England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEICESTER
HIS HONOUR JUDGE DE MILLE

		Royal Courts of Justice Strand, London, WC2A 2LL
		Thursday 18 December 2003

Lord Justice Auld :

1. On 19^th September 2001, before His Honour Judge de Mille and a jury in the Crown Court at Leicester, the appellant was convicted on three counts of conspiracy to money-launder, more precisely to convert, transfer and remove from the jurisdiction the proceeds of drug trafficking and/or of other criminal conduct, contrary to section 1(1) of the Criminal Law Act 1977. Jointly charged with the appellant in the same indictment were Paramjit Dhaliwal, Navtej Singh and Jasvir Singh, each of whom pleaded guilty to one of the three conspiracy counts.
2. We say that the appellant was convicted "before" the Judge and jury. In fact, he was not before them. In circumstances that we shall describe, he was absent from proceedings throughout the trial and was convicted in his absence. When he was eventually brought before the Court in late February and early March 2002, the Judge sentenced him on the latter date to seven years imprisonment on each of the three counts, the sentences to be served concurrently.
3. The appellant appeals against conviction on one ground by leave of the single Judge, and renews or makes original applications to this Court for leave to appeal against conviction on others. He also renews his application to appeal against sentence after refusal by the single Judge.

The Facts

4. The prosecution case was that, between June 1999 and March 2000, the appellant and his co-accused on all three counts, Dhaliwal, engaged in money- laundering. They exchanged large sums of money obtained illicitly in England into Dutch guilders. They took the guilders out of the jurisdiction or, in March 2000, in the last week or so of their conspiracy, arranged for Navtej and/or Jasvir to do it as couriers for them (counts 2 and 3). The appellant was said to be the principal conspirator. The total sum that they were alleged to have money-laundered over the nine months' period was about £6.2m.
5. The wording of the material parts of each of the counts in the statement of offence and in its particulars is of importance. Each statement of offence and its particulars charged the appellant with conspiracy to money launder the "proceeds of drug trafficking and/or criminal conduct". The full particulars in each count, so far as material, alleged that he and the relevant co-conspirator/s charged:

"… conspired together and with persons unknown, knowing or having reasonable grounds to suspect that certain property, namely banknotes, was, or in whole or in part directly or indirectly represented, another person's proceeds of drugs trafficking and/or criminal conduct, to convert or transfer or remove from the jurisdiction that property for the purpose of assisting any person to avoid prosecution for a drug trafficking offence and/or for an offence to which Part IV of the Criminal Justice Act 1988 applies, or for the purpose of avoiding the making or enforcement of a confiscation order, in contravention of …the Drug Trafficking Act 1994 and/or …the Criminal Justice Act 1988." [The Court's emphases]

As we see it, the issue for the jury was whether the prosecution had proved that there was an agreement to which the appellant was a party to launder money illicitly obtained, with the intention of assisting someone to avoid a prosecution for drug trafficking or other criminal offence or, in the event of conviction, a confiscation order.

6. The prosecution case and evidence were that the appellant and his fellow conspirators were money-laundering large sums of sterling which had come either from drug trafficking or other criminal conduct, it was not known which, into Dutch guilders. The appellant lives near Leicester; but most of the evidence related to his activities in London. The prosecution relied on two main lines of evidence, The first was observations by customs and excise officers of the appellant and/or his co-accused visiting, in the main, two bureaux de change, the Haleep and the Day Exchanges in Notting Hill Gate, carrying large bags in and out of them, and of day visits to Amsterdam. The second was evidence of Mr. Sharif, the owner of those bureaux, and members of his staff employed at them, and also of a Mr. Assan at another bureau de change, the Wall Street Forex in Paddington. Mr Assan had introduced a man whom he knew as Rana to Mr.. Sharif. And Mr. Sharif spoke of the system of recording transactions at his bureaux and of having conducted some of them himself with a man whom he knew as Singh or Sink to whom Mr. Assan had introduced him at the Wall Street Forex. Singh's or Sink's transactions were recorded by Mr. Sharif or his staff under one or other name, and a number of those transactions corresponded with the watching officers' observations of the appellant's visits to one or other of the bureaux. Mr. Sharif described at the trial how the appellant used to bring sterling in a suitcase or shopping bag to exchange for guilders.
7. The prosecution put in evidence a schedule of transactions over the nine months period of the main conspiracy alleged against the appellant and Dhaliwal, showing when and where the 42 alleged exchanges of sterling for guilders, making up the total of £6.2m, were transacted. The schedule was compiled from the records of the bureaux and spoken to by Mr. Sharif and/or his employees who gave evidence. Neither Mr. Sharif nor those employees had identified the appellant or had been asked if they could identify him. However, they variously spoke of the man whom they knew as Singh or Sink making substantial exchanges on the days and in the amounts set out in the schedule. They also said that he always conducted the transaction even when he was accompanied by another man, whom the prosecution maintained was mostly Dhaliwal.
8. On 13 July 1999, early in the period of the nine months conspiracy alleged against the appellant and Dhaliwal, customs officers stopped the appellant in a car at Dover. They found in the car, under the appellant's seat, 600,000 Dutch guilders that, earlier that day, he had obtained at the Haleep Bureau in exchange for £188,000. When questioned, he denied knowledge of the money under his seat and maintained that he was on his way to Dusseldorf to buy showrooms. It appears that the officers allowed him to proceed.
9. On 11^th March 2000, when the three conspiracies came to an end on the arrest of the alleged conspirators, customs officers stopped Navtej and Jasvir at Felixstowe and Dover respectively, each with a large quantity of Dutch guilders in his possession, the subjects of counts 2 and 3. On the same day officers arrested the appellant at a party. He denied that he was Rana Singh, that his wife was there with him and that it was his car outside. Later, in interview, he maintained his earlier denial of any knowledge of the guilders found in the car on 13^th July 1999. He acknowledged that he had visited Mr. Sharif's bureaux de change, sometimes with Dhaliwal because he was a friend and sometimes on his own when Dhaliwal had not turned up. He said that Navtej and Jasvir were Dhaliwal's couriers. He maintained that all the transactions at the bureaux were Dhaliwal's and denied any knowledge of money-laundering.

