| CRIME — Conspiracy — Laundering proceeds of crime — Defective indictments — Whether misdirections arising from defects causing convictions to be unsafe
R v El-Kurd;
R v Sakavickas and another;
R v Rana Singh: [2007] EWCA Crim 1888
CA: Sir Igor Judge P, Goldring and Beatson JJ: 26 July 2007
Where a judge had misdirected a jury owing to a defect in the indictment and the misdirection went to the heart of the issue between the defendant and the Crown, the conviction would be unsafe even if the indictment could have been amended so that the facts relied on would amount to the offence charged, and even where the case against the defendant was very strong.
The Court of Appeal, Criminal Division, so held when allowing appeals, following references by the Criminal Cases Review Commission, by Ussama El-Kurd, Rolandas Sakavickas, Stephen Howard Reichwald, and Gulbir Rana Singh against their convictions of conspiracy to money-launder.
SIR IGOR JUDGE P said that these four appeals had been referred by the CCRC because although the way the indictments were framed and the directions of the trial judges to juries were perfectly sound at the time, there had been a change in the understanding of the law, as a result of the House of Lords’ decision in R v Saik [2007] 1 AC 18, since the appellants had been convicted. In a number of substantive money laundering offences, including s 49 of the Drug Trafficking Act 1994 and ss 93A-D of the Criminal Justice Act 1988, the mens rea was defined as “knowing or suspecting” or “knowing or having reasonable grounds to suspect” that the money represented the proceeds of the relevant type of crime. However it was decided in R v Saik that, if the charge was a statutory conspiracy to commit the substantive offence, where the money was identified at the inception of the conspiracy the mens rea required was knowledge of its illicit origins; in other cases, it was an intention that the money would be the proceeds of the relevant criminal conduct. In the cases of El-Kurd and Rana Singh the particulars of offence alleged that he “knew or had reasonable grounds to suspect” that the relevant property was the proceeds of crime. The particulars of offence in the case of Sakavickas and Reichwald did not refer to “suspecting” or “reasonable suspicion” and the argument in their case focussed on the way the matter was presented at trial and left to the jury. Firstly, it was argued on behalf of all the appellants that the court was bound by R v Graham [1997] 1 Cr App R 302 to conclude that their convictions were unsafe. Their Lordships did not agree that the scope of the decision in R v Graham was as wide as the appellants argued. The appeals considered in R v Graham were all cases in which, on the facts pleaded in the particulars, there was no offence known to law, or the facts pleaded and relied on could not amount to the offence charged in the statement of offence. The indictments in the cases were not bad but were simply defective and fell into the category of case represented by R v McVitie [1960] 2 QB 483 because with alteration to the particulars the facts relied on would amount to the offence charged. Secondly it was submitted that in all these trials the Crown had set out to prove a lesser intent than it was obliged to and that the consequent misdirections in the summings up were fundamental so that the convictions were unsafe. The issue in each case was whether these appellants had handled the money dishonestly and with the requisite intention. The misdirection was not a discrete matter but went to the heart of the issue between the appellants and the Crown; in the context of dishonesty there was a sharp difference between “knowledge” and “reasonable grounds for suspicion”. The Court of Appeal could not be asked to resolve what was, in these cases, an essential factual issue on the basis of papers without seeing any witness or hearing any evidence and to hold that the jury would inevitably have concluded that the defendant in question and one other had the necessary knowledge or intention. Despite the fact that the Crown’s case against each of these appellants was very strong, their convictions were not safe and had to be quashed. Retrials were ordered in each case.
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