Jersey Unreported Judgments

[2011]JCA145

Court of Appeal

27 July 2011

Before     :

The Hon. Michael Beloff, Q.C., President; Dame Heather Steel, D.B.E., and; J. W. McNeill, Q.C.

Justin Peter Michel

-v-

The Attorney General

Application for leave to appeal by Justin Peter Michel against conviction by Assize trial on 29^th March, 2011, on a charge of:

 

1 count of:

Attempting to pervert the course of public justice (Count 1).

Advocate M. Preston for the Applicant.

M. T. Jowitt, Esq., Crown Advocate.

JUDGMENT

THE president:

This is the judgment of the Court.

Introduction

1.        The Applicant, Justin Peter Michel seeks leave to appeal against his conviction by the Royal Court on 29^th March 2011 of attempting to pervert the course of public justice.

2.        The Particulars of Offence were that he, between 1^st July 2001 and 31^st October 2009, attempted to pervert the course of public justice, namely the investigation of the assets of Peter Wilson Michel, the applications for a saisie judiciaire over those assets, and the confiscation of Peter Wilson Michel's proceeds of criminal conduct, by performing acts which had a tendency to pervert the said course of justice, namely:-

(i)        accepting from Peter Wilson Michel the transfer to him of assets which were subject to the investigation;

(ii)       falsely representing to HM Attorney General that the transfers to himself were payment for legal services which he had provided to Peter Wilson Michel;

(iii)      falsely representing to HM Attorney General that transfers to himself of shares in certain companies were payment for services provided by him in respect of those companies.

The Case of Peter Michel

3.        This case is a sequel to the well-published prosecution of Peter Michel, the Applicant's father, on charges of money-laundering. The facts which we set out, in broad but sufficient outline to provide the context for the present  application, were as follows:

4.        Peter Michel owned and operated an accountancy practice and a financial services business.

5.        As part of his financial services business, Peter Michel formed and operated a number of structures through which funds flowed from offshore clients.  Transfers were received and cash withdrawals were made and handed over to some of the investors.

6.        On 4th July 2001, the police obtained search warrants to search the business and home address of Peter Michel.

7.        On 5^th July2001 the Applicant [an Advocate in the Jersey law firm Pickersgill and Le Cornu, and not involved in his father's business] was present when the warrants were executed.

8.        Shortly thereafter, on 12^th July 2001, Peter Michel's financial services businesses were put under the control of Price Waterhouse Coopers (''PWC'') as court appointed Managers.

9.        In November 2004, Peter Michel was informed by the Jersey prosecution that he was to be charged with money laundering arising out of his management of the trust companies and off shore funds.  The Applicant himself was informed by letter dated 16^th November 2004 from the Crown Advocate that Peter Michel would be prosecuted.

10.      On 10^th November 2004 the Attorney-General of Jersey obtained a saisie judiciaire against Peter Michel who was duly charged, in early 2005, with offences of money laundering.

11.      The charges were severed into two trials. Peter Michel was convicted at both trials in 2006 and 2007 and was originally sentenced to a term of 6 years imprisonment.

12.      In 2007, the Royal Court determined that Peter Michel had benefited from crime in the amount of £9.7m. His realisable assets were valued by the Court at £13.4m. A confiscation order in the sum of £9.7m was made and paid by him.

13.      The convictions arising from the second trial were the subject of an appeal.

14.       0n 4^th November 2009 these convictions were quashed by the Privy Council.

15.      On 15^th June 2010 Peter Michel pleaded guilty to 7 of the original 10 charges and was sentenced to a term of 4 years imprisonment. An agreed confiscation order was made in the sum of £6.5m. After deduction of costs of approximately £800k, the balance of about £2m was returned to him.

The Transfers

16.      During the period after the execution of the warrants (in July 2001) but before the arrest or charge of Peter Michel (in early 2005) both Peter Michel and his wife, Lynda Michel transferred a large number of assets of high value.  Peter Michel transferred certain assets to his wife. They both transferred assets to their two children, Sara Pittard, (the Applicant's sister) and the Applicant during this period.  Peter Michel also transferred assets to his mistress Tracy Buckley. 

17.      The total value of assets transferred by Peter Michel to all of the recipients was in the region of £2.3m. The total value of his unfrozen assets (excluding the assets controlled by PWC (later the Viscount) in their said role as manager and the equity in his home) was in the region of £4.2m. The assets transferred consisted of paintings, shares and director's loan accounts, payments by cheque or money transfers, and cars.

18.      The value of the assets transferred by Peter Michel to the Applicant was approximately £1.1m. These consisted of the following assets set out below:-

PROPERTY	DATE	TRANSFEROR	VALUE
Paintings	30/8/01	Lynda Michel (defence case) Both Peter and Linda Michel	£130,500
Shares (50% Le Blond & Mallen)	5/11/01	Peter Michel	£182,000
Shares (50% Peter Michel P Holdings)	5/11/01	Peter Michel	£52,000
Director's loan account (Peter Michel P Holdings)	5/11/01	Peter Michel	£11,000
Shares (50% Pelin Holdings)	5/11/01	Peter Michel	£65,000
Director's loan account (Pelin Holdings)	5/11/01	Peter Michel	£82,000
Shares (50% Parade Hire) Cars)	5/11/01	Peter Michel	-£34,500
Director's loan account (Parade)	5/11/01	Peter Michel	£174,000
Shares (100%Coombe Dingle in two tranches)	18/12/01	Peter Michel	£408,000
Shares (1/3rd EMG Sites)	18/12/01	Linda Michel	£53,000
Cheque	27/2/02	Peter Michel	£25,000
Ferrari	23/5/02	Peter Michel	£77,500
Paintings	12/8/03	Linda Michel and Peter Michel or Linda Michel alone	£35,000

19.      Of the £1.1m total value of the transfers to the Applicant, the transfers of shares and director loan accounts in 6 companies amounted to £900k.

