed to declare the true turnover of the business or his drawings from the business. He failed to pay the tax due and for much of the period either failed to charge clients for VAT or to pay VAT to the Revenue.[8]The prosecution also alleged that the business was operated illegally. It adopted improper practices included the employment of foreign nationals, primarily from the Indian sub continent, who either were in the country illegally or who had entered on visas which did not permit them to work. Isaac paid them low wages, generally in cash and below the national minimum wage. He failed to account for National Insurance and other employer taxes. In support of this contention the Judge ruled in favour of allowing hearsay evidence to be adduced before the jury from 3 illegal immigrants who had returned to India and were untraceable.[9]The business was run principally from Isaac’s home address. He was alleged to have used an accountant at Colinson and Co to produce misleading VAT and tax returns. When that person moved to another firm of accountants, Isaac continued to use him. The prosecution was unable to state as part of its case how far the accountant was dishonest or how far he simply received misleading information from Isaac when he prepared documentation for submission to the Revenue.[10]The annual turnover of the business was alleged to be up to £1 million. The prosecution case was that this money was paid into the accounts of various businesses owned by Isaac and then into various accounts either in his own name or controlled solely or jointly by other family members. One account was also in the name of a religious charity, the Great Commission. This money was said to have been moved between the various accounts as well as abroad to disguise its source.[11]The businesses had 4 principal bank accounts. Between July 2002 and July 2008, an account held with the Alliance and Leicester received over £4 million. Of this over £1 million was withdrawn in cash and £300,000 was paid into the Great Commission account. The majority of that money was subsequently withdrawn in cash and the Great Commission was not registered as a charity until Isaac’s business practices became subject to an investigation. A further £300,000 was paid into a joint account held by Isaac and Venus. £300,000 was paid into another account in the sole name of Venus. Over £200,000 was transferred abroad and sums of between £40,000 and £100,000 were paid directly into the accounts of other accused.[12]Other business accounts received smaller sums of money but this money was dealt with in the same way. In total over £3.5 million was removed from the accounts either in cash, by being sent abroad, or by payments into accounts held by other family members.[13]The prosecution case against Venus and the daughters was that they assisted Isaac in laundering the money. In respect of Venus, the prosecution alleged that she must have been aware of the large sums of money being withdrawn in cash. Between 2002 and 2008 over £600,000 had been transferred from the business accounts into accounts over which she had either sole control or joint control with Isaac. From the two accounts in her sole name over £200,000 of this money had been withdrawn in cash. There was no evidence that she had any other major employment other than some child minding. She personally had dealings with the money, writing cheques on the joint accounts. She also made large cash payments to each of her daughters, travelled widely and made a number of large cash transfers out of the jurisdiction. The prosecution alleged that it was inconceivable that she could have believed this money was coming from a legitimate source and the amounts involved were inconsistent with her declarations of income to the Revenue. In interview in October 2008 she had provided a very brief statement in which she denied any criminality and declined to answer questions. In a further interview in March 2009 she again declined to answer questions.[14]Sylvia William had worked in a bank from 2002 declaring earnings of £4,000 per annum. She had undergone money laundering training. She received £70,000 from the business accounts and also £100,000 from the sale of a house to her sister Sophia. The prosecution also pointed to the withdrawal of large sums of money from her accounts including the withdrawal of £30,000 in cash in September 2006 which was paid into one of Sophia’s accounts; the relevant paying-in slip was found at Sylvia’s house. In turn Sophia made payments to Sylvia. A chequebook belonging to Sophia and found at Sylvia’s house evidenced two such payments. A chequebook belonging to Venus was also found at her house. Sylvia purchased a property in Pakistan and maintained an account in Pakistan. Statements for this account were found at her parent’s address. In a prepared statement following her arrest she denied money laundering or being aware of her father’s criminality. She accepted that she had received cheques from her father but thought that these were legitimate gifts to help her set up home and pay expenses following the birth of her child. She declined to comment further.