Case No:
2009/5024/B5
Neutral Citation Number:
[2010] EWCA Crim 97
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT
HHJ Steiger QC
T20080389
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
05/02/2010
Before :
LORD JUSTICE PITCHFORD
MR JUSTICE PENRY-DAVEY
and
THE RECORDER OF LONDON
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Between :
RCPO
Applicant
- and -
C
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr. Raymond Wigglesworth QC and Mr P Dockery
(instructed by
HMRC
) for the
Applicant
Mr. Alistair Webster QC and Mr P Lawton
(instructed by
Pannone LLP
) for the
Respondent
Hearing dates : 26
th
January 2010
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Judgment
LORD JUSTICE PITCHFORD :
1.
On 14
th
September 2009 at Manchester Crown Court the respondent, whom we shall call “C”, faced an indictment containing six counts. The trial Judge, HHJ Steiger QC, upheld an application made on C’s behalf that the indictment should be stayed as to proceed would be an abuse of the process of the Court. This is an application by the prosecution for leave to appeal the Judge’s ruling under
section 58 Criminal Justice Act 2003
and rule 67.4 of the Criminal Procedure Rules.
2.
It is first necessary to consider the background to the prosecution. C is a solicitor and equity partner in a firm of solicitors. At the relevant times he was the firm’s nominated anti-money laundering officer. An effect of that position was that each month the firm’s client account reconciliation reports would be submitted to him for approval. C’s professional obligation was to report to the National Criminal Intelligence Service or other appropriate authority any transactions through the firm’s client account which gave rise to suspicion that the use to which the account was being put was money laundering. No such reports were made by C during the period 2001 to 2004.
3.
The prosecution case is that a client of the firm, Amer Munir, committed a VAT acquisition tax fraud using a company called Talkland Telecom Limited. In November 2001 the company purported to buy and sell £40m pounds worth of mobile telephones. The VAT payable was some £6.5m. No VAT was ever paid.
4.
Munir’s brother-in-law was C’s partner in the firm. C had introduced him. Munir’s sister, Shamaila, was employed as a conveyancing clerk. The prosecution asserts that the firm was used by Munir to launder money fraudulently obtained from the VAT fraud through the firm’s client account for the purpose both of acquiring property and of transferring money between companies in which Munir had an interest. The indictment was framed as follows:
Count 1
is an allegation that, contrary to
section 93A(1)(b)
CJA
1988, between September 2001 and 19 March 2004 C entered into or was concerned in an arrangement by which money fraudulently obtained should be used by Munir to acquire and develop a housing and development site at Botham Hall Road, Huddlesfield.
Count 2
is a similar allegation in respect of a development site at Rappax Road, Hale.
Count 3
is an allegation that, contrary to
section 328 POCA
2002 (the successor to section 39A of the 1988 Act), between 24 February 2003 and 19 March 2004 C enabled Munir to retain control of or to use criminal property by making representations on his behalf to a firm of solicitors, Jens Hill and Company, acting for Vista Assistance SL, a Spanish registered company.
Count 4
is an allegation that, contrary to
section 328
, C enabled Munir to maintain control of or to use criminal property by allowing the firm’s client account to be used to move money to and from accounts held by Danish Electronic and Buss Merton LLP.
Count 5
is a similar allegation that C between 15 December 2003 and 20 December 2003, enabled Munir to maintain or control the use of criminal property by allowing £110,000 to be transferred from the firm’s client account to the credit of Saeed Ahmed at UBS Bank, Switzerland.
Count 6
is a similar allegation that C, between 15 December 2003 and 20 December 2003 enabled Munir to maintain or to control the use of criminal property by allowing £47, 000 to be transferred from the firm’s client account to the credit of Mohammed Munir, Amer Munir’s father.
5.
In any trial of C upon these counts it would be necessary for the prosecution to prove that the sums passing through the firm’s client account were in fact Munir’s proceeds of crime; secondly, that C was concerned in the arrangements or transactions alleged; thirdly, that at the time of the arrangements or transactions in which he was concerned, C knew or suspected that their purpose was to acquire, retain, use or control criminal property by or on behalf of Munir.
6.
