England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Friday, 21st July 2006

    1.1 LORD JUSTICE HUGHES: We have before us a number of appeals and applications by Defendants who were convicted of conspiracy to commit money laundering offences before the decision of the House of Lords in R v Saik [2006] UKHL 18; 2 WLR 993 and before the substantive offences of money laundering were altered by the Proceeds of Crime Act 2002. We have heard them together because some, though by no means all, of the questions raised are common to several Defendants.

The legal history

    1.2 Money laundering offences have existed in English law since the Drug Trafficking Offences Act 1986. Putting to one side offences against the Prevention of Terrorism (Temporary Provisions) Act 1989, or the Terrorism Act 2000, with which we are not concerned, there existed prior to the enactment of the Proceeds of Crime Act 2002 two distinct groups of money laundering offences. Where the money was the proceeds of drug trafficking, they were contained in sections 49 -53 of the Drug Trafficking Act 1994 and derived either from the Drug Trafficking Offences Act 1986 or, in one case, from the Criminal Justice (International Co -operation) Act 1990. Where the money was the proceeds of other criminal conduct, they were contained in sections 93A -D of the Criminal Justice Act 1988 and had thus come into existence two years later. In most, although not every, respect, the two groups of offences were in similar terms. They did not, however, overlap; the illicit sources of the proceeds were in each case exclusive of the other. It is only since the enactment of the Proceeds of Crime Act, which takes effect from 24th February 2003, that a single group of money laundering offences has existed relating to all criminal property except for any alleged to relate to terrorism.

    1.3 All the Defendants with whom we are concerned were convicted of conspiracy to commit such offences. Charges of conspiracy were commonly preferred, prior to Saik, for a number of understandable reasons, even where it was the Crown's case that there had not simply been a conspiracy but that it had been carried out by the commission of substantive offences of money laundering. One reason was that it was often, perhaps usually, the case that there was a system in operation, with repetitive transactions of a similar kind, and one conspiracy charge was regarded as simpler and more representative of the overall criminality alleged than a number of substantive counts would have been.

    1.4 Some such conspiracy counts charged agreements to commit offences against one only of the two relevant Acts of Parliament. We shall refer to them as "single Act conspiracy counts".

    1.5 In some cases, the Crown charged a conspiracy to launder money in terms which alleged that the agreement had been to launder money which was either the proceeds of drug trafficking or the proceeds of other criminal conduct. Such counts were held to be lawful in Hussain and Bhatti [2002] EWCA Crim 6; 2 Cr.App.R 26. We shall refer to them for convenience as "either/or conspiracy counts". Such counts were of obvious utility if the Crown case was that the money came from mixed illicit sources, some drugs, some other criminal conduct. They were also of value to the Crown when it was uncertain which the source was, but it was contended that it could properly be inferred that it must be one or the other.

    1.6 The two statutes define the mens rea for the various money laundering offences in terms which vary somewhat from offence to offence. In several cases, however, it is defined as being knowledge or suspicion, or in some cases knowledge or reasonable grounds for suspicion, that the money represents the proceeds of the relevant type of crime. In Saik, the House of Lords has held that on proper interpretation, the sections which refer to reasonable grounds for suspicion import the necessity that actual suspicion by the Defendant must be proved. So for the commission of many of these substantive offences, suspicion that the money represents the proceeds of the relevant type of crime is sufficient mens rea to establish the offence; knowledge that the money is illicit need not be proved.

    1.7 It was established by the House of Lords in Montila [2004] UKHL 50; 1 WLR 3141 that although that is the mens rea, the actus reus of the offence is to launder money which is in fact the proceeds of the relevant type of crime. That means that the Crown must prove in all such cases that the money was in fact such proceeds. That had not universally previously been appreciated.

    1.8 Until the decisions of this Court in Liaquat Ali [2005] EWCA Crim 87; [2006] QB 322 and of the House of Lords in Saik, it was generally believed that the mens rea of conspiracy to launder money followed that of the substantive offences, so that proof of suspicion of illicit origin sufficed for conspiracy where it was enough for the substantive offence. That had been held to be the case in Sakavickas [2004] EWCA Crim 2686; [2005] 1 WLR 857.

    1.9 In Saik the House of Lords held that this was not so, upholding the earlier decision of this Court to similar effect in Liaquat Ali. The illicit source of the money is a "fact or circumstance necessary for the commission of the offence" for the purposes of the rule as to mens rea in conspiracy contained in s.1(2) Criminal Law Act 1977. Because of the operation of s.1(2), a conspiracy requires proof that the Defendant intended or knew that that fact or circumstance would or did exist. That means that if the money was already identified when the conspiracy was formed, the Defendant must be proved to have known of its relevant illicit origins, or, if no money was yet identified, he must be proved to have intended that the money should be of such illicit origin. Thus, as with other offences, the mens rea for conspiracy is greater than for the substantive offence.

The substantive offences.

    1.10 Among the most frequently charged of the money laundering offences are those created by s.49(2) Drugs Trafficking Act 1994 and its counterpart in s.93C(2) Criminal Justice Act 1988. They are in identical terms except as to the source of the money. They are the substantive offences relevant to all these present cases. S.49(2) provides:

"(2) A person is guilty of an offence if, knowing or having reasonable grounds to suspect that any property is, or in whole or in part directly or indirectly represents, another person's proceeds of drug trafficking, he - -

(a) conceals or disguises that property, or

(b) converts or transfers that property or removes it from the jurisdiction,

for the purpose of assisting any person to avoid prosecution for a drug trafficking offence or the making or enforcement of a confiscation order."

It is to be noted that the offence requires in addition to the mens rea discussed above, that the actus reus be done with the purpose of assisting someone to avoid prosecution or confiscation. We shall refer to this additional requirement as "the criminal purpose".

The issues in the present cases

    1.11 The present cases are all ones in which one or more conspiracy was charged. They took place before the decision in Saik. The particulars of the conspiracy offences alleged agreement to commit acts of money laundering within either s.49(2) Drug Trafficking Act or s.93C(2) Criminal Justice Act:

" . . . knowing or having reasonable grounds to suspect that . . . [the money] represented another person's proceeds of [illicit conduct]."

All were cases in which the Crown did not allege mere agreement, but a course of conduct of repetitive money -handling transactions which were advanced as the overt acts carrying out the conspiracy and from which the jury was invited to infer agreement. In every case virtually all the money -handling events were agreed to have taken place. Either the source of the money was admitted to be illicit or the Judge directed the jury that it must be sure it was. The real issue in each case was confined to the Defendant's state of mind, he in each case contending that he handled the money wholly innocently. Where there were trials, the Judges directed the jury that proof of either knowledge or suspicion as to illicit origin must be proved, thus that suspicion was sufficient. In one case a Defendant pleaded guilty on the basis that he had merely suspected illicit origins.

    1.12 The issues which now arise in these cases are these:

A. Was the law misapplied in treating proof of suspicion as sufficient mens rea for the offence of conspiracy to launder money?

B. Are the convictions nevertheless safe because the jury was directed that it must be proved that the Defendant must have the purpose of assisting another to avoid prosecution or confiscation, and must have found that he had, whilst the Defendant pleading guilty necessarily admitted by his plea that he had such a purpose?

