B22 Offences Relating to the Proceeds of Criminal Conduct

B22.11 Money Laundering Arrangements

The concept of 'suspicion' was examined by the Court of Appeal in Da Silva [2006] EWCA Crim 1654 in the context of an alleged offence under the Criminail Justice Act 1988, s. 93A. Longmore LJ, giving the judgment of the court, said:

In K Ltd v National Westminster Bank plc [2006] EWCA Civ 1039 the civil division of the Court of Appeal appears to have adopted the same approach to the Proceeds of Crime Act 2002, s. 328 as Laddie J in Squirrell Ltd v National Westminster Bank plc [2005] EWHC 664 (Ch). The assumption appears to be that a bank etc which acts for a customer despite suspicions as to whether the customer's property is criminal property will become guilty of a money laundering offence, even if it transpires (as in K Ltd) that it is nothing of the kind. But as in Squirrell Ltd, no reference was made to the decision of the House of Lords in Montila [2005] UKHL 50, in which it was held that a conviction for the somewhat similarly worded offence under the Criminal Justice Act 1988, s. 93C(2), required proof that the property in question was in fact (and was not merely suspected to be) the proceeds of criminal conduct. The House of Lords thought that this interpretation was strongly supported by the absence of any defence where the property in question was later proved to be 'clean'. Given that the 2002 Act similarly contains no such defence, the same argument would seem to apply to s. 328. The point did not arise in Da Silva where the properly in question clearly was criminal property.

D1 Police Powers

D1.20 Detention and Treatment of Suspects

The Police and Criminal Evidence Act 1984 (Code of Practice C and Code of Practice H) Order 2006 (SI 2006 No. 1938) provides for a revised Code C and a new Code H. The new codes may be accessed in full by clicking here. The revised Code C is altered so that persons detained under the Terrorsit Act 2000, s. 41 and sch. 8 are no longer covered by it. Code H covers persons so detained. The provisions of Code H are based on, and closely follow, those of Code C but several material differences apply.

D1.50 Terrorist Investigations

The Terrorism Act 2006 (Commencement No. 2) Order 2006 (SI 2006 No. 1936) brought the remaining provisions of the Act (principally ss. 23 to 25 (detention of terrorist suspects)) into force on 17 July 2006.

D1.62 Formal Caution

The ruling of the Divisional Court in Jones v Whalley [2005] EWHC 931 (Admin) has been reversed by the House of Lords in Jones v Whalley [2006] UKHL 41, on the ground that it would indeed be an abuse of process for a private prosecution to be commenced against a defendant who had agreed to be cautioned by the police on the basis of an express written assurance that, if he did so, "he would not have to go before a criminal court in connection with that matter although a record would be kept of the warning"

Lord Rodger said (at [25]):

It seems to me that allowing private prosecutions to proceed, despite an assurance that the offender would not have to go to court, would tend to undermine not only the non-statutory system of cautions, but also the schemes for cautioning young offenders and adult offenders which Parliament has endorsed in the Crime and Disorder Act 1998 and the Criminal Justice Act 2003. A court is entitled to ensure that its process is not misused in this way.

On the other hand, the Appellate Committee declined to rule on the wider question whether, even in the absence of such an assurance, a caution should still preclude any private prosecution. Hayter v L [1998] 1 WLR 854 suggests not, but without hearing full argument on the issue their lordships declined to resolve it. As Lord Brown admitted (at [36]), this will create difficulty and uncertainty for the police when it comes to explaining the effect of a caution:

The difficulty, of course, in deciding the present appeal on the narrow ground is that, until the wider issue is resolved by further litigation or, preferably perhaps, by legislation, it remains unclear whether, when administering a caution, the police should warn the offenders, as in Hayter v L . . . that the caution "did not preclude an aggrieved party from bringing criminal proceedings or a civil action" or, as here, should assure them of immunity from criminal process. To say nothing about the consequences would obviously be unhelpful. Perhaps the best and safest course would be to give the Hayter warning but in modified terms, stating that a caution may not preclude a private prosecution and will not preclude a civil action.

D6 Bail

D6.10 No Bail for Homicide or Rape if Previous Conviction

The ruling of the Divisional Court in R(O) v Crown Court at Harrow [2003] EWHC 868 (Admin) has been upheld by the House of Lords: R(O) v Crown Court at Harrow [2006] UKHL 42. Lord Brown concluded that the Criminal Justice and Public Order Act 1994, s. 25:

should be construed and applied essentially as a guide to the proper operation of the Bail Act in those cases to which it applies. Additionally in those cases it operates to disapply the ordinary requirement under the 1987 Regulations that bail be granted automatically to anyone whose custody time limit has expired. Thus applied it is compatible with [the ECHR] article 5(3).