The Trial

10. On Sunday, 2^nd September 2001, the day before the start of the appellant's trial, he disappeared. On Monday, 3^rd September the Judge, on learning of that, issued a bench warrant for his arrest, and over the next three or four days, heard and determined various applications by the appellant's counsel, Mr. Ivan Krolick.
11. The most important of those applications for the purpose of this appeal was Mr. Krolick's applications to quash the indictment against the appellant. He relied on two arguments. First, he submitted that the charges, each containing as an averment that the accused knew or had reasonable grounds to suspect that certain property was the proceeds of drug trafficking and/or crime was void for duplicity. He maintained that it could not amount to a statutory conspiracy within section 1(1) of the 1977 Act because it charged two mutually exclusive offences - it was not clear on the facts which - namely money laundering of the proceeds of drug trafficking or money-laundering of the proceeds of some other, unspecified crime. Second, he submitted that the words in the particulars, "knowing or having reasonable grounds to suspect" that the proceeds in question were such proceeds, whilst a sufficient allegation in a substantive charge under the 1994 Act or the 1988 Act, were insufficient for a charge of conspiracy to commit them. Greater precision in the indictment was important, urged Mr. Krolick, because of the effect, otherwise, of the uncertainty of the jury's verdict as to which Act was engaged, on sentence and on any subsequent confiscation proceedings. He relied on R v. Roberts & Ors. (1998) 1 Cr App R 441 and R v. Siracusa & Ors. (1990) 90 Cr App R 340.]
12. Mr Jonathan Gosling, for the prosecution, argued that there was no duplicity and that the particulars correctly identified the mens rea required to prove each of the conspiracies, relying on observations of this Court in R v. El Kurd (unreported: No. 9901854823, 26th July 2000). As to uncertainty of the basis of any verdict of guilty and its effect on sentence and any subsequent confiscation proceedings, he said that the Judge could form his own view on the evidence, but if uncertain could sentence on the basis more favourable to the appellant.
13. On Thursday, 6^th September the Judge observed that, whilst the observations of the Court in El Kurd were obiter, they were of strong persuasive effect. He ruled that each of the counts charged a single conspiracy and that, in the event of conviction, he could form his own view of the matter, as Mr Gosling had submitted.
14. On the day of that ruling, the police reported that they had been unable to find the appellant or discover anything that might help them do so. The Judge concluded that he had absconded and directed that the trial should proceed in his absence. He invited Mr. Krolick to participate in the trial, and Mr. Krolick, who had seen the appellant in conference on the previous Friday, considered that he was sufficiently instructed, and indicated that he would do that. The other three defendants at that stage indicated their wish to change their previous pleas of not guilty to guilty, and the Judge allowed them to do that. The basis on which Dhaliwal entered his pleas was that he had played a minor role in the three conspiracies, acting throughout under the direction of the appellant.
15. On the following day, Friday, 7^th September, the trial of the appellant began in his absence, but with Mr. Krolick continuing to act on his behalf. Before the prosecution called any evidence, he objected to the prosecution putting before the jury the schedule, to which we have referred, of the 42 exchanges of sterling for Dutch guilders over the main conspiracy period, His reason for objecting to it was that, though no issue was taken with the observing customs and excise officers' identification of the appellant on many of these occasions, neither Mr. Sharif nor his employees had identified him or had been asked if they could do so.
16. The Judge, as we have indicated, allowed the schedule to be put before the jury. He did so because, as he said, the prosecution sought to link the evidence of the records of the bureaux with the identification evidence of the observing officers, and that it was for the jury to assess the weight of that link. In the event, Mr. Krolick, on behalf of the appellant, admitted the accuracy of the schedule.
17. The trial continued in the appellant's absence, and at the close of the prosecution case, Mr. Krolick made an unsuccessful application of no case to answer, largely on the basis of his earlier unsuccessful submission that the indictment was duplicitous and/or uncertain in what it alleged.
18. On 18^th September the jury returned verdicts of guilty on all three counts, and the Judge deferred sentence until the appellant could be found. Shortly afterwards the appellant's trial solicitor lodged an application for leave to appeal against conviction on a number of grounds. He did not, at that stage, include any complaint about the Judge's decision to conduct the trial in the appellant's absence, since the reason for it was still unknown.
19. Over two months later, on 28^th November, the appellant went to the British Embassy in Brussels claiming that he had been kidnapped on the eve of the trial and held, until his release that day, a prisoner in a remote farmhouse in Belgium. That night he returned to this country, travelled to Leicester and on the following day surrendered himself to the police.
20. On 28^th February 2002, Judge de Mille rejected a motion by Mr. Krolick in arrest of judgment seeking a re-trial because of the appellant's claimed involuntary absence from the trial. He held that he had no jurisdiction to make the order sought in the absence of a defect in the indictment or otherwise on the face of the record that could not be cured by the verdict, and that there was none. He said that the proper course was for the appellant to seek leave to appeal and to call evidence on the issue. On 1^st March the Judge sentenced him, as we have indicated to a total of seven years imprisonment.
21. In early March 2002, on Mr. Krolick's advice, an additional ground of appeal was proposed, seeking a re-trial on the basis of the appellant's claim of involuntary absence from the trial, accompanied by various witness statements in support.
22. In May 2002 Davis J. granted leave on only one of the original grounds of appeal, namely on the issue of duplicity and/or uncertainty of the indictment. The Judge, who had not been provided with witness statements lodged in support of the additional ground of appeal, refused it, describing the appellant's account as "bizarre and implausible".

