Hanh Nguyen v R [2023] EWCA Crim 769

[2023] EWCA Crim 769Case No 202201325 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
T20207210
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/07/2023
Before
LADY JUSTICE THIRLWALLMR JUSTICE HOLGATEMR JUSTICE PICKEN
Between
Hanh NguyenAppellantRexRespondent
H Blaxland KC (instructed by Stuart Miller Solicitors) for AppellantB Douglas-Jones KC and E King (instructed by Crown Prosecution Service) for RespondentHearing Hearing dates : 30.03.2023
Approved JudgmentThis judgment was handed down remotely at 10.30am on Friday, 7 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................NOTE: THE RE-TRIAL IN THIS CASE HAS NOW TAKEN PLACE. ACCORDINGLY, THIS JUDGMENT IS NO LONGER SUBJECT TO REPORTING RESTRICTIONS PURSUANT TO S.4(2) CONTEMPT OF COURT ACT 1981.IT REMAINS THE RESPONSIBILITY OF THE PERSON INTENDING TO SHARE THIS JUDGMENT TO ENSURE THAT NO OTHER RESTRICTIONS APPLY, IN PARTICULAR THOSE RESTRICTIONS THAT RELATE TO THE IDENTIFICATION OF INDIVIDUALS.
[1]On 31 March 2022 in the Crown Court at Southwark, the appellant, then 43, was convicted by a majority of 10 to 2 of three counts of money laundering: count 1, Converting criminal property, contrary to s327(1) Proceeds of Crime Act 2002; and counts 2 and 5, Concealing criminal property contrary to the same provisions. This was the second of two trials arising from the prosecution. She was sentenced to two years’ imprisonment on each count, all to run concurrently. She was disqualified under section 2 of the Company Directors Disqualification Act 1986 for 4 years. This is her appeal against conviction which she brings with the leave of the single judge.[2]The appellant was acquitted of counts 3 and 4. There were six defendants in total. Arran Squire, the appellant’s husband, was acquitted of all counts against him: counts 3, 4, 5 and 6. A not guilty verdict was entered on count 14 on the joinder indictment. Thi Phuong Huyen Phanh was convicted of count 7 and sentenced to eighteen months imprisonment. Toan Nguyen was acquitted of count 8. Trang Nguyen was acquitted of count 9. Thi Ngoc Nguyen was convicted on counts 10 and 11 and was sentenced to 10 months’ imprisonment suspended for 18 months on each count concurrent.[3]It was the prosecution case that the appellant was responsible for laundering the proceeds of crime generated by organised crime groups involved in criminal activity including cannabis cultivation, people trafficking and identity fraud. Two women, Ly Pham and My Ha Do, were responsible for generating through crime the money that the appellant was accused of laundering. They had been convicted in separate proceedings of conspiracy to supply cannabis. Do was also convicted of money laundering offences in respect of the proceeds of her own crimes as well as the proceeds of offences committed by others.[4]The appellant was of good character. She had studied finance and accounting in Vietnam and completed a master’s degree in Business Administration in the Netherlands. She came to the UK in 2003 and qualified as a Chartered Certified Accountant after five years of training and exams. She worked as an accountant for some years until 2012 when she and her husband moved to North West Wales with their first child.[5]It was the prosecution case on count 1 that the appellant used her legitimate clothing export business to launder money: between 1 January 2014 and 6 September 2017 she received £671,413 in cash which she put into bank accounts in her name or which she controlled, knowing, or suspecting that the money had come from criminal activity.[6]Count 2 concerned the concealment of bank balances of at least £495,980. Count 5 alleged that she concealed credit balances of £59,526 from the bank accounts of others in accounts in the name of and controlled by My Linh Dong.[7]Count 3, of which the appellant was acquitted, alleged that she had converted £18,000 cash into Morrisons Supermarket Gift vouchers. Count 4, of which she was also acquitted, alleged that she had converted cash sums into credit balances in the name of My Linh Dong.[8]When the appellant was arrested in July 2016, and the family home searched, 60 parcels of clothing were found in a shed. Also found were £175,336.99 of gift cards from a variety of stores. There were receipts for £18,000 of vouchers bought on one occasion at a store in the West Midlands for cash (the basis of count 3). Other evidence showed that the appellant and her husband had brought the £18,000 to the store in cash in a carrier bag. It took ¾ an hour to swipe the cards through the checkout. The store was several hours drive from their home in North Wales.[9]It was not in dispute (count 1) that the appellant paid or allowed to be paid cash deposits into bank accounts in her name to a total of £670,394. The issue was whether or not she knew or suspected that those cash deposits represented at least in part benefit from criminal conduct.