Middleton, R. v

A money-laundering indictment may properly allege a general deficiency where numerous small transactions form a continuing criminal enterprise and legitimate and illicit receipts cannot safely be separated into individual charges. The rule against duplicity is applied practically, but fairness remains essential. Where lengthy aggregate counts risk conviction for criminality materially less serious than alleged, the judge must give a direction ensuring that any verdict reflects the scale of criminality proved.

Under section 49(1) of the Drug Trafficking Act 1994, proceeds may be those jointly dealt with by a knowing participant in the trafficking venture. The participant need not personally have carried out the drug trafficking.

The appellants were convicted by a jury at Truro Crown Court on 13 February 2007 of converting the proceeds of drug trafficking under the Drug Trafficking Act 1994 and of converting criminal property under the Proceeds of Crime Act 2002. They appealed against those convictions, but not their conviction for possession of criminal property.

The prosecution alleged a long-running enterprise in which Middleton dealt in cannabis and both appellants converted its proceeds. Financial evidence showed substantial unexplained income, but there was also legitimate income. The judge permitted two aggregate counts and directed the jury that they could convict only if satisfied that at least 80% of the amount alleged in each count was criminal money.

The appeals raised whether the counts were duplicitous and, separately, whether Rourke could be charged under section 49(1)(b) when Middleton was alleged to be the drug trafficker.

1. Appeals dismissed. The convictions on counts 1 and 2 were safe.

2. The rule against duplicity is applied practically. As explained in Director of Public Prosecutions v Merriman [1973] AC 584 HL, similar acts connected by time, place or common purpose may fairly be charged together as one transaction or criminal enterprise. The Court also accepted Barton v Director of Public Prosecutions [2001] EWHC Admin 223 as describing the justification for an aggregate count where many known transactions would otherwise have to be charged separately.

3. The counts alleged a continuing course of drug dealing and conversion over a number of years. There were very many, mostly small, transactions, intermingled with admitted legitimate activity. The prosecution could not safely identify any particular transaction as involving drug money. Charging every transaction would have been oppressive, while specimen counts would neither reflect the overall criminality nor resolve the evidential difficulty. The general-deficiency counts were therefore legitimate and were not unlawfully duplicitous.

4. The two lengthy counts carried a real risk of unfairness because a verdict might otherwise conceal conviction for criminality materially less serious than that alleged. The judge cured that risk by requiring proof of at least 80% of each sum alleged. That direction ensured that a conviction reflected both the criminal activity and its alleged scale. The verdicts were accordingly safe.

5. Section 49(1) of the Drug Trafficking Act 1994 focuses on ownership or possession of money derived from trafficking, rather than solely on who made the drug sales. Rourke could therefore be charged under section 49(1)(b) if, as part of a joint enterprise and with the requisite knowledge, she participated in dealing with Middleton’s trafficking proceeds. Section 49(2) concerns an extraneous third party unconnected with the trafficking venture. The judge’s directions properly left the joint-enterprise case to the jury.

• Court of Appeal (Criminal Division): By [2008] EWCA Crim 233, dismissed both appellants’ appeals against their convictions on counts 1 and 2.

• Crown Court at Truro: On 13 February 2007, the jury convicted both appellants on counts 1, 2 and 3. The appeals concerned counts 1 and 2 only.