Grounds of Appeal

Duplicity and/or uncertainty of the indictment

23. The core of this complaint was that duplicity and/or uncertainty flowed from the particulars of the indictment, which left open whether the prosecution case was that the money the subject of it was the proceeds of drug trafficking under 1994 Act or of some other offence under the 1988 Act. However, Mr. Krolick has conceded in his submissions on the appeal that, in the light of this Court's ruling in R v. Husain [2002] 2 Cr App R 363, following its observations in El Kurd, he could no longer maintain the argument.
24. The Judge's ruling, as we have indicated, was that there was a single agreement to do something which was illegal with a certain state of mind, namely a knowledge or reasonable grounds to suspect that the money was the proceeds of drug trafficking or other criminal conduct and for the purpose of contravening either or both Acts. Putting aside for the moment the pleaded alternative states of mind of knowledge of and reasonable suspicion as to the provenance of the money, as this Court was to indicate in Hussain that construction flows necessarily from the words of section 1(1) of the 1977 Act, creating the statutory conspiracy under which the indictment is framed. That is, they permitted the prosecution to allege in one indictment a conspiracy to launder money form one or the other of two possible sources, drug trafficking or other criminal conduct, or both. So far as material, it provides:

"… if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either –

"(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, …

he is guilty of conspiracy to commit the offence or any offences in question." [the Court's emphases]

The wording of that provision clearly contemplates the possibility of a statutory conspiracy to undertake a course of conduct that may result in the commission of one or more offences. Sections 3 and 4 are to like effect, section 3 making provision relating the penalty in such a conspiracy "to the gravity of the offence or offences in question", and section 4 providing a restriction on the institution of proceedings for conspiracy "to commit any offence or offences".

25. In Husain, the indictment charged:

"conspiracy to contravene section 49(2) of the Drug Trafficking Act 1994 alternatively section 93C(2) of the Criminal Justice Act 1988, contrary to section 1(1) of the Criminal Law Act 1977".

May LJ, giving the judgment of the Court, put beyond doubt in the following passages that such an indictment was not bad for duplicity or, implicitly, uncertainty:

"25. Section 1 of the 1977 Act creates the statutory offence of conspiracy. The essence of the offence is an agreement between two or more persons to pursue a course of conduct. The agreed course of conduct has to have the nature which the section requires, that is it has to be such as will necessarily amount to or involve the commission of an offence or offences by one or more of the parties to the agreement. Subject to that. the essence of the offence is the making of the agreement …..., not any subsequent giving effect to the course of conduct agreed, it is therefore necessary to distinguish between the offence which constitutes the statutory offence (… the "Conspiracy Offence") and the offence or offences which the agreement contemplates (… the "Agreed Offence or Offences").

26. The terms of section 1 … show that there can be an agreement constituting a Conspiracy Offence where the agreed course of conduct, if it is carried out in accordance with the conspirators' intentions, will necessarily amount to or involve the commission by one or more of the conspirators of more than one Agreed Offence. … A count in an indictment charging such a Conspiracy Offence would not be duplicitous. It would only charge one offence – conspiracy.

27. … an agreement to commit crime A or B is entirely possible. . such an agreement is capable of falling within section 1(1) …"

26. The scope for such an issue in future money-laundering cases has now been removed by the creation in Part 7 of the Proceeds of Crime Act 2002 of a new statutory offence of money-laundering and the repeal of the substantive offences under the 1994 and 1988 Acts the subjects of this indictment. The new offence is one of dealing in various forms in "criminal property", namely property constituting a benefit from or representing such a benefit, from "criminal conduct", defined in the broadest terms in section 340 as "conduct which constitutes an offence in any part of the United Kingdom".

"knowing or having reasonable grounds to suspect"

27. Before this Court Mr. Krolick sought to rely on a further ground, only touched on briefly in his submissions to the Judge. He submitted that the formula in the indictment, "knowing or having reasonable grounds to suspect", whilst apt for an allegation of the specified substantive offences of concealing or transferring proceeds respectively of drug trafficking under section 49(2)(b) of the 1994 Act and of criminal conduct under section 93C(2)(b) of the 1988 Act, was not sufficient for an allegation of statutory conspiracy to commit either of those offences. He maintained that there is a distinction between a conspiracy to commit a substantive offence, for which knowledge of the facts constituting that offence is essential for proof of the conspiracy, and reasonable grounds to suspect facts, proof of which may be sufficient to bring home a conviction for the substantive offence, but not a conspiracy to commit it. He based his submission on the wording of section 1(1) and (2) of the 1977 Act.
28. Section 1(1)(a) makes it a statutory conspiracy only if the agreement is carried out in accordance with the alleged conspirators' intentions, namely that it will "necessarily amount to or involve the commission of any offence or offences" by one of them. But, section 1(2) provides that it will only do that in the context of money-laundering if the accused, in so agreeing, intends to launder money with an illicit source or agrees to do so knowing of the illicit source. It is important to note that the particulars of each of the conspiracies alleged in this indictment (see paragraph 5 above) do not aver an intent to launder money with an illicit source, as they could have done, but do aver knowledge and also, as a further and impermissible alternative, reasonable grounds to suspect that the money the subject of the charged conspiracy had an illicit source. Section 1(2) provides:

"Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place." [the Court's emphasis]

29. It follows, Mr Krolick argued, that, whilst reasonable grounds to suspect may be sufficient for the substantive offence, it is not for the statutory conspiracies to commit it as alleged in this indictment, a distinction which, he said, the Judge did not draw in his directions to the jury. The Judge's direction, at pages 11G-13A, was as follows:

"The prosecution in this case quite frankly say to you that they don't know what the source of this money is, but that the inference or conclusion you have to draw from the evidence is that it must be the proceeds of some sort of crime, it must be illicit money, and that's why you have the alternatives put down – either drug trafficking and/or the proceeds of crime generally. … it obviously increased the wordiness, doesn't it, of the charge … to have the alternatives actually spelt out? So it would be very much easier, wouldn't it, if they had been able to say that the prosecution case is that this is a conspiracy, or agreement, to launder money which had been illicitly obtained? And that's really what it all boils down to, that's what the prosecution set out to prove.