C. Where the only point raised is the Saik point, and a Defendant seeks an extension of time to appeal against conviction, should such extension be granted?

D. If any conviction for conspiracy is unsafe, is it a proper case in which to substitute a verdict of guilty of a substantive offence, under the powers provided by sections 3 and 3A Criminal Appeal Act 1968?

A. Misapplication of the law

    1.13 The several directions given by the trial judges were all to the effect that proof of either knowledge or suspicion of illicit origin would suffice for conviction. Those directions were in every case correct according to the law as it was understood at the time they were given. It is, however, common ground that they cannot survive the decision in Saik. We agree. With the benefit of that decision it can now be seen that it is a misdirection in a case where conspiracy is charged to tell the jury that it is sufficient if the Defendant suspects illicit origin.

    1.14 The appellants and applicants say that it necessarily follows that their convictions are for this reason unsafe. The Crown contends, however, that they are perfectly safe because of the direction given as to the necessity that the Defendant be proved to have the criminal purpose of assisting another to avoid prosecution or confiscation.

B. The argument from purpose

    1.15 The Crown's argument runs as follows:

(a) A conspiracy is complete as at the time of agreement. Whether that criminal agreement is made in advance of the first money -handling transaction or is to be inferred to have come later as the volume and circumstances of the transactions became more obviously criminal, it is in either case to future transactions that the conspiracy looks.

(b) The source of money in future transactions cannot be known since the money is as yet unidentified at the time of formation of the conspiracy. Therefore, what has to be proved by way of mens rea pursuant to s.1(2) Criminal Law Act is not that the Defendant knew the origins of the money yet to come, but that he intended that it should be from illicit origins.

(c) It is an essential ingredient of the offence of conspiracy to launder money in contravention of s.49(2) Drug Trafficking Act 1994 or s.93C(2) Criminal Justice Act 1988 that the Defendant be proved to have had the purpose of assisting another to avoid prosecution or confiscation. All the juries were properly directed that this must be proved. It may not be possible to infer from proof of such purpose that the Defendant knew that money being handled was of illicit origins, but looking to the future, it is possible, it is said, to infer that he intended it to have such origins.

    1.16 We agree that the speeches in the House of Lords in Saik demonstrate that when asking what state of mind s.1(2) Criminal Law Act 1977 requires to be proved in a conspiracy case, knowledge is appropriate when the fact or circumstance already exists and is ascertained, whereas intention is appropriate when it has yet to come into existence or is otherwise unascertained. That is simply to say that it is not sensible to speak of knowing an as yet future and unascertained fact. The equivalent state of mind is an intention that it shall exist: "I intend to launder money which will be the proceeds of crime". As Hooper LJ observed in Liaquat Ali and Lord Brown confirmed in Saik, it is a state of mind which might also be described as belief; but of course the terms used in s.1(2) are "intend" and "know".

    1.17 It does not, however, follow that the speeches in Saik contemplated that proof of the purpose to assist another to avoid prosecution or confiscation could be said necessarily to amount to proof of intention, although not of knowledge. We are quite satisfied that this is not at all what their Lordships were saying in Saik. The argument from purpose now advanced to us is substantially the same as that advanced in Saik and rejected.

    1.18 At paragraphs 34 -35, Lord Nicholls said this:

"(34) Counsel further submitted that by pleading guilty the appellant accepted he had the requisite purpose. By his plea he accepted all the ingredients of the charged offence with the one exception of knowledge. Thus he accepted that he intended to convert the banknotes for the purpose of assisting another to avoid prosecution for a criminal offence etc. That state of mind, it was submitted, is consistent only with the appellant knowing the money represented the proceeds of crime.

(35) Again I cannot agree. I readily accept that, evidentially and inferentially, it is a short step from proof that the Defendant's purpose was to assist someone to avoid prosecution to a conclusion that the Defendant was aware the property had an illicit provenance. But that it an evidential inference. That step cannot properly be taken on the basis of a qualified plea which expressly proceeds on the footing of suspicion only."

    1.19 At paragraph 54 Lord Hope said this:

"(54) The second requirement, as to what the purpose was, is where the essence of the mens rea of the offence is to be found. It must be proved that the defendant's purpose was to launder the proceeds of another person's criminal conduct. If he knows the criminal origin of the property, his knowledge is linked to his purpose in engaging in the activity. If he had reasonable grounds to suspect that it had a criminal origin, his suspicion is linked to his purpose in the same way. Proof of what his purpose was will usually have to be found by drawing inferences. Evidence that the defendant knew or had reasonable grounds to suspect will usually be sufficient to show what his purpose was when, knowing or suspecting what the origin of the property was, he actually engaged in the prescribed activity."

    1.20 At paragraphs 118 -120, Lord Brown said:

"(118) . . . Does someone in the appellant's position, suspecting the property they are about to launder to be hot, 'intend or know' that in fact it is hot? Clearly they do not 'know' it - - at any rate on the facts of this case where the substantive offence expressly differentiates between the two states of mind, knowledge and suspicion, and the guilty plea is tendered and accepted explicitly on the basis of suspicion only. But did the appellant intend the property to be hot?

(119) I should say at this stage that the problem arising here is not one that arises in the context of handling offences. Handling is committed by those who know or believe that the goods are stolen. True, the offence is not committed if the goods, albeit believed stolen, in fact prove not to be. But if an agreement is made to handle goods believed to be stolen I for my part would have little difficulty in concluding for the purposes of section 1(2) of the 1977 Act that the conspirators intended or knew that they would be stolen. Section 1(2) looks to the future so that the putative conspirator's state of mind is in any event better described as belief than as knowledge - - a point well made by Hooper LJ in R v Liaquat Ali and others [2005] EWCA Crim 87, [2005] 2 Cr.App.R 864 (at para 98). One can never be certain that goods that are to come into one's possession at a future time will be stolen but a firm belief can be held and that is sufficient.

(120) The present case, however, is different. To suspect something to be so is by no means to believe it to be so: it is to believe only that it may be so."

    1.21 Carefully as it was developed, we are unable to accept the submission of Mr Sells QC for the Crown that the purpose argument failed in Saik only because that Defendant's basis of plea spoke of his suspicion that the money "was" illicit, and because, that being in the present tense, the House for that reason considered only knowledge rather than intention. Nor do we accept that in this context there is a crucial difference between knowledge and intention, the former not being inherent in the statutory purpose once established, but the latter being necessarily demonstrated by that purpose.

    1.22 Although in paragraph 54 Lord Hope referred to the purpose being where the essence of the mens rea is to be found, he also made it abundantly clear that in addition to criminal purpose there had also to be proved the mental element required by s.1(2) of the Criminal Law Act. Indeed, that is what the whole decision in Saik was about.

    1.23 Mr Sells took us also to paragraphs 78 -79 in Lord Hope's speech. There, dealing with the hypothetical case of Y, who receives cash to handle, suspecting but not knowing that its origins are illicit, Lord Hope said this:

"(78) Can it be said that he intends that it should be A, when he does not know what he will be dealing with? Solving this problem is not easy because the word 'intend' in section 1(2) refers to the existence of a fact or a circumstance, not to the consequences of giving effect to the agreement. But the words 'shall or will' indicate that nothing short of intention or knowledge as to its existence will do.