The Letter

20.      On 25^th November 2004 the Applicant wrote to the Crown Advocate with conduct of the case against Peter Michel a letter ("the November letter") containing, with reference to the transfer of assets to him, the following words:-

"I have provided immense cause for the transfers in light of the arrangement that I have with my employers and my father as to the legal fees that he has been charged to date and will continue to be charged. I have also spent a not inconsiderable amount of time in running the relevant companies since the date of their transfer".

The Issues

21.      The main issue is whether the acceptance of these admitted transfers by the Applicant was capable, as a matter of law, of creating a risk of injustice in connection with any subsequent application for confiscation directed against the transferor.

22.      In relation to the November letter two related issues arise; whether any reasonable tribunal could have concluded that the passage quoted from the letter contained a lie and whether the letter was therefore capable of creating the risk of injustice without more by the applicant.

The Grounds of Appeal

23.      The Grounds of Appeal fall into various categories:-

"(1) The Commissioner erred on 17^th January 2011 in not recusing himself as trial judge on the application of the defence, there being a risk of the appearance of bias arising from the fact that the former Attorney General (the Commissioner's brother) had prosecuted Peter Michel and was Attorney General at the commencement of proceedings against the Applicant ("bias").

(2) The Commissioner erred in not discharging the Jury at the conclusion of the Crown's Opening speech on the application of the defence based on incorrect and prejudicial comments made by the Crown in Opening ("prejudicial opening")."

Both Grounds (1) and (2) are reflected in the Contentions but were abandoned. 

(3) The Commissioner erred in law in ruling at the close of the prosecution case on 24^th March 2011 that there was a case to answer as follows:-

(i) He erred in ruling that the receipt of an open transfer of legitimate assets by a transferee knowing that the transferor was the subject of a police investigation  is an act that is capable of having a tendency, without more by the transferee, to pervert the course of public justice namely future confiscation proceedings against the transferor, given the gift provisions of the Proceeds of Crime (Jersey) Law 1999. ("POCJL")  

(ii) He erred in ruling that an open receipt of a transfer of assets could have that tendency where the prosecution were aware of the existence of the assets and where the prosecution conceded that the Jersey investigators would not have missed the existence of the assets, and in the absence of any evidence of an attempt to hide the fact of the transfer or the existence of the assets.

(iii) He erred in ruling that a reasonable Jury could conclude that the "immense cause" letter contained a lie.  It is submitted that no reasonable Jury could have concluded that the letter amounted to a lie.

(iv) He wrongly ruled that the writing of the "immense cause" letter without more was capable of having a tendency to pervert the course of justice.  He should have directed himself that further action by the Applicant was necessary before the letter could create a risk of perversion, namely an application to vary the Saisie Judiciaire supported by an affidavit repeating this assertion and/or by giving evidence of it to the Royal Court at the confiscation hearing in the case of Peter Michel.

(4) The Commissioner misdirected the Jury in summing up the case for the following reasons:

(i) In misdirecting them that the receipt of an open transfer of legitimate assets in the knowledge that the donor was under some form of police investigation was capable without more of having a tendency to pervert the course of justice, namely the investigation and the confiscation proceedings for the same reasons as above.

(ii) In directing them that the "immense cause" letter was capable of having a tendency to pervert the course of justice without further action by the Applicant in the form of an application to vary the Saisie supported by an affidavit or the giving of evidence by him to the confiscation court in the case of Peter Michel.

(iii) He gave the Jury a misleading direction on what amounts to a tendency to pervert in law by reference to an example of a murderer who had burned a blood stained shirt in a case where it was not alleged that the Applicant had attempted to conceal or hide the fact of the transfers.

(iv) The Lucas direction given by the Commissioner was inappropriate and misleading.  The alleged lies related to the central issues in the case.  Moreover, he failed to direct the Jury that they had to be sure that any of the alleged lies were indeed lies.

(This Ground (iv) was also abandoned.)

(v) He failed adequately to remind the Jury of the case for the defence and the evidence in support of that case.  In particular he gave no direction or assistance to the Jury in relation to the central argument for the defence that the transfers had no tendency to pervert because of the gift provisions of the POCJL.

(vi) He left it open to the Jury to conclude that the transfers carried a risk that the investigators might have missed the transfers even though the prosecution conceded that such transfers would not be missed, on the basis of the analogy with the murderer that burned a blood stained shirt.

(vii) He failed to remind the Jury of the central issue in the case, namely whether the acts alleged had a tendency to pervert the course of justice by creating a risk that the realisable tally of Peter Michel's assets might have been reduced below the benefit figure.

(viii) To this end he failed to remind the Jury of the fact that the authorities had frozen over £8m of the assets of Peter Michel prior to these transfers which were available to meet any confiscation order.

(ix) He made repeated comments that were critical of the case and evidence for the defence that exceeded the boundary of proper judicial comment and failed to balance those comments with an adequate summary of the case for the defence and/or a summary of the evidence of the defendant

The Offence

24.      It is necessary at the outset to identify the ingredients of the customary law offence of attempting to pervert the course of justice.  The existence of such an offence in Jersey is not in issue: it was discussed by this Court in Attorney-General v Weston [1980] JLR 43 ("Weston").Having commented ''For many years the crime of perverting the course of justice lingered in a state of obscurity and such standard textbooks on criminal law had nothing to say about it'' but noted its resurrection in jurisprudence, analysed by the Law Commission in Paper no 62 and Report No 96.  The Court said at page 76:-

"As Pollock, B put it in R v Vreones, [1891] 1 Q B at 369-

"The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice."

"It is plain from this formulation that the substantive offence must cover both conduct which successfully perverts and that which fails to achieve its object.  In the latter case the offence will be framed as attempting to pervert the course of justice.  The Court of Appeal in England has said that the use of the word" attempt" is apt to mislead.""

