R v Loizou (Lisa)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CLARKE,MR JUSTICE HUGHES |
| Judgment Date | 17 June 2005 |
| Neutral Citation | [2005] EWCA Crim 1579 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200502640/D5200502645/D5200502715/D5200502717/D5 |
| Date | 17 June 2005 |
[2005] EWCA Crim 1579
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Lord Justice Clarke
Mr Justice Hughes
Mrs Justice Dobbs DBE
No: 200502640/D5200502645/D5200502715/D5200502717/D5
MR M LEVETT appeared on behalf of the APPELLANTS
MR C FENDER appeared on behalf of the CROWN
This is the judgment of the Court. This comes before the Court by way of interlocutory appeal under section 35(1) of the Criminal Procedure and Investigations Act 1996 (the CPIA) brought with the leave of the judge, His Honour Judge Holt, against a ruling on a question of law which he made on 17th May 2005 in these circumstances. The appellants are defendants in an indictment which contains as single count, which alleges:
"Transferring Criminal Property, contrary to section 327(1)(d) of the Proceeds of Crime Act 2002 [the 2002 Act].
Particulars of offence
Lisa Loizou, John McCarthy, James Quilligan and Anastasios Gourzoilidis, together with Petros Arampatzis, on the 20th June 2004, transferred £87,010 in cash, which was criminal property, knowing or suspecting that the said cash constituted a person's benefit from criminal conduct."
We understand that Mr Quilligan has abandoned his appeal on the basis that he has indicated an intention to plead guilty.
The Crown served a case summary, dated 20th March 2005, which shows that the transfer relied upon took place in the car park of a Holiday Inn in Brentwood Essex at 15.20 on 20th June 2004, when a man walked from a VW Polo to a Vauxhall Vectra and back. He carried a pouch back to the Polo. The driver of the Polo was Gourzoilidis. The Polo was stopped at 15.40 as it was trying to leave the car park. The front seat passenger in the Polo was Arampatizis. A search of the Polo, following the arrest of Gourzoilidis and Arampatizis, led to the discovery of the money. The appellant, Loizou, was arrested at 15.35. She was in the rear seat of a Vauxhall Omega which was also in the car park. Arampatzis had just left the Omega to get into the Polo. Quilligan and McCarthy were arrested, at about 16.10 in London Road, Brentwood, having entered a taxi to leave the area. A mobile telephone was seized from the taxi. The driver and other occupants have denied owning the mobile. Both Quilligan and McCarthy deny being the owner of it as well.
The events of the day began shortly before 10 o'clock when the Omega left the Seven Sisters Road area of North London and went to a car park of a public house called the Halfway House on the A127, arriving at 10.53. In the Omega were Arampatzis, Loizou and two others. They remained at the Halfway House until just after midday. During that period Quilligan and McCarthy had arrived in a VW Passat. Both groups were seen to intermingle. Both the Omega and the Passat left shortly after midday and travelled to McDonald's at Laingdon, arriving at about 12.10. Two customs officers entered McDonalds to keep observation on the participants. Present were Arampatzis, Loizou, Quilligan and McCarthy and their associates. While inside McDonalds both officers heard a conversation between McCarthy and Loizou to the effect that time was pressing for a meeting, which he had been waiting for since 11.30. The Omega and the Passat left McDonalds shortly after 13.30. The Omega needed fuel from a petrol station at 13.43 with the Passat waiting nearby. The Omega then went to a rendezvous point to meet the Polo, driven by Gourzoilidis. The rendezvous happened at 14.02. The Omega and the Polo then moved off in convoy towards the M25, moving on to the A12 towards Chelmsford. At 14.20 both the Omega and the Polo stopped by a Total petrol station nearby. At 14.30 the Passat drove into the car park of the Holiday Inn. Shortly afterwards the Passat was driven into the car park of a public house across the road. The vehicles and the defendants remained in the area. At 15.21 the Polo, driven by Gourzoilidis, entered the car park of the Holiday Inn. There were two men in the rear of the car. One of them was McCarthy. The Polo parked opposite the Vectra very soon after the handover took place. The Omega then moved towards the Holiday Inn, where it parked close to the Polo. Arampatzis and Loizou stood close by each other. Arampatzis then got into the Polo shortly after the arrests of the participants. The Passat left the area at 15.35 heading towards the M25.
