R v Harmer (Roy Peter)

JurisdictionEngland & Wales
JudgeLord Justice May
Judgment Date21 January 2005
Neutral Citation[2005] EWCA Crim 1
CourtCourt of Appeal (Criminal Division)
Docket NumberCase No: 2004/02156D2
Date21 January 2005

[2005] EWCA Crim 1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM MIDDLESEX GUUILDHALL

HIS HONOUR JUDGE SIMON SMITH

T20027127

Before:

The Right Honourable Lord Justice May

The Honourable Mr Justice Beatson and

Sir Charles Mantell

Case No: 2004/02156D2

Between
Roy Peter Harmer
Appellant
and
R
Respondent

Mr Kane instructed for the Appellant

Mr Ross (instructed by The Crown) for the Respondent

Lord Justice May

Lord Justice May:

Introduction

1

This is another appeal in a prosecution for money laundering, in which the prosecution have run into difficulties from the terms of, and inter-relation between, section 93C of the Criminal Justice Act 1988 and section 49 of the Drug Trafficking Act 1994. Some of the problems may be alleviated for the future by the modified re-enactment of these provisions in Part 7 of the Proceeds of Crime Act 2002, but those provisions did not apply to the prosecution of the appellant, Roy Peter Harmer.

2

The appellant was charged jointly with a co-defendant, Paul Andrew Hadley, on an indictment which originally contained three counts. They were tried before HH Judge Simon Smith and a jury at Middlesex Guildhall. The trial lasted 15 days. At the end of it, on 15 th March 2004, they were each convicted on count 2 of the indictment. This in summary form charged them with conspiracy to convert or transfer property, namely currency, which they had reasonable ground to suspect in whole or in part represented another person's proceeds of criminal conduct and/or drug trafficking. The jury's verdict was unanimous, reached after less than 2 hours deliberation. On 22 nd March 2004, the appellant was sentenced to 3 years imprisonment. Hadley was sentenced to 4 years imprisonment, with a consecutive period of 6 months for failure to answer bail. On 24 th August 2004, the judge made a confiscation order against the appellant in the sum of £104,325.00, with two years' imprisonment in default of payment.

3

The appellant appeals against conviction, by leave of the single judge, given on limited grounds. This court gave unopposed leave to add a further ground of appeal. This relied on the very recent decision of the House of Lords in R v Montila [2004] 1 WLR 3141; [2004] UKHL 50, 25 th November 2004, a decision necessarily not available to the trial judge. Hadley has not appealed his conviction. We are told that he has absconded.

The indictment

4

Count 1 of the indictment charged the appellant and Hadley with conspiracy

"… to convert property, namely currency, which in whole or in part represented the proceeds of criminal conduct … [and/or] … drug trafficking … in contravention of section 93C(1)(b) of the Criminal Justice Act 1988 [and/or] section 49(1)(b) of the Drug Trafficking Act 1994."

Count 3 charged them with conspiracy

"… to enter into or otherwise be concerned in an arrangement whereby the retention or control by or on behalf of another person of his proceeds of criminal conduct [and/or] drug trafficking was facilitated … [with the requisite knowledge or suspicion] … in contravention of section 93A(1)(a) of the Criminal Justice Act 1988 [and/or] section 50(1)(a) of the Drug Trafficking Act 1994".

5

Each of these counts was withdrawn from the jury's consideration, because the prosecution conceded that they could not prove that the various amounts of money in question were the proceeds of crime, let alone that they were the proceeds of criminal conduct on the one hand, or drug trafficking on the other; nor that, if they were, they were the proceeds of a particular person's criminal conduct, whether that person was the appellant or Hadley for the purpose of count 1, or another person for the purpose of count 3.

6

Count 2, as it was left to the jury, was in these terms:

"

Conspiracy to convert property, contrary to section 1(1) of the Criminal Law Act 1977.

Paul Andrew Hadley and Roy Peter Harmer, on diverse days between the First day of December 2000 and the Twenty-ninth day of September 2001 conspired together and with others to convert or transfer property, namely currency, which they had reasonable grounds to suspect in whole or in part represented another person's proceeds of criminal conduct and, alternatively or, drug trafficking for the purpose of avoiding prosecution or the making or enforcement of a confiscation order in contravention of section 93C(2)(b) of the Criminal Justice Act 1988 and, alternatively or, section 49(2)(b) of the Drug Trafficking Act 1994."

