A, R. v

In a prosecution appeal, an appellate court may reverse a ruling only on the statutory grounds and must not substitute its own assessment merely because it would have reached a different conclusion. The ruling must have been one that the trial judge could not reasonably make.

For proceeds-of-crime charges founded on another person’s conduct, the prosecution must prove that underlying criminal conduct. Large and suspicious payments, and admissions relevant only to a later stage of the alleged transaction, do not by themselves prove that predicate conduct. A statutory presumption of corruption cannot be used outside the class of persons and payments to which it applies.

The prosecution sought leave to appeal rulings made by Judge Price during A’s trial at Southwark Crown Court. A faced charges of concealing, disguising, converting or transferring alleged proceeds of corrupt payments connected with a Nigerian national identity-card project.

The prosecution alleged that payments made to AD were corrupt and that funds then reaching accounts controlled by A were criminal property. The judge refused to admit AD’s written statement because AD could not be cross-examined. He then upheld a submission of no case to answer because there was insufficient evidence that AD had engaged in criminal conduct.

The central issue was whether either ruling was one which the Court of Appeal could reverse under the prosecution-appeal regime.

1. Leave to appeal was granted, but the prosecution appeal was dismissed. The Court held that the judge’s refusal to admit AD’s statement was well within his discretion. AD could not be cross-examined about either the circumstances of the interview or the statement’s contents.
2. The alleged criminal conduct underlying every count was AD’s conduct. Applying Montila [2005] 1 Cr App R 26 (HL), the prosecution had to prove that the property was in fact the proceeds of criminal conduct. Under section 340(2) of the Proceeds of Crime Act 2002, the relevant question was whether AD’s conduct would have constituted an offence in the United Kingdom if it had occurred there.
3. That requirement was not met. There was no direct evidence establishing AD’s criminal conduct after the exclusion of his statement. A’s admissions and the substantial, suspicious payments were relevant to the later question whether A knew or suspected that property was criminal, but they did not prove the prior criminal conduct by AD.
4. The prosecution could not rely on the statutory presumption of corruption at the first stage. Section 2 applied only where a contract-seeker made a payment to a person employed by a government department or public body. AD was not such a person. The Court observed that a presumption might potentially arise at the later stage concerning payments to A, but only after criminal conduct by AD had been proved.
5. Section 67 of the Criminal Justice Act 2003 prevented reversal unless the ruling was legally wrong, involved an error of law or principle, or was unreasonable. No legal error was alleged. The unreasonableness limb required deference to the trial judge’s discretionary assessment and intimate knowledge of the case. Consistently with R v Galbraith 73 Cr App R 124, the judge could assess the strength of the prosecution evidence. His conclusion that the evidence was too tenuous to leave to the jury was reasonably open to him.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 2868, granted the prosecution leave to appeal but dismissed its appeal against both trial rulings.
• Southwark Crown Court: Judge Price refused admission of AD’s written statement on 2 July 2007 and upheld A’s submission of no case to answer on 11 July 2007.