R v Craig (Ian Philip)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GAGE |
| Judgment Date | 15 November 2007 |
| Neutral Citation | [2007] EWCA Crim 2913 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 2007/00560/D3 |
| Date | 15 November 2007 |
[2007] EWCA Crim 2913
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Lord Justice Gage
Mrs Justice Cox
Dame Heather Steel DBE
No: 2007/00560/D3
Mr O Willmott appeared on behalf of the Appellant
Mr O Oldland appeared on behalf of the Crown
1.1. On 18th December 2006 at the Exeter Crown Court, the appellant was convicted of using criminal property (count 1), two counts of transferring criminal property (counts 2 and 3) and possession of criminal property (count 4). On 19th December 2006, before the same judge, he was sentenced to a total of 42 months' imprisonment.
2.1. There were two co-accused, one of whom had died before the trial. The second was Michelle Ann O'Brien. She was convicted of facilitating the retention of criminal property (count 5) and acquisition of criminal property (count 6). She was sentenced on 19th December 2006 to 51 weeks' imprisonment on each count concurrent, suspended for 2 years. At the time of the offences alleged against her she was the appellant's girlfriend.
3.1. The prosecution case was that over a period covered by the counts in the indictment, the appellant had used quantities of cash, expensive motor vehicles, motorcycles, jet skis and other items, which could not be justified on the wages that he had earned. It was their case that tax and National Insurance records showed that over this period the appellant had not been employed or earning. There was, accordingly, a substantial disparity between the use by him of substantial sums of cash and the fact that his income was declared as nil. The prosecution invited the jury to conclude that there was an overwhelming inference that the appellant's source of funds was derived from criminal activity, most probably, but not necessarily exclusively, from dealing in drugs.
4.1. The appellant's case was that for many years, in different employments and working for or with different employers or business partners, he had accumulated substantial funds which he kept in bank accounts and in a nest egg, kept in the home of a former partner and also in the home of his girlfriend, his co-defendant.
5.1. During the course of being interviewed by the police, the appellant outlined the nature of his work since the early 1990s. He identified a number of those for whom he had worked, who were business partners of his. In this way he sought to demonstrate how he had managed to save substantial sums of money. He accepted that he had paid no tax or National Insurance. It was not in dispute that his failure to pay tax or National Insurance would not found the basis of any offence of using or possessing criminal property.
6.1. In order to rebut the appellant's case that his funds had been earned by legitimate work or trading, the prosecution called as witnesses some of his business partners and employers. Some of them, in the course of their evidence, volunteered evidence of the appellant's criminal conduct, either of taking money from them or by embezzling sums paid to him for work done for his employers.
7.1. The prosecution did not attempt to identify the criminal conduct which gave rise to the acquisition by the appellant of his funds or of the motor cars, save to allege that its primary case was that the most likely way in which the appellant had come by these large sums of money was through drug dealing.
8.1. In the course of its case the prosecution put forward a schedule which showed that between 30th March 2004 and 6th October 2005 the appellant spent on various purchases of motor vehicles, holidays or other transactions the sum of £123,583, of which £92,303 were cash transactions, and a further £23,790 was a sum of cash recovered from the home where he and his co-accused lived. This was the sum that formed the basis of count 4. Bank statements from the Halifax Bank of Scotland and Barclays Bank demonstrated payments into accounts held by the appellant in the total sums alleged in counts 2 and 3 of the indictment.
9.1. In view of the grounds of appeal and the way the case has been presented to this court, it is unnecessary for us to outline in any great detail the evidence adduced by the prosecution. The bank statements were agreed documents. Indeed, all the documentary evidence before the court was agreed.
10.1. Of those who had worked with or employed the appellant, the prosecution called four men: Stephen Butcher, who worked with the appellant installing windows; Barry Peach, who worked with the appellant in a company called Sekura; Graham Wilkinson, who was also concerned in Sekura; and Andrew McEwan, who worked with the appellant installing windows in Watford and the London area at weekends. These witnesses gave evidence either to the effect that the appellant had not earned huge sums of money when working with them or, as in the case of Peach and Wilkinson, that he had taken from the business money to which he was not entitled and had embezzled. Other witnesses were asked to rebut the appellant's suggestion at interview that he had sold machinery for large sums in cash.
11.1. The prosecution also called an expert witness who gave evidence of mass spectrometry tests on the money taken from Miss O'Brien's house and on various mobile telephones. These revealed that there was a greater amount of contamination with controlled substances than is usually found.
12.1. The appellant gave evidence. He did so over four days and he was comprehensively cross-examined. He dealt extensively with his previous employment, including working with Mr Wilkinson and Mr Peach. He denied taking money unlawfully from either of them.
13.1. In summary, so far as the relevant time is concerned, he said that after October 2004 he did various jobs for people which included decorating, and various work for the Golden Lion for which he was paid around £5,000 in cash. He said that a further £10,000 came from a woman named Alison Lowe. He said that she gave him the money as it was not earning enough interest in her bank account. He said that he was intending to buy a plot of land with it from an estate agent, Mr Taverner, and there would have been a profit. He said that this piece of land came off the market in June 2005. He said that the purchase price was for the land. He had no idea what the building cost was going to be, so no idea what sort of profit he was going to make.
14.1. He said that he had sold a piece of machinery in about June 2003, then another in November 2004 for around £2,800. He sold some machinery to Powerglaze for £7,000. He said that Mr Thompson was the middleman. He said that he took more machinery to Mr Thompson in Scotland and that he received £10,000 in cash. This money went back into his nest egg. He said that he went to Scotland in a van to purchase machinery from Mr Thompson. He said that a number of the payments made into his account were monies paid back for monies that he had taken out to purchase cars.
15.1. He said that when he went to Euroframes from Torbay Conservatories and Windows there were still outstanding jobs which Euroframes were able to complete. He said that in March 2000 there was £31,000 payable to him after payment of the mortgage and remortgage of a house that he had sold, namely 4 Harberton Close. He said he had always had flash cars and that he had a nest egg. He had built up around £120,000 in cash. He said that £24,000 of that money was in the safe at Miss O'Brien's house. He said that the other £96,000 was at one time under the stairs at Wendy Lee's house. He said that she did not know this. At another time it was in Miss O'Brien's hall cupboard in a bin liner or a plastic bag, but again this was not to her knowledge. He said he met Miss O'Brien on 17th July 2005 in a public house. He moved in with her shortly afterwards.
16.1. He denied ever using class A drugs. He accepted in cross-examination that he did not have any receipts for the machinery, but denied the suggestion that the machinery in his possession did not belong to him. On his behalf some seven witnesses were called.
17.1. There are two grounds of appeal for which the appellant has leave. A further ground was suggested by the single judge when giving leave, and it is now put forward before this court by way of amendment.
18.1. We deal first with ground 1. It is contended on behalf of the appellant that the judge wrongly ruled and misdirected the jury in relation to matters which it would have to find proved in order to convict the appellant. This has been referred to throughout the appeal before us as the Brown point, because it depends upon the decision of R v Brown (1984) 79 Cr App R 115.
19.1. To understand this properly it is necessary to look at the statutory provisions relating to criminal property. “Criminal property” is defined in section 340 of the Proceeds of Crime Act 2002. Subsections (1), (2), (3), (4) and (5) read as follows:
“340-(1) This section applies for the purposes of this Part.
(2) Criminal conduct is conduct which—
(a) constitutes an offence in any part of the United Kingdom, or
(b) would constitute an offence in any part of the United Kingdom if it occurred there.
(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.
(4) It is immaterial—
(a) who carried out the conduct;
(b) who benefited from it;
(c) whether the conduct...
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