It is not necessary for us to refer here to the interviews, except to say that Gourzoilidis confirmed that the Polo was his. He had been asked by a relative, whom he refused to name, to pick up £87,000. He met his contact and went to the rendezvous on the A12. He said he met two Englishmen who got into the Polo. He then described the handover. He denied knowledge or suspicion about the origins of the money being criminal property.
The Crown rely upon mobile telephone evidence. They say that an analysis of the mobile telephone billing reveals timed calls which took place at strategic moments in the case and which they say rebuts any notion of coincidental presence at the particular locations. They also rely on text messages; in particular they rely upon text messages received by Loizou on her mobile telephone. The content of the messages received by her reveals, they say, material referable to the pricing of cigarettes. They rely on references to particular brands of cigarettes and to amounts which they say approximate to the amount of money seized. The messages were sent on 18th June. They also rely on other evidence to which it is not necessary to refer.
Section 327(1) of the 2002 Act provides:
"(1) A person commits an offence if he-
(a) conceals criminal property;
(b) disguises criminal property;
(c) converts criminal property;
(d) transfers criminal property;
(e) removes criminal property from England and Wales or from Scotland or from Northern Ireland."
The Crown case is that the appellants committed the offence of transferring criminal property within the meaning of section 327(1)(d).
What then is criminal property? Section 340 provides so far as relevant:
(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 occurred before or after the passing of this Act.
(5) A person benefits from conduct if he obtains property as a result of or in connection with the conduct…"
The only paragraph of the case summary which gives particulars of the Crown case that £87,010 in cash was criminal property is paragraph 22, which is in these terms:
"The Crown was requested to set down what inferences it would invite the court to draw as proof that the money was criminal property. The Crown submits that such proof arises from clear inferences, which can be drawn from the Defendants' actions, and which characterise the transaction. They are:
(a) the Defendants' anti-surveillance tactics;
(b) the co-ordinated movement of vehicles from each location to the final destination, culminating in the Vectra and Polo parking adjacent to one another;
(c) the circumstances in which the money came to be passed over, between the two vehicles;
(d) the contents of the paperwork and its proximity to the events in this case;
(e) the contemporaneity of the mobile phone messages to Loizou which explains the purpose behind the hand-over;
(f) the other mobile phone evidence, which is summarised above, demonstrating that the presence of the Defendants could not be considered coincidental;
(g) the fact that no person has come forward to claim the money."
An issue arose between the parties as to what is meant by "criminal property" in section 340 of the 2002 Act which the parties invited the judge to resolve. The matter came before the judge on 3rd May 2005 when the defence, principally through Mr Overbury, on behalf of Gourzoilidis, invited the judge to treat the hearing designed to resolve the issue as a preparatory hearing under section 29 of the CPIA.
In the form in which it is presently in force, section 29 provides:
"Where it appears to a judge of the Crown Court that an indictment reveals a case of such complexity, or a case whose trial is likely to be such length, that substantial benefits are likely to accrue from hearing-
(a) before the jury are sworn, and
(b) for any other of the purposes mentioned in subsection (2).
he may order that such a hearing (in this Part referred to as a preparatory hearing) shall be held.
(2) The purposes are those of-
(a) identifying issues which are likely to be material to the verdict of the jury;
(b) assisting their comprehension of any such issues;
(c) expediting the proceedings before the jury;
(d) assisting the judge's management of the trial…."
Section 31 provides so far as material:
"(1) At the preparatory hearing the judge may exercise any of the powers specified in this section…
(3) He may make a ruling as to-
(b) any other question of law relating to the case…"
It was submitted to the judge that this is a case "of such complexity or a case which is likely to be of such length...
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