R v El-Kurd (No 2) ; R v K ; R v S ; R v X
| Jurisdiction | England & Wales |
| Judge | The President of the Queen's Bench Division |
| Judgment Date | 26 July 2007 |
| Neutral Citation | [2007] EWCA Crim 1888 |
| Date | 26 July 2007 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2006/02651/B1 2006/02656/C1 2006/2663/B1 |
[2007] EWCA Crim 1888
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL BY WAY OF
Reference from the Criminal Cases Review Commission
Royal Courts of Justice
Strand, London, WC2A 2LL
The President of the Queen's Bench Division
Mr Justice Goldring and
Mr Justice Beatson
Case No: 2006/02651/B1
2006/2657/D3
2006/02656/C1
2006/2663/B1
Mr Oliver Sells QC, Mr Martin Evans and Mr David Walbank (instructed by Revenue and Customs Prosecution Office) appeared for the Crown in El-Kurd and Singh
Mr David Jeremy QC and Ms Ledward (instructed by RCPO) appeared for the Crown in
Reichwald and Sakavickas
Mr Willam Clegg QC and Mr Ian Bridge and Mr David Owusu (instructed by Morgan Rose) for the 1 st Appellant El-Kurd
Mr William Clegg QC and Mr Sean Kidveh (instructed by Bankside Law) for the 2 nd Appellant Sakavickas
Mr Gareth Rees QC and Mr Jonathan Barnard (instructed by Kingsley Napley) for the third Appellant Reichwald
Mr Ivan Krolick and Ms Alexandra Pease (instructed by Ealing Law) for the fourth Appellant Singh
Hearing dates: 25 th to 27 th April 2007 and 22 nd June 2007
Judgement
This is the judgment of the Court providing reasons for our decision to quash the convictions of these four appellants. The substantial proportion of the judgment was prepared by Beatson J.
These four appeals are before this Court as a result of references made by the Criminal Cases Review Commission on 5 June 2006. The Commission described the way the indictments were framed and the directions of the trial judges to the juries as perfectly sound at the time. It made the references because of a change in the law, or strictly speaking a change in the understanding of the law, after the appellants were convicted. The legislation under which the appellants were convicted has been superseded by the Proceeds of Crime Act 2003.
The change in the understanding of the law came about as a result of the decision of the House of Lords on 3 May 2006 in R v. Saik [2006] UKHL18, 2 WLR 993, in which the earlier decision of this court in R v. Liaquat Ali [2005] EWCA Crim. 87, [2006] QB 322 as to the consequences of the decision of the House of Lords in R v Montilla [2004] UKHL 50, 1 WLR 3141 was approved. R v. Liaquat Ali and R v. Saik held that the understanding that the mens rea of conspiracy to launder money followed that for the various substantive money laundering offences was wrong. Before those decisions, in part as a result of that understanding, appeals in the cases before us had been dismissed by this court: see R v. El Kurd [2001] Crim. L. R. 234; R v Rana Singh [2003] EWCA Crim 3712; and R v Sakavikas and Reichwald [2004] EWCA Crim. 2686.
In a number of substantive money laundering offences, including section 49 of the Drug Trafficking Act 1994 and sections 93A-D of the Criminal Justice Act 1988, the mens rea is defined as “knowing or suspecting” or “knowing or having reasonable grounds to suspect” that the money represents the proceeds of the relevant type of crime. It was generally believed that this was also the mens rea of conspiracies to commit those offences. R v. Liaquat Ali and R v Saik held that, in the light of section 1(2) of the Criminal Law Act 1977, this was not so where the charge is a statutory conspiracy to commit the substantive offence. In such a case, in the case of money identified at the inception of the conspiracy, the mens rea required is knowledge of its illicit origins. In other cases, it is an intention that the money would be the proceeds of relevant criminal conduct.