[15]Sophia William generally lived with her parents at the relevant time and had been employed by various organisations. The prosecution alleged that she was at the heart of the money laundering operation adducing in evidence the payment of nearly £190,000 into her accounts and the withdrawal or transfer of £105,000. In addition evidence was adduced of the house transaction with Sylvia. £5,100 was found in her handbag in two envelopes at the time of her arrest and she told police that she thought there was more than that, saying it was to pay her university fees. One envelope appeared to refer to her father’s business site at Becton and the prosecution contended that it was cash to pay wages. She declined to answer questions in interview.[16]The judge rejected a submission of no case to answer at half time in respect of each of the appellants. That was initially the subject of appeal, but the Court of Appeal refused leave on this ground. The case for the defendants.[17]All the defendants were of good character and each denied any knowing involvement in illegal activity.[18]Venus adduced positive evidence of good character. She claimed that her husband had deceived her. She based her defence on her unquestioning devotion to him and the cultural situation of her household. She explained the number of bank accounts which she controlled by stating that they included savings accounts, including one for her grandson. She had effectively lost control over the two joint accounts. Her husband controlled her and she was in effect manipulated by him.[19]Sylvia William gave evidence that in her case the transfers included such matters as repairs and renovations to the property that was sold to Sophia, car repairs and credit card bills. She banked the deposit money which came from other family members. Proceeds of the sale of the property at £20,000 undervalue were loaned to other family members, including Isaac. Her husband had been employed by Isaac as a security guard but she had not known how much work he did or how much he earned, nor did she have any idea how her father’s business was run. Her own name appeared on a list as an employee but she denied any knowledge of that. She also relied upon positive character references.[20]Sophia William gave evidence to the effect that she believed her father to be a successful business man, hard working and generous to his family. She had no dealings with his business and no knowledge of the fact that her name appeared on a list of employees. She did not think about it if her father was prepared to help her out financially. She reiterated that the £5,100 found in her handbag had been given to her by her mother to pay university fees.[21]The issue for the jury was whether or not the money paid into each of the defendants accounts was Isaac’s benefit from his cheating the Revenue and, if so, whether each of the defendants knew or suspected that at the time of the transfer or withdrawal of money Isaac was concealing money from the taxman. The grounds of appeal.[22]There is considerable overlap between the grounds advanced by the appellants, but in our view they can be considered under the following three broad headings:(1) The learned judge in the summing up misdirected the jury as to what amounted to criminal property and the required state of mind.(2) The prosecution failed to disclose two witness statements dated 29 November 2010 and 11 August 2011 respectively, made by Mr Alan Moorcroft, an investigator for HMRC and formerly an inspector of taxes. It is alleged that the defendants were highly prejudiced by this failure and that it renders the verdicts unsafe.(3) The indictment was bad for duplicity and/or uncertainty. This interlinks with the question whether the hearsay statements from three employees ought to have been admitted in evidence.[23]Each of the defendants was faced with a single count of converting and transferring criminal property. It is necessary when considering the grounds to have in mind the particulars of the count under which they were all charged. It stated that:
“on multiple occasions between the 10th day of May 2003 and the 10th day of September 2008 they converted and transferred criminal property, namely payments and bank deposits made into bank accounts under her direction and control knowing or suspecting that the said property represented in whole or in part Isaac William’s benefit from cheating the public revenue.”
[24]In fact, period in Venus’ case ran from a little earlier, and in the case of Sophia, who was the youngest sister, the judge directed the jury that the case against her really began in 2006 when she purchased a property from her sister. Misdirection as to the meaning of criminal property.[25]In order to put this argument in context, it is necessary to set out the relevant law. An offence under section 327 of POCA is committed if, inter alia, a person converts or transfers criminal property. Criminal property is defined by section 340(3) as follows:
“(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.”
The reference to “in whole or in part” is important because it shows that the whole property is treated as criminal property, even where only part of it represents benefit from criminal conduct.[26]Section 340(6) is also important in the context of this case:
“(6) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.”
