F & Anor, R v

The Crown may prove that property derives from crime either by proving specified unlawful conduct or by evidence of handling circumstances which permit the irresistible inference that the property can only derive from crime. The latter route does not require the Crown to identify the particular class or type of underlying criminality.

Where there is sufficient circumstantial material, the issue for the jury is whether the property is criminal property. The jury need not agree on the particular criminal conduct which generated it. This approach causes no procedural unfairness merely because the prosecution cannot identify that conduct.

The Revenue and Customs Prosecution Office appealed a terminating ruling made by HHJ Katkhuda in the Crown Court at Isleworth. The respondents had been charged with a money-laundering arrangement and transfer of criminal property under the Proceeds of Crime Act 2002, and with an attempted removal offence.

Customs officers found £1,184,670 in the respondents’ checked baggage as they prepared to fly to Iran. The prosecution alleged that the cash was criminal property. The judge ruled that there was no case to answer on the first two counts because the prosecution could not establish the type of criminal conduct from which the money derived.

The central issue was whether proof of criminal property under sections 327 and 328 required the Crown to identify that underlying criminality.

1. The prosecution appeal was allowed. The terminating ruling on counts 1 and 2 was reversed, and a fresh trial on those counts was ordered.

2. The court applied the statement of principle in R v Anwoir, McIntosh, Meghrabi and Elmghrabi [2008] EWCA Crim 1354. The Crown may prove that property derives from crime by proving specific unlawful conduct, or by proving circumstances of handling which permit the irresistible inference that the property can only derive from crime.

3. The present case was capable of falling within the second route. The scale and manner of the cash transportation, together with the first respondent’s answers, provided material from which a jury could infer that the money was criminal property. The second respondent’s involvement was also a matter for the jury.

4. There was no procedural unfairness in permitting the prosecution to proceed without identifying the particular criminality which generated the money. The respondents could answer the case advanced against them, and any fuller explanation remained a matter for the trial.

5. The court also rejected the suggested application of Brown. The sole issue was whether the property was criminal property. A jury did not need to agree on the type of criminality that produced it, provided it reached the required verdict on that issue.

• Court of Appeal (Criminal Division): Allowed the prosecution appeal against a terminating ruling under the Criminal Justice Act 2004, reversed the ruling, and ordered a fresh trial on counts 1 and 2.
• Crown Court at Isleworth: On 19 June 2008, HHJ Katkhuda ruled that there was no case to answer on counts 1 and 2 because the prosecution had not identified the type of criminal conduct producing the money.