(79) I think that the answer to this question will depend on the facts. It could be said of Y that he knows enough about the purpose of the transaction because of the grounds for his suspicion for it not to matter whether he will be able to tell by looking at the cash that it is in fact the proceeds of crime. It may be open to the Crown to prove that Y knew very well what the purpose of the agreement was - - that he knew that the cash was to be converted to assist someone to avoid prosecution for an offence or the making or enforcement of a confiscation order, which is what section 93C(2) refers to. It might be going too far to say that he knew that the cash would be A when he came to deal with it. But it could be inferred that he intended that the cash would be A, because he knew that that was the only purpose of the transaction."

    1.24 We are quite unable to read those words as meaning that proof of purpose carries the necessary inference of intention. We regard it as clear that Lord Hope meant no more than that the same evidence from which the jury may infer purpose may well be used by it also to infer intention. That, however, remains a matter of fact for the jury and not a necessary corollary of law. Thus Lord Hope was expressing the same principle as was Lord Nicholls at paragraph 35, supra: it may be a short evidential step but it is a factual and evidential step, not a legal one, and it is one which only the jury can take.

1.25. Saik was a case almost identical to the present ones. The indictment was in the same form. Like Ramzan and Vakilipour, Saik operated a money -changing bureau. Like Ramzan, he received cash in very large quantities, brought informally to him, over a period - - in his case of about 10 months. There was thus the same course of repetitive money handling transactions. He pleaded guilty on the written basis that for about the last 2 -3 months of that period he suspected, but did not know, that the money had illicit origin. His admission of having the criminal purpose was inherent in his plea. If it had occurred to any of their Lordships in his case that that admission amounted to an admission of intent as to all future transactions, they would undoubtedly have said so, and the decision would have been otherwise.

    1.26 It seems to us moreover that in a case of repetitive transactions, such as Saik was and the present ones are, it will often, if not ordinarily, not be possible to analyse the formation of the conspiracy into prior agreement, with an intention as to the origins of future unascertained money receipts, as distinct from agreement inferred from knowledge of the origins of current receipts. In such a case, the intention as to future receipts will almost inevitably go hand in hand with knowledge as to current ones.

    1.27 However that may be, the juries in these present cases were at no stage even invited to consider the question of the intention of the Defendants as to the origins of future receipts. On the contrary, they were told that suspicion as to origins was enough to make the Defendants guilty. Once they were told that, it is quite impossible to say that they must have concluded from their decision as to purpose, and without being asked to address the topic, that the Defendants had a state of mind well beyond that of suspicion, namely intention (or belief).

    1.28 Mr Sells alternatively submitted that these convictions are safe because even if proof of criminal purpose does not carry with it as a matter of law proof of intention, nevertheless as a matter of fact these juries, once they had found criminal purpose proved, could not have failed, if they had been directed as to intention, to have found that also. For the reasons we have given, it is not possible to say this. It may well be that the evidence of intention was very strong, but the juries were never asked to consider whether it was proved or not; rather they were told that suspicion sufficed. And Syed, who pleaded guilty, admitted suspicion only.

    1.29 For these reasons, the argument from purpose fails. In the light of Saik, these convictions cannot be regarded as safe.

C. Leave to appeal out of time

    1.30 It is the very well established practice of this Court, in a case where the conviction was entirely proper under the law as it stood at the time of trial, to grant leave to appeal against conviction out of time only where substantial injustice would otherwise be done to the Defendant. Lesser (1939) 27 Cr.App.R 69 is an early example of emphasis that absent special reasons an application out of time will not be allowed. In Ramsden [1972] Crim LR 547 a Defendant who had been convicted of dangerous driving before Gosney (1971) 55 Cr.App.R 502 had held that fault was a necessary ingredient of the offence, was refused leave to appeal out of time after that latter decision had been published. The Court observed that alarming consequences would flow from permitting the general re -opening of old cases on the ground that a decision of a court of authority had removed a widely held misconception as to the prior state of the law on which the conviction which it was sought to appeal had been based. No doubt otherwise everyone convicted of dangerous driving over a period of several years could have advanced the same application.

    1.31 In Mitchell (1977) 65 Cr.App.R 185 Lord Lane CJ re -stated the principle thus:

"In should be clearly understood, and this Court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction."

In that case the Court granted leave, because it had before it a perfectly valid and timely appeal against sentence which could not properly be considered without investigating whether the Appellant had been guilty or not, and, since the evidence necessary to conduct that investigation remained available there would be substantial injustice to the Appellant if leave were refused.

    1.32 In Hawkins [1997] 1 Cr.App.R 234, the Defendant had been convicted, upon plea of guilty, of offences of obtaining property by deception prior to the decision of the House of Lords in Preddy [1996] 2 CrAppR 524 and in circumstances which the latter decision demonstrated did not amount to the offence. This Court refused him leave to appeal. Lord Bingham CJ reviewed the authorities and concluded:

"That practice may on its face seem harsh. On the other hand, the consequences of any rule are equally unattractive. It would mean that a defendant who had roundly and on advice accepted that he had acted dishonestly and fraudulently, and pleaded guilty, or who had been found guilty and chosen not to appeal, could after the event seek to reopen the convictions. If such convictions were to be readily reopened it would be difficult to know where to draw the line or how far to go back . . . It is plain, as we read the authorities, that there is no inflexible rule on this subject, but the general practice is plainly one which sets its face against the reopening of convictions recorded in such circumstances. Counsel submits - - and in our judgment submits correctly - - that the practice of the Court has in the past, in this and comparable situations, been to eschew undue technicality and ask whether any substantial injustice has been done."

Lord Bingham confirmed the same test in Campbell [1997] 1 CrAppR 199 at 206E.

1.33. Benjafield [2002] UKHL 2; [2003] 1 AC 1099 concerned confiscation orders. It was one of a number of cases raising the question of the applicability of the Human Rights Act 1998 to cases which were in train when it came into force. This Court gave leave to an applicant who was out of time on the ground that a point of general principle arose which needed decision. But in doing so, Lord Woolf CJ expressly confirmed the practice which we have set out.

1.34. Ballinger [2005] EWCA Crim 1060; 2 Cr.App.R 29 is a further striking example of the operation of the principle. The Defendant had been convicted at a Court Martial held before decisions of the European Court of Human Rights and this Court established that because the Judge Advocate was, habitually, a serving officer, the procedure of the Court Martial offended against Article 6. The Crown conceded that if leave were granted the appeal could not be resisted. Leave was, however, refused in accordance with the principles we have set out. No doubt if leave were to be given in such a case, it should be granted to every person ever convicted before a Court Martial adopting the procedure now held unlawful.

1.35. Kansal No.2 [2001] UKHL 62 was a further case upon the extent to which the Human Rights Act operates retrospectively by applying to appeals whenever heard. In the Court of Appeal it had been held that it was retrospective to the extent of applying in the instant case. In the House of Lords that decision was reversed, affirming the earlier decision to like effect in Lambert [2001] 3 WLR 206. But the House was exercised with the question whether if on true construction the statute were retrospective, that would lead to the undesirable undoing of very old and settled convictions. One of the arguments before the House was that to construe the statute as retrospective would not have that consequence, for it was said that two filters existed which would prevent it. One was the need to persuade this Court that leave should be granted out of time, and the other was to be found in the discretion of the CCRC whether to refer a case to this Court. Both Lord Steyn and Lord Hutton addressed the practice of this Court. Lord Steyn, at paragraph 26, said:

" . . . in Lambert the majority was strongly influenced by the view that the contrary interpretation would lead to the challenging of old convictions. It is now clear that there is a perfectly effective filter by way of the discretion of the Court of Appeal to refuse to extend time for leave to appeal in such cases. Moreover, a similar filter is applicable to the decision of the Criminal Cases Review Commission."