The Court then referred to R v Rowell [1978] 1 WLR 132 ("Rowell") and R v Machin [1980] 1 WLR 763 (Machin) and went on to state that:-

''We would respectfully comment, however, that the use of the word "attempt" is not likely to mislead laymen, but only lawyers who may be tempted to introduce complicated notions about proximate acts which derive from the law relating to attempts to commit substantive crimes.'' 

The Court then quoted from the Law Commission Working Paper No 62:-

"Broadly speaking, the offence penalises any conduct which wrongly interferes, directly or indirectly, with the initiation, progress, or outcome of any criminal or civil proceedings.  It does not matter that specific proceedings have not yet been started, if the intention is to prevent them being initiated, or even that proceedings have been completed, if the intention is to avoid their result."

The Court's Judgment at page 79 includes the words:-

"It is plain, however, that the crime of perverting the course of justice covers acts which would in other circumstances be perfectly lawful."

25.      This Court in Weston relied without qualification on English authority. We consider, with respect, that they were obviously right to do so. There is no principled reason why its dimensions or constituent elements should be different from those in England or Wales (or indeed in Scotland where its "long" existence was recently recognised in HM Advocate v Harris (2010) HCJ AC 102 ("Harris").  See too Gordon: Criminal Law of Scotland 3^rd ed para 1.32 ff.  The particular ingredients of the public justice in the island would obviously be relevant to the formulation of any charge: but its content is common to all those jurisdictions.

26.      The offence, so recently resuscitated, has been given vigorous new life as exemplified by the wealth of English (and Commonwealth) authority produced for our edification.  The essential ingredients, as described in Weston, remain however unchanged.  The current edition of Archbold's Pleading Evidence and Practice in Criminal Cases 2011 ("Archbold") states at para 28.118:-

"The offence is committed where a person or persons (1) acts or embarks upon a course of conduct (2) which has a tendency to; and (3) is intended to pervert (4) the course of public justice..."

27.      Each of the four elements is necessary: none by itself is sufficient.  In particular (on the premise of satisfaction of the other two elements) both intent and tendency are required.  Intent without tendency is no crime: nor is tendency without intent.

28.      We would derive these principles from the further learning:- 

(i)        The locus classicus of the ingredients of an attempt to pervert the course of public justice remains that provided by Pollock B in R v Vreones [1891] 1 QB 360 at p.369, (although in R v Headley [1996] RTI 173 it was stated that "it broadened slightly" after Machin).  

(ii)       While, at first blush, it may seem that where no perversion of justice has occurred, the offence should strictly be categorised as an attempt, it is now established that the concept of "attempt" is inappropriate in connection with the substantive offence.  In Machin Eveleigh LJ adopted the dictum of Ormerod LJ in Rowell that the use of the word "attempt" could mislead.  "The word is convenient for use in a case where it cannot be proved that the course of justice was actually perverted but it does no more than describe a substantive offence which has a tendency and is intended to pervert the course of justice" (although see the critical comment by the late Professor J.C. Smith on R v Cotter 2003 QB 951 ("Cotter") in Crim LR 2002 824-8.)

(iii)     The risk must be more than de minimis i.e must be of real significance.  In T v The Queen [2011] EWCA Crim 729 ("T") Stanley Burnton LJ said, at paragraphs 19 and 20:-

"19. The offence in question is not committed by an act that can have no effect on the course of justice. Conversely, however the offence may be committed even if in the result the act does not affect the course of justice.  The offence is complete when the act is done with the requisite intent, and does not cease to be criminal because it does not have the intended effect of perverting the course of justice.  It is sufficient if the act creates a significant risk that the course of justice will be affected.

20. In a criminal case the course of justice includes the police investigation of a possible crime.  An act that makes that investigation more difficult, or which may mislead the police in their investigation, may tend to pervert the course of justice."

(iv)      There is no need for the risk to have materialised for the offence to be completed.  Rowell, Machin ("T"), R v Murray 75 Cr App 58, ("Murray") R v Brown 2004 EWCA 744 ("Brown".)

(v)       There indeed is no need for it to be probable or likely that the risk will materialise.  It is enough if it is possible that it will.  Murray.

At paragraph 14 in Brown Buxton LJ spoke of it:-

"always having been the law ...  that the mere fact that no actual perversion of the course of justice could take place as the result of  false allegations is not in itself either a ground for saying that the offence of attempting to pervert the course of justice has not taken place, or a ground in itself for not prosecuting with that offence the person who makes the allegations."

(vi)      The act of the defendant without more by him must have such a tendency:-   

"An act done with the intention of perverting the course of justice is not enough: the act must also have that tendency. ..... To establish a tendency or a possibility, the prosecution does not have to prove that the tendency or possibility in fact materialised: .......there must be a possibility that what the accused has done 'without more' might lead to injustice".

(Murray p. 100/1)

In the Matter of Shapiro 2003 CILR 443 ("Shapiro") Smellie CJ said para 28H:-

"Even if the prosecution had established the requisite intention ... an act done with the intention of perverting the course of justice is not enough, the act must also have that tendency.  And to establish that a tendency or a possibility had in fact materialised, there must be a possibility that what the accused ... had done without more might lead to injustice."

(vii)     The "without more" here refers to further action by the defendant (Murray (cit sup) Shapiro cit sup).  The fact that further action by others may be necessary before injustice can occur is irrelevant.

(viii)    There must be some positive act (as distinct for example, from a mere plan).  In R v Clark 2003 All ER (D) 87 ("Clark"), Tuckey LJ said at para 10 "There is authority ... that some positive act is required.  That is implicit in the definition of the offence with its reference to doing an act when embarking on a course of conduct decided by this Court in Headley".  R v Jabber [2006] EWCA Crim 2694 ("Jabber") per Moses LJ at para 33 said "There must ... be some evidence of positive action".(We do not read the observations in Jabber at paragraphs 33-34, read together as endorsing a contrary conclusion.) 

(ix)      However the act need not be one of concealment.  In Jabber Moses LJ said of the positive acts "in most cases (but not all) that will be evidence of concealment."