… the conspiracy is … to remove that property from the jurisdiction, the bank notes … '[k]nowing or having reasonable grounds to suspect that certain property, namely bank notes, was or in whole or in part directly or indirectly represented another person's proceeds of drug trafficking and/or criminal conduct'. So what the prosecution case is, that they agreed that they would launder illicit money. How would they know or believe it's illicit? Well, it's a matter for the evidence, of course, for you to decide whether they must have known or believed that as part of the agreement. … "

30. The Judge repeated that direction in summary form, at page 21E-21H, when reminding the jury of the facts of which they had to be satisfied before they could find the appellant guilty of the conspiracy:

"You have to look at all the evidence … as to whether the money is indeed illicit money, whether, if you're satisfied there was an agreement, whether the conspirators must have known or had reasonable grounds to suspect that it was illicit in the sense I've described, and you look at all the circumstances …"

31. Those directions, submitted Mr. Krolick, were defective in leaving the jury with "reasonable grounds to suspect", as distinct from knowledge, that the money was illicit as an alternative basis for conviction, notwithstanding that the form of the indictment in this case was essentially the same as that approved by this Court in Hussain. He pointed out that, although the Court in that case denied him his argument based on duplicity, it was not asked to consider this point and that, to the extent that it may be said to have approved an indictment of statutory conspiracy based on reasonable suspicion as distinct from knowledge of the illicit provenance of the property, its ruling was per incuriam and, therefore, not binding.
32. Mr. Gosling put his reply to those submissions in the form of four propositions. First, he said that section 1(2) of the 1977 Act was enacted to give effect to the ruling of the House of Lords in Churchill v. Walton [1967] 2 AC 224, that, if on the facts known to defendants what they agreed to do was lawful, they are not rendered artificially guilty by the existence of other facts, not known to them, giving a different and criminal quality to the act agreed upon. Second, section 1(2) has no application to this indictment, which does not require proof of a fact, but of an intent for which the subsection expressly provides as an alternative to knowledge in proof of conspiracy – "unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place". Third, conspiracy in this respect may be compared with an offence of attempt to commit an offence, here to money-launder, which may be proved notwithstanding the absence of knowledge that the property in question is, say, stolen; see section 1(2) of the Criminal Attempts Act 1981 and R v. Shivpuri [1987] AC 1, HL. Fourth, the same applies to aiding and abetting and the whole range of inchoate offences, where intent, not knowledge, is the criterion.
33. As we have said, there is no averment in this indictment of intent as an alternative to knowledge. However, Mr. Gosling submitted that such an averment is not necessary in a charge of conspiracy, where the intent is inherent in the unlawful agreement alleged, as the Judge made plain in his directions to the jury at page 8G-H and, when dealing with relative roles of the alleged conspirators, at page 10B of his summing-up:

"…before I deal with the details of the charge, let me say some general remarks about conspiracy. Just as it's a criminal offence here to launder money,… so it is just as much a criminal offence if two or more people agree with one another to launder money, and an agreement to commit a criminal offence is what we mean by 'conspiracy' – that's all conspiracy means, it's an agreement to commit an offence."

"… Providing you're sure that there was an agreement with one of the named conspirators … that the crime should be committed, that is should be carried out, then it doesn't matter, so far as the others are concerned, precisely what their involvement appears to be on the scale of seriousness, or precisely when he became involved."

…. "

34. In our view, Mr. Gosling is correct in his submission. Section 1(1) of the 1977 Act provides a statutory conspiracy for a wide range of substantive offences with varying formulations of mens rea, ranging from intent to knowledge and its gradations. That is why, section 1(2) makes the criminal agreement for which it provides dependent on intent or knowledge. If two or more people intend and agree to commit an act that they know to be unlawful, then knowledge or mistake as to a fact critical to the success of the conspiracy is immaterial to its proof; the intention is proxy for, or more correctly an alternative to, knowledge of such a fact. And, it follows, gradations of knowledge, such as "reasonable grounds to suspect" it are irrelevant. In the light of that analysis, in the context of the conspiracy charged here, the inclusion in the particulars of the words "knowing or having reasonable grounds to suspect that certain property, namely banknotes, was, or in whole or in part directly or indirectly represented, another person's proceeds of drug trafficking and/or criminal conduct" taken from the substantive offences, are an immaterial averment. This is how the particulars could have been drafted so as to give effect to section 1(2) of the 1977 Act and as a mercy to the jury, namely that the appellant and his co-accused:

"… conspired together and with persons unknown to convert or transfer or remove from the jurisdiction certain property, namely banknotes, which in whole or in part directly or indirectly represented, another person's proceeds of drug trafficking and/or criminal conduct, with the intention of assisting any person to avoid prosecution for a drug trafficking offence and/or for an offence to which Part IV of the Criminal Justice Act 1988 applies, or for the purpose of avoiding the making or enforcement of a confiscation order…" etc

35. In our view, it follows that there is no point of substance in Mr. Krolick's complaint that something short of knowledge was alleged in the indictment when, given the thrust of the prosecution case, knowledge of the precise provenance of the banknotes money was not at the heart of this conspiracy, but intention to launder illicitly obtained money was. As Mr. Gosling submitted, the Judge, despite the snares and unnecessary prolixity of the indictment, put that simple issue to the jury in the passages in his summing-up which we have set out in paragraph 33 above and 37 below.

The purpose of money-laundering

36. Mr. Krolick sought to re-open another argument as a potential ground of appeal that had been rejected by the single Judge. He said that the Judge failed to direct the jury adequately as to the purpose or purposes of the conspiracy that the prosecution was required to establish, namely to launder money for both drug trafficking and other criminal offences or one or the other, or to avoid the making of a confiscation order under both or one or other of those regimes. The Judge gave this direction, at pages 13D – 14A of his summing-up:

" … where large sums of money are generated by any sort of crime – drug trafficking or anything else - … the criminals have to somehow get rid of the money in a way that doesn't refer back to them. The way in which that is sometimes done is by what we call 'laundering' it. … someone who is laundering money will be helping the criminal … to get rid of that in a way that won't be traced back to the criminal, and that's what's alleged here. So where it says: 'For the purpose of assisting any person to avoid prosecution,' that obviously is the result, isn't it, if you're stopping any record being kept? Of course, that needn't be the only purpose; it's sufficient if that's one of the purposes. People who launder money do it, you may think, as well in order to get a cut out of it themselves, there will be something in it for them, which no doubt is another purpose, but you would need to be satisfied, however, that one of the purposes is as set out in here. So that too, needs to be part of the agreement doesn't it?" [the Court's emphasis]

37. Mr. Krolick's complaint about that general direction, and about an earlier direction as to their entitlement to draw inferences - "common-sense conclusions" - from the evidence, was that the Judge did not direct them as to the evidence from which they could draw inferences of the purpose of the transactions, that is, whether it was to avoid prosecution for drug trafficking or for other criminal offences, or whether it was for the purpose of avoiding a confiscation order under either of those statutory regimes. He added that the following direction, at page 14B of the summing-up, may have served to mislead the jury in this respect:

So the prosecution have to prove those three elements really, don't they? First, the agreement involving Mr. Rana, and, secondly, what I refer to as the state of mind as to that agreement, and it would follow, you may think, from the state of mind, that the purpose is there, though that's a matter for you as well."