Lord Hutton, at paragraph 105, took the view that neither the practice of this Court nor the discretion of the CCRC would in fact be an effective filter in cases where the applicability of the Human Rights Act was in question, because of express language in s.22(4) of that Act, which contains the words "whenever the act in question took place". In his judgment, the plain undesirability of re -opening old settled cases made it clear that the Act was not to be construed as retrospective. But, the particular construction of the Human Rights Act apart, it is clear from both speeches that this Court's practice to grant leave out of time only where substantial injustice would otherwise be done is recognised, and indeed endorsed.

    1.36 We do not read Hendy [2006] EWCA Crim 819, to which we were referred, as establishing any contrary rule. On the view this Court there took of the law of diminished responsibility, no question of a subsequent change in the law as applicable at date of conviction arose, there was fresh evidence which led to the appeal being allowed, and the Court was not referred to the line of authority which we have set out.

    1.37 We have no doubt that the practice is very fully established, endorsed by successive Lords Chief Justice, binding upon us and soundly based in justice.

    1.38 With the exceptions of Ramzan and Vakilipour, all the Defendants before us need leave out of time, often an extension of some years. Ramzan does not need it because his case has been referred to the Court by the CCRC under s.9 Criminal Appeal Act 1995, which by s.9(2) stands as an appeal. Vakilipour does not need it because the single Judge granted him leave to appeal.

    1.39 We consider below the individual cases of those seeking leave and the several grounds on which it is contended that they would suffer substantial injustice if it were refused. We apply the line of authority which we have set out. We call attention to this factor, common to all the cases before us. Although Saik shows that the convictions for conspiracy cannot stand, it must have been found by the jury in all cases, or in the case of Syed he has admitted, that they suspected that the money they handled was illicit. All of them admitted the facts of extensive money -handling. That means that all of them must, on their own cases taken together with the verdicts of the juries, have committed one or more substantive offences of money laundering, for which suspicion remains the relevant mens rea. Had the law as now explained in Saik been known at their trials, they would no doubt have faced trial on indictments which included at least some substantive charges, and, whether or not convicted of conspiracy, they must have been convicted of substantive offences of great gravity. Whether or not it is now possible to identify such offence(s) and just to substitute convictions for them (as to which see below), this means that subject to any individual grounds for finding substantial injustice, these are strong cases for refusal of leave.

Applications for leave: practice

    1.40 There is no indication that the single Judge in Vakilipour had his mind directed to the line of authority which we have set out above. For the avoidance of doubt, it is our view that where the sole or principal point taken by an applicant is that his convictions, though lawful and proper at the time, should now be regarded as unsafe because a new decision has altered everyone's understanding of the law, his application should be referred by the Registrar directly to the Full Court, so that the merits of it can be investigated, with representation, perhaps on both sides, and a reasoned decision made whether or not there is substantial injustice.

CCRC references

    1.41 Where a case is considered by the CCRC, it is for the Commission to decide whether or not to make a reference to this Court. If it does, the reference stands as if leave has been granted: s.9(2) Criminal Appeal Act 1995. It follows that one effect of making such a reference is to pre -empt the decision which might otherwise be made on the merits of the case as to whether substantial injustice is established, so that leave should be granted, or whether leave should be refused in accordance with the ordinary practice of this court.

    1.42 In the case of Ramzan, he had previously made an application for leave to appeal on grounds which the single Judge ruled did not raise any arguable grounds for setting aside the conviction, and he decided, no doubt on advice, not to pursue the application to the Full Court. We appreciate that that meant that he could not himself make a second application, on the new Saik point. We do not know whether the Commission, before deciding to refer his case, took into account the very clear practice to which we have referred; it does not appear in the reference but that is not conclusive and it is not for us to make any further enquiry. We should, however, draw attention to what Rose LJ said when Kansal No.2 was in the Court of Appeal and it appeared, as authority then stood, that the Human Rights Act did apply to appeals however long after conviction they were heard. At paragraphs 21 -24 he said this:

"(21) In our judgment it plain on the authorities that, regardless of the presence or absence of the proviso to s.2 of the 1968 Act, it has been this Court's established practice for over 20 years not to grant an extension of time or leave to appeal because of a change in the law since trial. It is also plain, notably from Horsman, that, once leave has been granted, the only question for this Court, when hearing an appeal against conviction (whether on a reference by the CCRC or otherwise) is whether the conviction is safe.

(22) . . . we express the very firm hope that, in exercising the discretion under s.9 and the judgment conferred by s.13(1)(a), the CCRC may think it right to take into account this court's practice in refusing leave because of a change in the law just as, in the light of Pearson, they take the court's practice into account when assessing the possibility of fresh evidence being received. But the analogy is inexact: although s.13 requires a judgment as to what may happen on the hearing of an appeal, it is silent in relation to applications. And it may or may not be apt to construe the s.9 direction sufficiently widely to embrace consideration of the court's practice on applications. We do not think it right to reach any conclusion as to the full ambit of sections 9 or 13, because we have heard no submissions on behalf of the CCRC and because, a reference having been made in the present case without any challenge, we have to deal with the appeal.

(23) As a matter of statutory construction, however, it appears to us that the consequences of the absence from the Criminal Appeal Act 1995 of any time limit for references by the CCRC and the presence of the retrospectivity provision of s.22(4) in the Human Rights Act, as interpreted by the majority in Kebilene, are twofold: (i) the CCRC, subject to the proper exercise of the discretion conferred by s.9 of the Criminal Appeal Act, can refer to this court a conviction following a trial whenever it took place; (ii) this court, once such a reference has been made, has no option, however old the case, but to declare the conviction unsafe if that is the result either of the admission of evidence obtained in breach of Article 6 or of a change in the common law, which is deemed always to have been that which it is authoritatively declared to be, as, for example, by reason of Preddy . . . .

(24) We reach this conclusion with no enthusiasm whatever. Leaving aside colourful historical examples such as Sir Thomas More, Guy Fawkes and Charles I, all of whom would have benefited from Convention rights, until the Criminal Evidence Act 1898, no defendant was permitted to give evidence on his own behalf. That is a clear breach of Article 6. Many examples in the 20th century of other rules and procedures which, viewed with the wisdom of hindsight, were in breach of the Convention could be given. But we resist that temptation lest, by succumbing, we exacerbate the problem to which we are drawing attention. For over 20 years, this Court has adopted a pragmatic approach, confirmed by successive Lord Chief Justices, whereby a refusal to extend time to apply for leave to appeal has filtered out those seeking to take advantage of a change in the law since they were convicted. This, in our judgment, reflects the public interest that there be finality in litigation and it is an approach which has also helped this court to concentrate its limited resources on determining more meritorious appeals arising from more recent convictions. Subject to the outcome of further consideration of the breadth of the CCRC's discretion, it appears that Parliament, consciously or unconsciously, has completely emasculated that approach. If so, the consequential prospective work -load for the CCRC and for this court is alarming. If this is what Parliament intended, so be it. If not, the sooner the matter is addressed, by Parliament or by the House of Lords on appeal from this court, the better."