(x)       In Clark Tuckey LJ said at para 10 ''Acts of omission can just as easily be characterised as acts of commission''.  That nuance is not germane to this appeal.

(xi)      The positive act need not be illegal itself: "it is not an intent to interfere with the course of justice by unlawful means, but to interfere with the course of justice per se".  R v Kellett 1976 1 QB 372 ("Kellett") at page 393, the Court said:-

"The judge should direct the jury that a threat (or promise) made to a witness is an attempt to pervert the course of justice if made with the intention of persuading him to alter or withhold his evidence whether or not what he threatens (or promises) is a lawful act, such as the exercise of a legal right and whether or not he has any other intention or intends to do the act if the evidence is not altered or withheld."

(xii)     A course of justice must have been embarked upon:-

"As to the specific allegation of a conspiracy to pervert the course of justice, it was incumbent upon the prosecution to show that a course of justice had been embarked upon such as could have been perverted.  This is in the sense that proceedings of some kind were in being or were imminent, or that investigations which could or might bring about proceedings were in progress, and that Dr Shapiro's ... conduct (in cahoots with his father ...) was in anticipation of and  preparatory to misleading the Florida court in such proceedings." 

(Shapiro para 27)

(xiii)    Investigations are themselves part of the course of justice Shapiro, T.  In paragraph 12 of Brown, Buxton LJ stated:-

"That, in our judgement, is amply underlined by this Court in the case of Cotter ... in paragraph 33 of the report, summarising the essence of the offence in these terms:

'If an allegation is made which is capable of being taken seriously by the police so as to institute a criminal investigation with the possible consequences to which we are referred with intent it should be taken seriously by the police, we consider that is properly described as an act perverting the course of justice''

(xiv)    The examples of attempts to pervert the course of justice in the reported case books are exemplary, not exhaustive.

In R v Lalani Court of Appeal Criminal Division Case 98/7393/W2 ("Lalani").  Brooke LJ referred to the "very wide scope of the offences".

In Clark Tuckey LJ said at para 10:-

"perverting the course of justice is a common law offence which covers a wide variety of situations ... there is no closed list of acts which may give rise to an offence and it would be wrong to confine it to the specific instances or categories which have so far appeared in the reported cases." 

(xv)     The Court, while entitled to classify new facts as constituting the offence were within the scope of the established elements, must not recognise as an offence something outwith those elements:-

In Clark at paragraph 13 Tuckey LJ asked "Are there any inhibitions to extending the ambit of the offence?" - and referred to a passage in Selvage [1982] 1 QB 372 at 381 where Watkins LJ said:-

"In our judgment unless the principles governing the offence of perverting the course of justice which emerge from the reported cases are well recognised and properly applied, there is a danger of bringing into existence a hitherto unrecognised and unwarranted extension of the ambit of this offence."

Tuckey LJ therefore continued:-

"We accept this counsel of caution.  The common law has always developed incrementally and if the ambit of this common law offence is to be enlarged it must be done step by step on a case by case basis and not with one large leap.  The need for caution is underlined by Article 7 of the ECHR which requires any criminal offence to be clearly defined by law."

In Clark at paragraph 14 Tuckey LJ also rejected the submission of counsel that:-

"charging of an offence could be restrained by the de minimis principle or by restricting its use to serious cases.... We think that such restraints are elusive and not acceptable as a means by which to define the ambit of a criminal offence."

(xvi)    However "provided that any development is consistent with the essence of the offence and could reasonably be foreseen, the Court may interpret and develop it to new circumstances". (Harris para 29)

(xvii)   The offence satisfies Article 7 of the European Convention on Human Rights which provides 

"(1)     No one shall be held guilty of any criminal offence on account of any act or omission which does not constitute a criminal offence under national or international law at the time it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."

In the Strasbourg lexicon, law involves more than a basis in domestic law: it has also to enjoy the essential qualities of law "A law cannot be regarded as law unless it is formulated with sufficient precision to enable the citizen to foresee, if need be, with appropriate advice, the consequences which a given course of conduct may entail." R v Remington [2005] UKHL 63 per Lord Bingham at para 35.  However the common law (and in Jersey customary law) offence has well-established ingredients, which avoid the vices of imprecision or uncertainty.  (Cotter page 35-6, Harris para 29).  Whether or not a particular act or acts satisfied those criteria may be open to reasoned argument: but the offence per se does not involve any breach of Article 7.

(xviii)  The offence can co-exist with statutory provisions.

At paragraph 15 in Clark Tuckey LJ added:-

"It is clear however that the ambit of the offence is not inhibited by express statutory provision.  The same acts may tend to pervert the course of justice and also be contrary to specific statutory provisions or amount to contempt of court." 

Tuckey LJ did not deal with the question whether particular statutory provisions could narrow the ambit of the offence.  In principle we consider that this must be so.

Confiscation

29.      It is also necessary to consider the incidents of the confiscation regime since Advocate Preston for the Applicant emphasised that the acts relied on by the Crown as having the requisite tendency could never have resulted in a perversion of the course of justice in the light of such regime.