This means that someone like Isaac William, who cheats the Revenue by failing to pay the tax he should pay, has obtained a pecuniary advantage and therefore is taken to have obtained a benefit within the meaning of sub-section (3) which is equal to the pecuniary advantage.[27]The value of that benefit is the amount of the tax unpaid. In cases where the turnover is falsely represented, the benefit is the tax due on the undeclared turnover. However, the criminal property as defined by section 340 is the entirety of the undeclared turnover and not merely the tax due because the benefit is represented in part by that sum.[28]This analysis is, in our view, supported by the judgment of Dyson LJ as he was, in R v K (I) [2007] EWCA Crim 491; [2007] 2 Cr App R 10. In that case a defendant deposited the sum of £200k with a money service business run by his father, a co-defendant. The prosecution alleged that it was the undeclared takings from his legitimate grocery business. They were both charged with money laundering, contrary to section 328 of the POCA, which makes it unlawful to be involved in entering into an arrangement which facilitates the transfer, use or retention of criminal property. The definition of criminal property is exactly the same as it is for section 327. The judge had held that since the profits were derived from running a legitimate business they could not be said to constitute criminal property and therefore he ruled that there was no case to answer. The Court of Appeal disagreed. Dyson LJ summarised the position as follows:
“20. Was it open to the jury to find that the £200,000 was “criminal property”? In our judgment, a person who cheats the Revenue obtains a pecuniary advantage as a result of criminal conduct within the meaning of section 340(6) of POCA. We did not understand Mr French to contend otherwise. Accordingly, MR was taken to have obtained a sum equal to the value of the amount of which the Revenue was cheated: again, section 340(6). That sum is a benefit by reason of section 340(5). The question is whether the undeclared takings “constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly)”: section 340(3)(a). 21. To take a simplified paradigm case, let us suppose that over a 2 year period D fraudulently under-declares the takings of his business by £250,000 per annum with the result that he deprives the Revenue of £100,000 in income tax and £25,000 in VAT in each of the 2 years. In each year, D has obtained a pecuniary advantage of £125,000 as a result of his cheating the Revenue. That is a "benefit" within the meaning of section 340)(3)(a) of POCA. The undeclared takings of £500,000 “represent” that benefit “in part” within the meaning of section 340(3)(a) in the sense that the undeclared takings of £500,000 should have borne tax and a sum representing or equivalent to part of that figure should have been paid in tax.”
[29]Dyson LJ noted that if the monies were not criminal property as defined, the result would mean that the money laundering provisions could never be engaged with respect to offences of cheating the Revenue. So the whole amount is criminal property. There is a distinction between the sum constituting the pecuniary advantage and the monies falling within the definition of criminal property, which is no doubt designed to make the money laundering offences potentially broad in scope.[30]The judge’s summing up was entirely consistent with this analysis. She said this P9 C-G”:
“So what is criminal property? Property is criminal property if it constitutes a person’s benefit from criminal conduct or represents such a benefit in whole or in part, and whether directly or indirectly, and – this is of course important here – that the Defendant knows or suspects that it constitutes or represents such a benefit. You have been told that Isaac William pleaded guilty earlier this year to offences regarding his cheats on the public revenue. They involved his under declarations of business income in each relevant tax year, thus evading income tax, and his evasion of Value Added tax by failing to charge and account for it. The reason you know about these pleas of guilty is that they are relevant to one of the questions you have to decide in this trial, but their relevance is strictly limited. They assist the prosecution to establish the first part of the definition of criminal property. They do nothing to assist with the key aspect in this trial, which is of course centring on the words “knowing or suspecting”
. Thus, the prosecution must prove in this case that the monies paid in or credited to a Defendant’s bank account was Isaac William’s benefit in whole or in part from his cheats on the public revenue. The prosecution must go on to prove that each Defendant then went on to transfer that money to another person, or convert it by changing it in to something else, for example going on to buy a property.”[31]Mr Summers, counsel for Venus, submitted that this was an erroneous direction. He contended that sums derived from the business only become criminal property when there is insufficient available to pay the tax due. He says that this is the meaning of the last sentence of paragraph 21 of Dyson LJ’s judgment. There was never any identification by the Crown as to whether monies transferred to accounts controlled by the defendants fell into this category or not, and therefore there was no evidence that any of these appellants had committed a criminal offence. It was not established that the sums transferred to their accounts were criminal property as defined.