    1.43 As we have said, the decision whether to refer a case or not is one which only the Commission can make. Whether in a particular case that discretion is or is not exercised rationally and lawfully is not a question before us once a reference is made; the CCRC is not a party to these proceedings. We are conscious that s.22(4) of the Human Rights Act contained the express words referred to at paragraph 36 above and that although the Act was not in force domestically until 2000, the Convention, most of which it incorporates, was internationally binding on the UK as a State for many years before that. Whatever view may have been taken about referring cases where it was contended that s.22(4) was retrospectively operational, the question in cases such as the present is quite different. Like Rose LJ, we would respectfully express the hope that full consideration will be given to the test which is applied in English law when applications of this kind are made. It may be thought that whenever an Applicant is free to make his own application for leave, he should be left to do so, so that the merits of his case can properly be considered by the correct tribunal. It may also be thought that in other cases, careful regard should be paid to what would happen if the application were one which fell to be considered by this Court.

    1.44 Because it has a bearing on other cases, it is necessary for us to say that we would not have granted Ramzan leave to appeal out of time. On his own case, he processed about £97.5 million of cash over a period of about 18 months. The evidence showed it to have been collected surreptitiously in car parks all over the country. The jury must have found that it was of criminal origin. He had made on his own account a profit of around £700,000 for himself, and he had provided enormous assistance to what must have been large numbers of serious criminals. His contention that he had acted innocently throughout was advanced to the jury during a long trial, supported by his own evidence on oath, and was disbelieved. Although his conviction for conspiracy cannot stand, he must on his own admissions, coupled with the verdict of the jury, have committed at the very least a number of substantive offences of money laundering. If the point now established by Saik had been known at the time of his trial, the indictment would have been in different form, and whether or not convicted of conspiracy, he must have been convicted of substantive offences of great gravity. We are unable to detect any injustice, substantial or otherwise, in holding that if he were an applicant for leave, he should not now be granted, as a matter of discretion, leave to appeal out of time against a conviction which was arrived at by applying correctly the law as it stood at the time.

D. Substitution of convictions

    1.45 The Crown invites us in each case to substitute convictions for a substantive offence, in the exercise of the powers of this Court under sections 3 and 3A Criminal Appeal Act 1968. The point is illustrated by the offence proposed in the case of Ramzan, Malik and Carr:

"Statement of Offence:

Money laundering contrary to s.49(2) Drug Trafficking Act 1994.

Particulars of Offence:

Amer Ramzan, Faisal Malik, James Carr and others between the 17th day of May 1998 and the 12th day of February 2001, knowing or having reasonable grounds to suspect that property, namely cash was, in whole or in part directly or indirectly represented another person's proceeds of drug trafficking, converted or transferred the property, or removed it from the jurisdiction, for the purpose of assisting any person to avoid prosecution for a drug trafficking offence or the making or enforcement in his case of a confiscation order."

    1.46 Section 3 of the Criminal Appeal Act provides as follows:

"(1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence [to which he did not plead guilty] and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.

(2) The Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity."

    1.47 Section 3A makes equivalent provision for the case where the Defendant pleaded guilty. In such a case the power arises when this Court is satisfied that the plea of guilty indicates admission of facts which prove the Defendant guilty of the other offence.

    1.48 The sections impose a two -stage test:

i) Could the jury have convicted on the trial indictment, of the substitute offence?

ii) If yes, must the jury have been satisfied of facts which proved the Defendant guilty of the substitute offence, or, in the case of a plea of guilty, does the plea indicate an admission of facts proving him guilty of it?

    1.49 The first stage of the test takes one to s.6(3) Criminal Law Act 1967 and the decision of the House of Lords in Clarence Wilson [1984] 1 AC 242. The section provides:

"(3) Where, on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence."

Lord Roskill, in the only speech, set out the test as follows:

"Ignoring the reference to murder or treason, there seem to me to be four possibilities envisaged by the subsection. First, the allegation in the indictment expressly amounts to an allegation of another offence. Secondly, the allegation in the indictment impliedly amounts to an allegation of another offence. Thirdly, the allegation in the indictment expressly includes an allegation of another offence. Fourthly, the allegation in the indictment impliedly includes an allegation of another offence."

    1.50 Applying that test, the House held that indictments for inflicting grievous bodily harm contrary to s.20 Offences Against the Person Act 1961, and for burglary by causing grievous bodily harm having entered as a trespasser impliedly included in each case an allegation of assault occasioning actual bodily harm. It so held on the explicit basis that proof of assault is not necessary for either the s.20 offence or the burglary offence, and neither indictment contained the word "assault". Therefore the trial indictment did not "amount to" a charge of assault occasioning actual bodily harm. But both the s.20 offence and the offence of burglary of this kind included cases where the grievous bodily harm was done by way of assault; thus the juries could convict on the trial indictments of assault occasioning actual bodily harm. Lord Roskill was at pains (at page 258H) to reject a "red pencil" test, that is to say that the proposed alternative offence must necessarily be proved en route to the indicted offence. That had been the test applied in the earlier case of Springfield (1969) 53 Cr.App.R 608, which their Lordships overruled:

"In the present case, the issue to my mind is not whether the allegations in the section 20 charge, expressly or impliedly, amount to an allegation of a section 47 charge, for they plainly do not. The issue is whether they 'either expressly or impliedly' include such an allegation. The answer to that question must depend upon what is expressly or impliedly included in a charge of 'inflicting any grievous bodily harm'. I can, for present purposes, ignore the first limb of section 20 which is concerned only with unlawful wounding. As regards the second, if A includes B, it must be because A is sufficiently comprehensive to include B. Thus A may include B, but B will not necessarily include A, though of course B may do so. If this reasoning be right, I do not think it is relevant, in order to determine whether A includes B, to ask whether proof of B is a 'necessary step' to proof of A. This seems to me to state the problem the wrong way round and, with all respect to Sachs LJ in Springfield, 53 Cr.App.R 608, after the learned Lord Justice asked the right question he applied the wrong test in order to answer it."

    1.51 In both Graham [1997] 1 CrAppR 302 (at 313A) and Cooke, 24 Jan 1997, No.199901848/X3, this Court emphasised that at this first stage of the section 3 substitution test (unlike at the second stage) the Court can look only at the indictment and not at the evidence. But to say that is not to restore the rejected red pencil test. It means only that it is not permissible to say that although the indicted offence is for offence A, which does not include offence B, nevertheless if the evidence is that offence B was also committed, B can be substituted, or treated at trial as an alternative. If such were a permissible approach, it might be contended, for example, that on an indictment for unlawful wounding, if the witness statement disclosed that an unwarranted demand for money preceded the wounding, blackmail thereby became an included offence and a permissible alternative or substitute.