30.      Confiscation is governed by the P0CJL. The Court determines the defendant's benefit from his offending, then "the amount that might be realised", and orders him to pay whichever is the less. The "amount that might be realised" is the total of the defendant's "realisable property". The defendant's "realisable property" is property (a) held by him, or (b) held by a person to whom he has made a gift caught by the 1999 Law, or (c) to which he is beneficially entitled. A gift is caught by the 1999 Law if it is made after the commission of the offence and "the court considers it appropriate in all the circumstances to take the gift into account".  Accordingly property owned or held by the defendant is his realisable property: gifted property may be treated as such, at the Court's discretion as to proof.  In Re B 2008 EWHC (Admin) David Holgate QC sitting as a Deputy High Court Judge said of equivalent English legislation at paragraphs 69-71 (in words which we adopt, mutatis mutandis:-

"69. It is well established that in relation to the first stage of the exercise under section 71, namely to ascertain the extent to which an offender has benefited from any relevant criminal conduct, the burden lies upon the Prosecution to establish the extent of that benefit. At the second stage of confiscation proceedings there is a burden upon a defendant to prove to the civil standard what realisable assets he has, in particular if he is seeking to persuade the Court that the amount that might be realised is less than the extent of any benefit established by the Prosecution (See R v. Barwick (2001) 1 Cr. App. R.(S) 129 and R v. Barnham (2005) EWCA Crim 1049). In order to discharge that burden the defendant should produce "clear and cogent evidence; vague and generalised assertions unsupported by evidence will rarely if ever be sufficient to discharge the burden on the defendant" (See Walbrook v. Glasgow (1994) 15 Cr. App. R. (S) 783 and R v. Lee (1996) 1 Cr. App. R. (S) 135).

70. Mr Convey referred me to the decision of the Court of Appeal in R v. Barnham (2005) EWCA Crim 1049 on the subject of "hidden assets". Although that case was decided under the Drug Trafficking Act 1994 there are no material differences between that legislation and the 1988 Act so far as the present case is concerned. In that case the trial Judge made an order for confiscation in the same amount as the extent of the benefit from the criminal conduct which he had found. The Judge made a finding that the defendant had failed to explain what he had done with his assets. In the Court of Appeal it was submitted on behalf of the Defendant that in a case where the Prosecution alleges that a defendant had hidden assets the Prosecution was required to make out a prima facie case before a defendant could be expected to deal with such an allegation. That submission was rejected by the Court.

71. At paragraphs 40-41 of his judgment Lord Justice Gage held:

"....Once the Prosecution has established the benefit there is no requirement on it to provide a prima facie case. At the second stage the burden of proof shifts to a defendant to establish, if he can, his realisable assets to the satisfaction of the Court. By the second stage a defendant will know exactly how the Court has determined benefit attributable to him and must prove by evidence what his realisable assets are. It is for him to show why the confiscation order should not be "the value of (his) proceeds of drug trafficking." If he proves that he has no or appreciably less, realisable assets than the amount of the benefit determined by the Court the order will be made in a lesser sum....

To hold that the Prosecution must, in some way show a prima facie case that the defendant has hidden assets in our judgment would defeat the object of the legislation. It is designed to enable the Court to confiscate a criminal's ill-gotten gains. The expression "hidden assets" is indicative of the fact that the Prosecution can have no means of knowing how and where a defendant may have dealt with or disposed of the proceeds of his criminal activities."

Analysis

31.      Of the 4 elements 'identified' in Vreones and adopted in Weston there is no issue in the present case that there were acts (if done with the requisite intent and possessing the requisite tendency) which suffice for element (1) (i) conscious acceptance of transfers from his father of property worth £1.1 million and (ii) writing the November letter; and that there was a course of justice which sufficed for element 4 (i) the investigation into the assets of Peter Michel; (ii) the application for a saisie judiciaire in the case of Peter Michel and (iii) the application for confiscation in the case of Peter Michel. Element (3) (intent) though disputed below does not feature independently in the appeal: the Jury obviously held it to exist and there was evidence on which they were entitled to do so.  If, however, the criticism of the summing up is sound, the foundation for their conclusion could be fatally undermined.

32.      The relevant test for a submission of no case to answer is set out in R v Galbraith 1981 1 WLR 1039 (whose authority was recently said by the Court of Appeal (Criminal Division), to be "undiminished" R v F(S) 23^rd July 2011 TLR 25 July 2011):-

"How then should the judge approach a submission of 'no case'? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.  (2) The difficulty arises when there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is it is inconsistent with other evidence. a) where the judge comes to the conclusion that the prosecution evidence taken at its highest is such that a jury could not properly convict upon it, it is his duty, upon a submission being made, to stop the case, b)  where, however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a  jury could properly come to the conclusion that the defendant is guilty then the judge should allow the matter to be tried by the jury.  There will, of course, as always in this branch of the law be borderline cases.  They can safely be left to the discretion of the judge."

The same test was applied by this Court in Bhojwani v AG [2011] JCA 035 at paragraphs 109 (quoting Galbraith) and continuing at paragraph 110:-

"Archbold (2010 edition at 4-292 )sets out the practice applicable to submissions of insufficient evidence and at 495 states "Where the prosecution depends on circumstantial evidence, the correct approach is to look at the evidence in the round, and ask whether looking at all the evidence and treating it with appropriate care and scrutiny, there is a  case on which a properly directed jury could convict referring, to R v P [2008] 2 Crim App R 6 CA.  This has been accepted as the correct principle by the Royal Court in Sangan v AG [1987-88] JLR 196 and AG v Capuano [2003] JRC 211,  and we, as the court of Appeal endorse that approach."

33.      Of the two ingredients of the offence - tendency and intent - the Applicant focussed on tendency i.e. element [2].  The submission was not that there was no or no sufficient evidence of the acts said to give rise to the tendency relied on, but rather the acts of which the evidence was undisputed could not establish the requisite tendency. The same point was made, mutatis mutandis, on the November letter together with a preliminary point on its construction i.e. whether it was open to a jury to construe it as containing a lie.

Transfers

34.      In the view of this Court the Commissioner was correct to rule that the knowing receipt of assets transferred away by someone facing their possible confiscation, and lying about the reason for those transfers could create a real risk that justice will be perverted, and were capable of having the requisite tendency, and that it would open to the jury in this case to conclude that:-

(i)        Transfers from Peter Michel, a suspect, created a risk that the property would be missed by investigators. That would be a perversion of the investigation, saisie judiciaire and application for confiscation.  

(ii)       The transfers if gifts, turning realisable property into property that was only so at the discretion of the Court would consequently produce a risk of a flawed exercise of discretion.  That would be a perversion of the application for confiscation. 

