QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE IRWIN
|MARK JOHN HOGAN||(CLAIMANT)|
|THE DIRECTOR OF PUBLIC PROSECUTIONS||(DEFENDANT)|
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MISS C HOWELL (instructed by CPS Lincolnshire) appeared on behalf of the DEFENDANT
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"The scaffolding recovered belonging to Deborah Services weighed over 15 tonnes and had a value in excess of £6,000. A prepared schedule gave a replacement value of £6,192.63 for the tubes and scaffolding boards recovered. The scaffolding tubes have a life of ten years and retain their value during this time. The scaffolding boards would have a life of between two to five years. A payment of £1,100 was in the opinion of Mr Lawson not adequate as consideration for the property subject to the two charges."
Mr Lawson also indicated that the equipment could not have been legitimately offered for sale marked with the security code of Deborah Services.
"The appellant confirmed that he had worked at Deborah Scaffolding Services. He maintained he did not get the surname of Darren [the man who had sold him the scaffolding]. He paid him in cash and did not get a receipt. Further, he did not enter the purchase in any business record for his company."
"There was no legitimate way such scaffolding could be sold and I believed that the applicant would have known this. Further, the evidence that the applicant gave of the purchase of this scaffolding led me to conclude that, even accepting that £1,100 on the balance of probabilities may have been paid, it was in circumstances where he knew he was purchasing property which was the proceeds of crime. The applicant maintained that he knew the person as 'Darren'. He paid for the equipment in cash and kept no business records of the transactions. I was satisfied that attempts had been made to conceal the true identity of the scaffolding."
"I rejected a submission both at the close of the prosecution case and after hearing the defence case. I concluded that section 329(2)(c) of the Act did not provide an absolute defence upon evidence of payment being made in consideration for the property. The word 'adequate' within the meaning of the Act required the court to consider the whole circumstances and manner in which the consideration may have been paid to decide whether it was 'adequate'. Merely the fact that the sum paid of £1,100 might be considered adequate value was not the sole consideration."
"Whether I erred in law in looking at the whole circumstances of the alleged payment of consideration in concluding that the applicant had not paid adequate consideration or the applicant was afforded a defence under section 329(2)(c) of the said Act once he established that he had made payment of consideration which might be adequate in value."
"329(1) A person commits an offence if he-
(a) acquires criminal property;
(b) uses criminal property;
(c) has possession of criminal property.
(2) But a person does not commit such an offence if-
(c) he acquired or used or had possession of the property for adequate consideration ...
(3) For the purposes of this section-
(a) a person acquires property for inadequate consideration if the value of the consideration is significantly less than the value of the property;
(b) a person uses or has possession of property for inadequate consideration if the value of the consideration is significantly less than the value of the use or possession ... "
"(3) Property is criminal property if-
(a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and
(b) the alleged offender knows or suspects that it constitutes or represents such a benefit."
"It is a defence to a charge of committing an offence under this section that the person charged, acquired or used the property or had possession of it for adequate consideration."
"Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence, or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him; and this notwithstanding that the information or complaint contains an allegation negativing the exception, exemption, proviso, excuse or qualification."
"(1) A person is guilty of an offence if, knowing that any property is, or in whole or in part directly or indirectly represents, another person's proceeds of criminal conduct, he acquires or uses that property or has possession of it."
The question of the defence of acquisition for adequate value therefore only arose at all under the earlier statutory provisions once the defendant was proved to have knowledge of the fact that the property in question represented the proceeds of criminal conduct. This is significant in two ways: firstly, as confirming that the change in the formulation of section 329 is deliberate since the schemes of the two Acts are different, and secondly, as confirming the much lower mental threshold required for an offence under the 2002 Act.