[10]It was not in dispute (count 2) that the appellant accepted credit balances into her bank accounts from other persons’ bank accounts to a total of £495,980. The issue, as in count 1, was whether she knew or suspected that the transfers represented at least in part, benefit from criminal conduct. She did not accept controlling bank accounts (in respect of either count) that were not in her name.[11]It was her husband’s case that he helped with organising the clothing when it came but he had nothing to do with the customers. He did not speak Vietnamese and did not know any of the people involved; the appellant dealt with all the paperwork, including the accounts.[12]In support of its case, the prosecution pointed to text messages between the appellant and Do arranging the payment of money. This was not in dispute. They argued that a meeting between Do and the appellant at the railway station in Holyhead was a meeting to discuss how money was to be laundered through the appellant’s business: why else, would Do travel all the way from her home in Cambridge for a meeting in a railway station?[13]The prosecution relied on the fact that the appellant had bank accounts for her business with three different banks. She had personal accounts with four different banks. She made many deposits in accounts across England and Wales, Northern Island and Scotland. The deposits were all relatively small, below £3,000, the level which triggers notification under the money laundering regulations. Where a bank froze an account because of concerns about money laundering, she did not seek to negotiate with the bank or explain the deposit. Instead, she opened another account elsewhere. The prosecution also pointed to the large numbers of gift cards that were used to buy clothing, as evidence of money laundering within the business.[14]Early in the trial there was a suggestion that the appellant had not properly accounted to HMRC for her personal income or for her business income. Ultimately, whilst there was a failure to lodge her business accounts with Companies House and she filed two income tax returns late, it was shown that she had paid the income tax and corporation tax in the correct amounts and on time. Tax became, at its highest, a collateral issue.[15]The amounts of money that went through bank accounts in her name and that of Britz Fashion, her clothing export business, were over £1m in the period between 3 January 2014 and 12 July 2016, as reflected in the indictment. The appellant continued with her business after she had been arrested. The defence case[16]The appellant was interviewed after her arrest. She answered all questions. She provided a defence statement in due course and gave evidence. Her account was consistent throughout.It was that she had set up Britz Fashion in late 2012. At that time, she knew none of her co-defendants. She began the business in order to make money while looking after her child. She bought clothes in the UK and exported them to Vietnam. She advertised online in Vietnam, including through Facebook. She shipped the clothes to customers in Vietnam. Payments were made by customers to a bank account in Vietnam in the name of her sister, Hoa Nguyen, and brother-in-law.[17]It was not disputed by the prosecution that, because of restrictions on the movement of cash out of Vietnam, Vietnamese people living abroad used informal value transfer schemes (referred to during the trial as ‘IVTS’). What happened about payment before 2015 is not material to this appeal but in 2015 the appellant began to use the services of Do after reading an advert setting out her services as a money transfer agent. This involved the appellant’s sister transferring money received as payment from customers for the clothing sent by the appellant to Vietnam, specifically to Do’s father who lived in Vietnam. Do then paid the equivalent sums to the appellant. Thus, no money was taken out of Vietnam and the accounts were to be balanced between Do and her father.[18]The appellant also used another money service agent, Trang Nguyen, and her partner Toan Nguyen. They were acquitted of the money laundering offences alleged against them.[19]Because she had exported the clothes, the appellant was entitled to (and did) reclaim the VAT on them. As to the gift cards, she usually bought them at a discount, on eBay and elsewhere, and so was able to purchase clothing at lower cost than paying in cash. The gift cards bought in Morrisons (for £18,000) (count 3) were bought with cash given to her by Trang Nguyen as payment for goods supplied to Vietnam. She had no reason to think that the bag of cash which was handed over to her in a car park in the Midlands, some 180 miles from home, was the proceeds of crime. As we have said, she and her husband were acquitted of that count.