38. In our view, there is no room for such a duplicity argument in relation to an averment as to purpose or intent, any more than there was in relation to the averment as to knowledge of the exact provenance of the money. Both are caught by the reasoning in Husain. All the prosecution had to prove was that there was a conspiracy – that is, an agreement and intention to launder illicitly obtained money. Whether the intention included the avoidance, under either statutory regime of a confiscation order in addition to the avoidance of a prosecution is an artificial consideration, since under either regime confiscation proceedings depended upon conviction. As the Judge indicated in the passage that we have set out in paragraph 37, in the context of the conspiracy charge intent and purpose are necessarily the same.

One conspiracy or many

39. At the close of the prosecution case the Judge rejected a submission of Mr. Krolick that, if the prosecution evidence disclosed conspiracy at all, it established a number of individual agreements, not the one global conspiracy charged. Mr. Krolick renewed the application to appeal the Judge's ruling, arguing that he should have found that the evidence disclosed at its highest a number of individual conspiracies, each relating to an individual exchange transaction rather than the global conspiracy alleged by the prosecution. He also complained that the Judge failed to deal with the issue raised by his rejected submission when directing the jury, with the result that they never applied their minds to the question whether there was one conspiracy, as charged, or many.
40. There is no merit in this argument. The rule is that a judge should withdraw a single charge of conspiracy from the jury at the close of the prosecution case if there is no evidence to support it. There was ample evidence to support it here. And, as to the suggestion that the Judge should have alerted the jury to the possibility that it was not one conspiracy, but many, there was no factual basis for it and no possible point in speculatively complicating their task in this respect. It was enough that he made plain to the Jury, as he did, at pages 9B and 14C of his summing-up, in relation to count 1, the principal conspiracy charged against the appellant and Dhaliwal, that they were concerned with an allegation of a single conspiracy:

"… the first question there is: are you sure there was, in fact, a single agreement between those two to commit the offence in question running over the period of time. And, secondly, you would have to be sure that Mr Rana was a party to that agreement in the sense that he agreed with Mr. Dhaliwal that the crime should be committed, and at the time of that agreement he intended that they should carry it out, or that it should be carried out."

"… Count 1 alleges that single conspiracy between Mr Rana, … Dhaliwal and others unknown during, in effect, the whole period that you're considering. So it's the prosecution case that they had that one continuing agreement with all the various events being part of that one agreement."

Identification

41. A further renewed application for leave to appeal after refusal by the single Judge turned on the issue of the prosecution's identification of the appellant as the man recorded in the books of the Day Change Bureau, and known to Mr. Sharif, as "Singh" or "Sink". As we have said, although the appellant had admitted visiting Mr. Sharif's bureaux and having met Mr. Sharif, he denied having effected any exchange transactions. However, as we have also noted, the prosecution relied on the evidence of Mr. Assan of the Wall Street Forex Exchange that he had introduced a customer whom he knew as Rana to Mr Sharif and on Mr. Sharif's evidence that his bureaux undertook the relevant transactions with that man, whom he knew as "Singh" or "Sink". In addition, there was the schedule of transactions drawn from the records of the bureaux and the considerable body of observation evidence from customs and excise officers of the appellant visiting them when the transactions were made and of him carrying bags in and out.
42. Mr. Krolick's point was that the prosecution's link between Mr. Assan, Mr. Sharif and the appellant was incomplete because Mr. Assan did not testify that the man whom he knew as Rana, and whom he had introduced to Mr. Sharif, was the appellant, and because there was, in any event, a conflict between their evidence as to the date of that introduction. According to Mr. Assan, he made the introduction on 16^th July 1999; according to Mr. Sharif, the introduction was much earlier, possibly in May 1999; and the first transaction recorded in the name of Singh at the Day Change Bureau relied on by the prosecution was on 14^th June 1999. Mr. Krolick's complaint was that the Judge did not put this conflict on the issue of identification adequately to the jury.
43. Mr. Krolick also relied on information that had been disclosed to the Judge at trial, but not to the defence until the hearing of this appeal, namely that Mr. Sharif had been a participating informant. The Judge had declined to order disclosure of that information to the defence because, in his view, it was immaterial to the appellant's defence case, having regard, in particular to the admitted schedule of transactions and the evidence of the observation of the customs and excise officers. That is still the view of the Crown, but it was prompted to, and did, make disclosure of the information to the appellant on the hearing of the appeal for three reasons. The first was the recent change in the approach of this Court to the treatment of witnesses who are or were participating informants, namely that their status should normally be disclosed to the defence; see R v. Patel & Ors. [2001] EWCA Crim 2505 and R v. Early & Ors [2003] 1 Cr App 19. The second was that Mr. Sharif's former status as a participating informant and, in addition, his dubious credibility are now public knowledge as a result of his role as a witness in R v. Prosser & Ors [2003] EWCA Crim 1067. And the third was that, though the Crown were of the view that this additional information, if known to the Judge, would not have affected his ruling, it considered it right to make the disclosure so as to give the appellant an opportunity, if so advised, to seek leave to argue a ground of material non-disclosure, albeit an argument that it would resist.
44. Mr. Krolick made a number of points about this late disclosure to the defence. First, he said that if it had been made at trial, he would have sought to exclude Mr. Sharif's evidence of "identification" – as he termed it. Second, he said that, in the light of the information available to the Judge, he should have contrasted more than he did in his summing-up the evidence of Mr. Assan and Mr. Sharif on the issue of the introduction of Rana/Singh to the latter. Third, he complained that the Judge failed to review his ruling as the trial progressed. In summary, he maintained that the appellant did not have a fair trial because of the non-disclosure to him of this information at the trial.
45. We consider that there is no basis for the initial complaint of Mr. Krolick under this head that the Judge did not adequately draw attention to the possible conflict between the evidence of Mr. Assan and Mr. Sharif going to the chain of evidence linking Rana and Singh or Sink to the appellant as the person conducting some of the alleged money laundering transactions. The Judge directed the jury on these matters at page 22G and, again at pages 24F - 25A when reminding them of Mr. Assan's evidence of introducing the appellant to Mr. Sharif on 16^th July:

"You heard Mr Krolick yesterday address you as to what he suggested is the break in the link from Wall Street through to Daychange, and …. You will of course remember, as you heard it so recently, the submissions which he made.