In respect of the burden of proof issue that divided the Divisional Court, Lord Brown said:

Whether or not, strictly speaking, section 25 needs to be read down to achieve the agreed result is a question of little moment. I myself, however, have a mild preference for Hooper J's approach. Like him I read the section as placing a burden on the section 25 defendant. He has to rebut a presumption and if he fails to do so is to be denied bail. True it is . . that in the vast majority of cases the court will reach a clear view one way or the other whether the conditions for withholding bail specified by schedule 1 to the Bail Act are satisfied. But just occasionally the court will be left unsure as to whether the defendant should be released on bail - the only situation in which the burden of proof assumes any relevance - and in my judgment bail would then have to be granted. That must be the default position. Section 25 should in my judgment be read down to make that plain.

D8 Disclosure

D8.11 Third Party Disclosure

In R (B) v Stafford Combined Court [2006] EWHC 1645 (Admin) the Divisional Court found it, "quite unacceptable" that a vulnerable 14-year-old schoolgirl (TB), who was a prosecution witness in the impending trial, was brought to court at short notice, without representation or support, to be faced personally with an apparent choice between agreeing to the disclosure of her psychiatric records or delaying a trial which was bound to cause her concern and stress. She was known to have attempted suicide and was the victim of alleged sexual abuse. Medical records, in particular psychiatric records, are confidential between the medical practitioner and the patient. The patient undoubtedly has a right of privacy within the ECHR, Article 8.

By the Criminal Procedure (Attendance of Witnesses) Act 1965, s. 2(7) (see the main text at D13.29) an application for a witness summons has to be made in accordance with the Criminal Procedure Rules. The CrimPR, r. 28 stipulates the form and content of the application and provides that a copy of it and the supporting affidavit should be served on the person to whom it is directed at the same time as it is served on the court officer. The person to whom it is directed may indicate if he wishes to make representations at a hearing. If he does so, the court has to fix a hearing. The original application in the present case requested a summons directed to the relevant NHS Trust to produce TB's medical records.

The Divisional Court noted that this revealed a defect in the existing rules. May LJ said:

Surprisingly the Rules do not require service of an application such as that in the present case on the very person whose confidence would be broken by their production - not least in the present case their production to a defendant who was alleged to have abused TB sexually.

Nevertheless, CrimPR, r. 1 provides that the overriding objective is that criminal cases are dealt with justly. This includes respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case. By r. 1.3, the court must further the overriding objective when it exercises any power given to it by legislation, including the rules, and when it applies any practice direction or interprets any rule or practice direction.

May LJ concluded (at [25]):

Procedural fairness in the light of Article 8 undoubtedly required in the present case that TB should have been given notice of the application for the witness summons, and given the opportunity to make representations before the order was made. Since the rules did not require this of the person applying for the summons, the requirement was on the court as a public authority, not on W, the defendant. TB was not given due notice or that opportunity, so the interference with her rights was not capable of being necessary within Article 8(2). Her rights were infringed and the court acted unlawfully in a way which was incompatible with her Convention Rights.

The reform of r. 28 is currently under consideration by the Rules Committee. In the court's view, the proposals currently put forward might not be adequate to ensure the future protection of claimants such as TB, and may need reconsideration.

D11 Arraignment and Pleas

D11.5 Custody Time Limits: Criteria for Extension

R (Gibson) v Winchester Crown Court [2004] EWHC 361 (Admin) was applied in R (Thomas) v Central Criminal Court [2006] All ER (D) 88 (Jul).

D12 Juries

D12.25 Judge-Only Trial on indictment

The Criminal Justice Act 2003 (Commencement No. 13 and Transitional Provisions) Order 2006 (SI 2006 No. 1835) brings into force, on 24 July 2006, ss. 33(1) (defence disclosure: but only insofar as it inserts s. 5(5C) into the Criminal Procedure and Investigations Act 1996), 44 (jury tampering), 45 (procedure for applications: applications under s. 44 only), 46 (discharge of jury because of jury tampering), 47 (appeals) and 48 (insofar as it applies to s. 44 or 46) and sch. 36, part 4 (minor and consequential amendments).

D13 Trial on Indictment: General Matters and Pre-trial Procedure

D13.15 Preparatory Hearings under the CJA 1987

Gunawardena [1990] 2 All ER 477 was considered in H [2006] All ER (D) 92 (July). In which it was held that an application concerning disclosure was not one of the purposes of a preparatory hearing within the meaning of the Criminal Justice Act 1987, s. 7(1) and that the Court of Appeal accordingly had no jurisdiction to hear an appeal against a ruling on such an application by virtue of s. 9(11).

