Da Silva, R. v

For an offence under section 93A(1)(a) of the Criminal Justice Act 1988, “suspecting” does not import a requirement of reasonable grounds, clear suspicion, or firmly grounded belief. The prosecution must prove that the defendant thought there was a possibility, more than fanciful, that the relevant person had engaged in or benefited from criminal conduct. A vague feeling of unease is insufficient.

A judge may assist a jury with the meaning of an ordinary English word, but a direction that any “inkling” or “fleeting thought” suffices is liable to mislead. A technical misdirection will not render a conviction unsafe where the evidence otherwise establishes guilt.

The appellant was acquitted of jointly obtaining money transfers by deception, but convicted on two counts of entering into arrangements facilitating her husband’s retention or control of proceeds of criminal conduct, contrary to section 93A(1)(a) of the Criminal Justice Act 1988. The prosecution alleged that wages for “ghost workers” had been paid into two bank accounts operated by her.

She appealed from the Crown Court at the Middlesex Guildhall on the direction about “suspecting”. The trial judge used a dictionary definition and told the jury that an inkling or fleeting thought might suffice. The appeal also raised whether section 93A(1)(a) required suspicion to rest on reasonable grounds.

1. The appeal was dismissed. Section 93A(1)(a) of the Criminal Justice Act 1988 did not permit the court to insert a requirement that suspicion be reasonable or held on reasonable grounds. Parliament had used “reasonable grounds to suspect” elsewhere in the same Act. The differing language had to be given effect.
2. In this statutory context, a defendant suspects where the defendant thinks there is a possibility, more than fanciful, that the relevant facts exist. A vague feeling of unease does not suffice. The statutory offence does not, however, require a clear or firmly grounded suspicion, suspicion targeted on specific facts, or reasonable grounds for it.
3. A trial judge could properly assist a jury with the meaning of “suspecting”, even though it is an ordinary English expression. Cozens v Brutus [1973] AC 854 did not prevent such assistance. A dictionary definition could be a sensible starting point where no directly applicable criminal authority existed.
4. The direction that an “inkling” or “fleeting thought” would suffice was liable to mislead because it could encompass a merely vague unease. It was therefore a technical misdirection. In an appropriate case, where the evidence raised it, a jury might also need to consider whether a defendant who initially entertained a relevant suspicion honestly dismissed it after further thought.
5. The error did not create doubt about the safety of these convictions. The Crown had a good prima facie case, the appellant had remained silent in interview, and the account advanced at trial was unsupported apart from her husband’s evidence, which the jury rejected. The convictions on counts 14 and 15 were safe.

• Court of Appeal (Criminal Division) — dismissed the appeal against the convictions on counts 14 and 15 under section 93A(1)(a) of the Criminal Justice Act 1988.
• Crown Court at the Middlesex Guildhall — on 2 March 2005, His Honour Judge Martineau convicted the appellant on counts 14 and 15 and acquitted her on counts 1 to 10.