El-Kurd & Ors, R v

For statutory conspiracy to commit money-laundering offences, the mental element is not imported from the substantive offence. The prosecution must prove knowledge of the illicit origin of identified property, or an intention that future property will be criminal proceeds.

A conviction is unsafe where a jury was directed that suspicion sufficed on that central issue, unless a properly directed jury could only reasonably and properly have convicted. An indictment which misstates that mental element in its particulars is not automatically fatal if the charged offence remains known to law and the particulars can be corrected.

Four appellants were convicted of conspiracies to commit money-laundering offences under earlier legislation. Their earlier appeals had been dismissed before the legal effect of R v Saik [2006] UKHL18 was understood.

The Criminal Cases Review Commission referred the cases after that decision established that suspicion, or reasonable grounds for suspicion, did not supply the mental element for a statutory conspiracy. The appellants contended that their indictments were defective and that the jury directions rendered their convictions unsafe. In two appeals, the Crown sought substituted convictions for substantive money-laundering offences; it also sought retrials if the convictions were quashed.

1. The appeals were allowed. All four convictions were unsafe and were quashed. Retrials were ordered.

2. The court applied the safety test in section 2(1) of the Criminal Appeal Act 1968. It asked whether, with a lawful direction and without the error, the only reasonable and proper verdict would have been guilty. That inquiry preserves the jury’s constitutional role as fact-finder.

3. The court rejected the submission that the defective particulars in the El-Kurd and Rana Singh indictments made the convictions automatically unsafe under R v Graham [1997] 1 Cr. App. R. 302. The statements of offence alleged conspiracies known to law. Removing the references to reasonable suspicion would have produced particulars capable of supporting those offences. The defects were therefore analogous to an imperfect, amendable indictment, rather than an indictment alleging an offence which the pleaded facts could never constitute.

4. Following R v Saik [2006] UKHL18, the court held that statutory conspiracy required knowledge of the illicit origin of property identified when the conspiracy was formed, or an intention that future property would be criminal proceeds. The substantive-offence standard of knowledge or suspicion did not govern the conspiracy charge.

5. The misdirections went to the central factual issue in every trial. The juries had been permitted to convict on suspicion or reasonable grounds for suspicion, and had not determined whether each appellant and at least one co-conspirator had the required knowledge or intention. Despite cogent evidence in several cases, the court could not properly decide that essential issue in place of the jury. The convictions were consequently unsafe.

6. The court refused to substitute substantive convictions for Sakavickas and Reichwald. A conspiracy count does not invariably amount to, or include, an allegation of the substantive offence for section 6(3) of the Criminal Law Act 1967. The first condition for substitution under section 3 of the Criminal Appeal Act 1968 was therefore absent.

7. The interests of justice required retrials. The allegations were serious, the available evidence remained cogent and substantially documentary, and the lapse of time had not made fair trials impossible.

• Court of Appeal (Criminal Division): On references by the Criminal Cases Review Commission, the court allowed the appeals, quashed all convictions as unsafe, refused substitution of substantive convictions, and ordered retrials.
• Earlier Court of Appeal proceedings: Earlier appeals had been dismissed before the change in the understanding of the law: R v El Kurd [2001] Crim. L. R. 234; R v Rana Singh [2003] EWCA Crim 3712; and R v Sakavikas and Reichwald [2004] EWCA Crim.2686.