The court subsequently ([2006] All ER (D) 319 (Jul)) refused leave to appeal to the House of Lords, but certified that three questions of law of general public importance were involved in the decision, namely: (i) whether, for an appeal to lie to the Court of Appeal under the Criminal Justice Act 1987, s. 9(11) from an order or ruling in the course of a preparatory hearing held under s. 7 of the Act, the order or ruling itself had to be for one of the purposes set out in s. 7 of the Act; (ii) if so, whether an order or ruling in determination of an application for disclosure under the Criminal Procedure and Investigations Act 1996, s. 8, fell within one of those purposes; and (iii) in any event, whether an order or ruling in determination of an application for disclosure under s. 8 of the 1996 Act could be the subject of an application under the provisions of s. 9(11) of the 1987 Act.

D17 Trial on Indictment: Retirement of the Jury and Verdict

D17.30 Judge's Discretion as to Alternative Verdict

The Court of Appeal's ruling in Coutts [2005] EWCA Crim 52 has been reversed by the House of Lords: see Coutts [2006] UKHL 39. Lord Bingham said (at [23] - [24]):

Lord Rodger added at [81]:

. . . the duty of the trial judge to direct the jury on manslaughter arises if a jury might reasonably return such a verdict on the whole of the evidence, whether led by the Crown or by the defence. Contrary to what the Court of Appeal said in para 83 of their judgment . . . the duty applies even though the result may be that the jury convict the defendant of manslaughter on a basis which is different from, and inconsistent with, the case put forward by the prosecution. That is a necessary implication of the judge's duty to direct on manslaughter when it arises on all the evidence, even if the prosecution case is that the jury should accept particular elements of the evidence, on the basis of which they should find the defendant guilty of nothing less than murder. The stance of prosecuting counsel cannot be determinative of the range of verdicts fairly open to the jury on the evidence.

D25 Procedure on Appeal to the Court of Appeal

D25.9 Leave to Appeal Out of Time

In Ramzan and others [2006] All ER (D) (July) the Court of Appeal emphasised that, in a case where a conviction was entirely proper under the law as it was understood at the time of trial, leave to appeal out of time should be granted only where substantial injustice would otherwise be done to the defendant. Where the sole or principal point taken by a defendant is that his convictions, though lawful and proper at the time, should now be regarded as unsafe because a new decision has altered everyone's understanding of the law, his application should be referred directly to the full court by the Registrar, so that the merits of it can be investigated, with representation, perhaps on both sides, and a reasoned decision made whether or not there is substantial injustice.

E5 Custodial Sentences for Dangerous Offenders

E5.1 Overview of Provisions

Lang [2005] EWCA Crim 2684 (considered in the December 2005 update) was followed in O'Brien and others [2006] EWCA Crim 1741. The conjoined appeals in this case raised two principal questions, namely:

1. Can a sentence of imprisonment for public protection ("IPP") under the CJA 2003, s. 225(2), be ordered to run consecutively to another sentence of IPP?
2. If a court wishes to order a defendant to serve the remaining period of a previous sentence of imprisonment pursuant to the Powers of Criminal Courts (Sentencing) Act 2003, s. 116, and is also sentencing the defendant to a sentence of IPP, how may that be achieved?

As to the first question, the court confirmed that there is no provision which forbids the imposition of consecutive indeterminate sentences or the imposition of an indeterminate sentence consecutive to another period of imprisonment. The situation has not changed in that respect since Jones [1961] 3 All ER 668. Nevertheless, said Hooper LJ, giving the judgment of the court (at [59]):

We share the view expressed in that case that it is undesirable to impose consecutive indeterminate sentences or order an indeterminate sentence to be served consecutively to another period of imprisonment. Common sense suggests that a sentence of life imprisonment or of IPP starts immediately on its imposition. Given the difficulties that may be encountered already in determining when a prisoner must be released or is eligible for parole, it seems to us to be much easier not to compound those difficulties by making indeterminate sentences consecutive to other sentences or periods in custody.