In March 2004 Amer Munir was arrested and interviewed. He made no comment to the allegations put to him. He and his wife were tried on a 19 count indictment by HHJ Gee QC and a jury between 23 November 2006 and 21 December 2006. Mr Munir was convicted on six counts and acquitted on five. Formal verdicts of not guilty were entered on three counts at the end of the prosecution case. The jury disagreed on three counts. Mr Munir’s wife was acquitted on all counts in which she was concerned. The effect of these verdicts upon the indictment in C’s case is as follows:
i)
The Munir jury disagreed upon the allegations underlying counts 1 and 2 faced by C.
ii)
The Munir jury convicted Amer Munir in respect of the allegations now reflected against C in counts 4 and 5.
iii)
The Munir jury found Amer Munir not guilty of the criminal conduct in respect of which C is now charged in count 6.
It follows that the prosecution would need to prove Munir’s criminal conduct and Munir’s receipt of criminal proceeds in respect of all counts except that, in the case of counts 4 and 5, the prosecution would be able to rely upon his convictions under
section 74 Police and Criminal Evidence Act 1984
.
7.
C was arrested and interviewed on 29
th
April 2004. He gave full answers to the questions put based upon documentary evidence obtained in the course of the enquiry. The second interview took place on 18 January 2005 following which C was released without charge. No further step was taken in the prosecution of C until January 2008 when he was summonsed for alleged offences of money laundering. Following preliminary proceedings, C’s trial was listed for 20 October 2008. On 10 September 2008 the prosecution served 79 pages of witness statements and 555 pages of exhibits. A week later 30 further pages of witness statements were served together with 3400 pages of exhibits. Although the prosecution subsequently argued that only 40 pages of the additional material were relevant, it was apparent to Mr Webster QC that the defence expert would need to consider all of the documents. It had been noted that contemporaneous documents completed by managers of banks who had dealt with Munir referred to him in terms which recommended him as a client. That material was relevant to the issue whether C himself had been misled by Munir or was complicit in his scheme. An application to vacate the trial date, made on 2 October 2008, was granted and the trial re-listed for 23 March 2009.
8.
On 23
rd
March 2009 the parties appeared before HHJ Steiger QC for trial. A few days before trial the prosecution had served on the defence a request to make formal admissions to the effect that Munir had been convicted at his trial. Surprisingly, the defence team was unaware that Munir had also been acquitted of several charges and the jury had failed to agree on others. The defence argued that they were taken by surprise and it was unfair to C to proceed. The Judge ordered severance of the indictment because the defence were placed at a disadvantage, and that the trial should continue upon count 3 alone. He ruled that notwithstanding severance the prosecution should be entitled to rely upon the evidence which they would have produced to prove the other counts in the original indictment. On the following day the procedural situation was reviewed by the Judge. The prosecution had disclosed transcripts of evidence from the Munir trial which alerted the defence to the possibility that they could challenge the assertion that C’s client account had been used to launder the proceeds of crime. The defence made an application for an adjournment which was successful. The trial was fixed for 14 September 2009. On that day, Mr Webster QC made a successful application to stay the indictment.
9.
Before HHJ Steiger QC the defence application centred upon the period of delay between C’s interviews, concluded in January 2005, and the date of trial, 14 September 2009. In short, the Judge concluded that, contrary to the submissions of Mr Wigglesworth QC on behalf of the prosecution, this was not a trial whose outcome would depend upon the jury’s analysis of documents. The principal issues were (1) C’s knowledge of the purpose behind admitted transactions and (2) whether C knew or suspected that he and his firm were assisting a money laundering exercise.
10.
The first issue for the trial Judge was the date from which time ran for the purposes of the judgement of delay. He was referred to the decision of the House of Lords in
Attorney General’s Reference
No. 2 of 2001
(2003) UKHL 68
. It was contended on behalf of the prosecution that time did not begin to run until the respondent was notified of the intention to prosecute by service of the summonses in January 2008. The respondent submitted that the start date should be taken to be April 2004 or January 2005. The prosecution had made a deliberate decision not to join C in the prosecution of Munir. That decision was confirmed in writing by Mr Wigglesworth QC on 6 October 2006. The Judge concluded at paragraph 16(c) of the note of his ruling that:
“Although there was disagreement at the Bar about when precisely time in the present case should run for the purpose of Article 6, I consider that the relevant moment is when a clear decision has been made to prosecute a defendant who is available to be charged. I therefore see June 2006 as the latest moment to “start the clock” rather than the interview (as Mr Webster suggests) or the summons (according to Mr Wigglesworth)”.
