R v Rogers
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy |
| Judgment Date | 01 August 2014 |
| Neutral Citation | [2014] EWCA Crim 1680 |
| Docket Number | Case No: 201303723 C3 201303869 C3 201304369 C3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 01 August 2014 |
[2014] EWCA Crim 1680
Lord Justice Treacy
Mrs Justice Lang
and
His Honour Judge Bevan QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Case No: 201303723 C3
201303725 C3
201303869 C3
201304369 C3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Ipswich Crown Court
HHJ Overbury
T20127147
T20127149
T20127186
T20127214
T20137019
Royal Courts of Justice
Strand, London, WC2A 2LL
M Skelley & M Dance (instructed by Registrar of Criminal Appeals) for Rogers
A Williamson & Miss B Jung (instructed by Registrar of Criminal Appeals) for Samuels
Miss P Mosesson (instructed by Registrar of Criminal Appeals) for Bell
N Lobbenberg QC & Miss D Mootien (instructed by Suffolk Trading Standards) for the Crown
Hearing date: 15th July 2014
On 19 th June 2013 in the Crown Court at Ipswich the appellant, Bradley Rogers, and the applicants, Samuels, French and Bell were convicted of certain offences after a trial lasting over two months. On 12 th July 2013 they were sentenced as follows: Rogers, who had been acquitted of Counts 1 and 2, two conspiracies to defraud, was sentenced on Count 14 to 2 years and 10 months imprisonment for converting criminal property contrary to Section 327(1)(c) of the Proceeds of Crime Act 2002 (" POCA"). Bell, Samuels and French were each convicted of Counts 1 and 2, conspiracy to defraud. Bell was sentenced to 6 years 6 months imprisonment. Samuels to 5 years 6 months imprisonment; and French to 6 years 5 months imprisonment.
Bell, Samuels and French renew applications for leave to appeal against sentence after refusal by the Single Judge. French also renews an application for leave to appeal against conviction after refusal by the Single Judge.
There was a co-accused, Muldoon, who pleaded guilty to Counts 1 and 2 and was sentenced to 7 years and five months.
The allegations involved two advance fee frauds operated by Muldoon as the principal from call centres based in Spain or Turkey, employing British nationals who dealt with calls in respect of debt elimination or escort services. Consumers in the UK who called the centres, having seen websites or advertisements in the national press, were persuaded by staff to pay advance fees on false promises made to them of dates or debt elimination. The staff received commission through a cash card provided by a legitimate UK company. The money was paid into UK accounts of bogus UK companies and used to pay expenses. The profit was transferred to Spain.
As to the escort services fraud, many witnesses were told that they would be paid a fee by the person they dated and that there was lucrative earning potential. They were either asked to pay a fee in advance or were told that there was a date available for them, but they would have to pay a registration fee. Once payment had been made, the date would be cancelled and no further dates were forthcoming. The phone numbers used in the advertisements or websites had the prefixes 0871 or 0845 so the individuals being defrauded had no idea that they were speaking to a call centre based in Spain or Turkey.
The debt elimination fraud involved consumers being cold-called from lists bought from data providers by Muldoon and Bell. The customers were promised that their debts could be written off and bank charges reclaimed in return for a fee. Once again the calls appeared to come from UK, whereas in reality the call centres were based in Spain. The websites gave the false impression that the business operated in the UK and that it was authorised by the Ministry of Justice.
Consumers sent fees generated by the frauds to UK bank accounts which were controlled by a series of UK companies with multiple bank accounts. Overall, about £5.7 million was obtained. Those accounts were controlled from Spain by the use of passwords. The defendants were linked to a number of the companies which had been set up to receive payments from the two frauds.
Turning to the role of individuals. Muldoon was the principal behind both frauds. Rogers, who was acquitted of the conspiracy counts, but convicted of money laundering, was Muldoon's lieutenant in Spain. He is the holder of a UK passport. He received a large amount of money transferred into accounts controlled by him in Spain. Some £715,000.00 was received in small tranches so as to avoid any anti-money laundering provisions. He allowed Muldoon to control one of his accounts from which substantial monies were withdrawn.