If, however, the judge wants the period before which the defendant will become eligible for parole to be consecutive to an existing sentence or to follow a period imposed under the Powers of Criminal Courts (Sentencing) Act 2000, s. 116, he may ensure that the sentence includes the balance of the existing sentence or the s. 116 period by increasing the notional determinate term to reflect that balance or that period. The authority for so doing is Haywood [2000] 2 Cr App R (S) 418 (and see also Szczerba [2002] EWCA Crim 440). Hooper LJ explained (at [67] - [68]):

Hooper LJ concluded by adding two further observations (at [69] - [70]):

E25 Notification Requirements under Sexual Offences Act 2003

E25.2 Listed Offences

In Forbes v Secretary of State for the Home Department [2006] EWCA Civ 962, the civil division of the Court of Appeal rejected the appellant's contention that the Sexual Offences Act 2003, s. 81 and sch. 3 were incompatible with the ECHR, Article 8, insofar as they required an offender to submit to notification requirements even in cases involving offences under the Customs and Excise Management Act 1979, s. 170, in which no proof was required to show that the offender either knew or believed he was importing indecent material involving children.

Giving the judgment of the court, Sir Igor Judge P cited with approval the decision of the High Court of Justice in Northern Ireland in In the matter of an application by Kevin Gallagher for Judicial Review [2003] NIQB 26, where Kerr J rejected a submission that the automatic imposition of the notification requirements of the Sexual Offences Act 1997 infringed the applicant's rights under Article 8. Kerr J said in that case:

It is inevitable that a scheme which applies to sex offenders generally will bear more heavily on some individuals than others. But to be viable the scheme must contain general provisions that will be universally applied to all who come within its purview. The proportionality of the reporting requirements must be examined principally in relation to its general effect. The particular impact that it has on individuals must be of secondary importance... The automatic nature of the notification requirements is in my judgment a necessary and reasonable element of the scheme. Its purpose is to ensure that the police are aware of the whereabouts of all serious sex offenders. This knowledge is of obvious assistance in the detection of offenders and the prevention of crime.

F7 Cross-examination and Re-examination

F7.12 Protection of Complainants in Proceedings for Sexual Offences

The right of the defence in a sex case to cross-examine a complainant as to allegedly false complaints made by that complainant on other occasions was considered once again by the Court of Appeal in V [2006] EWCA Crim 1901.

It was clear, said the court, that any cross-examination genuinely directed towards establishing that the complainant had made a previous false complaint about a sexual matter falls outside s. 41 as long as it relates to the alleged lies rather than to the sexual behaviour itself. The defence must however have a proper evidential basis for making such an assertion (see T; H [2002] 1 All ER 683).

The court emphasised that the Criminal Justice Act 2003, s. 100 must be considered, because such an allegation will necessarily amount to evidence of bad character. Cross-examination as to an allegedly false sexual allegation may however require a ruling in relation to the Youth Justice and Criminal Evidence Act, s. 41, as well as leave under the Criminal Justice Act 2003, s. 100.

F16 Exceptions to the Rule against Hearsay

F16.49 Criminal Justice Act 2003: Evidence Affecting the Credibility of Admissible Hearsay

The Criminal Justice Act 2003, s. 124, and its application in cases where witnesses do not testify because of fear or intimidation, was examined by the Court of Appeal in Taylor [2006] All ER (D) 32 (Jul). The court noted that s. 124 enables a judge to strike a fair balance between the interests of the parties in cases where a key witness is not available to testify and submit to cross-examination as to his credibility.

F18 Evidence of Identification

F18.31 Presentation and Evaluation of DNA Evidence

As to the presentation and evaluation of evidence of partial or incomplete DNA profiles, see Bates [2006] EWCA Crim 1395, in which Moore-Bick LJ said (at [30]):

We can see no reason why partial profile DNA evidence should not be admissible provided that the jury are made aware of its inherent limitations and are given a sufficient explanation to enable them to evaluate it. There may be cases where the match probability in relation to all the samples tested is so great that the judge would consider its probative value to be minimal and decide to exclude the evidence in the exercise of his discretion, but this gives rise to no new question of principle and can be left for decision on a case by case basis. However, the fact that there exists in the case of all partial profile evidence the possibility that a "missing" allele might exculpate the accused altogether does not provide sufficient grounds for rejecting such evidence. In many cases there is a possibility (at least in theory) that evidence exists which would assist the accused and perhaps even exculpate him altogether, but that does not provide grounds for excluding relevant evidence that is available and otherwise admissible, though it does make it important to ensure that the jury are given sufficient information to enable them to evaluate that evidence properly.

F19 Inferences from Silence and the Non-disclosure of Evidence

F19.8 Failure to Reveal Facts Afterwards Relied upon in Court

Bowden [1999] 1 WLR 823, [1999] 4 All ER 43 was followed and Hoare [2004] EWCA Crim 784 was considered in Loizou [2006] EWCA Crim 1719.