…. He said there was another customer from another bureau present at that time, and he named him as Mr. Sharif from the Day Exchange. That is, of course, evidence which the defence rely on, that it was on 16^th July, and, of course, there is the record, relates only to the two dates, and the question you'll have to ask yourselves is whether you can rely on Mr. Assan's recollection that it was on that occasion – that's his evidence – that Mr Sharif was there."

46. In any event and for the following reasons, the evidence in question does not merit that attention that Mr. Krolick gave to it in his submissions to the jury or to this Court. First, the linkage achieved through Mr. Assan's and Mr. Sharif's evidence to the recorded bureaux transactions was not itself identification evidence. Second, as we have mentioned, the issue went only to a few of the transactions forming part of the proof of the underlying conspiracy. Third, Mr. Krolick's challenge of the evidence of Mr. Sharif at trial went, not to his credibility, but to the accuracy of the bureau records which he made or for which he was responsible. And, fourth, as Mr. Krolick conceded in argument, even if the jury had rejected Mr. Sharif's evidence, they could have still convicted the appellant on the basis of the recorded transactions, the corresponding observations of the customs and excise officers and the appellant's admissions of having visited the bureaux and of having met Mr. Sharif. Thus, the chain of evidence established by those few transaction was not critical to the prosecution case. And, as we have shown, the Judge adequately reminded the jury of the issue raised by the defence in relation to it.
47. For the same reasons, there is no mileage in Mr. Krolick's broader complaint under this head that want of disclosure to the defence at trial that Mr. Sharif had been a participating informant led to an unfair trial. Given the limited scope of his evidence, the issues on it taken at the trial, and the body of other highly probative evidence cumulatively identifying the appellant as the man conducting the money-laundering transactions, we consider that information would have had no effect on the outcome of the trial if it had been disclosed to the defence and deployed by it at that stage.

