R v Ramzan
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HUGHES |
| Judgment Date | 21 July 2006 |
| Neutral Citation | [2006] EWCA Crim 1974 |
| Docket Number | No: 200204128 C4 and others |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 July 2006 |
[2006] EWCA Crim 1974
Lord Justice Hughes
Mr Justice Field
Sir Richard Curtis
No: 200204128 C4 and others
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
MR W CLEGG QC AND MR I E BRIDGE appeared on behalf of RAMZAN
MR D KELLY appeared on behalf of CARR
MR N MERCER appeared on behalf of SYED
MR J GOLDBERG AND MR G GRANT appeared on behalf of ISRAEL
MR S KIVDEH appeared on behalf of VAKILIPOUR
MR O SELLS QC, MR D WALBANK AND MR M EVANS appeared on behalf of the Crown
We have before us a number of appeals and applications by Defendants who were convicted of conspiracy to commit money laundering offences before the decision of the House of Lords in R v Saik [2006] UKHL 18; 2 WLR 993 and before the substantive offences of money laundering were altered by the Proceeds of Crime Act 2002. We have heard them together because some, though by no means all, of the questions raised are common to several Defendants.
The legal history
Money laundering offences have existed in English law since the Drug Trafficking Offences Act 1986. Putting to one side offences against the Prevention of Terrorism (Temporary Provisions) Act 1989, or the Terrorism Act 2000, with which we are not concerned, there existed prior to the enactment of the Proceeds of Crime Act 2002 two distinct groups of money laundering offences. Where the money was the proceeds of drug trafficking, they were contained in sections 49–53 of the Drug Trafficking Act 1994 and derived either from the Drug Trafficking Offences Act 1986 or, in one case, from the Criminal Justice (International Co-operation) Act 1990. Where the money was the proceeds of other criminal conduct, they were contained in sections 93A-D of the Criminal Justice Act 1988 and had thus come into existence two years later. In most, although not every, respect, the two groups of offences were in similar terms. They did not, however, overlap; the illicit sources of the proceeds were in each case exclusive of the other. It is only since the enactment of the Proceeds of Crime Act, which takes effect from 24th February 2003, that a single group of money laundering offences has existed relating to all criminal property except for any alleged to relate to terrorism.
All the Defendants with whom we are concerned were convicted of conspiracy to commit such offences. Charges of conspiracy were commonly preferred, prior to Saik, for a number of understandable reasons, even where it was the Crown's case that there had not simply been a conspiracy but that it had been carried out by the commission of substantive offences of money laundering. One reason was that it was often, perhaps usually, the case that there was a system in operation, with repetitive transactions of a similar kind, and one conspiracy charge was regarded as simpler and more representative of the overall criminality alleged than a number of substantive counts would have been.
Some such conspiracy counts charged agreements to commit offences against one only of the two relevant Acts of Parliament. We shall refer to them as "single Act conspiracy counts".
In some cases, the Crown charged a conspiracy to launder money in terms which alleged that the agreement had been to launder money which was either the proceeds of drug trafficking or the proceeds of other criminal conduct. Such counts were held to be lawful in Hussain and Bhatti [2002] EWCA Crim 6; 2 Cr.App.R 26. We shall refer to them for convenience as "either/or conspiracy counts". Such counts were of obvious utility if the Crown case was that the money came from mixed illicit sources, some drugs, some other criminal conduct. They were also of value to the Crown when it was uncertain which the source was, but it was contended that it could properly be inferred that it must be one or the other.
The two statutes define the mens rea for the various money laundering offences in terms which vary somewhat from offence to offence. In several cases, however, it is defined as being knowledge or suspicion, or in some cases knowledge or reasonable grounds for suspicion, that the money represents the proceeds of the relevant type of crime. In Saik, the House of Lords has held that on proper interpretation, the sections which refer to reasonable grounds for suspicion import the necessity that actual suspicion by the Defendant must be proved. So for the commission of many of these substantive offences, suspicion that the money represents the proceeds of the relevant type of crime is sufficient mens rea to establish the offence; knowledge that the money is illicit need not be proved.
It was established by the House of Lords in Montila [2004] UKHL 50; 1 WLR 3141 that although that is the mens rea, the actus reus of the offence is to launder money which is in fact the proceeds of the relevant type of crime. That means that the Crown must prove in all such cases that the money was in fact such proceeds. That had not universally previously been appreciated.
Until the decisions of this Court in Liaquat Ali [2005] EWCA Crim 87; [2006] QB 322 and of the House of Lords in Saik, it was generally believed that the mens rea of conspiracy to launder money followed that of the substantive offences, so that proof of suspicion of illicit origin sufficed for conspiracy where it was enough for the substantive offence. That had been held to be the case in Sakavickas [2004] EWCA Crim 2686; [2005] 1 WLR 857.
In Saik the House of Lords held that this was not so, upholding the earlier decision of this Court to similar effect in Liaquat Ali. The illicit source of the money is a "fact or circumstance necessary for the commission of the offence" for the purposes of the rule as to mens rea in conspiracy contained in s.1(2) Criminal Law Act 1977. Because of the operation of s.1(2), a conspiracy requires proof that the Defendant intended or knew that that fact or circumstance would or did exist. That means that if the money was already identified when the conspiracy was formed, the Defendant must be proved to have known of its relevant illicit origins, or, if no money was yet identified, he must be proved to have intended that the money should be of such illicit origin. Thus, as with other offences, the mens rea for conspiracy is greater than for the substantive offence.
The substantive offences.
Among the most frequently charged of the money laundering offences are those created by s.49(2) Drugs Trafficking Act 1994 and its counterpart in s.93C(2) Criminal Justice Act 1988. They are in identical terms except as to the source of the money. They are the substantive offences relevant to all these present cases. S.49(2) provides:
"(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."
It is to be noted that the offence requires in addition to the mens rea discussed above, that the actus reus be done with the purpose of assisting someone to avoid prosecution or confiscation. We shall refer to this additional requirement as "the criminal purpose".
The issues in the present cases
The present cases are all ones in which one or more conspiracy was charged. They took place before the decision in Saik. The particulars of the conspiracy offences alleged agreement to commit acts of money laundering within either s.49(2) Drug Trafficking Act or s.93C(2) Criminal Justice Act:
" … knowing or having reasonable grounds to suspect that … [the money] represented another person's proceeds of [illicit conduct]."
All were cases in which the Crown did not allege mere agreement, but a course of conduct of repetitive money-handling transactions which were advanced as the overt acts carrying out the conspiracy and from which the jury was invited to infer agreement. In every case virtually all the money-handling events were agreed to have taken place. Either the source of the money was admitted to be illicit or the Judge directed the jury that it must be sure it was. The real issue in each case was confined to the Defendant's state of mind, he in each case contending that he handled the money wholly innocently. Where there were trials, the Judges directed the jury that proof of either knowledge or suspicion as to illicit origin must be proved, thus that suspicion was sufficient. In one case a Defendant pleaded guilty on the basis that he had merely suspected illicit origins.
The issues which now arise in these cases are these:
A. Was the law misapplied in treating proof of suspicion as sufficient mens rea for the offence of conspiracy to launder money?
B. Are the convictions nevertheless safe because the jury was directed that it must be proved that the Defendant must have the purpose of assisting another to avoid prosecution or confiscation, and must have found that he had, whilst the Defendant pleading guilty necessarily admitted by his plea that he had such a purpose?
C. Where the only point raised is the Saik point, and a Defendant seeks an extension of time to appeal against conviction, should such extension be granted?
D. If any conviction for conspiracy is unsafe, is it a proper case in which to substitute a...
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