The appellant who had been arrested with others in connection with an alleged money laundering operation, declined to answer questions during her interviews by customs officers (either immediately following her arrest or when she attended a police station several weeks later); but at trial her defence was that she was a mere interpreter who had known nothing of the criminal activities of the persons she had been arrested with. When giving evidence-in-chief in the course of her trial, she explained that she had 'gone no comment' in accordance with her solicitor's advice and that he had advised her that what was alleged 'did not amount to a criminal charge'.

The prosecution then cross-examined her as to why she had not given her account to the officers when interviewed. She replied that her solicitor had advised her not to say anything because there was no connection which would enable her to be charged with money laundering. Prosecution counsel then asked whether she had told her solicitor any of the account she had given in evidence and, following argument, the trial judge ruled that she had waived her legal professional privilege in the course of her evidence-in-chief, and that the prosecution were accordingly entitled to ask her about the basis of her solicitor's advice, and whether she had told him of all the facts on which she now purported to rely. She replied that she had not.

In his speech to the jury, prosecuting counsel suggested that the appellant had recently fabricated her account, and the judge later directed the jury that it was open to them to draw adverse inferences against her, in accordance with the Criminal Justice and Public Order Act 1994, s. 34.

On appeal, it was submitted that the judge had erred in ruling that the appellant had waived her legal professional privilege during her evidence-in-chief. The Court of Appeal was referred to its earlier decision in Wishart [2005] EWCA Crim 1337 from which two main principles could be discerned, namely,

Hooper LJ, giving the judgment of the court in Loizou, held that on the facts the case could be distinguished from Wishart, but not from Bowden. At [84] he said:

There is a distinction between having to reveal what was said to a solicitor to rebut an allegation of recent fabrication and volunteering information about the legal advice over and above stating that the refusal to answer questions was as a result of receiving such advice. In the former scenario the reason privilege has not been waived is there is no way of dealing with the allegation other than by revealing what was said. In the latter scenario, while the effect may be to enable an allegation of recent fabrication to be made, this is the consequence of the voluntary provision by or on behalf of the defendant of information which because of its partial nature is misleading.

Serious Organised Crime and Police Act 2005 (Commencement No. 7) Order 2006 (SSI 2006 No. 381)

This Order brings into force sch. 15 of the Act (Private Security Industry Act 2001: Scottish extent); sch. 15 has limited application in England and Wales.

Criminal Justice Act 2003 (Commencement No. 13 and Transitional Provisions) Order 2006 (SI 2006 No. 1835)

This Order brings into force on 24 July 2006 ss. 33(1) (defence disclosure: but only insofar as it inserts s. 5(5C) into the Criminal Procedure and Investigations Act 1996), 44 (jury tampering), 45 (procedure for applications: applications under s. 44 only), 46 (discharge of jury because of jury tampering), 47 (appeals) and 48 (insofar as it applies to s. 44 or 46) and sch. 36, part 4 (minor and consequential amendments).

Local Justice Areas (No. 1) Order 2006 (SI 2006 No. 1839)

This Order relates to the reorganisation of local justice areas in Shropshire.

Serious Organised Crime and Police Act 2005 (Commencement No. 7) Order 2006 (SI 2006 No. 1871)

This Order brings into force s. 144 of and sch. 10 to the Act in specified areas. The provisions implemented concern parental compensation orders. It is the second instrument to be so called.

Proscribed Organisations (Name Changes) Order 2006 (SI 2006 No. 1919)

This Order provides that certain names are to be treated as other names for the Kurdistan Workers' Party (Partiya Karkeren Kurdistan)(PKK), namely Kongra Gele Kurdistan and KADEK.

Terrorism Act 2006 (Commencement No. 2) Order 2006 (SI 2006 No. 1936)

This Order brought the remaining provisions of the Act (principally ss. 23 to 25: detention of terrorist suspects) into force on 17 July 2006.

Police and Criminal Evidence Act 1984 (Code of Practice C and Code of Practice H) Order 2006 (SI 2006 No. 1938)

This Order provides for a revised Code C and a new Code H. The new codes may be accessed in full by clicking< href="http://police.homeoffice.gov.uk/news-and-publications/publication/operational-policing/PACECodeCH.pdf" target="_blank">here. Office The revised Code C is altered so that persons detained under the Terrorsit Act 2000, s. 41 and sch. 8 are no longer covered by it. Code H covers persons so detained. The provisions of Code H are based on, and closely follow, those of Code C but several material differences apply.

Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2006 (SI 2006 No. 2016)

This Order provides that certain further organisations will become proscribed organisations for the purposes of the Terrorism Act 2000, sch. 2. The organisations are Al-Ghurabaa, The Saved Sect, the Baluchistan Liberation Army, and Teyrebaz Azadiye Kurdistan.

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