COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
SITTING AT THE MIDDLESEX GUILDHALL, LONDON
His Honour Judge Martineau
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE GLOSTER
HIS HONOUR JUDGE DIEHL QC
(sitting as a Judge of the Court of Appeal, Criminal Division)
|- and -
|HILDA GONDWE DA SILVA
RICHARD MILNE Esq for the Respondent
Hearing dates : 19th May 2006
Crown Copyright ©
Lord Justice Longmore :
". . . . if a person enters into or is otherwise concerned in an arrangement whereby –
(a) the retention or control by or on behalf of another ("A") of A's proceeds of criminal conduct is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise)
. . . . . . . . . . . . . . . . . . . .
knowing or suspecting that A is a person who is or has been engaged in criminal conduct or has benefited from criminal conduct, he is guilty of an offence."
"So, probably, 'knowing' will not arise and what will arise instead is 'suspecting', which is a very different state of mind to knowing. To suspect something, you have a state of mind that is well short of knowing that the matter that you suspect is true. It is an ordinary English word. Members of the jury, if the Crown can show that the defendant said to herself, 'I suspect that this money is the proceeds of criminal conduct, but it may be, on the other hand, that it is not', that would fall within the definition of 'suspicion'. The dictionary definition, which I direct you is relevant, to the meaning of the word, is this. The dictionary definition of 'suspicion': 'an act of suspecting, the imagining of something without evidence or on slender evidence, inkling, mistrust'. Therefore, any inkling or fleeting thought that the money being paid into her account 9950 might be the proceeds of criminal conduct will suffice for the offence against her to be proved."
"A person is guilty of an offence if, knowing or having reasonable grounds to suspect that any property is . . . . another person's proceeds of criminal conduct, he
(a) conceals or disguises that property; or
(b) converts or transfers that property . . . ."
In the light of this express reference to "reasonable grounds" for suspicion in section 93C of the 1988 Act, it is impossible, in our judgment, to read in similar words in 93A(1) when the words are just not there.
(1) the Proceeds of Crime Act 2002, which is now the governing statute, likewise sometimes uses the words "suspects" as in eg section 328(1) (the equivalent of section 93A), section 330(2)(a) and section 331(2)(a) and, at other times, the phrase "reasonable grounds for suspecting" in eg sections 330(2)(b) and 331(2)(b);
(2) Mr Cifonelli's concern about inappropriate convictions is unlikely to arise in practice since, if a potential defendant in fact has no reasonable grounds to suspect that the facilitated person is or has been engaged in criminal activity, it is unlikely that a prosecution will be taking place and, if it does, extremely unlikely that a jury will decide that a defendant has a suspicion when no reasonable ground exists for entertaining such a suspicion.
(1) Was the judge entitled to assist the jury by giving any definition and in particular a dictionary definition of the ordinary English word "suspect" or "suspicion"?
(2) Is the dictionary definition given by the judge the correct way to interpret the word "suspecting" in section 93A?
(3) Did the judge's introduction of the concept "fleeting thought" (not part of the dictionary definition cited by the judge) constitute a misdirection?
"Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end."
"In summary, blind-eye knowledge requires, in my opinion, a suspicion that the relevant facts do exist and a deliberate decision to avoid confirming that they exist. But a warning should be sounded. Suspicion is a word that can be used to describe a state-of-mind that may, at one extreme, be no more than a vague feeling of unease and, at the other extreme, reflect a firm belief in the existence of the relevant facts. In my opinion, in order for there to be blind-eye knowledge, the suspicion must be firmly grounded and targeted on specific facts. The deliberate decision must be a decision to avoid obtaining confirmation of facts in whose existence the individual has good reason to believe. To allow blind-eye knowledge to be constituted by a decision not to enquire into an untargeted or speculative suspicion would be to allow negligence, albeit gross, to be the basis of a finding of privity."
In other words, a vague feeling of unease was not sufficient, nor was gross negligence; see also paragraph 25 per Lord Hobhouse. The suspicion had to be firmly grounded and targeted on specific facts Likewise, in Barlow Clowes International Ltd v Eurotrust International Ltd,  UKPC 37,  1 All ER 333, a case against an alleged money launderer based upon the defendant's dishonest assistance in a breach of trust, the Judicial Committee stated that it was sufficient, on the facts of that case, that the defendant "entertained a clear suspicion" that there had been a misappropriate of monies; see paragraph 28 of the judgment, and also paragraph 19, where the rubric "solid grounds for suspicion" was approved.
"Since suspicion is a word of ordinary English, it may be helpful to consider the dictionary definition of suspicion."
They then cite the 7th edition of Chambers and continue:-
"Suspicion is a word in daily usage, it should be given its ordinary meaning. Thus any inkling or fleeting thought that the property might be the proceeds of drug trafficking will suffice for this section. This wide, all-encompassing section emphasises, yet again, the draconian effect of the legislation."