Bell was Muldoon's man in the UK, but he was active in Spain, and was consulted by Muldoon. Amongst other things he recruited individuals to act as directors in the bogus companies and used his legitimate business to provide telephone numbers and lines for the two call centres. He was also involved with the Ministry of Justice when investigations commenced with a view to misleading them.
Samuels received funds and distributed money from 2009 onwards. He was also involved in recruitment, used his company bank account to process money, and corresponded with the Ministry of Justice concerning the debt elimination fraud.
French worked as an administrator for Muldoon. She was an accountant. Although based in Spain, she returned to the UK on occasion to carry out tasks for Muldoon in relation to the fraud. She had knowledge of all the bank accounts in the UK and Spain, including login details and passwords. She moved money on Muldoon's instructions and passed on his instructions to others in the conspiracy. She had set up accounts and companies to be used in the fraud and was named as a director for those companies, giving a false address.
She was involved in the deceit of AllPay Limited into providing a payment processing service for use in the fraud. She signed documentation relating to enquiries by the Ministry of Justice, which gave the impression that debt advice work was being carried out in the UK. She kept money transfers below any anti-money laundering levels. Some £274,000.00 was paid on her Capital One card.
At trial the issue for the jury in relation to the conspiracy counts was whether or not the individuals were involved in the fraud or believed that they were involved in a legitimate business. In relation to the money laundering counts, the issue was whether the defendant knew or suspected that he was dealing with criminal property. The conspiracy and money laundering counts were put and left to the jury in the alternative.
We deal first with Rogers' grounds of appeal against conviction.
At the close of the Crown's case a submission of no case to answer was made in relation to Count 10. This was charged as money laundering contrary to Section 327(1) of the Proceeds of Crime Act 2002. The particulars of offence alleged that Rogers:
"Between 23 rd day of October 2007 and 1 st day of September 2010 removed the sum of £715,000.00 being criminal property obtained by fraud from England and Wales by arranging for the said sum to be transferred from the jurisdiction and delivered to his personal bank accounts in Spain."
Reference to Section 327(1) shows that this was an offence contrary to Section 327(1)(e):
"A person commits an offence if he –
…
(e) removes criminal property from England and Wales or from Scotland or from Northern Ireland"
At the close of the Crown's case the submission of no case was made on the basis that there was no evidence that Rogers was in any way involved in removing the money from the jurisdiction. Evidence had emerged in the course of cross-examination of the Crown's financial investigator that whilst vast sums of money were transferred from the UK bank accounts to Spanish ones, including a Caja Mar account in the name of Rogers, anyone with the login details of the bank account could have completed the transfers. Rogers acknowledged that the account was his and that he held the login and password details. He accepted that he had permitted Muldoon to use the account and had provided him with the relevant passwords. The pattern of usage of the account reflected the change when the account became a vehicle for money laundering.
The judge accepted the submission that the evidence did not show that the removal of the money involved Rogers; it was effected by those with control of the various UK company bank accounts, who did not include Rogers in their number. Thus, the judge ruled that Count 10 could not succeed.
The Crown, however, had anticipated this possibility and some three weeks before the submission was made had indicated an intention to apply to amend the indictment in the event that a submission on Count 10 was successful.
The judge permitted an amendment to be made. It took the form of a new count, Count 14, being added to the indictment. The statement of offence was the same as before, but the particulars now alleged that Rogers:
"Between 23 rd day of October 2007 and 1 st day of September 2010 converted the sum of £715,000.00 being criminal property obtained by fraud from England and Wales by permitting the receipt of money into his personal bank accounts in Spain and allowing the subsequent withdrawal of the money."
Reference to Section 327 shows that this amended count was brought under Section 327(1)(c):
"A person commits an offence if he –
…
(c) converts criminal property."
Rogers now appeals against conviction on three grounds.
i) The judge was in error in permitting amendment of the indictment after a successful submission at the close of the prosecution case.
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