The appellant's absence from his trial

48. Mr. Krolick made an original application to the Full Court for leave to appeal against conviction and to seek a new trial on the basis of the appellant's claim that his absence from the trial was involuntary because he was abducted the day before it started and held prisoner in Belgium for nearly three months. We have heard oral evidence on the matter from the appellant, his wife, Mrs Rubgir Singh, and the solicitor instructed by him for the trial, Mr. Kangesu Pathmanathan, with a view to considering whether to "receive" it as evidence under section 23(1)(c) and (2) of the Criminal Appeal Act 1968, as amended.
49. Critical among the factors mentioned in section 23(2) is that in paragraph (a), whether the evidence, in particular that of the appellant and his wife, appears to be "capable of belief". If it is and, if it may afford a ground for allowing the appeal (para. (b)), there is no room in the circumstances for consideration of its admissibility or otherwise at trial (para. (c)), or as to the reasonableness of the explanation for not adducing it at trial. The account, if capable of belief, may affect the safety of his conviction in its impact on the fairness of his trial. So much is clear law and common-sense, though Mr. Krolick raised one issue that he said was not resolved by authority, namely whether the appellant must prove his abduction for this purpose and, if so, to what standard. He submitted that it should be the so-called evidential burden, namely of simply raising the issue, so as to impose on the Crown the burden of disproving it to the criminal standard, a submission to which we shall return.
50. The appellant's account, in outline, was as follows. He lived with his wife and young son in Leicestershire. He suffered from a heart complaint for which he took daily medication. It was his practice, because of his heart condition, to take a walk on Sunday afternoons.
51. It is common ground that on a number of occasions before his abduction the appellant and his wife had, through his solicitors, expressed concern to the authorities about unknown persons loitering in motor vehicles in the vicinity of his home outside Leicester and had provided the vehicles' registration numbers. The police investigated the complaints and concluded that the owners of the vehicles in question were small-time drugs dealers whom they were unable to relate to the appellant's claimed abduction.
52. On the Sunday afternoon before the start of his trial the following day, the appellant went for a walk on his own. While close to his home, he was bundled into a van by two men. Neither of them wore a mask, but one had a gun. Once he was inside the van two other men covered his head and eyes with a woolly hat and tied his hands. He did not shout for help because it all happened so quickly. When he asked them why they were doing this to him, they accused him of being a "grass" – an informer – and told him to lie on the floor of the van and to shut his mouth.
53. The men drove for some hours, seemingly without saying anything more to him by way of explanation for what they were doing or where they were taking him. Two or three hours into the journey his solicitor, Mr. Pathmanathan, whom he had arranged to meet at 6 p.m. that evening at Leicester Railway Station, telephoned him on his mobile telephone. One of the men took his telephone from his pocket and told him to answer it, putting it to his ear. With one of them pressing the gun to his head, he told the solicitor that he would meet him in ten minutes in Leicester. When the call finished one of the men took the telephone. The appellant, never saw it again (telephone records show that it was not used after 3^rd September).
54. After some hours drive, the appellant was transferred into what seemed like a lorry. His hands were still tied, and the woolly hat was still pulled down over his face so that he could hardly see anything. They then gagged him and bound his legs with rope. There was a further long drive, with some stops and starts, and still without any conversation or explanation as to their treatment of or intentions for him. When the vehicle eventually stopped, the men undid the rope binding his legs but left the hat pulled low down over his face so that it still served as a blindfold. Some men speaking in a foreign language took him into a very small basement room of what appeared to be a farm. There, they finally removed the hat and untied his hands. The room was in darkness; it had no window and no artificial light; and, for furniture, there was only a bed. They gave him a cup of coffee, locked him in and left, again without explanation. There was a lavatory and a sink in a second room, also windowless, which his keepers unlocked for him and accompanied him when he needed to use them. There was no light and little heat in either room and no contact of any sort, for example a radio, with the outside world. They kept him there in total darkness for what turned out to be nearly three months. During that period they barely spoke to him, and when they did it was in a language that he could not understand. He was unable to shave or cut his hair. He wore the same clothes throughout, including his under wear, which he was able to wash from time to time in the sink in the next room. And he had no medication, which, before his abduction, he had normally taken daily, for his heart condition.
55. Then, towards the end of his period of captivity, one of his captors cut his hair and gave him a razor to trim his beard, which he did. They told him he was free to go, and, without further explanation, drove him somewhere and left him to walk away on his own. He had no idea where he was. After walking for two or so hours, he hitched a lift to the nearest town, which turned out to be Brussels, where he made his way to the British Embassy. Although he had £180 in cash on him, which he had had since the day of his abduction, he made no attempt to change it or to telephone his wife.
56. It is common ground that in the afternoon of 28^th November he presented himself at the Embassy, that he asked them to telephone his wife and that he was provided with papers to enable him to return to this country. According to him, he told an Embassy official what had happened to him, but the Embassy has indicated that it did not investigate his claim of abduction and that it did not interview him or make any record of what he said. However, an Embassy official appears to have telephoned the authorities in London with a request that they should contact his wife.
57. The appellant returned by Eurostar to London late that night and telephoned his wife from King's Cross Station and took a train to Leicester. His wife collected him at Leicester station in the early hours of the morning of 29^th November and took him home. The following morning, without attempting to see his doctor for a check-up after his terrible ordeal, he returned to London to consult Mr. Pathmanathan. Later that day he surrendered to the police in Loughborough, and told them why he had not been able to attend his trial.
58. The appellant's wife's in her evidence to the Court confirmed his account of seeing and reporting strange cars parked near their house over a period of months before his disappearance. She also confirmed that he had disappeared while taking a walk on the afternoon before the start of his trial and of not having seen or heard from him until his reappearance nearly three months later. She spoke of a telephone call from the Home Office on 28th November informing her that he was alive and was on his way back to London and of picking him up at Leicester Railway Station in the early hours of 29^th November. She said that he was very tired and in a dreadful state; he needed to see a doctor, and that his clothes were so filthy she immediately put them in the washing machine.
59. Mr. Pathmanathan confirmed the contents of, and was cross-examined on his written witness statement. He stated that he and counsel had seen the appellant in conference in London on the Friday before the start of the trial and that the appellant had arranged to meet him at Leicester Railway Station at 6 p.m. on the Sunday and take him to a hotel. He kept that appointment, but the appellant did not. He telephoned the appellant, who said that he would meet him in 10-15 minutes. The appellant did not sound from his reply as if he was in trouble and said nothing to cause him concern. The appellant did not come to the station and eventually he, Mr. Pathmanathan, went off to the hotel on his own. He said that when he saw the appellant in London on the day after his return, he did not look as if he needed urgent medical attention.
60. The critical questions for the Court in determining whether to "receive" evidence pursuant to section 23 is whether it appears to be capable of belief and, if so, whether it may afford a ground for allowing the appeal, that is, for thinking that the conviction may be unsafe; see Lord Bingham of Cornhill in R v. Pendleton [2002] 1 WLR 72, at paras. 10 and 18 – 19.
61. Mr. Krolick invited the Court to receive the evidence as capable of belief and material to the fairness of the appellant's trial and hence to the safety of his conviction. As we have mentioned, he also submitted that there was only an evidential burden of proof on the appellant – that is one of simple assertion – that he had been abducted and that it was then for the Crown to disprove it to the criminal standard, as it does, for example in defences of alibi or self-defence
62. Mr. Gosling invited the Court to reject and to refuse to "receive" the appellant's account as evidence because it was incapable of belief. He said that the issue for the Court – the Pendleton test – was simply an issue of fact as to the safety of the conviction, not one of applying a burden and standard of proof as does a jury considering the issue of guilt.
63. Mr. Krolick was unable to produce any authority for his submission that it is for the Crown to disprove to the criminal standard of proof or otherwise the appellant's assertion in evidence that he was unable to attend his trial because he was abducted. We are not surprised at such absence of authority. The prosecution's obligation to disprove a defence as part of proof of guilt at trial is a different exercise from that of the Court of Appeal in determining for the purpose of section 23 whether evidence is capable of belief and, if so, of being material to the fairness of the trial and hence to the safety of the conviction. As Lord Bingham indicated in Pendleton, at paras. 18 and 19, the Court's task when considering an application to "receive" evidence under section 23 is to form its own view of that evidence and on all the other material before it untrammelled by adherence to any particular thought process not prescribed by section 1(2) of the 1968 Act. Its task, put at its simplest, is to consider whether the evidence raises in its mind a doubt as to the safety of the conviction. To the extent that there is any burden – which can only be one of persuasion – informing that thought process, it is to be found in the thinking of Lord Hobhouse of Woodborough in Pendleton, at para. 56, a burden on the would-be appellant or appellant to show that his conviction is respectively arguably unsafe or unsafe:

"… Unless and until the Court of Appeal has been persuaded that the verdict of the jury is unsafe, the verdict must stand. Nothing less will suffice to displace it. A mere risk that it is unsafe does suffice: the appellant has to discharge a burden of persuasion and persuade the Court of Appeal that the conviction is unsafe …"