[20]It is relevant to note in respect of counts 4 and 5 that it was the appellant’s case that Linh Dong had been a friend of hers since 2008 and that this continued to be the case after Linh Dong returned to Vietnam in 2016. It was the prosecution case that the appellant was controlling the bank accounts of Linh Dong. They pointed to the fact that bank cards and identity documents in Linh Dong’s name were found at the appellant’s home. It was the appellant’s evidence that Linh Dong had a smaller scale business of the same type as the appellants. The appellant allowed her to use her address for correspondence (including for the delivery of stock and banking documents). She often put Linh Dong’s stock with the same shipment as her own so that they could reduce costs. They used to lend each other money.[21]Linh Dong gave evidence and confirmed the appellant’s account. The prosecution then changed their case to assert that the appellant and Ms Dong were using layering techniques to conceal the origin of the funds. In the event, the appellant was acquitted of count 4 (cash) and convicted of count 5 (credit balances). Grounds of Appeal[22]There are two grounds of appeal:- OneThe judge misdirected the jury in respect of the appellant’s good character. He attempted, later in the summing up, to correct the misdirection but did not do so effectively. TwoThe judge should not have permitted the prosecution to adduce before the jury the response to an International Letter of Request (ILOR). Ground One[23]As well as having no convictions, there was evidence of the appellant’s positive good character. Four witness statements attesting to her character were read to the jury by agreement.[24]Evidence about the appellant’s tax affairs was before the jury by way of agreed facts. She had submitted no tax returns for the years 2013-1014 and 2014-2015. The return for the tax year 2015-2016 was filed in April 2017. This declared income received from PAYE of £4,500. No tax was due under her Self-Assessment. The return for the following year (2016-2017) was filed on 5 February 2018, the PAYE income being declared as £8,015 and £7,984 in dividends from UK companies. No tax was calculated as due.[25]The return for 2017-2018 was filed on 30 January 2019. The PAYE income was declared as £8,160 and £36,840 received as dividends from UK companies. £2,137 was calculated as due under Self-Assessment.[26]There was a schedule setting out the dates of the returns for Corporation Tax – all were filed in late 2019, i.e., after the appellant was arrested for these offences. However, the corporation tax payable was all paid by the due dates from 9 January 2015 to 16 June 2020: just under £60,000 over a 5 year period.[27]The appellant explained that she had submitted abbreviated accounts to Companies House. She believed that there was a link between Companies House and HMRC. She did not realise that she had to submit her business tax returns to HMRC. She had made the correct payments on time. It is not in dispute that the prosecution did not identify any specific impropriety in respect of the submissions of the self-assessment tax returns. The prosecution made it plain, however, that her account of believing that there was a link between Companies House and HMRC was preposterous, given her training and experience as a qualified accountant.[28]The judge gave a split summing up. There was no reference to good character in the first part. Nothing turns on that. The expectation of counsel was that a full good character direction would be given later in the summing up.[29]In the second part of his summing up, the judge reminded the jury of the evidence of the defendants’ good character. He said, “When a person is accused of an offence and has no convictions and puts forward a positive, good character, a jury is rightly told that the evidence of good character will have a bearing on the likelihood of that person having offended in a way that is alleged. Meaning that it’s logical for a person of good character to be less likely to commit crime”.[30]The judge then pointed out that the prosecution had focussed on the extent to which some defendants honoured their obligations in respect of personal self-assessment for tax, where relevant complying with corporation tax commitments:
“Tax is only a relevant matter to character because no one is accused of anything and, indeed, on behalf of the defendants it has been submitted to you that, actually, what they were doing was entirely in keeping with their obligations. So, you will take on board, as you do with all arguments, any lingering concerns submitted by the prosecution and the competing submissions in that regard on behalf of Hanh Nguyen. You understand the point that has been made that the actual corporation tax returns postdate Hanh Nguyen’s arrest, though it is agreed that earlier payments had been made, even though no contemporaneous return had been submitted”
. He then set out the prosecution case in respect of tax declarations for 2014 and 2016 the absence of a declaration in 2015 – and where there had been a number of bank transfers.

The judge told the jury that this was a collateral issue and said:

“You take each count in turn and consider if there is force in the submission of the prosecution that any of this would have the potential to undermine the evidence of an otherwise good character. It does not in any way support the case that the defendant … is guilty as charged.”
