AG Ref 004/2003 Under S 36 Of Criminal Justice Act 1988 v Suchedina

A conspiracy is complete upon the making of an agreement. Under Criminal Law Act 1977, section 1, an agreement may be to commit one or more offences. An agreement expressed in alternatives therefore encompasses each offence which the conspirators agree may be committed, even if implementation depends on circumstances.

A conviction on a compendious count alleging an agreement to launder proceeds of drug trafficking or criminal conduct consequently established a conspiracy to commit an offence under the Drug Trafficking Act 1994. The statutory condition for confiscation proceedings was met. Although an error of law does not automatically require leave on an Attorney General’s reference, refusal to implement a mandatory confiscation regime will ordinarily justify intervention.

The respondent was convicted at Inner London Crown Court of a single count of conspiracy to convert, transfer or remove property known or suspected to represent the proceeds either of drug trafficking or of criminal conduct. He had been acquitted of separate counts confined respectively to drug-trafficking proceeds and criminal-conduct proceeds.

At a later confiscation hearing, HHJ Philpot held that the composite conviction was not a drug-trafficking offence for the purposes of the Drug Trafficking Act 1994. He therefore declined jurisdiction to make a confiscation order. The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer that ruling as an error of law in sentencing.

The central issue was whether conviction on the alternative conspiracy count satisfied the statutory precondition for confiscation proceedings under the drug-trafficking regime.

1. The Attorney General’s reference was allowed. The court granted leave, quashed the judge’s refusal to make a confiscation order, and directed that confiscation proceedings take place.

2. Section 1 of the Criminal Law Act 1977 makes the agreement the essence of conspiracy. An agreement may contemplate one or more offences. The agreement remains a conspiracy although the contemplated means of implementation are contingent, or although none of the contemplated substantive offences is ultimately committed.

3. The respondent’s conviction on the composite count therefore meant that he was guilty of conspiring to commit offences under both the Drug Trafficking Act 1994 and the Criminal Justice Act 1988. The jury’s acquittals on the two narrower counts did not confine the agreement to either source of proceeds. Their verdict established an agreement to launder money irrespective of its provenance. It necessarily included a conspiracy to commit an offence under the 1994 Act.

4. The definition of drug-trafficking offence in section 1(3) of the 1994 Act and the condition for confiscation under section 2 were accordingly satisfied. The judge had jurisdiction and was wrong to hold otherwise.

5. Section 36 of the Criminal Justice Act 1988 leaves the grant of leave discretionary. A legal error alone does not compel intervention. However, where the error caused the court to omit a statutory step which it was required to take, the Court of Appeal would be unlikely to refuse leave or decline to make the required order. The possible need to allow for double jeopardy did not justify refusal in this case.

• Court of Appeal (Criminal Division) — on the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, quashed the refusal to make a confiscation order, and directed confiscation proceedings: [2004] EWCA Crim 1944.
• Inner London Crown Court — HHJ Philpot convicted the respondent and sentenced him to five years’ imprisonment. At the postponed confiscation hearing, the judge declined jurisdiction to make a confiscation order.