[32]We reject that submission. In our view, the premise is false and we see no basis in the statutory language, or indeed the judgment in K(I), to support that analysis; it is, in our view, a mis-reading of paragraph 21.[33]In our opinion, since Isaac William pleaded guilty to 10 charges of income tax fraud and VAT evasion for the years identified in the particulars in respect of each of these appellants, the monies transferred into their accounts must have been criminal property, subject to the requisite knowledge or suspicion. It is not as if Isaac had some other source of income which might be said to have been legitimate income untainted by the cheating on the Revenue. Had there been, this may well have complicated matters. But on the facts of this case, the approach of the judge was entirely correct. She focused on the real issue which the jury had to determine, namely whether the defendants had the requisite knowledge or suspicion.[34]We do not, therefore, accept a submission of Mr Del Fabbro, counsel for Sylvia, that it was necessary for the judge to say more than she did in her summing up about the nature or character of criminal property, nor a related submission that the prosecution ought to have acceded to a request to identify separate counts for each year of alleged infringement. That might have been necessary if there was any doubt whether, in any particular year, there were undisclosed profits or failure to pay VAT. But that was not the position. Accordingly, we reject this ground of appeal. Failure to disclose the Moorcroft statements.[35]The prosecution conceded that there were two statements from Alan Moorcroft which ought to have been disclosed to the defence, but were not. One identified the extent of the non-payment of tax, year on year. In the other, Mr Moorcroft expressed his opinion as to the role of Venus in the affairs of the business. These documents were not listed in the unused schedule and they should have been.[36]The circumstances in which non-disclosure will render the convictions unsafe was considered by the Supreme Court in McInnes v HM Advocate [2010] HRLR 17 SC, on an appeal from Scotland. Lord Hope noted that it is now clearly established that Article 6 of the Convention on Human Rights reflects the well-established principle that material must be disclosed of which the prosecution is aware if it either materially weakens the prosecution case or materially strengthens the Crown’s case. But not all breaches of that duty will render the verdict unsafe. Lord Hope explained when they would do so at paragraph 24:
“The question which the appeal court must ask itself is whether after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant’s Convention right, the jury’s verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome – if the jury might reasonably have come to a different view on the issue to which it directed its verdict if the withheld material had been disclosed to the defence.”
That expresses the law in Scotland, but as Lord Brown observed in the same case, the law in England is the same (para 36). The appellants submit that the test is satisfied here.[37]In the first statement dated 29 November, Mr Moorcroft identified tax evasion of just in excess of £395,000 for the tax years 1998/1999 through to 2006/2007, and £338,526 for the period 24 February 2003 to 10 September 2008. The figure of lost income tax was therefore in the region of about £40k a year, although with VAT it was closer to £100k. The appellants say that they had requested a schedule listing the dates and amounts of the pecuniary advantage generated, and this was precisely the kind of document they were seeking. The case was put by the prosecution on the basis that the criminal property was many millions which, say the appellants, gave the jury a very different flavour as to the nature and true extent of the criminal wrongdoing.[38]We accept the Crown’s submission that the jury were not to any extent misled by the failure to disclose this information. All the information which Alan Moorcroft had used to conduct his calculations was served on the defendantsand they could have worked out the income tax liability for themselves had they wished to do so. That is not, we hasten to say, a satisfactory answer to the failure to disclose, but it is highly material to the question whether the verdicts can be said in any sense to be unsafe.[39]The jury were told about the total level of turnover. They knew in broad terms the tax rates. They were told how much money had been declared to HMRC, and they would have appreciated in general terms what the losses to the tax authorities would have been. The detail was irrelevant to the question whether the monies were criminal proceeds since, as we have said, Isaac’s pleas meant that in the years in question they were necessarily the proceeds of crime. We do not believe that the jury could have confused turnover with tax due. Of course, if the first ground of appeal had succeeded, a precise analysis of tax unpaid would have been critical. But since we have rejected that ground, it was not.[40]The second statement is one dated 11 August 2011. In it, Mr Moorcroft expresses his opinion about the role of Venus in the business:
“Other than the returns sent to HMRC there is no evidence to support any claim that Venus William has had any involvement with the businesses either as employee or as partner. I suggest that the only reason why partnership returns were sent to HMRC to save tax. I would therefore contend that trade has been conducted by Isaac William as a sole trader and that IT and NIC payable should be on that basis.”