He then set out the submission of Mr Blaxland that the appellant had honoured all tax obligations and had worked hard to turn a profit. If they agreed with that, then “any direction as to Hanh Nguyen’s good character comes through without any sort of modification … and the evidence of good character would plainly have a bearing on the likelihood of that person having offended in the way that is alleged”.[32]The judge then reminded the jury that the appellant had answered all questions asked of her in interview under caution and that “it is submitted on her behalf that her evidence was consistent with what she said at a time when matters were more fresh in her memory”.[33]Counsel for all the appellants expressed their view that there should have been no qualification of the standard good character direction. Further submissions were made in writing. The prosecution submitted in writing that a modified good character direction was appropriate. They then changed their position and said that an unmodified full good character direction should be given in the appellant’s case and that of Trang.[34]The judge continued with the second part of the summing up and explained to the jury what was meant by an unmodified or unqualified good character direction. He explained, in particular, that he had been under the impression from what the prosecution had asked in cross-examination and what had been said in the prosecution closing speech that it was not being conceded that those defendants should be unconditionally treated as persons of good character. He explained that the whole area had been revisited in light of a note from the jury (relating to a different defendant). He went on to look at the position of Huyen Phan, Trang Nguyen and then of the appellant, saying this:
“The same sort of issues arose between Hanh Nguyen, multiple cash payments for years in which there was no self-assessment and so on”
. He explained that those issues went to the heart of the case and were not satellite issues; they were matters for the jury to determine.

The judge concluded by saying that his direction in relation to the three defendants was revised:

“It is ultimately for you, the jury, to determine how much weight you attach to the good character of a defendant whose case you are considering where it is now agreed that she is to be treated as a person of good character”
. He went on to give the full, unmodified good character direction.[36]Mr Blaxland submits that in his second direction the judge unwittingly made the position of the appellant worse by referring to what he understood to be the prosecution’s case: that there had been no payments to HMRC when she was receiving multiple cash payments into her accounts. Mr Blaxland submits that, “while referring to the need not to conflate the key issues in the case with the “collateral issue” of good character, the judge did just that by specifically and erroneously referring to multiple payments coming into the appellant’s accounts and no payments to the HMRC for years, whilst in the same sentence directing the jury that “each issue goes to a central issue and not a satellite issue”. The end result, he submits, was a confusing and misleading direction which created prejudice to the appellant. Mr Douglas-Jones acknowledges that the judge should have given an unmodified good character direction. He submits, however, that, in the end, this was done and that the second direction was unimpeachable.[37]The judge was wrong to embark on a modified good character direction at all, particularly without having discussed it with counsel. Had he done so, it may have become clear precisely what position the prosecution took and the difficulties that arose would have been avoided.[38]The preamble to his final direction was confusing and potentially prejudicial to the appellant. It would have been better had the judge simply told the jury to ignore all that he had said earlier about character since it was a mistake. A fresh, accurate direction could then have been given.[39]All that having been said, the way the judge structured this passage of the summing up meant that jury would have understood, by the end of the passage, that they were to treat the appellant as a person of good character. The direction on what that meant was correct. We are not, in the circumstances, persuaded that this error leads, without more, to the conviction being unsafe. That, however, is a matter to which we shall return. Ground Two[40]On 7 January 2022 the prosecution uploaded to the Digital Case System (DCS) the response to an International Letter of Request (ILOR). It is dated October 2021, some 3 months before it was uploaded.[41]On 25 January 2022, just before the end of the prosecution case at trial, the prosecution served a proposed agreed fact which was said to be derived from the response to the ILOR and sought to introduce some of the response, as hearsay, pursuant to section 117 of the Criminal Justice Act 2003 (CJA 2003).[42]The application to adduce this evidence under section 117(d) of the CJA 2003 was opposed by the appellant, principally on the ground that this was expert evidence which should have been introduced in accordance with the Criminal Procedure Rules, and secondly on the ground that it was unfair to put before the court expert evidence at such a late stage giving the defence no opportunity to call its own expert.[43]The judge heard submissions from both parties, which he summarised in his ruling in the following terms: “22 … The case for the prosecution is that the material provided on behalf of the Prosecutor General of the Supreme People’s Procuracy of Vietnam, in answer to the UK’s ILOR for mutual legal assistance is capable of contradicting Hanh NGUYEN’s case that ‘like for like’ exchanges had to be generated on each side between Vietnamese people in the UK and back home who like-mindedly wanted to move monies in both directions, simple electronic transfer not being practicable. It is accepted that Hanh NGUYEN had this business called Britz Fashion and had business bank accounts as well as personal accounts. It is agreed that she was exporting clothing, but the prosecution will submit that this was itself a way of laundering cash by exporting goods which are less available in Vietnam and therefore marketable. 