Beezadhur v The Independent Commission against Corruption and another

An exemption for cash transactions commensurate with a customer’s lawful business activities is directed to businesses with a pattern of substantial cash dealings, typically in retail. It does not extend to a private individual’s lawful deposits or withdrawals merely because the money derives from employment, pensions or savings. Under the Constitution section 10(11)(a), a statutory exemption may place the burden of proof on the accused where the offence is structured as a prohibition subject to specified exemptions. Express words are unnecessary. Exclusivity of knowledge is not required; the relevant question is whether the facts are readily provable by the accused as within their knowledge or ready access.

This was an appeal to the Privy Council from the Supreme Court of Mauritius, which on 28 June 2013 dismissed an appeal against five convictions and fines for offences under sections 5(1) and 8 of the Financial and Anti-Money Laundering Act. The appellant relied on the exemption for an established customer’s transaction commensurate with lawful business activities and challenged the burden of proving the exemption.

The central questions were whether the burden lay on the accused and whether lawful retirement savings and pension transactions fell within the statutory exemption.

1. Disposition. Lord Carnwath delivered the majority judgment. The appeal was dismissed and the convictions upheld. The construction issue was determinative of the appeal.
2. Construction of the exemption. The expression “business activities” in section 2 of the Financial and Anti-Money Laundering Act is context-sensitive. The Board considered Town Investments Ltd v Department of the Environment [1978] AC 359, the Court of Appeal decision in the same litigation, [1976] 1 WLR 1126, and Rolls v. Miller (1884) 27 Ch.D. 71. A charity’s money-raising activity could fall within the ordinary meaning of business activity, even if non-commercial. However, the appellant’s personal transactions involving savings and pensions, and his former occupation as a nurse, did not fall within the statutory expression. The exemption was aimed at businesses routinely handling substantial cash, and the transactions had to be commensurate with those activities.
3. Burden of proof. The majority’s burden-of-proof reasoning was given although the issue was not necessary to dispose of the appeal. Section 10(11)(a) gives constitutional effect to the common-law exception described in Reg. v. Edwards [1975] Q.B. 27. Where an enactment prohibits conduct subject to exemptions or provisos, the accused may bear the burden of proving the exempting facts, even without express words. Exclusivity of knowledge is unnecessary. The question is whether the facts are readily provable by the accused as within their own knowledge or ready access, applying R v Johnstone [2003] 1 WLR 1736. The bank’s or prosecution’s possible access to records did not alter that allocation.
4. Dissent. Lord Kerr agreed that the accused bore the burden, but would have construed the exemption generously. He considered that “business activities” could include an occupation, profession or trade and would have allowed the appeal.
5. The Board expressed sympathy for the appellant and observed that the penalty appeared harsh, but there was no appeal against sentence.

• Privy Council: On 7 August 2014, the Board dismissed the appeal and upheld the convictions: [2014] UKPC 27.
• Supreme Court of Mauritius: On 28 June 2013, dismissed the appellant’s appeal against conviction and sentence.
• Intermediate court: Convicted the appellant on five counts and imposed a fine of Rs 10,000 on each count, plus costs.