This was a document that was produced for Isaac William’s confiscation proceedings. It was relevant because for the purpose of identifying his own criminal gain, it was necessary to know whether he was acting in a partnership or as a sole trader.[41]Venus William contends that this would have been valuable evidence supporting her contention that she was never properly involved as a partner with her husband, that she was only concerned with child minding activity, and that she had effectively been deceived by her husband with her name being used on various returns and so forth without her approval or knowledge. Overall, therefore, it is submitted that relevant evidence which might have supported her case was denied her. The other appellants say that the result of Venus’ case will have affected their cases too, and therefore the error should invalidate their convictions also.[42]Mr Summers, counsel for Venus, further submitted that he would have wanted to use this evidence to make an application that there was no evidence which could properly go to the jury seeking to establish that she acted as a partner in Isaac’s business. Furthermore, if he had succeeded in that application he would have had a platform to challenge the admissibility of the hearsay evidence concerning the way in which the business was actually run. There would then have been no basis for assuming that Venus would have any knowledge about that.[43]The Crown contends that this evidence is no more than the opinion of one witness which is, moreover, based on limited information. Mr Moorcroft was not an expert witness on partnership; he is not a lawyer. He claimed in the statement of 29 November 2010 to be someone who is “competent to comment on a wide range of taxation, including inter alia which constitutes trade, partnership, etc., and also the taxation of companies and unincorporated businesses”. He did not personally conduct an independent review of the case but relied upon another officer for factual information, (Mr Ralph Waldin, who was in fact called as a witness) and he was merely expressing a view as to whether a true partnership appeared to exist. Moreover, he was only looking at part of the same material which the jury were able to focus upon. The jury had more relevant evidence to consider because they had the evidence of Venus herself, including the benefit of her being cross-examined on the documents which purported to represent that she had some role in the business. So the Crown submits that this particular statement was simply not admissible. Mr Moorcroft was expressing a view on a question which was for the jury. The jury had the relevant material before it to form a view on this and Moorcroft’s opinion was neither here nor there. It was not admissible evidence because it is unnecessary: see Turner [1975] QB 834, 841 per Lawton LJ. We agree with that submission. Venus’ role in the partnership was not a matter of expert evidence at all. The question is not whether in a technical legal sense she was a partner in the business run by her husband, but whether she was sufficiently involved to know what was going on so that the jury could properly infer that she must either have known or suspected that the monies going in and out of her account were the proceeds of cheating the Revenue. What her involvement was, and what she knew about the running of the business, were matters of fact, and were for the jury to determine in the light of the material before it. Had counsel made an application to adduce evidence of the opinion of Moorcroft, it seems to us that the judge would have been obliged to refuse it. If that evidence had emerged in the course of the hearing, he would have been obliged to tell the jury to ignore it. Accordingly, we think there is no prejudice to the appellants in relation to that matter.[44]We would add that even if this evidence was in principle admissible, we think it is wholly fanciful to suggest that this expression of opinion might have resulted in a successful application before the judge to exclude evidence on the question whether Venus was in partnership with her husband. This was something the prosecution wished to explore and there was plainly evidence to place before the jury. Nor could it conceivably have provided a platform for challenging the admissibility of the hearsay evidence. Duplicitous counts and the admission of hearsay evidence.[45]In order to understand the contention that the counts were bad for duplicity, it is first necessary to deal with the related question whether the judge erred in allowing the Crown to adduce the hearsay evidence of the three employees relating to the way in which the business was operated. Their evidence painted a picture of a black market operation using illegal and cheap labour.[46]It is not disputed with respect to this evidence that the hearsay conditions in section 116 CJA were met. It was argued before the judge that she should refuse to allow this evidence to go before the jury because it would have an adverse effect upon the fairness of the proceedings. Counsel for the appellants contended that the evidence would necessarily prejudice the jury not only against Isaac (who had pleaded in any event) but these defendants too, and yet it was of little or no probative value in relation to their alleged wrongdoing. The judge was therefore asked to exclude this evidence by exercising her discretion under section 78 of the Police and Criminal Evidence Act. She refused to do that and allowed the evidence to go before the jury. She recognised that she would in due course have to consider carefully how to direct the jury with respect to this evidence.[47]It is always difficult to challenge a ruling on the basis that a judge has improperly exercised a section 78 discretion. The court is loathe to interfere with an exercise of this discretion: see R v Quinn [1995] 1 Cr App Rep. 480 and we do not think that we should do so here. The judge in her ruling expressly considered this section. In our judgment, she was entitled to admit this evidence. It was potentially of some relevance particularly with respect to Venus, who on the prosecution case, played a more significant part in the business than the other two.