23.The statement from Vietnam includes this information: ‘a’ Regulations on remittance limit and Hawala money transfer system in Vietnam - Decree No. 70/2014/ND-CP dated July 17, 2014 rules out the implementation of a number of articles of the Ordnance on foreign exchange and the Ordnance amending, supplementing a number of Articles of the Ordnance on foreign exchange, not limiting the amount of foreign currency transfer by Vietnamese residents to their relatives overseas.24. In the submission of the prosecution this part of the response means that citizens in Vietnam can without difficulty, through the banking system, send money to relatives living elsewhere. On behalf of Hanh NGUYEN it is submitted that the clause isn’t capable of only that meaning and it doesn’t address the particular concern that monies that can be sent from Vietnam by persons to other family members is not in fact without any limit and therefore potentially misleading. The document continues: - Vietnam does not have its own process and procedures for transferring money to the UK, but commercial banks in Vietnam are allowed to conduct basic foreign exchange operations in international market and non-cash payment services (as prescribed in Clause 1, Article 6 of Circular No. 21/2014/TT-NHNN dated August 14, 2014 by State Bank guiding the scope of foreign exchange activities and Clause 3, Article 1 of Circular 46/2014/ TT-NHNN dated December 31, 2014 on guidelines for non-cash payment services.25. According to the prosecution that paragraph means that provided a Vietnamese citizen has money in a bank account, they may send it abroad. What they may not do is turn up at a bank with cash and ask any bank to convert the cash into an overseas bank transfer. Again on behalf of D1 it is submitted that the clause isn’t unambiguous and in particularly doesn’t specify the type of banking institution, for instance may a commercial bank mean something that transacts very different business to what in common nomenclature has routinely been known as a ‘high street bank’, which may not come within the ambit of this provision. 26.Then comes – ‘d’, Clause 2, Article 7 of Decree 70/2014/ND-CP dated July 17, 2014 which stipulates: Authorized credit institutions are responsible to examine records and documents submitted by residents for the purchase, transfer and confirmation of their personal foreign currency or an amount of foreign currency purchased from authorized credit institutions to carry abroad, depending on actual and proper requirements for each money transfer transaction. 27. The prosecution suggested that this clause must relate to citizens in Vietnam who have foreign currency which they wish to convert to the nation’s currency known as Vietnamese Dong or alternatively where they want to convert their Dong savings into foreign currency. I take it to mean that authorised credit institutions who facilitate such exchanges are required to carry out due diligence enquiries of the relative customer. That would seem to be fairly unremarkable, though it isn’t expressly stated that it is an anti-money laundering provision. 28.The next clause is arguably less unambiguous. - Regarding the informal funds transfer system brackets (Hawala): In Vietnam, the State Bank only considers and licenses foreign exchange activities, including payment and money transfer activities, to credit institutions, branches of foreign banks that fully meet the conditions prescribed in Circular No. 21/2014/TT-NHNN (amended and supplemented in Circular No. 28/2016/TT-NHNN). 29.The prosecution submitted that the formal translation makes it clear that it stipulates an anti-money laundering responsibility on the relative institution. The Defence submit that it doesn’t bear that meaning and that it illustrates how impossible it would be for the jury to resolve and decide what is clearly an area that requires expertise.” ‘a’ Regulations on remittance limit and Hawala money transfer system in Vietnam - Decree No. 70/2014/ND-CP dated July 17, 2014 rules out the implementation of a number of articles of the Ordnance on foreign exchange and the Ordnance amending, supplementing a number of Articles of the Ordnance on foreign exchange, not limiting the amount of foreign currency transfer by Vietnamese residents to their relatives overseas. - Vietnam does not have its own process and procedures for transferring money to the UK, but commercial banks in Vietnam are allowed to conduct basic foreign exchange operations in international market and non-cash payment services (as prescribed in Clause 1, Article 6 of Circular No. 21/2014/TT-NHNN dated August 14, 2014 by State Bank guiding the scope of foreign exchange activities and Clause 3, Article 1 of Circular 46/2014/ TT-NHNN dated December 31, 2014 on guidelines for non-cash payment services. Authorized credit institutions are responsible to examine records and documents submitted by residents for the purchase, transfer and confirmation of their personal foreign currency or an amount of foreign currency purchased from authorized credit institutions to carry abroad, depending on actual and proper requirements for each money transfer transaction. - Regarding the informal funds transfer system brackets (Hawala): In Vietnam, the State Bank only considers and licenses foreign exchange activities, including payment and money transfer activities, to credit institutions, branches of foreign banks that fully meet the conditions prescribed in Circular No. 21/2014/TT-NHNN (amended and supplemented in Circular No. 28/2016/TT-NHNN).

