Loizou, R. v

For an offence of transferring criminal property under section 327(1)(d) of the Proceeds of Crime Act 2002, the property must already be criminal property when transferred. A direction is adequate if, read fairly as a whole, it conveys that requirement.

Legal professional privilege is not waived merely by relying on legal advice for a no-comment interview or by asserting that relevant facts were earlier communicated to a solicitor. However, a defendant who voluntarily reveals the content or grounds of the advice waives privilege over the relevant advice transaction. Further questioning may then be permitted where needed to prevent the jury receiving a misleading account of why the defendant remained silent.

Under section 34 of the Criminal Justice and Public Order Act 1994, the material question is whether silence resulted from legal advice or from the absence of a satisfactory answer.

The appellant was convicted at Ipswich Crown Court before HHJ Holt of transferring £87,010 in cash as criminal property, contrary to section 327(1)(d) of the Proceeds of Crime Act 2002.

She appealed on the adequacy of the direction on criminal property, the use of two co-defendants’ guilty pleas to establish that the cash was criminal property, and the treatment of her no-comment police interviews. At trial she had given evidence about her solicitor’s advice and the reason for it. The prosecution was then permitted to ask whether she had given the solicitor the account later given to the jury.

The principal issue was whether that evidence had waived legal professional privilege and whether the ensuing section 34 direction was lawful.

1. Appeal dismissed. The direction on section 327(1)(d) of the Proceeds of Crime Act 2002 was sufficient. Although it could have stated more expressly that the cash had previously become criminal property, the jury were clearly directed that it had to be criminal property at the time of transfer.

2. The co-defendants’ convictions were properly admitted under section 74 of the Police and Criminal Evidence Act 1984. Their guilty pleas admitted the allegation that the cash was criminal property. Section 74(3) treated them as having committed the offence unless the contrary was proved. There was no need, and it would have been wrong, to place their basis of plea before the jury.

3. Legal professional privilege remained a fundamental protection. The court followed the distinction in R v Wishart [2005] EWCA 1337: a bare assertion that a no-comment interview followed legal advice does not waive privilege; nor does an assertion, made to answer an allegation of recent fabrication, that relevant facts had been told to a solicitor.

4. However, applying R v Bowden [1999] 2 Crim. App. Rep. 176, the appellant had gone further. Her evidence disclosed the advice and its reason: the solicitor considered that the allegation did not amount to a money-laundering charge. That voluntary disclosure waived privilege over the relevant advice transaction. The prosecution could therefore ask whether she had given the solicitor the account later advanced at trial. Fairness required the jury not to be left with a potentially misleading, partial account of the factual basis for the advice.

5. The section 34 direction was proper. The jury’s question was whether the appellant’s silence was caused by legal advice genuinely given and accepted, or by the absence of a satisfactory explanation. What she did or did not tell her solicitor was relevant to that inquiry. The judge correctly left the ultimate assessment to the jury and did not suggest that legal advice automatically prevented an adverse inference.

• Court of Appeal (Criminal Division): Appeal dismissed.
• Crown Court at Ipswich: HHJ Holt convicted the appellant of transferring criminal property under section 327(1)(d) of the Proceeds of Crime Act 2002.