11.
Lord Bingham said at paragraph 27 of his opinion, in
Attorney General’s Reference
2
of 2001
:
“27. As a general rule the relevant period will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him. This formulation gives effect to the Strasbourg jurisprudence but may (it is hoped) prove easier to apply in this Country. In applying it, regard must be had to the purposes of the reasonable time requirement: to ensure that criminal proceedings, once initiated, are prosecuted without undue delay; and to preserve defendants from the trauma of awaiting trial for an inordinate period. The Court of Appeal correctly held…. that the period would ordinarily begin when a defendant is formally charged or served with a summons but it wisely forbore…. to lay down any inflexible rules.”
There is, accordingly, no hard and fast rule as to the assessment of the relevant period for the purposes of Article 6. In
Burns v HM Advocate, Advocate/General for Scotland Intervening
Times Law Reports 26 December 2008, the Privy Council advised that the assessment of the relevant period should be made in such a way as to give effect to article 6.1 if to do otherwise would deprive the accused of its effect. There was, it seems to us, a respectable argument available to the respondent to the effect that where the prosecution deliberately withholds from a suspect the information that they intend to proceed but wish to await the outcome of other proceedings, it would be artificial to judge the period of delay only from the moment when the summons is eventually served and that, in those circumstances, time begins to run from the date of interview. Mr Wigglesworth QC, on behalf of the applicant, was not disposed to challenge the Judge’s decision upon the issue in argument before us since, as he recognised, the real issue was the effect of admitted delay upon the prospects for a fair trial. We do not propose to interfere with the Judge’s assessment that he should examine the period since June 2006.
12.
There was little dispute before the Judge and none before this Court that the prosecution had been guilty of undue delay if only because, while Mr Wigglesworth QC had advised that summonses should be issued immediately following the trial of Munir, no summons was issued until January 2008. It was not disputed that the trial Judge was entitled to examine the whole of the period since June 2006 for the purpose of judging whether delay had been causative of relevant prejudice to the accused.
13.
Mr Wigglesworth QC repeated to us the submissions he had made to the trial Judge to the effect that this was in essence a prosecution upon the documents. In response, Mr Webster emphasised the significance of the oral evidence of witnesses. The oral witnesses fell into four categories. The first comprised the experts. An attempt was made by the expert for the Crown to reconstruct Law Society guidance to practising solicitors as to their responsibilities for reporting suspected money laundering activities. It was no longer possible to be precise since changes had been made on dates which the experts were no longer able to ascertain. Secondly, members and employees of C’s firm would give evidence about the transactions documented. Their recollection of the purpose behind those transactions, as they were understood at the time, was material to C’s defence. In some cases, recollection of the fact and degree of C’s participation was at issue. The third category of witnesses comprised the other professional men, in particular a solicitor in a distant firm who also enabled transactions for which Munir was responsible. Since those transactions were linked to those in respect of which C was charged, his recollection both of the nature of the transactions and of his impression of Munir and his substance would be important. There were, in addition, several bank employees in respect of whom contemporaneous records provided the defence with material for cross examination should they give evidence for the prosecution or be tendered. Lastly, the defendant’s own recollection was in issue. While C had been interviewed at length about the transactions in which he was implicated, he was, or said he was, in several respects, unsure of the detail.
14.
In his conclusions the Judge summarised the principles of law to be applied as follows;
“(a) the persuasive burden in an application to stay proceedings on the grounds of delay rests with the defence and not the prosecution;
(b) The trial should only be stayed if a fair trial is impossible and no other less draconian techniques are available to moderate the unfairness such as severance, exclusion of evidence or directions in summing up;
(c)
[start date for delay]
...;
(d) Cases dependant upon documents rather than recollection are less prone to being stayed.”