The judge continued to summarise the submissions on behalf of the appellant:

[44]“32. … the defence observed that the prosecution sought the admission of the material as a business document under S.117 CJA 2003. Although this response to the UK’s ILOR technically falls within the provisions of S.117, the effect of the application is to circumvent the rules relating to the admission of expert evidence as set out in Archbold §10 57 along with CPR 19 and its many sub clauses.33. Over and above the discrete interpretation issues with each clause the basis of the objection on behalf of Hanh NGUYEN is that this summary of the provisions of Vietnamese law provided on behalf of the Prosecutor General of the Supreme People’s Procuracy of Vietnam falls into the category of expert opinion evidence on a question of foreign law.34. Archbold §10-57 summarises the position as to the admissibility of evidence on a question of foreign law to the effect that the evidence must be given by a person who is a skilled witness. Here, the response to the ILOR does not even refer to a named person and it is submitted that the basis for admissibility has not been established. It is not sufficient for it to be assumed that someone working within the Prosecutor General’s office has properly summarised the relevant regulations.35. Furthermore, the content of the statement fails to set out the terms of the relevant legislative framework in order for this to be scrutinised. It refers to a decree ‘ruling out’ an ordnance without explaining what that means or what were and are the terms of the relevant ordnances. It fails to explain what is ‘a credit institution’. It fails to explain what is a ‘basic foreign exchange operation’.36. Although the ILOR request predated Hanh NGUYEN’s Defence Statement by nine months, she had substantially given her account in interviews conducted under caution three to four years previously.37. Accordingly it was submitted that I should in fairness declare this material inadmissible as it doesn’t comply with the provisions of s.117(1) of the CJA 2003. I look again at s.117(7) and focus in particular on (a) and (b) namely the contents of the statement and its source. As to contents, the clause headed – “… informal funds transfer system brackets (Hawala) is less easily paraphrased and I shall exclude it unless in the light of my ruling on the earlier clauses it is on reflection by agreement admitted.38. As to source, the absence of an author to these earlier clauses does not in my judgment invalidate them: nor does anyone’s inability to further test this material render it unsafe to admit it. They are more easily interpreted and if an interpretation may be consistent with the position of D1 or any D in this trial, the jury can be relied on to default in that direction. Requests for mutual legal assistance are at the best of times an exercise in diplomacy and the process is often complex if not labyrinthine. Subject to the further enquiries that I have encouraged, this is the best the prosecution can do to present material to the jury when it considers the defence put forward on behalf of Hanh NGUYEN. I do not accept that it necessarily undermines her credibility, though it may have that potential. It does mean that the jury will not simply be presented with her understanding of Vietnamese foreign exchange laws, on which it is I think agreed that she has no particular expertise, but are provided with this material that the prosecution has endeavoured to obtain through the ILOR route” (our emphasis).[45]In the light of the judge’s ruling, the defence agreed a further fact, without conceding that the evidence was properly before the jury.[46]The prosecution did not refer to this evidence in its closing speech. Mr Blaxland did deal with it.[47]There is no complaint about the way in which the judge summed up this evidence. Mr Blaxland’s point is that the evidence should not have been before the jury at all.[48]We agree.[49]That this evidence was apparently expert evidence on foreign law is not disputed. The day before the hearing of this appeal, Mr Douglas-Jones alerted the court, and the defence, to the provisions of section 15 of the Administration of Justice Act 1920 (AJA). Uncharacteristically and most unfortunately, both counsel had missed this provision at trial. The relevant paragraph in the 2022 edition of Archbold (10-57 (2023 edition 10-29)) which is headed “C Foreign Law and the way in which it may be proved” was referred to by all counsel and by the judge. The last sentence of the paragraph reads:
“Any question as to the effect of any such evidence is to be decided by the judge, without being submitted to the jury: Administration of Justice Act 1920, s15.”
