Weekly Digest: 3 February 2020

The appellant had been convicted of conspiracy to fraudulently evade the prohibition on the importation of a controlled drug of Class A and of two further charges of conspiracy to supply a controlled drug of Class A to another. The conspiracies related to the importation from Belgium into the United Kingdom of large quantities of Class A drugs (heroin and cocaine) and their onward distribution. The issue for the jury was whether the appellant was involved in the conspiracies to import and thereafter supply Class A drugs. The prosecution relied on the fact that the appellant had worked at the facility where the drugs were received and forwarded on, his close association with the lead conspirator (who had also bought him a phone and given him a key to the facility) and that he had been convicted in Belgium in 2011 of an offence of possession of cocaine and cannabis, and that on arrest he was found to be in possession of two small amounts of amphetamine. The appellant appealed against his conviction on a single ground: that the judge erred in summing up the case to the jury in that he failed sufficiently to remind the jury of the appellant’s evidence in relation to his previous conviction in Belgium (namely that the conviction related to drugs found in a holdall in his van, and that he had not known that the holdall had contained drugs).

The Court of Appeal dismissed the appellant’s appeal. The appellant submitted that that the underlying basis of the Crown’s application to adduce the evidence of the Belgian conviction was to show that the appellant had a propensity to commit offences of the kind with which he was now charged. The appellant’s case is that this propensity simply could not be established if, on the balance of probabilities, the jury accepted that the appellant did not, in fact, know of the existence of the drugs in the holdalls in the van, regardless of whether that would constitute a defence for the purpose of Belgian law ([30]). The fundamental complaint is that in his summing-up the judge made no reference at all to this aspect of the appellant’s evidence ([31]).

The fundamental difficulty with this appeal lies in the terms of section 74(3) of the Police and Criminal Evidence Act 1984. That provision makes it clear that the fact of a conviction, either in the UK or in another EU Member State such as Belgium, is, without more, proof of the fact that someone did commit the offence of which they were convicted. It is not conclusive; but a presumption is created. The burden of proof then lies on the defence to prove, on the balance of probabilities, that the offence was not, in fact, committed ([41]). The reality on the facts of the present case is that the appellant did not, in fact, challenge his guilt at all ([42]), further he had been represented by counsel who did not ask for any direction to be given about section 74(3) of the 1984 Act, or for the standard directions on bad character to be modified, nor ask the judge to expand on what he had said in summing up the evidence prior to the retirement of the jury ([43]). The judge was entitled to summarise the evidence in the concise way he did, he had fairly put the issues before the jury and summed the case up to them in a balanced way ([43]). Finally, there was, in any event, a great deal of other evidence which pointed to the appellant’s guilt, and regardless the conviction would have been safe ([44]).

The appellants had been convicted of entering into or becoming concerned in a money laundering arrangement, contrary to section 328 of the Proceeds of Crime Act 2002. The allegation was that the appellants had run a money laundering business to launder “dirty” money. There was no direct evidence that the money was criminal property. The prosecution relied on circumstantial evidence, including the way in which the money was handled by the defendants (which included being found in possession of large amounts of cash); the creation of false customer transfer records; and the use of false passports to open associated bank accounts. On the best figures available, during one period between 1st May and 22nd June 2014 the business was responsible for the transfer of in excess of £3.3 million.

There are two ways in which the Crown can prove that property is derived from crime: first, that it derived from conduct of a specific kind or kinds and that conduct of that kind or those kinds was unlawful; or, secondly, the evidence of the circumstances in which the property was handled were such as to give rise to the irresistible inference that it could only be derived from crime – R v Anwoir and Others [2008] EWCA Crim 1354 ([40]). In R v Anwar [2013] EWCA Crim 1865 the Court of Appeal had held that in response to a jury note asking if tax evasion was criminal conduct it had been inappropriate for the judge to say that “tax evasion is a criminal offence in the United Kingdom, so that that is the long and short of it”, and that the judge ought to have told the jury that tax evasion was not part of the prosecution’s case or give the jury some legal instruction on the elements of the offence ([42] to [44]). However, Anwar must be placed in its particular factual context, which was that there had been raised during the course of the evidence the possibility in the jury’s mind that gold originating in Pakistan might not have been declared to HMRC and there might not have been the proper duty or VAT paid on it. Similar facts are absent from this case and accordingly the judge had been entitled to distinguish Anwar and when asked by a jury note if criminal property could come from tax evasion or tax avoidance to direct “There is no direct evidence of any particular crime, including tax fraud, being committed. Question 2 of your Route to Verdict depends upon whether there is an irresistible inference, so that you are sure, that some of the monies were the benefit of another person’s crime, whether tax fraud or another crime” ([31], [33], [50]).

No R v Brown (1984) 79 Cr App R 115 direction was required or appropriate in the present case ([57]). It is clear from the way in which the judge directed the jury and from the issues which were live ones at the trial that this was not an indictment which required the jury to be satisfied that any particular money was criminal property. Indeed it was precisely because they could not prove that any particular item of money was derived from crime that the prosecution relied on the second limb of Anwoir, namely that there was an irresistible inference that it could only have been derived from crime ([59]). The appeals against conviction would be dismissed.