(iii)      The "immense cause" representation in the November letter might have been construed by prosecution and Court as meaning that the transfers were not gifts at all, but effected for value, past and future and so might have led the prosecution to discount the property transferred in the confiscation exercise as not being part of Peter Michel's realisable property for the purposes of confiscation. That too would be a perversion of the application for confiscation.

(iv)      The "immense cause" representation, even if not accepted as proof that the transfers were payments, but gifts only, might still have led to a flawed exercise of discretion (see (ii) above).

35.      The Applicant contends that the offence could not be made out for a number of overlapping reasons.  First, the transfers were not concealed.  Secondly, they were bound to be discovered.  For both reasons there was no risk of perversion of justice.  Thirdly such perversion of justice would only occur if, in the context of confiscation proceedings, the Applicant or Peter Michel gave false evidence about the character of the transfers, or the prosecution or Court drew incorrect inferences about them.  The third point applied also to the November letter.

36.      The first submission is at odds with established law (see above paragraph 28(ix)) and, in our view, the second and third,  on analysis, are as well.  As to the second the existence or otherwise of the offence cannot depend upon the prospective competence or acuity of third parties.  There was a possibility that the transfers could have been missed.  The acts of third parties may be required before justice is actually perverted but the offence is nonetheless committed.  The acts of third parties may intervene so as to prevent such perversion, but, equally the offence will be committed.  All that is required is that the defendant has done something which "without more" may result in the perversion of justice if fallible (or indeed malign) human beings react in a particular way to what the defendant has done.

37.      Any ambiguity about what is involved in the phrase "without more" deployed in Murray is dispelled by reference to the facts of Murray itself.  There the act in question was tampering with a blood sample.  Obviously the mere tampering with a blood sample required further steps to be taken by others before the perversion of justice i.e. an unjustified acquittal could ensue.  That, however, did not dissuade the Court of Appeal Criminal Division from upholding the conviction.  As they put it "in our view in the present case there plainly was evidence of such a tendency or possibility, because once the analyst (whether he was a private analyst or public analyst) analysed this sample of blood and found that it contained a minimal quantity of alcohol (as in the particular circumstances of this case).  It was a practical certainty let alone a possibility that that information would be communicated either to a solicitor or to the prosecuting authority, or to the police as indeed happened." (P 101)  Accordingly, it seems that the mere fact that someone has put in motion by his act "a train of events" is sufficient to satisfy the test.  (See Harris para 31).  That others need to react to his own act before the perversion occurs does not disqualify his act from having the relevant tendency. 

38.      We were initially troubled by the concession of the Attorney-General that the transparency of the transfers meant that the Jersey police would inevitably have been aware of them.  Can something, for the purposes of the offence, create a risk when it is accepted that the risk could not have materialised?  Brown is apparently an example of a case where the English Court of Appeal gave a positive and unequivocal answer to that question.  The defendant was convicted of perverting the course of justice by exposing an innocent man to arrest with a false allegation.  However the falsely accused person was dead, and so beyond the reach of justice administered by Courts of law. Nonetheless the conviction was upheld.  

39.      We are not entirely convinced by all the reasoning in that case which is also subject to critical commentary in Criminal Law Review 2004 pp.665-666.  At paragraphs 10 to 12 of the judgment Buxton LJ said:-

"The essence of [the Applicant's submission] is that it is not possible to commit this offence in respect of someone who is not alive. That is because the essence of the offence ... is that there needs to be a risk of an innocent person being subjected to wrongful arrest......  if the innocent person targeted is not alive there can objectively be no risk of him being subjected to wrongful arrest.

We are unable to agree that that is a correct analysis of this offence. ....

The essence of this offence is that the defendant puts in train the machinery of public justice which, if the matter were carried through in the way that they must have wished or foreseen, would cause risk to an innocent person. In other words this is a classic example of an impossible attempt. The vice of the offence is the intent, and not the carrying through or the achievement of the actual placing of the innocent person in jeopardy".

40.      In our view intent may be the "vice" of the offence but it is not its sole element: there must be actus reus as well as mens rea.  Nor is it sufficient to rely on the impeccable orthodoxy that the risk need not have materialised.  This issue is not whether it is necessary for a risk to have materialised, but rather whether it is necessary that a risk might materialise: "did not" and "would not" are conceptually different.

41.      We have, however, come to the conclusion, that for the purpose of this offence, there is no such difference.  The focus must be on that relied on as an element of the charge against the defendant, without reference to the reaction of particular third parties.  The fact that in particular circumstances that act might not have led to a risk of a perversion of justice does not mean that the act itself did not inherently have such a tendency.  By analogous reasoning, transfer of property from A to B, where A may be liable to confiscation proceedings has the potential, albeit depending on the reaction of the police or prosecution, to affect the investigation and confiscation process.  The tendency will be established if the acts might have been misconstrued by a hypothetical rather than an actual Jersey policy force or prosecution.  The law would otherwise be incoherent - rendering someone immune from charge or conviction for something that he wished and intended to occur, but did not occur notwithstanding what he had done because of the adventitious inaction of third parties.

42.      Brown can be rationalised as to its outcome on the basis that the police were set off on an investigatory wild goose chase on which they would otherwise not have embarked. 

43.      The Applicant's fourth argument was that the prosecution case contradicted public policy and created a de facto restraint on the ability of someone to effect a transfer of his property as soon as he was a suspect or the subject of investigation for criminal activities even in advance of a saisie judiciaire.

44.      This argument mischaracterises the prosecution case.  In principle suspects retain the right freely to dispose of their property.  However if the disposals have a tendency to pervert the course of justice, and (a point we stress) are executed with that intent, then a recognised crime is committed. The existence of the offence however places no restriction on innocent transfers of property.  It criminalises transfers which are fixed with the requisite tendency and intent.