This was overlooked.[50]Section 15 of the AJA reads; “Questions of foreign law to be decided by judge Where, for the purpose of disposing of any action or other matter which is being tried by a judge with a jury in any court in England and Wales, it is necessary to ascertain the law of any other country which is applicable to the facts of the case, any question as to the effect of the evidence given with respect to that law shall, instead of being submitted to the jury, be decided by the judge alone”.[51]In R v Barnett Hammer [1924] 17 Cr. App R 142, the Court of Criminal Appeal considered an appeal against conviction at a trial in which a question of Russian law had arisen. Section 15, then a relatively new provision, had been overlooked. Expert evidence was called on both sides as to the foreign law and the matter was left to the jury. The court decided that section 15 applied in criminal proceedings. Sankey J gave the judgment. Having considered the relative positions in the civil and criminal courts, he concluded that they ought, on this issue, to be consistent. He said:
“We are therefore of the opinion that it was for the learned judge to decide what the foreign law was, and he has not done so, but it has been decided by the jury, who have no right to do so”
. Accordingly, the conviction was quashed.[52]Mr Blaxland submits that the same ought to happen here. The issue was left to the jury when it should not have been. Mr Douglas-Jones now regrets seeking to put the evidence before the court. He submits that its value was limited since the prosecution had always accepted that IVTS were used legitimately by Vietnamese people living outside Vietnam. The issue was whether or not they were being used here for the purposes of money laundering. We follow that. It means that the jury would have understood that the purpose of adducing the evidence was to support the prosecution case that they were being used by the appellant for money laundering.[53]It is not permissible simply to adduce before the court the substance of the law of another jurisdiction without explanation. It must be produced and explained by an expert, either a lawyer or someone holding an official position which requires knowledge of the law. The document adduced by the prosecution did not identify its author. The assumption was that the reply had been given by someone working in the office of the Prosecutor General of Vietnam but no steps had been taken to put the purported explanation of the law into proper form from an identified witness.[54]We doubt that the document was admissible under section 117 of the CJA, but the short point is that the AJA required the judge to determine the effect of the evidence of foreign law and to direct the jury in accordance with his view. We are not persuaded that the document from Vietnam was sufficiently unambiguous for the judge to have come to a confident view as to its meaning. We are quite sure that there was no prospect of the jury doing so.[55]The evidence about Vietnamese law, whether in the form of admitted facts or not, should not have been before the jury. It was directed at the central issue in the case.[56]Given that the appellant had set out her understanding of the law long before trial, had the prosecution sought to adduce evidence of Vietnamese law in a timely fashion, in accordance with CPR 19 which sets out a comprehensive framework, expert evidence could have been obtained on both sides. Agreement as to the law may even have been reached. What happened instead is regrettable. Safety of the Convictions[57]Mr Douglas-Jones submits that, notwithstanding the errors in respect of the two matters identified in the Grounds of Appeal, this was a strong case, and the convictions are safe. He pointed to all the matters to which we have already referred and invited us to read a large number of documents which demonstrated the strength of the case. We have done so. We note that the appellant called a forensic accountant in support of her case. The witness was unaware that the appellant no longer had any records in respect of a significant period of time in which she was trading. She told the jury, as she had told the police, that this had been the result of software problems, relating to Viber and/or Drop box. This was, on the face of it, a significant omission. The evidence about accounts being held across the UK, deposits always being held below £3,000, had the hallmarks of money laundering. So did the bag of cash in the supermarket. As Mr Blaxland points out, however, the appellant was cross-examined about all of these matters. She answered all of the questions consistently throughout. She had explanations for everything, and she was acquitted of a number of offences.[58]The credibility of the appellant was at the heart of this case. The error made in respect of the good character direction taken with the accepted error in respect of the evidence about Vietnamese law led to the fairness of the trial being irremediably compromised. Notwithstanding some of the features of the evidence against the appellant, we are not satisfied that these convictions are safe. Conclusion[59]We allow the appeal and quash the convictions on counts 1, 2 and 5 of the indictment. Having considered submissions from both sides we are satisfied that a retrial is in the public interest, and we shall give directions to that end. This judgment shall be embargoed until the end of the retrial or further order.

Cited in 1 later judgment