Jersey Unreported Judgments

[2006]JRC082

ROYAL COURT

(Samedi Division)

2^nd June 2006

Before     :

Sir Richard Tucker, Kt., Commissioner.

The Attorney General

-v-

Peter Wilson Michel

Simone Anne Gallichan (formerly Rabet)

Directions hearing

C. E. Whelan, Esq., Crown Advocate.

Advocate D. F. Le Quesne for Michel.

Advocate C. M. Fogarty for Gallichan

JUDGMENT

THE Commissioner:

1.        The application now before me is made by Advocate Le Quesne on behalf of the defendant, Peter Michel.  It relates to Counts 1 and 9 of the Indictment.  Count 1 is in these terms:

" Assisting another to retain the benefit of criminal conduct, contrary to Article 32(1)(a) of the Proceeds of Crime (Jersey) Law 1999  "

Particulars of Offence:

"Peter Wilson Michel and Simone Anne Gallichan (formerly Rabet), between about 1^st July 1999 and 8^th July 2001, in the Island of Jersey knowing or suspecting that clients of Michel and Co. were persons engaged in criminal conduct, namely theft and/or cheating the UK Public Revenue, were concerned together and with others in an arrangement whereby the retention or control on behalf of such persons of their proceeds of criminal conduct, namely stolen funds or funds chargeable to tax which were transferred to accounts at banks in Jersey in a manner calculated to conceal that they were so chargeable, was facilitated, by the delivery to such persons in England of cash in amounts broadly corresponding to such transfers.

2.        It was at first submitted that this Count is bad both for duplicity and for insufficient particularity, and that it should therefore be quashed.  So far as the complaint of lack of particularity is concerned, it is to be observed that further particulars of this Count were provided last year.  There has been no request for yet further particulars.

3.        It is submitted that the fundamental rule is that a Count should not allege more than one offence.  Reliance is placed on the Indictment Rules 1972.  Rule 1 states:

"Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge:

Provided that where a number of offences of the same or of a similar character have been admitted by the accused, the first of such offences shall be set forth in the manner prescribed above, but the remainder of such offences may be set forth in the form of a list, stating only the date and place and any other information necessary to identify each particular offence."

4.        Rule 6 (2) states:

 Where, before trial, or at any stage of a trial, the Court is of opinion that an accused person may be prejudiced or embarrassed in the accused's defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the Court may order a separate trial of any count or counts of such indictment".

5.        I do not derive assistance from these Rules.  In my opinion they go to the form of the Indictment as a whole rather than to the allegations contained in the individual counts of the Indictment.  Thus Rule 6 (2) enables the Court to intervene where the accused is charged with more than one offence in the same Indictment and to order a separate trial of any count or counts of the indictment.  But that does not apply to the present application.  The form of the indictment was considered many months ago.  It was at that stage a hybrid indictment in that it contained both common law and statutory offences.  It was directed that the indictment should be severed and that there should be a separate trial before Jurats of the counts alleging statutory offences.  At subsequent directions hearing, following observations made by the Court the Prosecution agreed to proceed on a limited number of counts.  Thus the indictment on which the trial (or First Trial) is to proceed was much reduced in length and the trial itself thereby hopefully simplified and shortened.

6.        However, this does not affect or undermine the fundamental rule for which counsel contends.  Where the alleged offence consists of a single act or transaction a count would not be bad for duplicity, for example, by alleging the uttering a number of forged receipts in one bundle.  But that is not the situation here.  The Crown allege that over a period of two years the defendants were concerned, together and with others, in an arrangement whereby the retention or control, on behalf of various unspecified clients, of funds which resulted from criminal conduct of various kinds was facilitated.  The charge is not one of conspiracy.  The Statement of Offence is "Assisting another to retain the benefit of criminal conduct".  Advocate Le Quesne describes the Count as referring to different evidential quantities and qualities attached to myriad allegations.

7.        The defence submit that this is born out by the Crown's Statement of Case.  It is said that this Count reflects the general scheme to launder clients' proceeds of crime usually but not invariably tax fraud.  There is reference to an arrangement, the ambit of which was much wider than the aggregate of arrangements charged in later Counts of the Indictment.  The criminal conduct relied on is variously fraud, conspiracy to commit fraud, theft, fraudulent conversion and money laundering.

8.        The Crown concede that only one offence may be charged in a single Count.  Their case is that the arrangement referred to in this Count is a single arrangement and hence a single offence.  It is not duplicitous. 

9.        Advocate Le Quesne says that his submission does not hinge on duplication.  In Count 1 as in all the other 9 Counts of the Indictment the Prosecution allege offences contrary to Article 32 Proceeds of Crimes (Jersey) Law 1999.  The real complaint now made by Mr Le Quesne in relation to Count 1 is that the prosecution are not properly characterising the degree and effect of that Article. 

"32.    Assisting another to retain the benefit of criminal conduct

(1)       Subject to paragraph (3), if a person enters into or is otherwise concerned in an arrangement whereby -

(a)        the retention or control by or on behalf of another (in this Article referred to as "A") of A's proceeds of criminal conduct is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise); or

                 (b)        A's proceeds of criminal conduct -

(i)         are used to secure that funds are placed at A's disposal, or

           (ii)        are used for A's benefit to acquire property by way of investment,

knowing or suspecting that A is a person who is or has been engaged in criminal conduct or has benefited from criminal conduct, he or she is guilty of an offence.