    1.52 A conspiracy is an offence complete at the time of agreement, whether or not it is subsequently carried out by the commission of the substantive offence. Therefore, it is submitted here on behalf of the Defendants, that the juries could not have convicted of the substantive offence of money laundering. The Crown's argument is that that submission is to revert to the red pencil test, and would mean that "includes" in s.6(3) added nothing to "amounts to". The Crown submits that in a sizeable proportion of conspiracy cases, perhaps the majority, the agreement is proved by overt acts amounting to the commission of the substantive offence. Thus, says Mr Sells, a count for conspiracy does not amount to a charge of the substantive offence, but it includes it, in the sense explained in Clarence Wilson. Looking only at the indictment, it can be seen that a conspiracy to commit a particular substantive offence includes that substantive offence. If anxiety be expressed about cases in which it would be unfair to a Defendant to permit an alternative verdict, for example because his case would have been conducted differently if that had been anticipated, or because some further evidence would then have been adduced, that is resolved by the rule that the leaving of alternative verdicts is for the discretion of the trial Judge, to be exercised only when he is satisfied that it can be done without unfairness. Likewise, this Court will not exercise its discretion to substitute under s.3 if unfairness might result.

    1.53 We see a good deal of force in the Crown's submissions on this first stage of the s.3 test. It is, however, unnecessary to resolve the question because we are satisfied that the Crown falls at the hurdle of the second stage.

    1.54 The verdicts of the juries in the present cases mean, we are sure, that they must have been satisfied that the Defendants had committed at least one, and in reality many, substantive offences of money laundering. In each case the jury was invited to infer agreement from what was done. What was done, by way of money handling, was admitted and must have been found proved. In each case, the jury found that the Defendant at least suspected the illicit origins of the money and had the criminal purpose. In each case the actual illicit origins were either admitted and thus proved, or the jury was directed that it must be sure of them before it convicted.

    1.55 But to say that each Defendant must have committed some substantive offence is not the same as saying that it is now possible to identify a substantive offence which the jury must have been satisfied was proved. As Lord Bingham CJ observed in Graham, on this question this Court has only the verdict of the jury to go on. All these cases were of repetitive transactions. In each case the jury was directed that it sufficed for conviction that the Defendant was party to the conspiracy at some stage. It is impossible to know what the conclusions of the juries were about the stage at which any Defendant was a conspirator and thus committed a substantive offence.

    1.56 The Crown's contention is that this does not matter. It says that the substantive offences contrary to sections 49(2) Drug Trafficking Act 1994 and 93C(2) Criminal Justice Act 1988 are "activity" offences so that a single count may be preferred, without duplicity, to cover the whole period of the individual transactions relied upon. Thus the proposed substantive counts, an example of which we have set out, must have been found proved by the juries, because the commission of any single criminal transaction with the required mens rea would suffice.

    1.57 There is no doubt that some offences are properly regarded as activity, or continuous, offences so that a course of conduct may be charged without duplicity. An example is the offence of being concerned in the evasion of duty contrary to s.170(2) Customs and Excise Management Act 1979: see Martin & White [1998] 2 Cr.App.R 385. Such an offence is framed so as to relate to both a single act and a course of conduct, indeed more often the latter.

    1.58 We accept Mr Sells' proposition that the law should eschew undue technicality. He referred us to a passage in the speech of Lord Diplock in Merriman [1973] AC 584 at 607:

"Where a number of acts of a similar nature committed by one or more defendants were connected with one another in the time and place of their commission or by their common purpose in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice as early as the eighteenth century, to charge them in a single count of an indictment."

That was, however, said in the context of a decision that a count charging defendants jointly with an offence also charges the defendants severally, or separately. The case before the House did not address the question of when an offence can properly be regarded as an activity offence.

    1.59 Mr Sells contends that wherever there is a course of criminal conduct, a single count may be preferred, charging an activity offence. We are unable to accept so widely stated a proposition. If it were correct, it would mean that all the debate which has occupied the criminal law for years as to how to deal with repetitive offences from employee theft via benefit fraud to sexual assault has been unnecessary. So too would the recent enactment of the provisions of section 17 and following of the Domestic Violence, Crime and Victims Act 2004.

    1.60 We do not consider that the substantive offences of money laundering contained in s.49(2) Drug Trafficking Act 1994 and s.93C(2) Criminal Justice Act 1988 are in pari materia to that in s.170 Customs and Excise Management Act 1979, nor that they should be regarded as activity offences. The statutory language is quite different. An offence is committed with each conversion, or removal etc of money. Different considerations may apply to different transactions, particularly if the jury is invited by the Crown to infer mens rea from the repetition, scale or circumstances of them. Sample charges may well be appropriate, depending on the evidence, but that is not the same thing as a compendious count of the kind proposed. Moreover, substitution at this stage is a matter of discretion, and this Court does not have the opportunity to re -create the evolution of the trial. We are not prepared to substitute convictions for offences in the form proposed.

    1.61 We have not addressed, and say nothing about the nature of:

i) offences against differently expressed provisions of the Acts, for example s.50 Drug Trafficking Act and s.93A Criminal Justice Act; and compare now s.328 Proceeds of Crime Act;

ii) sample count(s), if demonstrably appropriate.

    1.62 We should add that in cases where the conviction was of an either/or conspiracy, we see overwhelming objection in any event to any substitution of a substantive offence, because there is no means of knowing which substantive activity the jury convicted of or, in the case of a plea of guilty (unless it was made clear) which the Defendant admitted.

    1.63 We turn to the individual cases.

Ramzan

    1.64 Ramzan ran a travel and hawala banking business in Halifax. He undoubtedly had legitimate business of both kinds, on a comparatively small scale. It will of course very often be the case that those who turn to criminal money laundering are those who have established banking or financial businesses providing scope and expertise in the handling of money. Over a period of about 18 months between August 1999 and his arrest in February 2001, he received £97.5 million in cash which was brought to him by Malik and others in bags, having been collected in car parks around the country. He converted it, through two bank accounts he had, into US dollars, and he then sent it abroad, to a business in Dubai where it was no doubt distributed further at the instance of whoever had an interest in it. Ramzan had charged, on his own account, 0.8 per cent for his services, which would have produced nearly £800,000, of which about £700,000 was net profit. The transactions were all admitted. His case was that he believed the money to be lawful, and to come from cash and carry businesses, textile dealings or the sale of mobile telephones, and he gave evidence to that effect.

    1.65 Ramzan was convicted by the jury of a single Act conspiracy to contravene s.49(2) Drug Trafficking Act. The conviction was on 26th June 2002. He made timely application for leave to appeal against conviction on grounds which the single Judge found disclosed no arguable case. He did not renew his application before the Full Court. He appears before us pursuant to a reference by the CCRC, which made the reference on the Saik point alone. Thus he is treated as if he had been given leave to appeal.

    1.66 For the reasons explained, his conviction is unsafe in the light of Saik and must be quashed. We are unable to substitute conviction for the offence proposed. We are satisfied that the interests of public justice require a re -trial and direct that it shall take place at Leeds Crown Court, unless otherwise directed by the Presiding Judges of the North Eastern Circuit, and that he is to be arraigned within two months of today unless further order be made by this Court. In the meantime he is to remain in custody.

