Sylvia Allpress and Others v R

JurisdictionEngland & Wales
JudgeLord Justice Toulson
Judgment Date20 January 2009
Neutral Citation[2009] EWCA Crim 8
Docket NumberCase No: 200402882 C5 200506515 B5 200801921 B1 200006003 D2 200103019 D2
CourtCourt of Appeal (Criminal Division)
Date20 January 2009

[2009] EWCA Crim 8

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM WOOLWICH CROWN COURT,

SOUTHWARK CROWN COURT, CARDIFF CROWN COURT

AND BIRMINGHAM CROWN COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Latham (Vp of CACD)

Lord Justice Hughes

Lord Justice Toulson

Mrs Justice Rafferty DBE

and

Mr Justice Maddison

Case No: 200402882 C5 200506515 B5 200801921 B1 200006003 D2 200103019 D2

Between:
Sylvia Allpress
Deborah Symeou
Miguel Casal
Paul Winter Morris
Stephen Martin
Appellants
and
R
Respondent

A Mitchell QC and C Sherrard for the Defence

A Bird and D Connolly for the Prosecution in the case of Allpress

T Owen QC and A Bodnar for the Defence

A Bird and D Connolly for the Prosecution in the case of Symeou

T Owen QC and A Bodnar for the Defence

D Farrell QC for the Prosecution in the case of Casal

A M Shaw QC and P Lawton for the Defence

A Bird for the Prosecution in the case of Morris

Z Ali and N Rimmer for the Defence

D Aubrey QC and R Griffiths for the Prosecution in the case of Martin

Hearing dates: 25 November 2008

Lord Justice Toulson
1

In May [2008] UKHL 28, Jennings [2008] UKHL 29 and Green [2008] UKHL 30 the House of Lords considered a number of questions about the law relating to the confiscation of criminal assets.

2

In May the order under appeal was a confiscation order made under the Criminal Justice Act 1988 as amended (" CJA 1988") against an offender who had been involved in a conspiracy to cheat HM Customs and Excise of VAT through a "missing trader" scheme, from which he and other conspirators benefited jointly. It was held to be immaterial in assessing the value of his benefit how much remained to the offender by way of net profit after deduction of expenses or any amounts payable to other conspirators. As a joint beneficiary, the benefit was as much his in law as if he had been a sole beneficiary.

3

In Jennings a restraint order was made under the Criminal Justice Act 1988 against a defendant charged with a conspiracy to carry out an advance fee fraud. Before the case reached the House of Lords, the defendant was convicted. The fraud was carried out through a limited company of which the defendant was an employee. His appeal against the making of the order was dismissed, but the central issue argued before the House of Lords was how the benefit obtained by the defendant was to be assessed. The prosecution's case was that he should be treated as obtaining a benefit equal to the total amount of the monies obtained by the fraud, the greater part of which had gone through the company's books. The House of Lords rejected that approach as too broad and gave guidance to the court on how it should determine what benefit had been obtained by the defendant when it came to hearing the confiscation application (which had been adjourned pending the appeal to the House of Lords).

4

In Green the House of Lords considered the following question:

"Where any payment or other award in connection with drug trafficking is received jointly by two or more persons acting as principals to a drug trafficking offence as defined in section 1(3) of the Drug Trafficking Act 1994, does the value of each person's proceeds of drug trafficking within the meaning of section 4(1)(b) of that Act include the whole of the value of such payment or award?"

5

The Court of Appeal had answered the question in the affirmative and the House of Lords upheld that decision.

6

The opinion of the judicial committee in May contained (as stated in paragraph 2 of its report) a broad overview of the legislative schemes in force from time to time and a review of a number of the leading authorities. That review included a comparison of the language of CJA 1988, the Drug Trafficking Act 1994 ("DTA 1994") and the Proceeds of Crime Act 2002 (" POCA 2002").

7

The confiscation provisions of DTA 1994 applied, as the title of the Act would suggest, to cases of drug trafficking. The confiscation provisions of CJA 1998 applied to crimes other than drug trafficking. POCA 2002 brought the two jurisdictions together in a single statute. In paragraph 8 of May the judicial committee observed that despite much refinement and differences between the confiscatory provisions of statutes passed in 1986, 1988, 1993, 1994 and 1995, their essential structure was the same. The court is required, before making a confiscation order, to address and answer three questions:

"1. Has the defendant (D) benefited from the relevant criminal conduct?