The consequences of R v. Liaquat Ali and R v. Saik for defendants who were convicted of conspiracy to commit money laundering offences before those decisions were before this court in the appeals and applications in R v Ramzan and others [2006] EWCA 1947 (Crim); [2007] 1 Cr. App. R. 150, R v Suchedina [2006] EWCA 2543 (Crim), R v Mumtaz Ahmed [2007] EWCA (Crim.) 464 and R v Zafar Rizvi [2007] EWCA (Crim.) 467. The cases of Ramzan, Mumtaz Ahmed, and Zafar Rizvi were before this court as a result of references by the Commission. The six cases considered with Ramzan's case and the three cases considered with Suchedina's case were applications to grant leave to appeal out of time. Those applications were refused in the light of the practice of this court not to grant leave to appeal out of time where the conviction was entirely proper under the law as it stood at the time of trial unless substantial injustice would otherwise be done to the applicant: see R v Ramzan and others at [30]. This court held that the position differed in the case of a reference by the Commission because (at [41]), pursuant to section 9(2) of the Criminal Appeal Act 1995, “a reference stands as if leave has been granted” and this court has no option but to consider the safety of the conviction. It did so in Ramzan's case and allowed his appeal. In Suchedina's case, where the single judge had granted leave, the appeal was also allowed. In both cases retrials were ordered.
The judgment in R v Ramzan and others was handed down on 21 July 2006, after the Commission made its references in the cases now before us and in the cases of Mumtaz Ahmed and Zafar Rizvi. The cases were all due to be heard by this court in October 2006 but the hearings were vacated as a result of a judicial review by the Director of Revenue and Customs Prosecutions challenging the Commission's decision to refer the cases. The Crown Prosecution Service, the prosecuting authority in the cases of Sakavikas and Reichwald, was an interested party and made written submissions. It was argued in the judicial review proceedings that, when considering a reference, the Commission was either bound to apply an identical filter to that applied by this court at the leave stage or to have regard to what in Ramzan's case was described as its “very well established practice”.
The challenge to the reference failed. In December 2006, in R (Director of Revenue and Customs Prosecutions) v Criminal Cases Review Commission [2006] EWHC 3064 (Admin.) at [28], the Divisional Court held the Commission “was under no obligation to have regard to, still less to implement, a practice of the CACD which operates at a stage [the leave stage] with which the Commission is not concerned”. The Divisional Court also commented on the consistency of the application of this court's practice, and the absence of criticism by this court since R v Kansal (No 2) [2001] EWCA 1260 Crim. when dealing with references by the Commission in change of law cases: see [2006] EWHC 3064 Admin at [32] – [36]. Accordingly, the references proceeded. On 14 February 2007 the appeals in the cases of Mumtaz Ahmed and Zafar Rizvi were conceded by the Crown.
Since these four appeals are the result of references by the Commission the difference between the approach of this court when considering references and its approach when considering an application for leave to appeal out of time on the ground of a change in the understanding of the law does not arise. Nor does the tension and potential conflict between the practice of the Commission and that of this court in such cases: see [2006] EWHC 3064 Admin at [47]. Those matters, however, arise in the appeals in R v. Fletcher and R v Cottrell, two other “change in the law cases” in a different context, which were heard by us together with these appeals. We will consider them in our judgment in those cases.
The principal issue is the safety of the convictions in the four cases. In the cases of El Kurd and Rana Singh, and possibly in the case of Sakavikas, consideration of the safety of the convictions falls into two parts. It is necessary to examine the scope of the decision of this court in Graham [1997] 1 Cr. App. R. 302 in the context of defects in the way the indictments were framed as well as applying the familiar test in Stirland v DPP [1944] AC315 as reformulated in R v Davis, Rowe and Johnson [2001] 1 Cr. App R. 115.
In the cases of Sakavikas and Reichwald, if we conclude the convictions are unsafe, the Crown invite us to exercise our powers under section 3 of the Criminal Appeal Act and substitute convictions for substantive offences under section 93A of the 1988 Act. In the light of the decision in Ramzan's case no such application is made in the cases of El Kurd and Rana Singh.
The underlying facts are set out in the decisions of this court in the appeals considered and dismissed before the decision in R v Saik. We are therefore able to state them briefly. In doing so we substantially rely on the helpful summaries provided by the CCRC.
The alleged offences related to a bureau de change known as the Notting Hill Exchange. El-Kurd was the proprietor. The prosecution case was that from September 1994 to November 1996 sums in excess of £70 million in used sterling notes were laundered through the business. The money was brought in by a co-defendant called McGuinness. The used notes were brought in and exchanged for high value foreign currency notes. They were either exported to Europe or returned to wherever the notes had originated.
Surveillance identified a number of visits by other alleged conspirators to the Exchange carrying holdalls or suitcases. There were two telephone conversations between them and EI-Kurd. Large sums of cash were identified as having been exchanged following the visits. None of the very large number of substantial foreign currency purchases made by the Exchange appeared in its books, apart from on one occasion...
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