Anwar, R. v

Where the prosecution relies on an inference that property derives from unspecified criminal conduct, a jury must decide the case on the evidence and legal issues advanced at trial. A jury question cannot properly introduce an unparticularised basis of criminal conduct without an adequate legal direction and a fair opportunity for that issue to be addressed.

A direction that tax evasion is a criminal offence is materially inadequate where tax evasion was not alleged, no evidence addressed it, and the jury receive no explanation of the conduct capable of constituting the relevant offence. A resulting conviction is unsafe if the appellate court cannot be satisfied that the misdirection played no part in the verdict.

The appellant was tried at Isleworth Crown Court on contested counts of possessing, disguising and converting criminal property under the Proceeds of Crime Act 2002. The Crown alleged that cash found at his home and funds used to acquire two cars derived from unspecified crime. It did not allege tax evasion or another particular predicate offence.

During deliberations, the jury asked whether tax evasion in the United Kingdom could constitute criminal conduct for the case. Despite defence objection, the judge told them that tax evasion was a criminal offence. The jury returned unanimous guilty verdicts shortly afterwards. The appellant appealed against conviction on the ground that this answer was a material misdirection.

1. Appeal allowed. The convictions were quashed because the judge's answer to the jury note was a material misdirection, and the court could not be satisfied that the convictions were safe.

2. The Crown was entitled to seek to prove that property was criminal property without identifying a particular predicate offence. As stated in Anwoir [2008] EWCA Crim 1354, that may be done either by proving criminal conduct of a specified unlawful kind or by evidence giving rise to the irresistible inference that the property could only derive from crime. The Crown had adopted the latter course.

3. That did not permit the jury to convict on an unadvanced and unexplained tax-evasion basis. Tax evasion was not itself a defined statutory offence. Its legal elements were not explained, and the evidence had never been directed to dishonest non-payment of tax by the appellant or another person.

4. The court applied the reasoning in Gabriel [2006] EWCA Crim 229 and R v Yip [2010] EWCA Crim 1381. If the prosecution relies on failure to disclose income or profits as criminal conduct, it must prove facts tending to establish the relevant revenue offence and the jury must receive an appropriate direction on its essential elements.

5. The proper course was to tell the jury that tax evasion had not formed part of the prosecution case, had not been the subject of evidence, and should not be speculated about. Alternatively, a legal direction would have exposed the absence of evidence on the point. The judge did neither. Given the rapid return of unanimous verdicts after her answer, the convictions could not safely stand. The court declined to order a retrial because the interests of justice did not require one.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the convictions, and declined to order a retrial.

• Isleworth Crown Court: The appellant was convicted by unanimous jury verdicts on the contested Proceeds of Crime Act 2002 counts and received a total sentence of 22 months' imprisonment, including sentences for counts to which he had pleaded guilty.