Thomas, R v

For conspiracy to possess criminal property, the conspirator’s mental element is not the same as that for the substantive possession offence. Where the property already exists, the prosecution must prove that the conspirator knew it was criminal property. Where the agreement concerns future property, the conspirator must intend that it will be criminal property. Suspicion alone is insufficient. A jury direction permitting conviction for conspiracy on suspicion alone is therefore legally erroneous and cannot support the conviction.

The appellant, a chauffeur and courier, was convicted at the Central Criminal Court of conspiracy to possess criminal property after delivering three bags containing cash derived from criminal conduct.

The only substantial issue at trial was his state of mind. The judge directed the jury that it could convict if it was sure that he either knew or suspected that the bags contained criminal property. After a majority verdict, the appellant appealed against conviction.

The Crown accepted that, on a charge of conspiracy rather than the substantive offence, suspicion was not a sufficient mental element. The central issue was whether that misdirection required the conviction to be quashed.

1. Appeal allowed; conviction quashed. The jury had been directed that it could convict if the appellant suspected that the cash was criminal property. That direction was irredeemably flawed because suspicion was insufficient for the conspiracy charged.
2. The charge was conspiracy under section 1 of the Criminal Law Act 1977, not the substantive offence of possessing criminal property under section 329 of the Proceeds of Crime Act 2002. The latter offence has a different mental element. Under section 340(3) of the 2002 Act, a person may commit the substantive offence if he knows or suspects that property represents a benefit from criminal conduct.
3. Following R v Saik [2006] UKHL 18, the mens rea for conspiracy to launder criminal proceeds is not equated with the mens rea for the substantive offence. Property must in fact be criminal proceeds. Where the agreement concerns existing proceeds, an alleged conspirator must know that they are criminal proceeds. Where the agreement looks to future property, he must intend that it will be criminal proceeds. Suspicion alone does not suffice.
4. That approach applied equally to a conspiracy to launder money by reference to sections 327 and 329 of the 2002 Act. The jury’s focus on suspicion, including in its post-retirement question, demonstrated the significance of the erroneous direction. No appropriate lesser alternative offence could be substituted. The appellant was entitled to be released.

• Court of Appeal (Criminal Division): allowed the appeal and quashed the conviction.
• Central Criminal Court: on 14 February 2014, convicted the appellant by a majority jury verdict of conspiracy to possess criminal property.