R v Glatt (Louis)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TUCKEY,MR JUSTICE CRANE,MR JUSTICE STANLEY BURNTON |
| Judgment Date | 17 March 2006 |
| Neutral Citation | [2006] EWCA Crim 605,[2003] EWCA Crim 2053 |
| Date | 17 March 2006 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 2001/4746/S3, 2002/3846/S3, 2002/6091/S3,Case No: 200203846D5; 200206091D5 |
[2003] EWCA Crim 2053
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Lord Justice Tuckey
Mr Justice Crane
Mr Justice Stanley Burnton
No: 2001/4746/S3, 2002/3846/S3, 2002/6091/S3
MR T OWEN QC, MR I KROLICK appeared on behalf of the APPELLANT
MR O SELLS QC, MR M EVANS, MR I PEARCE appeared on behalf of the CROWN
Judgement
1. On 12th February 2001 at the Southwark Crown Court before His Honour Judge Elwin and a jury the applicant, Louis Glatt, who is now aged 53, was convicted on a retrial of conspiracy to launder the proceeds of crime. On 23rd July 2001 the same judge sentenced him to seven years' imprisonment. On 29th May 2002 the same judge made a confiscation order in the sum of £3.676 million payable within two years with three years' imprisonment consecutive in default of payment.
By these proceedings he applies for an extension of time and leave to appeal against conviction. He further appeals against the sentence of imprisonment with the leave of the single judge. He further applies for a very short extension of time in which to appeal against the confiscation order and leave to appeal against that order.
We have so far heard the applications in relation to the conviction appeal and the appeal against sentence and this judgment deals only with those matters.
For this purpose we need only deal with the facts in the barest outline. The applicant was a solicitor. It was alleged that between 1st October 1994 and 31st January 1997 he had conspired with Ellis Martin, Jason Gardiner, Jonathan Hutchison and others to contravene the provisions of section 93A of the Criminal Justice Act 1988 by entering into or being otherwise concerned in an arrangement to facilitate Martin's retention and control of the proceeds of his criminal conduct or to enable such proceeds to be used for his benefit by investing in property, knowing that Martin was a person who was or had been engaged in or benefited from criminal conduct.
The applicant was a sole practitioner in the West End of London. At his trial it was admitted that Martin was the principal and mastermind of a large diversion fraud by which Customs and Excise were cheated of millions of pounds of excise duty and VAT on alcoholic drinks and cigarettes, apparently imported into or exported from this country. This fraud started in 1994 and continued after Martin was in prison in April 1996, from which time Martin ran the fraud from prison with the assistance of his associates among whom were Gardiner and Hutchison.
The applicant admitted the diversion fraud and Martin's continuing involvement in it. Martin, Gardiner and Hutchison pleaded guilty to the money laundering conspiracy. The applicant admitted that Martin had been a client of his throughout the relevant period and that he regularly visited him in prison. He had also facilitated prison visits to Martin by Gardiner and Hutchison and others involved in the fraud by saying that these were legal visits by clerks of his firm. This of course meant that the meetings were privileged.
During the relevant period, on Martin's instructions, the applicant purchased properties in this country through United Kingdom or off-shore entities which he acquired or set up and by use of bank accounts which he opened. We also paid large sums of money in cash into his client's account which he then dispersed in accordance with Martin's instructions. At trial he accepted that these transactions derived from Martin's continuing fraud, but his defence was that he was unaware of this at that time. He believed that the transactions were those of Martin's mother, Mrs Cruikshank. The instructions he had received from Martin about properties, off-shore companies and trusts, the cash he received and its disbursement were all, he said, in relation to her affairs. He believed she had means of her own and she had authorised him to take instructions from Martin on her behalf.
Not surprisingly the Crown did not accept a word of this. When in the United Kingdom the evidence was that Mrs Cruikshank earned a modest income or lived on income support. Documents found in the applicant's offices and tapes of his telephone conversations with Martin in prison showed clearly that he knew who his real client was.