45.      Advocate Preston sought as a fifth argument to pray in aid Article 8 of the Convention and the rights to respect for family life.  The Court is doubtful that Article 8 was designed to - or indeed itself protects - the right of a father to transfer property to his son or of the son to receive it.  Certainly no case was drawn to our intention which would justify such an enlarged reading.  Article 8 is classically concerned with the protection of the family unit.

46.      But even on the hypothesis that Peter Michel's or the Applicant's Article 8 rights are limited by the customary offence, the limitation is permissible by reason of Article 8.2, as being in accordance with the law - sufficiently defined by the elements of the offence - and proportionate to the legitimate aim of protecting a course of justice.

47.      The Applicant's sixth argument relies upon obiter comments in Shapiro to support his contention that "open" transfers lack the requisite tendency. Concealment, we repeat, is not a sine qua non of the offence and in our view Shapiro lays down no such principle. It is merely a decision that the acts of Mr Shapiro in that case had no tendency to pervert the course of justice.   The crucial distinguishing fact between that case and this is that, for injustice to occur, Mr Shapiro would have had to swear a false affidavit in relation to his assets earlier transferred out of the jurisdiction where his wife resided. In short, further action was required from the defendant for there to be a risk of injustice.  Neither the element of intent (3) nor the element of subsisting course of justice (4) (see the taxonomy in Archbold at para 26 above) was established.  It is, moreover, at least arguable that Shapiro was wrongly decided.   We do not need, however, to consider this point in order to resolve the present application.

48.      The Applicant's sixth argument (one of policy) is that the offence is not necessary to protect the confiscation regime because of the provisions of Article 34 of the POCJL.  However POCJL has nothing to say about the customary law offence of perverting the course of justice, much less does it abrogate it. 

The November Letter

49.      The subsidiary point i.e. whether the November letter contained lies seems to us to be classically a jury matter which was properly left by the Commissioner for the Jury to consider.  

50.      The context is significant.  The representation by the Attorney General to the Court upon the application for the Saisie Judiciaire of 10^th November 2004 was that the transfers of shares were a sham "intended merely to disguise Mr Michel's continued beneficial ownership of the companies. The Attorney General can conceive of no other purpose for the transfer by Michel of these companies to his children and girlfriend during this period."

51.      In a letter dated 16^th November 2004 Crown Advocate Whelan replied to a letter of the same date from Advocate Le Cornu regarding the saisie judiciaire, and inter alia seeking confirmation that, if criminal proceedings are to be issued, the amount of funds which will be the subject of confiscation. In his reply ("the Whelan reply") Advocate Whelan estimated that the likely benefit figure for confiscation would be in the region of £23m. He indicated that Peter Michel's realisable assets were thought to be significantly less than this. This was the first time that Peter Michel had been given an estimate by the Crown of the size of the contemplated confiscation order.

52.      The November letter was in response to the Whelan reply.

53.      The case for the prosecution in relation to this letter was that the Applicant had not appreciated at the time of the transfers that such transfers were caught by the gift provisions of the POCJL. It was only when Crown Advocate Whelan asserted in the Representation and the letter to Advocate Le Cornu that the transfers were caught as gifts that the Applicant realised that the transfers had not achieved the alleged purpose of removing the assets from any future tally of Peter Michel's realisable worth at confiscation. At this stage it was no longer possible, as it had been before Saisie, to divert attention from the fact that Peter Michel had originally ordered the assets transferred.  The alternative tactic was to admit the transfer and say that it was for value since, if indeed it was, it could not be part of the realisable assets of Peter Michel.

54.      It was asserted by the Applicant that the November letter was never meant to convey the existence of any contract for the provision of services for the transfer of assets but was a response to the assertion that he had been involved in a sham transfer to hide his father's continuing beneficial interest contained in the Representation to the Court. 

55.      "Cause" is one of the essential elements of a contract in Jersey law. It approximates to "consideration" in English law and has no legal meaning outside the law of contract.  Coupled as it was with the epithet "immense" - not a legal term of art but indicative of substantial size - it was open to the jury to construe the letter as designed falsely to persuade the reader that not only were the transfers not a sham, but that they are not even merely gifts, but rather a quid pro quo (whether pursuant to a contract or not) for work done and to be done by the transferee (the Applicant) for the transferor and his companies.

56.      The letter was after all written from one advocate to another, after the Applicant learned that the property had been frozen on the basis that the transfers were shams or gifts. It was open to the jury to conclude it was addressing both allegations.

57.      Advocate Preston again relied on the fact that the misrepresentation, if such it was, neither misled nor could have misled the prosecution.  On 31^st August 2005 Advocate Whelan in further correspondence with Advocate Le Cornu wrote that "at present we have been given no explanation justifying the transfers other than a vague assertion that it is for legal work done by Advocate Michel for his father" and he accepted in cross examination that that there was no possibility that the Saisie would have been lifted as a result of this letter. 

58.      That argument too is not to the point for the same reasons as elaborated in paragraph 41 above.  The "immense cause" representation might have been accepted by the Attorney General or the Court.  If the representation had been believed by the Attorney General i.e. that the transfers were a quid pro quo for legal work, the saisie judiciaire would have been lifted. 

59.      The representation, and it was, albeit hearsay, admissible in confiscation proceedings (R v Silcock; R v Levin [2004], EWCA Crim 408) - even if not accepted as proof that the transfers were payments - but gifts only, might still have led to a flawed exercise of discretion.  Once the Applicant had tried to deceive the Attorney-General, he had no control over whether or not he would be believed, and needed to do nothing more to create such a belief  The fact that he was never likely to be believed is irrelevant (Murray(cit supra) Brown (cit supra)). 

60.      It was open therefore for a jury to find that the letter had the requisite tendency or created the requisite risk.  In truth the arguments as to its tendency (or lack thereof) in respect of the letter were the same as those in respect of the transfers themselves i.e. that implausible third party action or reaction was required before justice could be perverted. To those arguments we repeat again the response made at para 41 above.