[48]It is, however, important in our view to understand how the judge subsequently directed the jury with respect to this evidence. The Crown wanted to use it to demonstrate that Isaac had not only failed to pay tax and VAT but had also failed to pay PAYE and National Insurance. On their case it provided a further basis for asserting that the moneys derived from Isaac’s business constituted criminal property. It was on the assumption that the judge would allow the evidence to be used in that way that the application was made by counsel for Sophia and Sylvia that the counts on the indictment were bad for duplicity and that any convictions would be unsafe. We return to that point below.[49]In fact, however, the judge indicated in a discussion with counsel about directions prior to the summing up that she was not going to allow the evidence to be used in that way. She did not in her directions to the jury treat the failure to pay PAYE or National Insurance, and the consequent benefit gained from that, as a source of benefit rendering the income criminal property. The judge made it plain that the nature of the case against each of these defendants was that they had assisted Isaac in cheating the Revenue of either income tax or VAT and that they could only be convicted if they had knowledge or suspicion that the money with which they were dealing had at least in part been derived from that particular form of illegality. The relevance of the hearsay evidence, and more generally the way in which Isaac ran the business, was described solely in terms of potentially supporting evidence establishing knowledge or suspicion that Isaac was cheating on the Revenue. After telling the jury that they should treat this untested evidence with caution, and saying that it was only a snapshot of what went on at one site at a particular time, the judge continued:
“… why did you hear the statements at all? Potentially they have some relevance to the issue of knowledge or suspicion. Whether it has any at all will be a matter for you. …. All in all, the prosecution have painted as complete a picture as they have been able to uncover of the type of business and the manner of its operation from Isaac William’s home address. It has been described as a black market and largely cash operated business. The issue for you to consider is how much did any of these Defendants know about all these things, if anything at all? Any knowledge may point towards a closer involvement with the business. Any involvement with the business may have created actual suspicion. Whether it did in fact do so is a matter entirely for you to weigh up and decide on. … Each Defendant had denied having any idea of what Isaac William was up to in the tax affairs of his business. Any knowledge of how the business was run may therefore have a knock on effect when you are considering the credibility of any Defendant’s evidence on this point.”
This direction is highly material to the duplicity submission. Duplicity.[50]We have set out above the count which each of these appellants faced. There is no doubt that this is a count which alleges multiple offending, because on each occasion money was taken out of the account, the offence would have been completed. In general, this is not permitted but rule 14(2)(2) of the Criminal Procedure Rules does permit an indictment to be framed in this way in certain circumstances. It provides as follows:
“More than one incident of the commission of the offence may be included in a count if those incidents together amount to a course of conduct having regard to the time, place or purpose of commission.”
[51]One of the examples of the kind of offence that can be brought under this heading identified in the Lord Chief Justice’s Consolidated Criminal Practice Direction is where there is no identifiable victim, as for example, in money laundering cases. Another is where there is a marked degree of repetition in the method employed for the commission of the offence. In our judgment, these criteria are satisfied here.[52]The challenge to duplicity was not made until after the admission of the hearsay evidence. It was made at the time by both Sophia and Sylvia, although as the judge recognised, the remaining three defendants would also be affected by the ruling. The basis of the argument advanced before the judge assumed that the Crown would rely upon the hearsay evidence to include a failure to account for PAYE and National Insurance as a source of criminal property. It was submitted that this raised different evidential issues (because Isaac had never admitted these offences) and different defences than the case initially advanced by the Crown, namely that there has been knowledge or suspicion of VAT or tax fraud.[53]The judge ruled that in line with the legislation we have already outlined, the definition of criminal property was such that it could have different sources so long as it fell within the one dominant concept in the case, namely financial dishonesty in the way in which the way the business was run. The issue would then be to determine whether the defendants had knowledge of the particular way in which it was alleged the profits had become criminal.[54]As we have seen, in fact the judge did not in the event allow the evidence of wrongdoing allegedly revealed by the hearsay evidence to be relied upon as a source of criminal property. The basis of the duplicity argument advanced before the judge has therefore fallen away.[55]No doubt because of this, this argument on duplicity is now put rather differently, although counsel say that the way it is now raised was put to the judge, albeit it was not the central focus of the duplicity argument. It is alleged that it was wrong to allow a single count relying on both tax and VAT frauds to establish the criminal nature of the property. It would be possible for a defendant to have different knowledge or suspicion of one than the other. For example, there may be no reason to suspect that VAT was not being collected from clients, and if collected a defendant might reasonably assume that it had been paid to the Revenue in the usual way. In principle we can see that facts might have emerged in the course of the trial which would have justified the jury inferring that a defendant might have different knowledge or suspicions about the non-payment of tax than the non-payment of VAT. But it was never suggested that this was the position. Had it been, then the indictment could have been amended to ensure that the counts faced by these defendants properly reflected the range of verdicts which properly reflected their wrong-doing, if any.[56]Accordingly, we do not think that the way in which the counts were framed could properly be described as duplicitous. Disposal.[57]For all these reasons we dismiss the appeals.

Cited in 1 later judgment