Malik

    1.67 Malik was the collector of cash from informal locations such as car parks all over the country. He took it to Ramzan to be processed, and made similar deliveries to at least two other money exchange businesses in Yorkshire and the West Midlands. The total sum thus handled by him was in the region of £180 million. He used one or more false names and frequently changed his mobile telephone number. He admitted all the transactions. His case was that he had been asked to undertake them by his stepfather and a business associate in Dubai. In interview he told the investigators that after a while it was obvious to him that the money could not all be coming from cash and carry businesses, although he had never thought it was from drugs. He told a number of admitted lies. At trial, however, his case was that he believed throughout that all the money came from legitimate sources, such as money exchange bureaux, and he gave evidence to that effect.

    1.68 Malik was convicted by the jury of a single Act conspiracy to contravene s.49(2) of the Drug Trafficking Act 1994. His conviction was on 26th June 2002. His application for leave to appeal was lodged on 7th July 2005; thus he seeks three years extension of time.

    1.69 Malik's application for leave was first listed, together with that of Carr and the appeal of Ramzan, after the decision in Liaquat Ali. The Crown had not sought to take Ali to the House of Lords and counsel then instructed submitted a skeleton argument in which he accepted that leave would be given and the appeal allowed, but contended that there should be a retrial. By the time the case was listed, on 22nd September 2005, Saik was pending in the House of Lords and the Court therefore adjourned the application. Malik has contended before us that the Crown's stated attitude prevents it from arguing against leave being given, alternatively that it is a reason why it would be unjust to refuse leave. The question of whether leave is to be given is for this Court and not for the Crown: see for example McIlkenny (1991) 93 CrAppR 287. Mr Clegg QC properly did not contend otherwise and accepted that there could be no question of the Court being bound by any view expressed by the Crown, nor of that not being understood throughout. We indicated at the outset that we wished the material law on the question of the grant of leave to be presented to us by both sides, in order to inform our decision. That position being accepted, there are no grounds in the Crown's previous attitude for us to do other than determine the application on its merits.

    1.70 That consideration apart, it is submitted for Malik that leave should be granted because (a) he would otherwise be treated differently to his co -accused Ramzan, and (b) his answers in interview were treated at trial as tantamount to admissions, whereas on the basis of Saik, they were denials. We have set out earlier our considered view that had the issue of an application for leave by Ramzan arisen we should not have granted it. We do not consider that the fact that Ramzan is by chance here on referral by the CCRC, because of his previous application for leave, should cause us to decide Malik's application otherwise than we would have done if Ramzan had been in the same position as Malik. As to his answers in interview, they no doubt provided additional evidence that he suspected the illicit origins of the money; indeed the evidence that he must have done was overwhelming. They do not, however, mean that he has suffered substantial injustice any more than does the other evidence that he must have had such suspicion. Indeed, his answers, like the other evidence, demonstrate that no substantial injustice has been suffered, since they show that he must have been guilty of substantive offences on a very large scale.

    1.71 For those reasons, we refuse leave to appeal in Malik's case.

Carr

    1.72 Carr made a number of deliveries from Liverpool, where he lives, to Malik, mostly handing over large sums of cash at a car auction car park in Brighouse, West Yorkshire. He admitted doing so on eight or nine occasions. On six occasions on which he was observed to do so, there was evidence that the sums totalled £3.8 million. Malik gave evidence that there were many more transactions, but it may not be safe to assume that that evidence was accepted. Carr gave evidence that he believed that he was delivering personal effects for a man he thought was a doctor, but that must have been disbelieved. The issue at trial was limited to his mens rea and criminal purpose.

    1.73 Carr was convicted of a single Act conspiracy to contravene s.49(2) of the Drug Trafficking Act 1994. His conviction was on 26th June 2002. His application for leave to appeal was lodged on 5th August 2005. On application for leave, the arguments for Carr mirrored those for Malik, though without the interview point and with the addition of the point that in sentencing the trial Judge said that he "knew or at least suspected" the illicit origins of the money. That last observation did no more than reflect the verdict of the jury and demonstrates, as in the case of others, that whether guilty of conspiracy or not, Carr must have been guilty of one or more substantive offences. For the same reasons as in the case of Malik, we refuse leave.

Syed

    1.74 Syed was recruited by Malik to make frequent collections of cash from different parts of the country and to deliver it to Ramzan. Some of his collections were from two subsequently convicted heroin dealers.

    1.75 Syed pleaded guilty to an either/or conspiracy count on the basis of suspicion rather than knowledge of the illicit origins of the money. He did so on 4th April 2002. His notice of appeal was lodged on 19th August 2005. The Crown's previously stated attitude to the applications of others did not apply to him, but he argued before us that he should have leave to appeal because (a) it would work substantial injustice to treat him differently to Ramzan and (b) Malik and he could have been tried with Liaquat Ali rather than with Ramzan and would then have succeeded on appeal with him. The first ground we have already considered and rejected in other cases, and Syed's is no different. As to the second, it does not follow that he would have been an appellant with Ali, who only took the point which eventually succeeded the day before the hearing of his appeal; in view of Syed's plea it is perhaps unlikely. In any event, such hypothetical considerations do not produce substantial injustice. On his own admission Syed was guilty of repeated substantive offences of money laundering. We refuse leave in his case also.

O'Brien

    1.76 O'Brien made a number of deliveries of cash to Malik at roadsides or in car parks. On the Crown case, her involvement was comparatively limited when set alongside that of other defendants. She neither answered questions in interview nor gave evidence, but the case advanced was that she was not proved to be guilty. She was convicted by the jury of an either/or conspiracy, which was how the Crown had put its case against her. The conviction was on 26th June 2002; the notice of appeal in September 2005. Her argument for leave mirrors that of Malik. There is no substantial injustice in her case. We refuse leave for the same reasons as apply to the other defendants.

Israel

    1.77 Israel ran a property business in Stamford Hill. Large sums of cash were brought there by unidentified persons and no record was kept in the business books. Israel sent it for conversion to US dollars via Securicor. It was returned in dollars in the same way, and then collected by similarly unidentified and unrecorded persons. There were 53 transactions over a period of about five months ending in March 2001. The sums totalled about £6 million. It was common ground at his trial that the origins of the money were illicit and that there was a conspiracy involving others, one of whom had pleaded guilty and others of whom had evaded capture. Israel's case was that he was their dupe, that they had been responsible for everything which had happened, and that he had believed that their transactions were fully above board. He did not give evidence, but called a number of witnesses as to character and the appearance of the transactions. There was evidence that he had signed for the returning dollars in a false name and that he was in possession of the keys to the cabinet in which $700,000 was found at the time of his arrest. Directed that either knowledge or suspicion sufficed, the jury convicted him of two either/or conspiracies, which were the only counts on which he was tried. The convictions were on 5th December 2001; the notice of appeal was lodged over three and a half years later on 11th August 2005.

    1.78 Mr Goldberg QC submitted that Israel should have leave to appeal on the grounds that (a) he would otherwise be treated inconsistently with such as Vakilipour and Ramzan, (b) he had acted promptly once the Saik point was appreciated and had not further delayed, and (c) he was a man of previous good character for whom the consequences of conviction were very serious, since he had lost his good standing in a rigorous community, had paid a substantial confiscation order of £466,000 and, though now released from his sentence, was still under licence terms which restrict his freedom of movement and activity. We have already indicated that we are not persuaded by comparisons with others in different positions. We accept that Israel acted promptly after Liaquat Ali and that that means that he does not have an additional hurdle of further delay to overcome, but the question is whether he would suffer substantial injustice if not granted leave. We do not consider that that can be said. Whether or not guilty of conspiracy, he must on the verdict of the jury have committed a number of serious money laundering offences. We have no doubt that the consequences of conviction are serious for him, but those are the consequences of offending, which he has clearly done. In his case also, we refuse leave.

