R v Da Silva

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLord Justice Longmore
Judgment Date11 Jul 2006
Neutral Citation[2006] EWCA Crim 1654
Docket NumberCase No: 2005 02160 B1

[2006] EWCA Crim 1654

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT

SITTING AT THE MIDDLESEX GUILDHALL, LONDON

His Honour Judge Martineau

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Longmore

Mrs Justice Gloster and

His Honour Judge Diehl Qc

(Sitting as a Judge of the Court of Appeal, Criminal Division)

Case No: 2005 02160 B1

Between:
Regina
Respondent
and
Hilda Gondwe Da Silva
Appellant

ROSSANO CIFONELLI Esq for the Appellant

RICHARD MILNE Esq for the Respondent

Lord Justice Longmore
1

On 2nd March 2005 in the Crown Court at the Middlesex Guildhall, the appellant, Hilda Gondwe Da Silva, was convicted of assisting another person to retain the benefit of criminal conduct knowing or suspecting that that other person was or had been engaged in criminal conduct contrary to section 93A(1)(a) of the Criminal Justice Act 1988 (counts 14 and 15 on the indictment). She was acquitted on counts 1 to 10 which charged her jointly with her co-accused husband of obtaining money transfers by deception. Her husband, Mario Da Silva, was convicted of obtaining money transfers by deception (counts 1 to 13). She appeals on one ground only with the leave of the Full Court, namely whether the judge should have given to the jury (as he did) a dictionary definition of the word "suspecting" and then (as he did) have added a further gloss to that definition.

2

In summary the facts were these. AMT is a company which runs coffee-bars. The coffee-bars at King's Cross Railway Station were managed by the co-accused who was responsible for submitting employee time sheets to head office upon which employee wage payments were based. Between 7th June 2001 and 21st July 2003, on ten occasions, sums of money representing the wages of three different people, "ghost workers", were transferred directly into one of two bank accounts operated by the appellant at the Halifax. The Crown alleged that three individuals, two of them sisters, had been employees of the company but at the material times had not worked at all. It was further alleged that the appellant had given encouragement and assistance to the co-accused knowing that the wages were being received dishonestly.

3

As an alternative against the appellant, count 14 alleged that between 11th November 2001 and 2nd September 2003 knowing or suspecting that her husband was or had been engaged in criminal conduct or had benefited from it, she entered into or was otherwise concerned in an arrangement which involved the deposit and withdrawal of sums into and from her bank account facilitating his retention or control of proceeds of his criminal conduct. The sums of money covered by count 14 related to the wages of the sisters. Count 15 was a similar offence in respect of a second bank account for the period June 2001 to September 200The sums of money here related to one Daniella Mateus. These two counts charged offences, as we have said, against section 93A(1)(a) of the 1988 Act. That sub-section provides:-

"…. if a person enters into or is otherwise concerned in an arrangement whereby –

(a) the retention or control by or on behalf of another ("A") of A's proceeds of criminal conduct is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise)

……………… . .

knowing or suspecting that A is a person who is or has been engaged in criminal conduct or has benefited from criminal conduct, he is guilty of an offence."

4

The judge observed to the jury that if they concluded the appellant knew her co-accused husband had engaged in criminal conduct or had benefited from it, they would convict her as a participant in the principal offence. If they acquitted her, however, of the first 10 counts of the indictment and moved on to consider counts 14 and 15 of the indictment, he only needed to direct them about the question whether the Crown had proved that she suspected her husband was engaged in criminal conduct or had benefited from it.

5

He then said this:-

"So, probably, 'knowing' will not arise and what will arise instead is 'suspecting', which is a very different state of mind to knowing. To suspect something, you have a state of mind that is well short of knowing that the matter that you suspect is true. It is an ordinary English word. Members of the jury, if the Crown can show that the defendant said to herself, 'I suspect that this money is the proceeds of criminal conduct, but it may be, on the other hand, that it is not', that would fall within the definition of 'suspicion'. The dictionary definition, which I direct you is relevant, to the meaning of the word, is this. The dictionary definition of 'suspicion': 'an act of suspecting, the imagining of something without evidence or on slender evidence, inkling, mistrust'. Therefore, any inkling or fleeting thought that the money being paid into her account 9950 might be the proceeds of criminal conduct will suffice for the offence against her to be proved."

6

The passage to which exception is taken, and in relation to which leave to appeal has been given, is the passage where the judge referred to the (Chambers) dictionary definition which he directed the jury was relevant and then added the concept "fleeting thought" to the word "inkling". The Full Court, granting leave, thought that it was arguable that the judge should not have given that dictionary definition to the jury and that in so doing he introduced a gloss or qualification to the ordinary English word of suspecting or suspicion which was uncalled for and indeed potentially misleading. The court added that it might be the case that, whatever view the court hearing the appeal took about the direction that was given, they would nevertheless conclude that the evidence against the applicant was sufficiently strong for there not to be any doubts about the safety of her convictions on counts 14 and 15. That however is another matter.

7

Mr Cifonelli, who appeared for the appellant, sought to extend the ground on which he was given leave to appeal by arguing that the word "reasonably" ought to be read before the word "suspecting" in the statutory wording or (which comes to the same thing) the word "on reasonable grounds" ought to be read in after the word "suspecting". He submitted that it was impossible to suppose that Parliament intended that a facilitator should be guilty of an offence if he or she suspected that the relevant other person was or had been engaged in criminal conduct but had no reasonable grounds for that suspicion.

