Rogers & Ors, R v

Proceeds of Crime Act 2002 has extra-territorial effect in relation to money laundering. Its provisions, particularly section 340(11)(d), show that converting criminal property abroad may be tried in England and Wales where the property derives from United Kingdom criminal conduct.

Alternatively, jurisdiction exists where a substantial measure of the criminal activity occurred in England and Wales, unless international comity reasonably requires another state to deal with it. The location of the final act or the gist of the offence is not decisive. An indictment may be amended at any stage where the amendment causes no injustice to the accused.

The appellants and applicants were convicted at Ipswich Crown Court after a trial concerning advance-fee frauds operated through overseas call centres. United Kingdom consumers paid fees into accounts controlled through a network of bogus companies. The fraud proceeds were then distributed, including through accounts in Spain.

Rogers was acquitted of the conspiracy counts but convicted of converting criminal property after the indictment was amended from an allegation of removing property from the jurisdiction. He appealed against that conviction, challenging the amendment, territorial jurisdiction and the relationship between the substantive count and the conspiracy counts.

French renewed an application for permission to appeal against conviction based on the trial judge’s summing-up. Bell, Samuels and French renewed applications for permission to appeal against sentence, alleging excess and unfair disparity.

1. Rogers’ appeal against conviction was dismissed. The amendment of the indictment from removal to conversion of criminal property caused no injustice. It did not alter the facts Rogers had to meet, the evidence, his role, or his defence. Section 5(1) of the Indictments Act 1915 makes injustice to the accused the essential question. The amendment also accorded with the overriding objective.

2. The substantive conversion count was not subsumed within the conspiracy-to-defraud counts. The conspiracies encompassed substantially wider activity. A common element did not make the offences the same, and the mental element for conspiracy to defraud was materially more demanding than knowledge or suspicion for an offence under section 327 of the Proceeds of Crime Act 2002.

3. The court had jurisdiction to try the conversion alleged. Sections 327(2A), 340(2), 340(3), 340(9) and, particularly, 340(11)(d) showed Parliament’s intention that the legislation extend to laundering activity abroad. The geographical limitation in section 327(1)(e) did not apply to conversion under section 327(1)(c). Proceeds of the United Kingdom fraud remained criminal property in Rogers’ Spanish account, and permitting their receipt and withdrawal converted them.

4. In any event, jurisdiction existed under the modern common-law approach reflected in R v Smith (Wallace Duncan) [2004] 2 Cr App R 17. A substantial part of the underlying criminality occurred in England and Wales, and the laundering abroad remained directly linked to it and to victims’ continuing deprivation. There was no reasonable comity basis for Spain to deal with the case.

5. French’s renewed application for permission to appeal against conviction was refused. The summing-up addressed the evidence as adduced. The complained-of point could not materially affect the safety of a conviction supported by strong evidence of dishonest knowledge.

6. The renewed applications by Bell, Samuels and French for permission to appeal against sentence were refused. Their sentences were not manifestly excessive and disclosed no unfair disparity. The trial judge had properly differentiated the co-defendants’ roles, culpability, mitigation and the substantial scale and persistence of the frauds.

• Court of Appeal (Criminal Division): Rogers’ conviction appeal was dismissed. French’s renewed application for permission to appeal against conviction was refused. The renewed applications of Bell, Samuels and French for permission to appeal against sentence were refused.
• Crown Court at Ipswich: The defendants were convicted on 19 June 2013 after trial. Sentences were imposed on 12 July 2013.