At trial the applicant was represented by very experienced leading and junior counsel. Before summing-up the judge provided counsel with a copy of his proposed directions on the law. The directions he gave were those which had been agreed by all counsel.
After the applicant's conviction trial counsel advised that there were no grounds of appeal.
In early 2002 during the confiscation proceedings, new solicitors and counsel were instructed on behalf of the applicant. It was not however until 6th August 2002, nearly 17 months out of time and over two months after the confiscation order was made, that the present application for leave to appeal against conviction was made. The advice accompanying the proposed grounds simply stated that new counsel had been asked to review the papers and to advise whether there were grounds for appealing and that he believed that there were. The advice included a chronology which suggested that no one had given thought to the prospect of appealing against conviction because counsel were heavily engaged with getting to grips with the case and then having to deal with the continuing confiscation proceedings and contempt of court proceedings which were taken against the applicant for his breach of a restraint order which had been made against him. Beyond that, however, there is no further explanation for the delay and, more importantly, no reason is advanced as to why a second opinion about the prospects of appealing against conviction had not been sought earlier.
12. This court has emphasised time and again the importance of complying with the statutory time limit of 28 days. Good reasons must be given for the delay: the longer the delay, the better the reasons have to be. The court will of course be influenced by the merits of the proposed appeal, but our view of the merits in this case is bound to be coloured by two things: first, that very experienced trial counsel advised that there were no grounds for appeal; and secondly, that the proposed grounds which essentially criticise the directions on the law which the judge gave, relate to directions which had been agreed.
A brief excursion into those grounds in fact reveals in our judgment that there is no substance in them.
The first ground was largely based on a false premise that the indictment charged the appellant with a conspiracy knowing "or suspecting" that Martin had been engaged in criminal conduct. That ground could no longer be pursued because prosecuting counsel produced the indictment which made it clear that the applicant did not face a count which alleged suspicion. But nevertheless the ground has been pursued by Mr Krolick for the applicant on the basis that the judge did not properly direct the jury as to knowledge. He makes a related point that the judge directed the jury as if this were a common law conspiracy and not as the indictment makes clear a statutory conspiracy under the provisions of section 1 of the Criminal Law Act 1977. My last point on this ground is that it is not possible to have a conspiracy to contravene section 93A of the 1988 Act.
In support of his argument that the direction as to knowledge was inadequate, Mr Krolick has taken us to various passages in the summing-up where he says that the judge appears to have been saying that the jury could convict even if they thought that the applicant ought to have known that the property he was dealing with was the proceeds of crime. We do not accept this submission. At the very beginning of his summing-up (page 10), the judge made it perfectly clear that the jury had to find that the applicant had the knowledge which the indictment alleged. He said:
"The defendant denies that he was party to any conspiracy. For him to be guilty you would have to be sure that he agreed to take some part, however small, in the money laundering, by for example knowingly acting as a conduit for the proceeds of Martin's criminal conduct, setting up, on his instructions, nominee arrangements, the holding of cash and the ownership of investment properties or acting on the completion of transactions fully aware and under no illusion that the funds were the fruits of the fraud being run by Martin."
The jury could not have been in any doubt in what was a relatively short summing-up, with the indictment no doubt in front of them, what they had to be satisfied about before they could convict. The point about a statutory as opposed to a common law conspiracy, does not, it seems to us, add anything to the substance of the complaint which is made, which is that the judge did not sufficiently make the jury aware that they had to be sure that the defendant knew that what he was being asked to deal with were the proceeds of Martin's crime. We do not understand Mr Krolick's final point: merely because the statute refers to "an arrangement" it does not follow that one cannot conspire to launder money.
The next ground is a related ground in which the complaint is that although the judge gave the jury the direction to which we have referred, he lost sight of this in the later parts of his summing-up by telling the jury that the real issue for them was whether the applicants knew that Martin was his client or whether it was Martin's mother. The proposed ground is put in this way:
"The learned judge misdirected the jury by...
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