8

We regard this as an impossible argument. This court could not, even if it wished to, imply a word such as "reasonable" into this statutory provision. To do so would be to make a material change in the statutory provision for which there is no warrant. This is all the more the case when one sees that the draftsman is aware of the difference between "suspecting" and "having reasonable grounds to suspect" and on occasion uses the latter phrase in preference to the former word. Thus in section 93C which deals with "concealing or transferring proceeds of criminal conduct", we see sub-section 2 which provides:-

"A person is guilty of an offence if, knowing or having reasonable grounds to suspect that any property is …. another person's proceeds of criminal conduct, he

(a) conceals or disguises that property; or

(b) converts or transfers that property … ."

In the light of this express reference to "reasonable grounds" for suspicion in section 93C of the 1988 Act, it is impossible, in our judgment, to read in similar words in 93A(1) when the words are just not there.

9

Mr Cifonelli sought to explain the...

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18 cases
  • Shah and another v HSBC Private Bank (UK) Ltd
    • United Kingdom
    • Queen's Bench Division
    • 16 May 2012
    ...requirement that there should be reasonable grounds for the suspicion. The meaning of “suspicion” was considered by the Court of Appeal in R v Da Silva [2006] 4 All ER 900 at para 16 (and applied in K Ltd): “It seems to us that the essential element in the word 'suspect' and its affiliates,......
  • K Ltd v National Westminster Bank Plc (Revenue and Customs Commissioners and another intervening)
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    • Court of Appeal (Civil Division)
    • 19 July 2006
    ...inkling or fleeting thought that the property might be [criminal property] will suffice". See Volume II, section VIII 008–009. 16 In R v Da Silva [2006] EWCA Crim 1654 this court has said that for a defendant to be convicted of an offence under section 93A(1) (a) of the Criminal Justic......
  • Jayesh Shah and Another v HSBC Private Bank (UK) Ltd
    • United Kingdom
    • Queen's Bench Division
    • 16 May 2012
    ...directly or indirectly)). The test for "suspicion" 67 The meaning of suspicion in this context is clear from the authorities. In R v Da Silva [2007] 1 WLR 303 Longmore LJ stated: "16. It seems to us that the essential element in the word 'suspect' and its affiliates, in this ......
  • Mariusz Artur Sitek v Circuit Court in Swidnica, Poland
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    • Queen's Bench Division (Administrative Court)
    • 27 May 2011
    ...In particular suspicion involves appreciation of a possibility which is more than fanciful that the relevant fact exists. (See Da Silva [2007] 1 WLR 303– a decision on the meaning of "suspecting" in the Criminal Justice Act 1988 — per Longmore LJ at paras. 16, 17.) By contrast, th......
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4 firm's commentaries
  • Counter-Terrorist Financing: The Role of the MLRO
    • United Kingdom
    • Mondaq United Kingdom
    • 18 May 2010
    ...K Ltd v National Westminster Bank plc (Revenue and Customs Commissioners and another intervening) [2006] EWCA Civ 1039. R v Da Silva [2006] 4 All ER 900. Daren Allen (ed.), Butterworths Money Laundering Law, para. Baden Delvaux and Lecuit v Société Générale pour Favoriser le Développement d......
  • Counter-Terrorist Financing: The Role of the Solicitor
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    • Mondaq United Kingdom
    • 8 September 2010
    ...K Ltd v National Westminster Bank plc (Revenue and Customs Commissioners and another intervening) [2006] EWCA Civ 1039. R v Da Silva [2006] 4 All ER 900. Daren Allen (ed.), Butterworths Money Laundering Law, para. Baden Delvaux and Lecuit v Société Générale pour Favoriser le Développement d......
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    • United Kingdom
    • Mondaq United Kingdom
    • 20 January 2011
    ...that the decision will have limited effect for three reasons; first, the low threshold set out for proving suspicion in R v Da Silva [2006] EWCA Crim 1654; [2007] 1 WLR 303, where it was held that the suspicion need not be based on reasonable grounds; second, the risk of attracting criminal......
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    • Mondaq UK
    • 3 January 2017
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    • Journal of Money Laundering Control Nbr. 17-4, October 2014
    • 7 October 2014
    ...Rv. Akhtar & Another [2011] EWCA Crim 146.Rv. Anwoir [2008] EWCA Crim 1354.Rv. Craig [2007] EWCA Crim 2913.Rv. Da Silva [2006] EWCA Crim 1654.Rv. El-Kurd [2001] Crim LR 234.Rv. FandB[2008] EWCA Crim 1868.Rv. Gabriel [2006] EWCA Crim 229.Rv. Gabriel (Note) [2007] 1 WLR 2272.Rv. Geary (20......
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    • Journal of Money Laundering Control Nbr. 11-4, October 2008
    • 17 October 2008
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  • The recent formulation of “having reasonable grounds to believe”. A positive step for Hong Kong’s anti-money laundering regime?
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    • Journal of Money Laundering Control Nbr. 21-2, May 2018
    • 8 May 2018
    ...Search, Seizure and Confiscation of Proceeds from Crimeand on the Financingof Terrorism (2005), 16 May (“Warsaw Convention”).De Silva [2006] EWCA Crim1654.Hayes vWilloughby[2013] UKSC 17.HKSAR vChan Kim Chung,Nelson [2012] 2 HKLRD 263; CACC 432/2010.HKSAR vJariabkaJuraj [2016] HKCA 512; CACC......
  • Slipping through the net. The financial conduct authority’s approach in lessening the incidence of money laundering in the UK
    • United Kingdom
    • Journal of Money Laundering Control Nbr. 21-2, May 2018
    • 8 May 2018
    ...at: www.legislation.gov.uk/ukpga/2002/29/contents(accessed7 April 2017).R v Abida Shaheen Amir (2011), EWCA Crim146.R v Da Silva (2006), EWCA Crim1654.R v Saik (2006), All ER (D).Rettig, C. (2016), “ThePanama papers and lessons learned from years of offshore leaks”,Journalof TaxPractice and......
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