R v W (N) and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws |
| Judgment Date | 23 January 2008 |
| Neutral Citation | [2008] EWCA Crim 2 |
| Docket Number | Case No: 2007/02425 D5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 23 January 2008 |
[2008] EWCA Crim 2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BOURNEMOUTH CROWN COURT
His Honour Judge Wiggs
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Mr Justice David Clarke and
Mr Justice Lloyd Jones
Case No: 2007/02425 D5
Mr D A Bartlett for the Crown Prosecution Service
Ms Pamela Radcliffe for NW, Mr Richard Fisher for SW, Mr Malcolm Gibney for RC and Mr Robert Griffiths for CC (instructed by Drew Jones for NW, Birds Solicitors for SW, Sharon Taylor Associates for RC & CC) for the defendants
Hearing dates : 22 November 2007
INTRODUCTORY
This is a prosecutor's appeal pursuant to s.58 of the Criminal Justice Act 2003, brought with leave of the judge below, against a terminating ruling made on 27 April 2007 at the Bournemouth Crown Court. The ruling consisted in the decision of His Honour Judge Wiggs, the trial judge, to accede to a submission of no case to answer advanced on behalf of all four defendants in the trial proceeding before him. The defendants faced an indictment containing 33 counts of what in shorthand may be called money laundering. There were three statutory offences charged. Counts 1, 2 and 11 charged offences of entering into an agreement to acquire, retain, use, or control criminal property contrary to s.328 of the Proceeds of Crime Act 2002 (“ POCA”). Counts 3, 5, 7, 9, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30 and 32 alleged 15 offences of transferring criminal property contrary to s.327 of POCA. Counts 4, 6, 8, 10, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31 and 33 alleged 15 offences of removing criminal property from England and Wales to Jamaica also contrary to s.327. Ss.327 and 328 appear in Part 7 of the Act (cross-headed “Money Laundering”).
The overall period covered by the indictment was 1 July 2003 —3 July 2005, though individual offences were said to have been committed over shorter periods within the overall span.
As we have indicated there were four defendants. The Crown's case was that the prime mover was the defendant NW. Something over £105,000 was transferred out of the UK to Jamaica. The Crown alleged that all of it represented the proceeds of criminal conduct in which NW was involved. The other three defendants were related to or associated with NW. Each of counts 1, 2 and 11 alleged an agreement contrary to s.328 between NW and one of the other defendants, in effect to carry out the transactions charged in the two groups of offences contrary to s.327: first, the transfer of money from NW to the three others, and secondly the removal of the money by those three from the UK to Jamaica.
The total sum said to have been the subject of the arrangements charged at counts 1, 2 and 11 was £105,198. The sum involved in the first set of s.327 charges – transfer by NW to the other 3 – was £32,999: and the sum involved in the second set – removal from the UK to Jamaica – was also £32,999. It was of course the same money. This figure differs from that involved in counts 1, 2 and 11 because the s.327 counts were specimen charges.
In order to bring home any or all of these offences the Crown had to prove that the funds involved constituted “criminal property” within the meaning of POCA s.340, which also defines “criminal conduct” for the purpose of these statutory offences. S.340 provides in part as follows:
“(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 in part and whether directly or indirectly), and
(b) the alleged offender knows or suspects that it constitutes such a benefit.
(4) It is immaterial –
(a) who carried out the conduct;
(b) who benefited from it.
(5) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.”
It will be necessary to consider certain other provisions, contained in Part 5 of POCA, when we come to review the relevant authorities, but it will be convenient to set those out at that stage.
The essence of the issue in this appeal may be put shortly. To establish guilt under s.327 or s.328, must the Crown prove what particular criminal conduct, or at least what type of criminal conduct, has generated the benefit which the alleged criminal property represents? Or is it enough if they can show, no doubt by reference to the large sums involved and the defendants' want of any apparent means of substance (as well as any other relevant evidence), that the money in question can have had no lawful origin – even if they have no evidence of the crime or class of crime involved? The Crown say the latter suffices. In his terminating ruling the learned trial judge held that it did not. He granted leave to appeal on these grounds:
“1 [T]he learned judge erred in ruling at the close of the Crown's case that the defendants had no case to answer because the monies they allegedly transferred to Jamaica could not be criminal property as the prosecution had no evidence of specific criminal conduct, or even a particular type of conduct, on the part of any defendant, so that all the prosecution could say is that those monies had no lawful origin.
2 [T]he learned judge erred in ruling that the circumstances surrounding the origin of the monies transferred created a reverse burden of proof for the defendants to overcome.
There is a real prospect of success in this appeal.
This is an important area of law which needs to be clarified.”
On granting leave to appeal the learned judge made no provision for the appeal to be expedited, and discharged the jury.
THE PROSECUTION EVIDENCE
Since the appeal raises a pure question of law it is unnecessary to canvass the facts to any great extent beyond the bare summary we have already given. The Crown claimed to have evidence tending to prove the arrangements between NW and the others, the transfers from NW to the others, and the removals by the others of the funds to Jamaica. The removals were effected through Western Union or Jamaica National Overseas Ltd. The Crown also claimed to have the names of the recipients in Jamaica. These facts were by no means all agreed or admitted, indeed some were or would be hotly contested; but the Crown say that there was at least enough evidence upon which a reasonable jury might find the facts alleged.
The Crown was also able to establish, or so it claimed, that NW had no visible means of support. He had arrived in the United Kingdom on 3 September 2001. His passport was held by the Immigration Service throughout the period covered by the indictment. The Department of Work and Pensions had no record of benefits paid to him since his arrival in this country and Her Majesty's Revenue and Customs had no trace of any tax records relating to him. SW and RC were in receipt of state benefits throughout the period of the indictment. CC is the daughter of RC and the mother of NW's child. There are no tax records for her, or RC. Over £5,000 cash was found at RC's home on 3 August 2005. There was evidence of very frequent phone calls between the defendants.
All that said, it is clear that the Crown were in no position to prove any particular criminal activity, or type of criminal activity, perpetrated by NW or anyone else.
THE TERMINATING RULING
It is important to appreciate that the submissions of no case to answer with which the learned judge below had to deal fell into two distinct parts. There was first an overarching submission for all the defendants to the effect that the Crown were required to allege and prove at least the type of criminal activity said to constitute the relevant “criminal conduct” within the meaning of POCA s.340(2). Secondly, there was a series of distinct submissions to the effect that in any event there was insufficient evidence, as against each defendant, to justify the case going further. The judge ruled in favour of the defence on the first issue and so did not rule on the second.
This appeal is accordingly limited to the pure question of law which we have already identified, arising out of the judge's ruling on the first issue: must the Crown prove what particular criminal conduct, or at least what type of criminal conduct, has generated the benefit which the alleged criminal property represents? The judge's reasoning concludes as follows (transcript of ruling 14E):
“The difference between this case and the case of IK [to which we shall return in due course] is that in that case there was evidence of dishonest conduct. In this case, all the prosecution can say is that the money has no lawful origin and, in my estimation, that does reverse the burden of proof upon these defendants, and, as that is not a proper way to leave a case to a jury, I decide on the facts of this case on the Crown case as presented to me and presented to this jury that there is no case to answer.”
THE APPELLANT'S ARGUMENT
The appellant's argument is simple enough to state. It is that in order to establish guilt under POCA s.327 or s.328 the Crown must prove that the defendant had dealt with what he knew or suspected was criminal property, that is (see s.340) property which constitutes or represents a person's benefit from conduct which constitutes an offence in any part of the United Kingdom – but that is all: s.340 contains no provision to the effect that property can only be shown to be criminal...
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