Saik v R

A guilty plea obtained after erroneous legal advice should be set aside only where the error goes to the heart of the plea and shows that it was not a genuine, free acknowledgement of guilt. Advice about sentence will rarely meet that standard where the defendant knows that sentence is for the court. Advice about confiscation may be erroneous but remains insufficient if it is peripheral to an otherwise informed admission of guilt.

A person who suspects that property represents criminal proceeds, and realises that its conversion assists another to avoid prosecution, has the mens rea required by section 93C(2) of the Criminal Justice Act 1988. An agreement between persons with that state of mind can constitute statutory conspiracy under the Criminal Law Act 1977.

The appellant pleaded guilty in the Crown Court at Kingston-Upon-Thames to conspiracy to convert criminal proceeds. He admitted that, from about December 2001, he suspected that money exchanged through a bureau de change was the proceeds of crime. He received seven years’ imprisonment.

He appealed against conviction, contending that his plea resulted from erroneous advice about the likely sentence and the protection of his matrimonial home in confiscation proceedings. He also argued that suspicion, rather than knowledge, could not found the alleged statutory conspiracy. He separately sought leave to appeal against sentence on the basis that the judge had not properly reflected the agreed basis of plea.

1. The appeal against conviction was dismissed. The appellant’s plea was a genuine and voluntary acknowledgement of guilt. A plea may be invalidated by erroneous advice only where the error goes to its heart, so that the plea is not free and what follows is a nullity. The decisive question is whether the plea truly admits guilt.

2. The advice concerning sentence did not invalidate the plea. The appellant knew there was no guarantee as to sentence, which remained for the judge and was subject to appeal. Although the advice about confiscation of the matrimonial home was inaccurate, he had repeatedly been told that there was a risk of confiscation. The advice was peripheral to his freely made admission, particularly given the strong evidence and the extended negotiations over the basis of plea.

3. The court rejected the mens rea challenge. Under section 93C(2) of the Criminal Justice Act 1988, a person who suspects property represents criminal proceeds will ordinarily realise both the risk of prosecution for the underlying conduct and that conversion assists in reducing that risk. That state of mind satisfies the substantive offence where the statutory purpose is present.

4. Where two persons agree to convert or transfer property, each knows or suspects it represents criminal proceeds, and each realises the purpose is to assist another to avoid prosecution, they may be guilty of statutory conspiracy. Section 1(2) of the Criminal Law Act 1977 does not require actual knowledge of the ultimate criminality of the property where the defendant knows the facts and circumstances giving rise to suspicion. The guilty plea admitted every ingredient and the agreed basis was not inconsistent with conspiracy.

5. The appeal against sentence was allowed. The judge had to sentence on the accepted basis of plea, which limited the appellant’s period and level of involvement. Seven years was manifestly excessive. That sentence was quashed and replaced by five and a half years’ imprisonment.

• Court of Appeal (Criminal Division): In Saik v R [2004] EWCA Crim 2936, the court dismissed the conviction appeal but allowed the sentence appeal and substituted five and a half years’ imprisonment.
• Crown Court at Kingston-Upon-Thames: The appellant pleaded guilty to conspiracy to launder criminal proceeds and was sentenced by Judge Binning to seven years’ imprisonment.