No criticism is made of the Judge’s identification of the principles which guided his analysis. The Judge identified knowledge or suspicion that Munir had been engaged in some form of criminal conduct as one of the principal issues for the jury. He continued:
“18. If it is a correct analysis to see the case against [C] as depending in the main on his state of mind the case cannot in my judgement depend wholly on documents since no single document referred to deals conclusively with that topic. Of course, inferences may be drawn from documents if the circumstances merit but this is not a case to my mind where the inference of guilty knowledge is inevitable. Even the apparently incriminating attendance notes following the Jens Hill letter are explicable by Mans Uddin seeking to avoid tax in Spain given the evidence of Mr Main. A further factor which undermines the strength of any document-based inference against [C] is that Munir’s sister worked for Megson Ponsonby from home and her husband was a member of the firm. There were thus at least two other actors within the firm with connections to Munir quite apart from the defendant or any other employee such as Ian Hannam who dealt with conveyancing and with Golbourn who dealt with accounts.
19. I therefore accept the submission of Mr Webster that despite the documents the case really depends on the recollection of individual witnesses about events up to eight years ago and in dealing with the defendant’s knowledge or suspicion such a delay undoubtedly places the defendant at a disadvantage…
23. I recognise that to stay proceedings is an exceptional course but I am persuaded by Mr Webster that a fair trial is not now possible and nothing short of a stay can achieve fairness to the defendant. For these reasons the application succeeds.”
15.
We have been troubled by the absence in the Judge’s ruling of an explanation for his conclusion that the process of trial would not itself have rendered C’s trial fair. There were a number of procedural and evidential steps which the trial Judge could have taken to minimise any disadvantage under which the respondent may have laboured. First, unless the respondent was able to discharge the burden of demonstrating obvious prejudice, the Judge was entitled to reject the application and, if the circumstances warranted, revisit his decision either at the close of the prosecutions case or at the close of all the evidence. As Hooper LJ observed in
Burke
(2005) EWCA Crim 29
at paragraph 32:
“Prior to the start of the case it will often be difficult, if not impossible, to determine whether a defendant can have a fair trial because of the delay coupled with the destruction of documents and the unavailability of witnesses. Issues which might seem very important before the trial may become unimportant or of less importance as a result of developments during the trial, including the evidence of the complaint and other witnesses including the defendant should he choose to give evidence.”
The facts of the present case were very different but the same observation applies. Second, the Judge had wide powers to seek formal admissions from the parties and to admit, in the interests of justice hearsay evidence. Thirdly, the Judge was required to assess the impact of delay upon the issues in the trial upon which he was directing the jury. In a case in which the jury’s judgement of an accused’s state of mind may depend upon an imperfect recollection of events and impressions, he would be required to remind the jury that the burden of establishing guilt rested with the prosecution and that, if they considered it was reasonably possible that the defendant had been placed at a disadvantage upon the issue by reason of the lapse of time and imperfect memory, they should apply the burden and standard of proof to the issue in the defendant’s favour.
16.
We have considered whether the absence of such an analysis from the Judge’s ruling should cause us to interfere. We are conscious that the question for us is not whether any member of the Court would have reached the same decision as the trial Judge but whether his decision could not reasonably have been reached. As Sir Igor Judge, then President of the Queens Bench Division, put it in
Regina v B
(2008) EWCA Crim 1144
:
“No trial Judge should exercise his discretion in a way in which he personally believes may be unreasonable. That is not to say that he will necessarily find every such decision easy. But the mere fact that the Judge could reasonably have reached the opposite conclusion to the one he reached, and that he acknowledges that there were valid arguments that might have caused him to do so, does not begin to provide a basis for a successful appeal….”
HHJ Steiger QC provided, in his ruling, a comprehensive analysis of the prosecution and its background, summarised the position of the parties, accurately stated the principles upon which he should act and explained the basis for his decision. We do not conclude that the absence of the “process of trial” analysis deprives the Judge’s ruling of its essential reasoning. This experienced trial Judge was well aware both of the issue to be considered and the matters relevant to it. We are unwilling to interfere with his conclusion that a fair trial was not possible on the ground that undue delay had created incurable prejudice in an examination of the respondent’s case.
17.
While the Judge was critical of the prosecution’s election to proceed against the accused sequentially, we have read Mr Wigglesworth’s opinion dated 6
th
October 2006, and we are quite satisfied that his advice was, in the context of the time, sustainable. We do not consider that it could be argued that the prosecution had manipulated the process for its own advantage and we note that no such finding was made by the Judge.
18.
We refuse the applicant leave to appeal and verdicts of acquittal will be entered on each count.