R v Steven William Montila and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker |
| Judgment Date | 03 November 2003 |
| Neutral Citation | [2003] EWCA Crim 3082 |
| Date | 03 November 2003 |
| Docket Number | Case No: 2002/07445/S4 |
| Court | Court of Appeal (Criminal Division) |
[2003] EWCA Crim 3082
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN AT CANTERBURY
(JUDGE VAN der BIJL)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Scott Baker
Mr Justice Jackson and
Mr Justice Hunt
Case No: 2002/07445/S4
David Perry and Andrew Bird (instructed by Solicitor, HM Customs and Excise) for the Appellant
Gibson Grenfell Q.C and David Whittaker for the Respondents
There is before the court a prosecutor's appeal under s.35(1) of the Criminal Procedure and Investigations Act 1996 (the 1996 Act). The background is as follows. There are nine defendants and three indictments. Three of the nine are charged on each indictment. There are substantive counts against each defendant under s.49(2) of the Drug Trafficking Act 1994 (the 1994 Act) and s.93C(2) of the Criminal Justice Act 1988 (the 1988 Act).
The nine defendants are alleged to have used the services of one or another of two bureaux de change in London for the conversion of a total of over £3 million into Dutch guilders in 34 separate transactions.
A preparatory hearing took place on 18 and 19 December 2002 in the Crown Court at Canterbury before Judge Van der Bijl. Its purpose was to resolve a point of law of some importance, namely whether in a prosecution under either of these two subsections it is necessary for the Crown to prove that the property etc being converted was in fact the proceeds of, in the case of the 1994 Act, drug trafficking and, in the case of the 1988 Act, crime. The Judge decided that it is necessary.
The two subsections with which this appeal is concerned create parallel money laundering offences in one instance in relation to the proceeds of drug trafficking and in the other the proceeds of crime. For present purposes the wording of the two subsections is identical.
S.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.
(3) In subsections (1) (a) and (2) (a) above the references to concealing or disguising any property include references to concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it."
S.93C of the Act 1988 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 criminal conduct; or
(b) converts or transfers that property or removes it from the jurisdiction,
for the purpose of avoiding prosecution for an offence to which this Part of this Act applies 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 criminal conduct, 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 an offence to which this Part of this Act applies or the making or enforcement in his case of a confiscation order.
(3) In subsections (1) and (2) above, the references to concealing or disguising any property include references to concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it."
The judge held that under subsection (2) of each section it was necessary that the property was in fact the proceeds of drug trafficking/crime; it was not enough that the defendant thought it was. The prosecution submit that this construction is incorrect and subsections (1) and (2) are drafted differently. Whereas it is plain under subsection (1) that the offence can only be committed where the property is the proceeds of drug trafficking/crime, it is enough under subsection (2) if the defendant thought or had reasonable grounds to suspect that it was.
The jurisdiction issue
There is a preliminary question on jurisdiction. This point was not initially taken by either party; attention was drawn to it by the Registrar. On 14 October 2002 Her Honour Judge Williams ordered that there should be a preparatory hearing. This is what led to the hearing before Judge Van der Bijl two months later. The question is whether Judge Williams had jurisdiction to make the order.
It is desirable to say a brief word about the chronology. On 11 September 2002 there were contested committal proceedings in the Dover Magistrates Court. The construction question, on which Judge Van der Bijl eventually ruled, was raised. On 7 October 2002 the prosecution lodged three bills of indictment and an application for a preparatory hearing (form 5309) at the Crown Court at Canterbury. On 14 October 2002 a preliminary directions hearing was listed for all the defendants. The bills of indictment had not by then been signed.
Judge Williams was told about the point of law and that there was good sense in resolving the point at a preparatory hearing and thereafter, if necessary, by the Court of Appeal. Counsel for the Crown referred to the written application for a preparatory hearing, which the Judge had in front of her, said it was a case that fell within the criteria of the 1996 Act and invited the judge to order a preparatory hearing. All the defendants were represented. The judge was told that none of the defendants' counsel objected and some were positively enthusiastic. It appears to have been common ground that the only issue was that it was a matter for the judge's discretion. But of course, if the judge did not have jurisdiction to make the order, the fact that it was a sensible and practical order to make and that the parties wanted her to do so is neither here nor there.
S.29(1) of the 1996 Act provides as follows:
"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 of such length, that substantial benefits are
likely to accrue from a hearing -
(a) before the jury are sworn, and
(b) for any 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."
The purposes in subsection (2) 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.
The triggering features for a preparatory hearing are length or complexity and it is left subjectively to the judge to decide whether either of these features (or indeed it seems to us a combination of both) is likely to mean that a preparatory hearing will yield substantial benefits. There are no rigid criteria. The test is a flexible one. It is left to the judgment of the judge.
The form 5309 began with this paragraph:
"This is a complex case involving nine defendants who are charged with offences of "money laundering". The accused were committed to the Crown Court on 68 charges arising out of 34 transactions whereby over £3 million cash was converted into Dutch guilders through one or other of two bureaux de change in London."
The case summary used at the committal was annexed. The form went on to say the prosecutor's opinion was that substantial benefits were likely to accrue from a preparatory hearing for the purposes spelt out in subsection (2).
The fact that the judge would be invited to make a ruling on the law was also referred to. No counsel raised any disagreement with anything in the document.
It was common ground before us that the fact the indictments had not been signed was irrelevant to the issue of jurisdiction.
As Mr Perry, for the Crown, pointed out the order in this case was under Part III of the 1996 Act and the present appeal is made under s.35. Any ruling under Part IV cannot be appealed. That is why the route chosen by the Crown in the present case was of particular importance. The issue of law can be definitively resolved in advance of the trial.
The submission of Mr Grenfell Q.C., for the respondents, is that the real reason why the judge was asked to order a preparatory hearing was not because the case was likely to be particularly long or complex, but because it was a good idea to have the point of law resolved. There is no doubt that this was a common desire. However, in our judgment the judge was fully entitled to conclude that the conditions of length and complexity in the section were met and it then became a matter for the exercise of her discretion under the words "may order that……..(a preparatory hearing) shall be held." She was perfectly entitled in...
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