There had been two amendments to this count. On 22 nd February 2004, the words "or transfer" had been added after the words "to convert" in the Particulars of Offence (but not in the Statement of Offence). On 4 th March 2004, the words "knew or" had been deleted from the Particulars before the words "had reasonable grounds to suspect". Thus, the prosecution had accepted that they could not establish that the various amounts of money were the proceeds of crime; and, by the second of these amendments, they were not alleging that the appellant and Hadley knew that the money was another person's proceeds of criminal conduct or drug trafficking. The case rested alone on the allegation that the appellant had reasonable grounds to suspect this.

The legislation

7

Section 49 of the 1994 Act provides:

"(1) a person is guilty of an offence if he –

(a) conceals or disguises any property which is, or in whole or in part directly or indirectly represents, his proceeds of drug trafficking, or

(b) converts or transfers that property or removes it from the jurisdiction,

for the purpose of avoiding prosecution for a drug trafficking offence or the making or enforcement in his case of a confiscation order

(2) a person is guilty of an offence if, knowing or having reasonable grounds to suspect that any property is, or in whole or in part directly or indirectly represents, another person's proceeds of drug trafficking, he –

(a) conceals or disguises that property, or

(b) converts or transfers that property or removes it from the jurisdiction,

for the purpose of assisting any person to avoid prosecution for a drug trafficking offence or the making or enforcement of a confiscation order."

8

Section 93C of the 1988 Act is in substantially the same terms except that:

"(a) instead of referring to "drug trafficking", it refers to "criminal conduct" or "an offence to which this Part of this Act applies"; and

(b) the words "in his case" additionally appear after the word "enforcement" in the concluding phrase of section 93C(2)."

Section 93C is in Part VI of the 1988 Act. The effect of sections 93A(7) and 71(9)(c) is that Part VI of the Act does not apply to a drug trafficking offence. Section 93C of the 1988 Act and section 49 of the 1994 Act therefore provide for separate offences.

Facts

9

Between April and September 2001, the Customs and Excise conducted surveillance on the appellant and Hadley. They observed regular meetings between them, when they arrived at and departed from various places, such as a local hotel and station car parks. On occasions, packages were passed between them. They were also seen to meet others, including Hooshang Lanjani, Kaushik Taylor and Paul Kennedy. After his meetings with Hadley, the appellant was seen on the same day visiting various branches of Barclay's Bank in Essex, where he made cash deposits of up to £20,000 into various corporate bank accounts. Large amounts of money were then regularly transferred to bank accounts in Spain. Each of these Spanish accounts was bogus. They had been opened using passports with photographs of Walter Callinan or Barry Smith, who was Paul Kennedy's father-in-law.

10

The prosecution case was that the purpose of the meetings was to facilitate money laundering. It was alleged that from the 1 st December 2000 to the 29 th September 2001 the appellant and Hadley had conspired with others to launder the proceeds of another person's crime or drug trafficking. It was alleged that during this period over £1.2m was transferred out of the jurisdiction from accounts to which the appellant was a signatory. Before it was transferred abroad, the money had been transferred between different corporate bank accounts in order to mix it up and make it difficult to trace.

11

The defence case was that the appellant had legitimately handled large sums of cash from his employment agency businesses. These provided labour to office cleaning and building contracting industries. All his casual workers were paid in cash. He admitted transferring money to Spain. He said that this was to establish venture capital among intending investors in a property development scheme. At Hadley's request, he had been paid a fee to transfer the capital to the investors' named Spanish accounts, over which he would then have control when they purchased property and began development. At no time did he know or suspect that he was dealing with the proceeds of criminal conduct or drug trafficking.

12

The prosecution evidence in support of the general case against the appellant was very detailed and, we think, in general terms very strong. Documentary evidence established the movement of the various large sums of money, often in cash, and the details of the Spanish bank accounts. There was evidence from bank staff from branches of Barclay's Bank; the appellant's accountant; clients of his agencies; and two forensic accountants. The appellant had given the explanations on which he relied in interviews after his arrest on 28 th September 2001. Neither he nor Hadley gave evidence at their trial. John Cronin, whose group of companies had employed...

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