(2)       In this Article, references to any person's proceeds of criminal conduct include a reference to any property that in whole or in part directly or indirectly represented in the person's hands his or her proceeds of criminal conduct.

(3)       Where a person discloses to a police officer a suspicion or belief that any property is derived from or used in connection with criminal conduct, or discloses to a police officer any matter on which such a suspicion or belief is based -

(a)        the disclosure shall not be treated as a breach of any restriction upon disclosure imposed by any statute or contract or otherwise, and shall not involve the person making it in liability of any kind; and

(b)        if the person does any act in contravention of paragraph (1) and the disclosure relates to the arrangement concerned, the person does not commit an offence under this Article if -

(i)         the disclosure is made before the person does the act concerned and the act is done with the consent of a police officer, or

(ii)        the disclosure is made after the person does the act, but is made on the person's initiative and as soon as it is reasonable for the person to make it.

(4)       In proceedings against a person for an offence under this Article, it is a defence to prove -

(a)        that the person did not know or suspect that the arrangement related to any person's proceeds of criminal conduct;

(b)        that the person did not know or suspect that by the arrangement the retention or control by or on behalf of A of any property was facilitated or (as the case may be) that by the arrangement any property was used as mentioned in paragraph (1); or

           (c)        that -

(i)         the person intended to disclose to a police officer such a suspicion, belief or matter as is mentioned in paragraph (3) in relation to the arrangement, and

Iii)        there is reasonable excuse for the person's failure to make the disclosure in accordance with paragraph (3)(b).

(5)       In the case of a person who was in employment at the relevant time, paragraphs (3) and (4) shall have effect in relation to disclosures, and intended disclosures, to the appropriate person in accordance with the procedure established by the person's employer for the making of such disclosures as they have effect in relation to disclosures, and intended disclosures, to a police officer.

(6)       A person who is guilty of an offence under this Article shall be liable to imprisonment for a term not exceeding 14 years or to a fine or to both.

(7)       No prosecution shall be instituted for an offence under this Article without the consent of the Attorney General."

10.      The defence submission hinges on the word "arrangement", which is not defined in the Law, and must be given its ordinary meaning.  The defence say it must involve another person (A, or the predicate criminal).  In other words there has to be a predicate criminality, since that is one of the ingredients of the arrangement referred to in the Article.  The defence argue that the arrangement has to be between the Defendants and a criminal.  Therefore, so the argument runs, the arrangement relied upon by the Crown which does not specify any named criminals, is not an arrangement such as is contemplated by the Article.

11.      This is the lack of particularity relied upon.  The Defence submit that without knowing what the criminals are, or what the criminality is, it would be impossible to defend this Count, resulting in unfairness since the defendants will be unable to avail themselves of the defences provided by Article 32 (4).

12.      As to Count 9, the Defence submit that the Prosecution must prove that funds which came into the defendants hands were the proceeds of criminal conduct.  This Count is fundamentally flawed because the criminal activity relied upon is not specified.  In order to fall within the Article it must be activity which is referred to in Article 1 and Schedule 1 of the Law.  If, as the Prosecution say, they do not know what the conduct was they cannot satisfy this requirement. 

13.      The Crown's response to the submissions on Count 1 is that the Count is concerned with an arrangement by the two defendants of laundering cash.  Counts 2 to 10 are free-standing Counts charging extra criminality.  The Indictment should reflect the overall criminality of the defendants.  There was extensive protracted money laundering and Count 1 refers to a particular system or arrangements involving cash returns to clients.  The Crown's case is that Michel and Company was a money laundering factory with no other function or purpose and that the Count reflects that.  It charges a single arrangement whereby crooked money came into the business and was returned to the client as untraceable cash.  Customers came and went, but the arrangement remained in place available to those who paid to use it.  It was a single arrangement for the wholesale laundering of money. 

14.      Crown Advocate Whelan submits that there is no requirement that the underlying criminal should be a party to the arrangement and therefore no obligation on the prosecution to specify him or her in Count 1.  To declare otherwise would be to emasculate the purpose of the Article.  And so it is said that sufficient particulars have been given and that Count 1 is not duplicitous. 

15.      As to Count 9 the Crown concede that they cannot specify the particular conduct of Mr Krizjl.  They rely on the circumstances in which cash was received from him and the inferences to be drawn from them.  The Crown contend that they do not have to specify the particular criminal conduct which produced the proceeds of crime.  There is no such requirement in the Law.  All that is required is that the money was the proceeds of criminal conduct.  That will be a question of fact for the Jurats to decide. 

16.      I am grateful to both Advocates for their helpful skeleton arguments and oral submissions.  I have considered them with care and I have reserved my ruling in order to take further time to do so. 

17.      Attractive though Advocate Le Quesne's submissions are, I prefer those of Crown Advocate Whelan.  In my opinion the full flavour and extent of the defendants' alleged criminality would not be deployed before the Court were I to quash Count 1.  In my view it represents and charges a single arrangement for money laundering, and Advocate Whelan's submissions are correct.  Equally he is correct in his submissions as to Count 9.  I accept the Prosecution's submissions on both Counts.  Accordingly the Defence application is refused.

Authorities

Indictment Rules 1972.

Proceeds of Crimes (Jersey) Law 1999.