64. We are firmly of the view that the appellant's evidence and, to the extent that his wife's evidence bears on it, her evidence too, are not capable of belief. It is hard to see what motive anyone could have had for abducting the appellant on the eve of the start of his trial, taking him and keeping him in appalling conditions for three months in Belgium and then releasing him to return home. On the appellant's account, his captors gave him no explanation for what they were doing to him, save for a cryptic accusation that he was a "grass" shortly after bundling him into the van near his home. Throughout his solitary captivity, they never told him what they wanted from him or anyone else or why they held him there, and when they released him, he was still none the wiser. Mr. Krolick suggested in argument that the motive may have been to prevent him from testifying at his trial – presumably against his co-defendants – but that seems far-fetched, particularly as they all pleaded guilty a few days after his disappearance and before the start of his trial. And, whilst, for the purpose of mitigation of their sentence, they were no doubt all able to cast him without contradiction as the principal conspirator, that was already manifest on the prosecution case and was amply supported by the evidence called at his trial.
65. The appellant's account of abduction and lengthy solitary captivity in an unlit basement in Belgium, is, as the single Judge observed in refusing leave on this ground, bizarre. In its essentials, it has no support from the other evidence on which he relied. And, apart from the puzzle as to what his captors might have sought to achieve in abducting him, his account of their behaviour throughout is beyond belief. Why, for example, would they take the risk of enabling him, when bound and blindfolded, to answer any telephone call? And, how and why was it that he was able to convey in an unconcerned voice, according to his caller, Mr. Pathmanathan, that he would see him in 10 – 15 minutes? It is strange too that the appellant claims not to have been aware of the transhipment of the second vehicle onto the ferry or rail on which, on his account, he must have been taken to the continent,
66. The appellant's account of his living conditions for up to three months is unbelievable: held in permanent darkness for nearly three months in a barely heated basement room; basic washing and lavatory facilities in an adjacent equally unlit basement room, which had to be unlocked for his use and to which he was always accompanied; no change of clothes; no explanation for his continued detention there; no discussion of any consequence with his captors; his sudden unexplained release; no attempt to telephone his wife to tell her of his release until his arrival in London, though he has cash that he could have exchanged to enable him to do so; despite the serious physical and mental effects that such a prolonged and harsh period of captivity might have been expected to have on him – in particular a possible serious effect on his heart condition for want of medication, his first action after returning to his home in the early hours of the morning was, not to call for or see a doctor, but to travel back to London to confer with his solicitor before giving himself up to the police; and he has since made no formal complaint to the police about the claimed abduction or sought an investigation as to who might be responsible.
67. It follows from our view that the appellant's account that it would not, considered on its own, or with such supporting evidence as he called, afford a ground for allowing the appeal.
68. For the avoidance of doubt, we have also considered whether, notwithstanding that the appellant's absence from his trial was voluntary, as the Judge found, it nevertheless resulted in an unfair trial with the effect that his conviction is unsafe. The House of Lords has recently considered this problem in R v. Jones (Anthony) [2002] 2 WLR 524. There may be circumstances in which an accused's voluntary absence could result in an unfair trial, for example, last minute panic or fear by an accused, or concern for close relatives, at the prospect of his impending trial. No doubt, considerations of policy, of the sort referred to by the Court in R v. Jones (No.2) (1972) 56 Cr App R 413 (where the accused absconded in the course of trial) requiring rigorous scrutiny so as to avoid putting a premium on absconding, must now be looked at with Article 6 ECHR in mind. The right to a fair trial implies the right of an accused to be present at it so that he may participate effectively in the conduct of his case; see Ekbatani v. Sweden 13 EHRR 504, at para. 25. It may no longer be appropriate for the Court to respond to an accused's voluntary absence from his trial on policy grounds. But the concept of a fair trial connotes an obligation on the part of a defendant to submit to the process of the court and not, by absenting himself, to frustrate its ability to provide him with a fair trial by deliberately staying away, as Lord Bingham observed in Jones (Anthony), at paras. 11 and 12.
69. Another way of putting it might be, as Strasbourg jurisprudence appears to allow, that a defendant may waive his right to be present, by not attending the hearing having been given effective notice of it. However, on that approach the circumstances of his non-attendance must at least have been such as amount to a clear waiver; see Colozza v. Italy 7 EHRR 516; Brozicek v. Italy 12 EHRR 371, at paras. 43-46; Poitrimol v. France 18 EHRR 130; Lala v. Netherlands 18 EHRR 586; and Pelladoah v. Netherlands 19 EHRR 81.
70. As the House of Lords has recently shown in Jones (Anthony), an accused's deliberate absence from his trial leaves the Court of Appeal with its discretion as to remedy under section 8(1) of the Human Rights Act 1998 so as, in appropriate circumstances, to refuse him permission to appeal or, having granted leave, to dismiss his appeal. In so holding their Lordships approved, some with reservations as to the notion of waiver in this context, a check-list of principles identified by the Court of Appeal (sub nom R v. Hayward & Ors) ([2001] QB 862, AT PARA. 22) for guidance of our courts in relation to the trial of a defendant in his absence. That check-list, which their Lordships considered gave general effect to the Strasbourg jurisprudence, had as central themes the discretion of a judge to try a defendant in his self-imposed absence and the need for great caution before doing so, to which Lord Bingham added, at para. 15, a third, the desirability of representation. An important factor going to the exercise of the discretion is the extent to which, if at all a defendant's absence would make his trial unfair and, if so, to such a degree that it would be likely to make a conviction unsafe.
71. In the light of those considerations and on the premise that we are correct in our view that the appellant deliberately absented himself from his trial, we would not regard the trial as unfair. And we would not, in any event, exercise our discretion under section 8 of the HRA to grant him the relief of an appeal with a view to re-trial, since we consider his conviction to be safe. In so concluding we have in mind: the weight of the evidence against the appellant, the fact that he was represented by senior and fully instructed counsel who took the view at the time that the trial could fairly proceed in his absence, and the nature and narrowness of the issues of fact taken on his behalf at the trial and before this Court.
72. In the circumstances, the question raised by Mr. Krolick whether the Judge had and should have exercised power to direct a re-trial because of involuntary absence of the appellant from his trial does not arise. It is enough to say that it is uncertain whether an accused is still entitled to move in arrest of judgment at any time between verdict and sentence (see e.g. R v. Gombos [1965] 1 WLR 575 and in R v. Goswami [1968] 2 WLR 1163). In R v. Laming (1990) 90 Cr App R 450, a case where an issue arose after conviction but before sentence as to the validity of the indictment, the Court indicated that it was for the Court of Appeal, not the trial judge, to investigate it. There may still be some life in exceptional cases for the procedure of moving in arrest of judgment between verdict and sentence, as the editors of the current edition of Archbold strongly argue at paras. 5-54 and 7-41-42. However, we believe that its proper use nowadays would be likely to be confined to a formal error, such as a fundamental defect in the indictment that cannot be cured by the verdict, as the Judge ruled. We consider that it could not properly be resorted to where a contested issue is raised post-trial as to why an accused had been absent from it and as to the impact of that absence on the fairness of his trial. In short, we consider that the Judge's ruling against the application was correct for the reason he gave.
73. Accordingly, we dismiss the appeal against conviction and refuse all the applications for leave to appeal against conviction.