Anwoir & Ors, R. v

For a money-laundering offence, the prosecution may prove that property derives from crime in either of two ways. It may identify one or more specific kinds of conduct and prove that such conduct is unlawful. Alternatively, the circumstances in which the property was handled may support the irresistible inference, to the criminal standard, that it could only have derived from crime.

Where a defendant does not give evidence because of a relevant physical or mental condition, medical evidence bearing on that condition may be necessary for the jury fairly to assess the omission. Excluding such evidence while permitting an adverse-inference direction can make a conviction unsafe.

Four appellants were convicted of money-laundering offences contrary to section 328 of the Proceeds of Crime Act 2002. The prosecution relied on evidence concerning large cash transactions, bureaux de change, false invoices, suspected drug proceeds and VAT fraud.

The general grounds challenged whether the prosecution had to prove the type of crime generating the property and whether transactions were improperly charged under the 2002 Act despite evidence predating its commencement. Two appellants also challenged the adequacy of the summing up.

A further appeal concerned a defendant who did not testify following a stroke. The trial judge revisited an earlier ruling, gave an adverse-inference direction and prevented the jury from hearing medical evidence that it was undesirable for the defendant to give evidence.

1. Disposition. The general grounds concerning proof of criminal property and commencement were dismissed. The challenges to the summing up were rejected. Elmoghrabi’s convictions were quashed because the exclusion of his medical evidence made the verdicts unsafe. The court reserved the question whether to order a new trial.
2. For offences under section 328 of the Proceeds of Crime Act 2002, the prosecution can prove that property derives from crime in two ways. First, it may show that the property derives from one or more identified kinds of conduct and that conduct of those kinds is unlawful. Secondly, the circumstances in which the property is handled may justify the irresistible inference that it can only derive from crime. That inference must satisfy the criminal standard of proof. The approach was consistent with R v Craig [2007] EWCA Crim 2913 and with the properly understood reasoning in R v NW, SW, RC and CC [2008] EWCA Crim 2.
3. The trial direction on criminal property could have provided more assistance. Nevertheless, there was clear evidence from which the jury could infer that the money derived from drugs or VAT fraud. The jury rejected the only innocent explanation. Participation and knowledge were therefore the real issues, and the convictions were not unsafe on this ground.
4. Paragraph 3 of the Proceeds of Crime Act 2002 (Commencement No. 4, Transitional Provisions and Savings) Order 2003 did not prevent separate transactions occurring after 24 February 2003 from being charged under the 2002 Act. Earlier transactions could evidence a conspiracy beginning before commencement without turning the later transactions into a single offence straddling the commencement date.
5. A judge may revisit an earlier ruling under section 35 of the Criminal Justice and Public Order Act 1994. Whether to hold a voir dire when making or revisiting that ruling is a matter for the judge. In Elmoghrabi’s case, however, medical evidence that his condition made it undesirable for him to testify was relevant to the jury’s assessment of his silence. Preventing the jury from hearing that evidence, while allowing an adverse-inference direction, caused unfairness sufficient to make the verdicts unsafe.

1. Court of Appeal (Criminal Division): The court rejected the general challenges to the convictions and the complaints about the summing up. It allowed Elmoghrabi’s appeal and quashed his convictions, reserving the question of a new trial: [2008] EWCA Crim 1354.
2. Trial court: On 16 March 2007 the four appellants were convicted of offences under section 328 of the Proceeds of Crime Act 2002 and received sentences ranging from a suspended two-year term to ten years’ imprisonment. The court and citation are not stated in the judgment.