Following an appeal against an order of a District Judge that Chawla be discharged pursuant to section 87 of the Extradition Act 2003 as his extradition to India would not be compatible with his rights under Article 3 of the European Convention on Human Right, the Government of India had provided the Divisional Court with assurances which were sufficient to show that there would be no real risk that Chawla would be subject to treatment contrary to Article 3 in the prisons where he would be detained if extradited. The Divisional Court had accordingly allowed the appeal under section 106(1)(a) and (6) of the 2003 Act and remitted the matter to the District Judge, directing that the judge proceed as if she had not ordered the applicant’s discharge. The District Judge complied with that direction and sent the case to the Secretary of State for him to consider whether to extradite the applicant to India. The applicant then sought permission to appeal pursuant to section 103 of the 2003 Act. The applicant wished to contend that new evidence showed that extradition would expose him to a risk of being subjected to treatment contrary to Article 3 ECHR because of the prison conditions in India and that the third assurance could not be relied upon to remove that risk.

Permission to appeal was refused. In allowing the appeal the Divisional Court had proceeded under section 106(6) of the 2003 Act and had directed the District Judge to proceed as she would have been required to do if she had decided the question of compatibility of extradition with Article 3 ECHR differently. The District Judge did not, and was not required to, decide the question of the compatibility of extradition with Article 3 ECHR herself ([38]). Section 103(1) of the 2003 Act provides that if the District Judge sends the case to the Secretary of State for his decision on whether to extradite the person, the person may appeal against “the relevant decision”. That is defined in section 103(3) as “the decision that resulted in the case being sent to the Secretary of State” ([39]). Here, the relevant decision was therefore that of the Divisional Court, not the District Judge. The act of sending the case to the Secretary of State pursuant to a direction made under section 106(1)(a) and (6) of the 2003 Act does not itself generate the possibility of an application for permission to appeal ([40]). The appropriate mechanism for challenging a decision of the High Court in such circumstances is by way of an application to re-open the determination under rule 50.27 of the Criminal Procedure Rules not by means of an application for permission to appeal under section 103 of the 2003 Act ([41]). None of the evidence on which the applicant relied suggests that there is any real risk of injustice, nor to show exceptional circumstances justifying re-opening the determination. Indeed, the material does not even demonstrate reasonably arguable grounds for contending that there would be a real risk of ill-treatment contrary to Article 3 ECHR ([51]). The suggestion that there is a real risk that the police would seek to rely on evidence obtained by torture is speculative in the extreme ([53]).

Obiter dicta: Even if there was jurisdiction to appeal it would not be appropriate to grant leave to appeal unless there was a proper basis for considering that the decision of the High Court should be re-considered. Assuming, therefore, that the High Court has jurisdiction to entertain an appeal in such cases, leave ought only to be granted where it is necessary to do so to avoid real injustice in exceptional circumstances ([45]).

The defendant was convicted of one charge of failing to comply, without reasonable excuse, with a requirement of a notice issued under section 2 of the Criminal Justice Act 1987, contrary to section 2(13) of that Act. The defendant was the daughter of a suspect in the Serious Fraud Office’s (“SFO”) investigation into Eurasian Natural Resources Corp (“ENRC”). The notice had required her to disclose specified records from 1 January 2008 to November 2018. The defendant argued the prosecution was an abuse of process on the grounds that the prosecution was brought for an ulterior and improper motive, namely that the SFO had become determined to obtain a conviction against the defendant because of her father’s connections to ENRC and because ENRC had brought substantial civil proceedings against the SFO. She also argued that she had a reasonable excuse for failure to comply.

The District Judge held that he was not satisfied that the prosecution amounted to an abuse of process and did not find that there was any evidence of either actual or apparent bias and/or that there was any evidence that the prosecution has been brought for or continued for any ulterior purpose or motive ([56]). Neither was the launch or continuation of the proceedings oppressive ([57]). The SFO was perfectly entitled to investigate suspected criminal conduct, and to appropriately use section 2 notices to advance such investigations ([58]).

It was not for the defendant, through her lawyer, to seek to limit the period of time over which documents were sought, and to disclose only material between 1 Janury 2008 and 31 December 2012 on the grounds that that was the period in relation to which the SFO was investigating ENRC ([76] and [77]). This was especially so given that it was made clear to the defendant’s lawyer that the wider period was required, and why that was so ([77]). It would have been apparent that there was a serious prospect of prosecution for non-compliance by reason of any decision taken to restrict the period ([78]). The defendant did not have a reasonable excuse for failure to comply ([91]).

The Court of Appeal has ruled, in a judgment not yet available, that a defendant can be guilty of an offence of voyeurism by filming a sex act in which he is a participant when the other participant does not consent to that filming.

The full piece can be read here.

Angus McCullough QC has called on the Government to conduct the review of Closed Procedures that section 13 of the Justice and Security Act 2013 required to take place as soon as reasonably practicable after June 2018.

The full piece can be read here.

Key corporate witnesses at the public inquiry into the Grenfell Tower disaster have asked for immunity from prosecution for themselves and their employers over any evidence they give.

The full piece can be read here.