2. If so, what is the value of the benefit D has so obtained?

3. What sum is recoverable from D?"

8

None of the cases before the House of Lords involved money laundering (although some of the cases reviewed in the course of the opinion in May did), and the judicial committee concluded its opinion in May with the caveat that the position of a money launderer might be different from that of a mere courier or custodian of tangible property who was rewarded by a fee and had no interest in the property or proceeds of sale.

9

The present appeals all arise from confiscation orders made against defendants who had varying degrees of involvement in the safeguarding or transfer of funds which represented proceeds of crime. They have been listed together in order for the court to consider the application of the confiscation legislation to such cases in the light of the recent judgments of the House of Lords.

Summary of the appeals

10

We begin with a brief summary of the facts of the different cases.

11

Sylvia Allpress pleaded guilty on 7 February 2000 at Woolwich Crown Court to assisting another to retain the benefit of drug trafficking, contrary to s50(1)(a) of DTA 1994. On 15 September 2000 she was made the subject of a confiscation order under that Act in the sum of £154,301.99.

12

A man called Michael was involved with others in smuggling cocaine and cannabis into the UK on a large scale. A substantial part of the proceeds would be sent to Spain, France or Holland to purchase further drug supplies. Allpress acted as a courier for Michael on two occasions. She made trips to Paris on 7 and 17 April 1998. A ledger kept by Michael showed that the amount carried by her on the first occasion was 350,000 French francs, 80,000 Swiss francs and £10,000, amounting to a total sterling value of £78,105. It was assumed on the evidence that the amount carried by her on the second occasion was similar. On each occasion the money was handed to Allpress by another accomplice of Michael, who also travelled to Paris at the same time but on a different flight, and was returned by Allpress to that accomplice in Paris. Allpress believed that the money which she was carrying came from trafficking cannabis but she did not know the exact amount. On each occasion she was paid £800 for herself plus her expenses.

13

It was accepted on behalf of Allpress that she benefited in the sum of £3,600 by way of payments and costs, but the prosecution submitted and the judge found that she benefited additionally in the sum of £156,210 representing the sterling value of the money which she carried as a courier. The appeal is against that finding.

14

Deborah Symeou also acted as a courier for Michael. Between January 1997 and April 1998 Symeou made eight or nine trips to Paris on behalf of Michael to deliver parcels of cash with a total value of £1,017,752.13. On 4 September 2000 at Woolwich Crown Court she pleaded guilty to assisting another to retain the benefit of criminal conduct, contrary to s93A of CJA 1988. The basis for her plea was that she believed that the money she was transporting came from prostitution. Like Allpress, she was paid £800 per trip plus expenses.

15

On 4 May 2001 a confiscation order was made against her in the sum of £154,301.99, representing her realisable assets. It was accepted on her behalf that she had benefited in the total sum of £8,803.20 by way of payment for and the cost of the trips. The prosecution submitted and the judge found that she benefited additionally in the sum of £1,017,752.13 representing the total sums of currency carried by her as a courier. She appeals against that finding.

16

Miguel Casal pleaded guilty on 23 May 2005 at Southwark Crown Court to assisting another to retain the benefit of drug trafficking contrary to s50(1)(a) of DTA 1994. The background was that a number of conspirators (not including Casal) were involved in a multi-million pound drug smuggling operation in which cocaine was imported to the UK from Columbia for sale here and the profits were sent back to Columbia. One of the conspirators, named Carranza-Reyes, was Casal's brother-in-law. At the instigation of Carranza-Reyes, premises were bought in the name of Casal at 770–772 Holloway Road and run as a Columbian Café under the name "La Gran Columbia". Casal did not provide the purchase money. Above the café Carranza-Reyes ran a money transfer business, sending parcels of cash to Columbia via a money transfer broker, TTT Money Corp. Bogus paperwork was prepared by Carranza-Reyes to give the appearance of legitimacy to the money transfers.

17

Casal pleaded guilty on the written basis that his role in relation to the money transfers was limited to physically taking parcels of cash from the La Gran Columbia to TTT Money Corp. Casal was a director of the money transfer business run by Carranza-Reyes, but it was his case that he did not in fact exercise any managerial control over the business.

18

In the confiscation proceedings there was a schedule of agreed facts. The schedule recorded the fact that Casal agreed to act as a director for the money...

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32 cases
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1 books & journal articles
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