R (Director of HM Revenue and Customs Prosecutions) v Criminal Cases Review Commission
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay |
| Judgment Date | 05 December 2006 |
| Neutral Citation | [2006] EWHC 3064 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 December 2006 |
| Docket Number | Case No: CO/6688/6689/6690/6691/2006 |
[2006] EWHC 3064 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION)
Lord Justice Maurice Kay and
Mr Justice Bean
Case No: CO/6688/6689/6690/6691/2006
Mr David Perry and Mr Christopher Hehir (instructed by RCPO) for the Appellant
Miss Beverley Lang QC and Miss Emma Dixon (instructed by CCRC) for the Respondent
Interested Parties: Mr Andrew Bodnar for Zafar Rizvi
Mr Ivan Krolick for Gulbir Rana Singh
Mr William Clegg QC and Miss Helen Lyle for Ussama El-Kurd
Mumtaz Ahmed did not appear and was not represented
Liberty and the Crown Prosecution Service made submissions in writing
This is the judgment of the Court, to which both members have contributed.
By section 93C(2) of the Criminal Justice Act 1988, the mens rea for the substantive offence of money laundering is either knowledge or having reasonable grounds to suspect that property is or represents another person's proceeds of criminal conduct. However, where the charge is not the substantive offence but a statutory conspiracy, pursuant to section 1 of the Criminal Law Act 1997, to commit the substantive offence, the mens rea for the conspiracy requires intention or knowledge. Reasonable grounds for suspicion are not enough. This is because of section 1(2) of the 1977 Act. It was so held by the House of Lords in the case of Saik [2006] UKHL 18, which was decided on 3 May 2006.
The four Interested Parties in the present proceedings —Mumtaz Ahmed, Ussama El-Kurd, Gulbir Rana Singh and Zafar Rizvi —presently stand convicted of offences of conspiracy in relation to which the indictments particularised the respective conspiracies on a basis which included "reasonable grounds to suspect". The convictions were all incurred before the decision of the House of Lords in Saik. In each case, their appeals or applications for leave to appeal had been dismissed, or the time for appealing had expired long before 3 May 2006.
On 23 May 2006 a case committee of the Criminal Cases Review Commission ("the Commission") decided to refer the cases of the Interested Parties to the Court of Appeal Criminal Division (CACD) pursuant to the powers of the Commission contained in the Criminal Appeal Act 1995 and formal references followed on 31 May. In these judicial review proceedings, the Director of Revenue and Customs Prosecutions ("the Director") is challenging the decision of the Commission to refer.
At the heart of this litigation there is a tension between the statutory powers of the Commission and the approach of the CACD to appeals based on the subsequent development of the law by judicial decision. We here use the word "subsequent" in the sense of subsequent to the determination of the original appeals in the index cases. Traditionally, the CACD has been reluctant to extend time and to grant leave to appeal on the basis of a subsequent judicial development of the law. However, if the Commission refers a case in such circumstances, then by section 9(2) of the 1995 Act:
"A referral … shall be treated for all purposes as an appeal by the person under section 1 of the [Criminal Appeal Act 1968] …"
Thus in a referred case the CACD is not concerned with an extension of time or a grant of leave. It has to proceed to hear and determine the appeal as if it had extended time and granted leave. In so doing, it will apply the law as it is at the time of the hearing of the appeal, which, in the present cases, would be the law as expounded in Saik. The approach was described by Lord Bingham CJ in Bentley [2001] 1 Crim App R 307, at p.310:
"Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the Court to apply legal rules and procedural criteria that were not and could not reasonably have been applied at the time."
What this means is that an appeal for which the CACD would or might have refused an extension of time and a grant of leave may come before it on a reference by the Commission, whereupon the CACD must determine it in accordance with the developed law.
The tension is obvious. In present circumstances, it is vividly illustrated by what has occurred and is occurring in the case of Ramzan and others [2006] EWCA Crim 1974. The appellants and applicants there were all seeking to take the Saik point. The appeal of Ramzan was by way of reference by the Commission. The CACD "with no enthusiasm whatever" (para 24) proceeded to allow his appeal and ordered a retrial. It felt obliged to take a similar course with another appellant, Vakilipour, who had succeeded in obtaining leave to appeal from a High Court Judge. The CACD doubted whether that judge had had the relevant authorities drawn to his attention. However, in relation to five applicants whose applications for an extension of time and leave to appeal were being considered in the same judgment, the CACD refused their applications in accordance with what Hughes LJ described as:
"… the very well established practice of this Court, in a case where the conviction was entirely proper under the law as it stood at the time of trial, to grant leave to appeal against conviction only where substantial injustice would otherwise be done to the Defendant." (para 3)
We are told that some or all of the five unsuccessful applicants in Ramzan have now approached the Commission in the hope of obtaining referrals and thereby securing what the CACD has thus far denied them.
In the present proceedings, the first submission on behalf of the Director, as set out in the Claim Form in each of the four cases, was that, when considering whether or not to refer what we shall call change of law cases, the Commission is "bound to apply an identical filter to that applied by the Court of Appeal when deciding whether or not to grant leave to appeal out of time". This developed into a submission that it is incumbent upon the Commission to have regard to what Hughes LJ described as "the very well established practice" of the CACD. The implication is that, if the Commission approaches applications in this way, this should ensure that only" substantial injustice" cases are referred and the tension between the two bodies would be alleviated. In effect, they would both be applying the same filter. The primary case for the Commission is that it is not bound to have regard to the practice of the CACD in relation to the granting of extensions of time and/or leave to appeal because the sift mechanisms applicable in the CACD are conspicuously absent from the statutory provisions governing the Commission. It is an independent body operating within its own statutory framework and that independence is underwritten by section 9(2) of the 1995 Act. It is right to record that the Director, through Mr Perry, expressly paid tribute to the high standing of the Commission and the Commissioners who comprise it.
The statutory framework
The Commission was established by Part II of the 1995 Act. This followed the Royal Commission on Criminal Justice, which reported in July 1993, having been established on the same day that the Court of Appeal quashed the convictions of the six men who had been convicted of the Birmingham bombings in 1974. The Royal Commission recommended the establishment of a statutory body and the 1995 Act gave effect (with some variations) to the recommendations.
Section 9 of the 1995 Act provides:
"(1) Where a person has been convicted of an offence on indictment in England and Wales, the Commission –
(a) may at any time refer the conviction to the Court of Appeal …"
We have already referred to the material part of section 9(2) which requires that the reference of a conviction be treated "for all purposes as an appeal" under section 1 of the Criminal Appeal Act 1968.
The discretion to refer under section 9 is conditioned by section 13, which provides:
"(1) A reference of a conviction … shall not be made under … section 9 … unless –
(a) the Commission consider that there is a real possibility that the conviction … would not be upheld were the reference to be made,
(b) the Commission so consider –
(i)… because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it … and
(c) an appeal against the conviction … has been determined or leave to appeal against it has been refused.
(2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it."
The material parts of section 14 are in these terms:
"(2) In considering whether to make a reference of a conviction … under … section 9 the Commission shall have regard to –
(a) any application or representations made to the Commission by or on behalf of the person to whom it relates,
(b) any other representations made to the Commission in relation to it, and
(c) any other matters which appear to the Commission to be relevant.
(3) In considering whether to make a reference under section 9 … the Commission may at any time refer any point on which they desire the assistance of the Court of Appeal to that Court for the Court's opinion on it; and on a reference under this subsection the Court of Appeal shall consider the point referred and furnish the Commission with the Court's...
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