Dare v Crown Prosecution Service [2012] EWHC 2074 (Admin)

Case No CO/9106/2011[2012] EWHC 2074 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 13 July 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BEAN
Between
DAREClaimantv
Between
CROWN PROSECUTION SERVICEDefendant
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 7404 1424(Official Shorthand Writers to the Court)
Mr A Blake (instructed by Darbys) appeared for ClaimantMr B Leonard (instructed by Crown Prosecution Service) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE BEAN: On 19 October 2010, Mr Bryan Law's Hyundai car was removed from the roadside in Worminghall, Oxfordshire. Two or three days later it was recovered by the police. The appellant's fingerprint was subsequently found on it or on something in it. On 11 January 2011 he was arrested and interviewed. He was frank in interview and in due course was charged with an offence under section 328(1) of the Proceeds of Crime Act 2002 which provides:
"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."
[2]The appellant's account -- and the Justices had nothing but the appellant's account in interview and in evidence to go on -- was that a car trader from the travelling community in Oxfordshire whom the appellant knew as Mick offered to sell him the car for £800. Mr Dare admitted that he knew Mick as someone who had been involved with missing and stolen cars in the past. The appellant's plan was to buy a car at this bargain price, with a view not to keeping it, but to re-selling it. He believed he could have sold it for £3,500. He took it for a test drive, an exercise in respect of which he was charged with and pleaded guilty to driving without insurance. He asked Mick for a few days to see what money he could raise.[3]He managed to raise £500 or very close to it. In interview he said that Mick told him he would accept £500. In evidence, however, the appellant said only that he believed that Mick would sell it to him at a reduced price. What is clear is that the sale never went ahead presumably because either the owner or the police or somebody acting legitimately had recovered the car before the transaction could go through.[4]The Justices' findings, as set out in the case stated, were as follows:
"10. We found that: a. After test driving the vehicle the appellant indicated his interest in purchasing it to Mick and asked for time to raise the money. Once he had the money he then arranged to meet Mick for a second time with a view to completing the transaction, albeit for a reduced price. b. In doing so the appellant 'entered into an arrangement' with Mick within the meaning of section 328(1). c. The vehicle was stolen and therefore 'criminal property' under the Act. d. The appellant knew or suspected that the vehicle was stolen. e. The appellant's intention was to sell the vehicle on to another person at a profit. In arranging to purchase the vehicle with that intention, he new that he was facilitating the acquisition of criminal property by on or on behalf of another person. f. We therefore found the appellant guilty of the charge under Section 328(1) of the Proceeds of Crime Act 2002."
The findings of fact are contained in paragraphs a, c, d and the first sentence of e. Paragraph b and the second sentence of e are of course not findings of fact but conclusions of law. The findings of fact are not open to challenge in this court and neither side has sought to challenge them.[5]Mr Leonard for the Crown did submit that I should take the Justices to have found that Mick had agreed the price at £500 but I am unable to extract that finding from paragraph a of the findings of fact. That goes no further than saying that the appellant arranged to meet Mick for a second time "...with a view to completing the transaction, albeit for a reduced price...". It is ambiguous as to whether the price was agreed and the appellant's evidence in court was that it was not.[6]Mr Blake for the appellant has drawn my attention to the judgment of the Court of Appeal in R v Geary [2010] EWCA Crim 1925, where at paragraph 37, the court said: "Finally, we should add that we consider it important in the interests of legal certainty that legislation of this kind should be interpreted in accordance with its natural and ordinary meaning. The Crown's argument in this case involves interprets section 328(1) in an artificial way in order to encompass conduct to which it does not naturally refer. Even if it is possible by stretching its language to interpret the section in the manner suggested by Mr Robertson, we do not think that it ought to be interpreted in that way in order to extend its ambit to ensure that the appellant's conviction is upheld".[7]Mr Leonard submits that the arrangement which the justices found, that is to say the arrangement between Mick and the appellant to meet for a second time with view to a sale, was one which facilitated the future acquisition of the car (which was undoubtedly at that stage criminal property) by or on behalf of another person, that is to say a future purchaser from Mr Dare, even though no such person had yet been identified. This does seem a strained interpretation of the section. It would suggest, if it is correct, that every case of handling stolen goods with a view to re-sale also constitutes the offence under section 328(1).[8]I put to Mr Leonard the standard case of a man who buys, say, a gold watch in a pub for a few pounds from a trader called Mick with a view to selling it on to someone else at a profit. Such a person is undoubtedly guilty of handling stolen goods if he knows or suspects that the goods are stolen. Supposing that the watch is in fact stolen, the purchaser, on these facts, has entered into an arrangement which he knows or suspects will facilitate in the future the acquisition of the watch by someone else yet to be identified. Indeed, even if the handover of the watch has not taken place, even if the matter has gone no further than a telephone call between the two men arranging to meet at the pub with a view to the watch being sold there, if Mr Leonard is right, at the moment of the telephone call both individuals have committed the section 328 offence.[9]In my judgment, this is to give the section far too wide a construction. The arrangement in this case on the facts as found by the Justices was not even a contract of sale. It was an arrangement to meet with a view to negotiating a price. Had a price been agreed and the car been handed over, that would have facilitated in the future the acquisition of the car by somebody else.[10]But the section says that the arrangement must be one which the defendant knows or suspects “facilitates” the acquisition by or on behalf of another person. It does not say "will facilitate", still less "will probably facilitate" or "may facilitate". It envisages a snapshot being taken at the moment of the arrangement being concluded so that one can say at that moment that it facilitates (present tense) the acquisition by or on behalf of another person, and therefore that that other person must be identified or at least identifiable.[11]In this case, the acts of Mr Dare were too preparatory for that to have taken place, both because a price had not been agreed and because he had taken no steps to identify a prospective purchaser. I therefore take the view that the Justices' conclusion of law on their findings of fact was not correct. The appeal by way of case stated succeeds and the conviction must be quashed.

Cited in 1 later judgment