Vakilipour

    1.79 Vakilipour had a legitimate small scale business sending money abroad for expatriates living in the UK who wished to send resources home. Over the period of about three months he received bank transfers totalling about £3 million from a number of companies registered by a man called Perry. Having received the bank credits, he withdrew the money in cash and either returned it to Perry or dealt with it at his direction. It was in fact, as was common ground at the trial, the product of "carousel" VAT frauds. His case, as to which he gave evidence, was that he acted bona fide and had no knowledge or suspicion that the money was of illicit origin; he suggested that Perry had said that he needed cash to buy computers at a discount and was not able conveniently to obtain it through his own bank. That was disbelieved, for the jury convicted him of four counts of single Act conspiracy to contravene s.93C(2) of the Criminal Justice Act 1988.

    1.80 Leave to appeal having been given, his appeal must succeed because the Judge, correctly at the time, directed the jury that either knowledge or suspicion, together with criminal purpose, would suffice for conviction. We are unable to substitute the suggested conviction on course of conduct counts for the reasons given above. His appeal will accordingly be allowed. We are satisfied that the interests of public justice require a retrial. He may have completed his sentence, but these are, if proved, serious offences; his guilt or otherwise needs to be established, and confiscation proceedings await the outcome. We direct that his retrial shall take place at the Crown Court at Harrow unless otherwise directed by the Presiding Judges of the South Eastern Circuit, and that he is to be arraigned within two months of today unless further order be made by this Court. In the meantime he may have bail conditional on his surrender at the Crown Court for arraignment.

    1.81 The consequence for Carr, who has been on bail, is that his bail comes to an end. He is not here but has been in touch with the court to explain that he cannot afford the train fare. He has attended at a police station in Liverpool. The proper course is that he must be restored to the Prison Service. For that purpose we direct that he surrender by 3 o'clock this afternoon to the Liverpool Crown Court, Derby Square, Liverpool.

    1.82 We have three applications in relation to representation orders to consider. First, to extend representation orders for Ramzan, Carr, O'Brien and Vakilipour's solicitors. The answer is no. To the extent that the preparation of either an application or an appeal is covered by the order in the Crown Court for representation, we do not of course disturb that, but there is no reason to depart from the usual practice in this court of representation orders for counsel only. The same applies, we regret, to the application for junior counsel for Israel. We are aware that he had previously been instructed privately, as had his leader. We directed that he be represented here and gave a representation order for leading counsel only, but that was what was needed. We are conscious that junior counsel prepared the skeleton at the time when he was privately instructed. We were assisted by it, but nevertheless we have to say that there are no grounds for extending the representation order. Attendance today is covered.

    1.83 Is there any consequential application?

    1.84 MR WALBANK: My Lords have addressed the question of Mr Ramzan's bail position. I know my learned friend Mr Katantzis wishes to say something.

    1.85 MR KAZANTZIS: My Lord, it is not clear to me whether or not a formal application was made on Wednesday. On that basis, I was to ask for leave to address you as to Mr Ramzan's bail.

    1.86 LORD JUSTICE HUGHES: Yes.

    1.87 MR WALBANK: Your Lordships will be aware of the fact that he has now been in custody since June 2002.

    1.88 LORD JUSTICE HUGHES: Yes, he is serving 12 years.

    1.89 MR KAZANTZIS: Yes, my Lord. During that period he has achieved the Category D status in prison and has this time been allowed three town visits with his family. So he has been trusted, my Lord, to return at the appropriate time. His next town visit would have been tomorrow. However, my understanding is on the basis that he now will be a remand prisoner. His status will be revoked and he will lose his Category D status and be removed to a remand prison because he is no longer serving, having had his conviction quashed.

    1.90 My Lord, my understanding is that he was on bail throughout the initial proceedings. He has the community ties in the area. He has two addresses. Whilst the previous proceedings were ongoing, he was granted bail to reside at one of two addresses. One is the address of his father which is 2 Willow Street, Hopwood Lane, Halifax. The other is Netherby House, Ludgate Lane in Middlesbrough.

    1.91 LORD JUSTICE HUGHES: Yes.

    1.92 MR KAZANTZIS: That is the family home where his wife and children reside. The understanding, my Lord, is that the commuting distance does not allow him to go back to his home.

    1.93 LORD JUSTICE HUGHES: I see.

    1.94 MR KAZANTZIS: The position is that he is now due for parole in October next year. This case is highly unlikely - -

    1.95 LORD JUSTICE HUGHES: October next year?

    1.96 MR KAZANTZIS: October 2007. It is highly unlikely, considering the scope of this case, that this case will come to trial before that time. I think it would be a very difficult. I have been informed by my learned friend who represents Mr Malik that it took some seven months for the Crown to serve the papers in that case from when his conviction was quashed. Thereafter, those papers have to be read, agreements made on the submissions and trial dates made available. We all know the difficulties of lengthy trials and dates being made available.

    1.97 LORD JUSTICE HUGHES: Thank you very much.

    1.98 MR WALBANK: My Lord, may I just say the Crown's position is that we oppose that.

    1.99 LORD JUSTICE HUGHES: Thank you. [Pause]. We shall not grant bail. The quirks of the prison system are beyond our control, but representation can no doubt be made to the Governor as to the status which he enjoyed before hand. What we say at the moment is, of course, without prejudice to the power of the Crown Court to consider questions of bail if circumstances change. Without attempting to fetter the Crown Court in any way, we recognise that if what would otherwise be the parole date were approaching, that might be a relevant consideration. Now, Mr Walbank.

    1.100 MR WALBANK: Only two other issues. On the face of it, it seems extremely unlikely that the Crown would be inviting the court to certify any questions in respect of those defendants whose convictions have been quashed, but I do not have my solicitors here. Would your Lordships allow me perhaps until 4 o'clock on Monday to confirm that is the position or alternatively to submit a proposed question?

    1.101 LORD JUSTICE HUGHES: Yes.

    1.102 MR WALBANK: I am obliged. The final matter is this. Would your Lordships consider giving administrative directions relating to the other cases in the pipeline? The matter was raised in our initial skeleton. We invite your Lordships to consider directing that any further applications for leave to a single judge be dealt with by one or other of your Lordships.

    1.103 LORD JUSTICE HUGHES: We have dealt with that, have we not? If you look at paragraph 40, that is what that is intended to do. We say they should go to the Full Court.

    1.104 MR WALBANK: I am most obliged.

    1.105 LORD JUSTICE HUGHES: That, of course, will not cover cases where applications have already been made and considered. There may be some of those.

    1.106 MR WALBANK: There are four references where the CCRC have made reference. Would your Lordships consider directing that the substantive appeals in those cases come before a constitution which includes at least one of your Lordships?

    1.107 LORD JUSTICE HUGHES: No, but if it can be achieved it may well happen.

    1.108 MR WALBANK: My Lord, I am obliged.

    1.109 LORD JUSTICE HUGHES: Thank you all very much. We have been much assisted by the arguments and skeletons on all sides.