61.      For those reasons the submission of no case to answer properly failed.  Before we come to the criticism made of the summing up, we deal with one interlocutory matter.

Fresh Evidence

62.      Advocate Preston, for the Applicant, sought leave to adduce further evidence from two new witnesses to the possible effect that the Applicant had not manipulated accounts of Le Blond and Mallen to explain a transfer of £25,000 to him; a point on which the Applicant, at trial, had been unable in cross-examination to offer an explanation. No statement had been obtained from such witnesses, Chartered Accountants, at the time of the trial.

63.      Advocate Preston accepted that such evidence could have been obtained for the trial. Crown Advocate Jowitt did not object to the Proofs of Evidence being adduced before this Court.  Nonetheless the circumstances in which in this jurisdiction an appellate court, civil or criminal, may allow fresh evidence to be placed before it under Article 24(b) Court of Appeal (Jersey) Law 1961 are, in the interests of legal certainty and finality of litigation, circumscribed. As this Court stated in Styles and Others v AG [2006] JLR 210 at paragraph 65:

"...the evidence sought to be adduced must be evidence which was not available at the trial. As was pointed out by this court in Baglin v. Att. Gen. (5) (2005 JLR 180, at para. 36), it is implicit in this principle that the evidence could not have been produced at the trial by the exercise of reasonable diligence."

64.      There is no material before us which entitles us to find that the Applicant was able to meet such a test. The fact that a line of cross-examination is said not to have been anticipated would be likely to be of support only where the line was unpredictable with reasonable diligence. Such is not the case here where the basis upon which accounts were prepared and the instructions given could always have been foreseen as an issue at trial. For that reason we dismiss the application for leave to adduce fresh evidence.

65.      In any event the potential evidence was, in our opinion, of no importance to the issues set before this court in this Appeal.     

66.      The evidence taken at its highest might have provided an answer to the Prosecution allegation of the manufacture of evidence by the Applicant. It did not address at all the fundamental Prosecution allegation that transfer of the £25,000 to the Applicant was done to shield those funds from the confiscation process. 

Summing Up

67.      Advocate Preston submitted that the Applicant's conviction is unsafe and his grounds on the summing up can be summarised as misdirections on the law in relation to acts tending to pervert the course of justice, omissions of evidence and argument relevant to the defence case and an unfair imbalance in favour of the prosecution.  He made no discrete submissions in relation to the Commissioner's direction on intent.

68.      The following misdirections were relied on:-

"That in his summing up the Commissioner misdirected the jury that the receipt of an open transfer of assets in the knowledge that the donor was under some form of police investigation was capable without more of having a tendency to pervert the course of justice, namely the investigation and confiscation proceedings. 

That the jury were misdirected that the 'immense cause' letter was capable of having a tendency to pervert the course of public justice without further action by the Applicant in the form of an application to vary the saisie supported by an affidavit or the giving of evidence by him to the confiscation hearing."

69.      These two alleged misdirections were a repetition of submissions (essentially of law) advanced in the context of the claim that there was no case to answer.  Indeed Advocate Preston informed us that sensibly he did not repeat them in this context before the Commissioner or indeed before us. We rejected them then (see paragraphs 32-61 above) and for the same reasons reject them now.

70.      It was further alleged that the Commissioner gave a misleading direction on what amounts to a tendency to pervert the course of public justice by reference to an example of a murderer who burned a stained shirt in a case where it was not alleged that the Applicant had attempted to conceal or hide the fact of the transfers.

71.      The other grounds of appeal - set out in full at paragraph (23(4)v-ix) - above are in summary,  that in his summing up the Commissioner omitted  to remind the jury on some parts of the evidence relevant to the defence and of some of the defence arguments which had been advanced before the court and that the Commissioner made repeated comments that were critical of the case and evidence for the defence which exceeded the boundary of proper judicial comment and failed to balance those comments with an adequate summary of the case for the defence and/or a summary of the evidence of the defendant.

72.      It is useful in evaluating the force of these criticisms to remind ourselves of the way in which the summing up was developed before the Royal Court.

73.      At the conclusion of the evidence and before speeches and summing up, the Commissioner sensibly, not least because of the novel factual framework within which the charge of the established offence was advanced by the Crown, invited submissions from the Advocates and gave them a preliminary draft of his summing up for their consideration.  There was discussion as to whether the Commissioner should direct the jury (i) that it was no defence to the charge that the attempt was bound to fail; (ii) that it was not relevant to consider third steps which might need to be taken, the question for the jury being "did more need to be done by this Defendant"; (iii) that the offence does not require unlawful acts Kellett; (iv) that the required intention should be an intention to pervert the course of justice.  Advocate Preston was to give further consideration to the proposed Kellett direction.

74.      After further discussion continued on the next day of the hearing, the Commissioner indicated that he would email the entire text of the summing up to counsel for their further comment.  The Crown Advocate accepted that a direction that "acts may have a tendency to pervert the course of justice even if they are in themselves entirely lawful" was sufficient and reference was made to the 'shirt example' (now said to be unacceptable).  The Commissioner considered with Advocate Preston the correct approach to the different transfers and with the Crown Advocate the appropriate direction in relation to them. 

75.      On the day after that the Commissioner indicated that he had incorporated Counsel's further email comments and the discussion focussed on the direction on "cause" referred to in the November letter. 

76.      Advocate Preston raised no additional issues or concerns regarding the summing up with the Commissioner. While an advocate's acquiescence on what was proposed could not itself absolve the Commissioner if he committed material errors in his summing up, it does encourage a particularly careful scrutiny of any complaints only subsequently advanced.

77.      The directions to the jury on tendency and transfers in which the reference to the burning of the shirt were as follows:-

"To have a tendency to pervert the course of justice means that the defendant has done enough, without anything more being done by him, to give rise to the possibility of a perversion of the course of justice.  Has he put a sufficient spanner in the works to cause a possibility of injustice being done? The prosecution does not have to prove that what the defendant did, actually did pervert the course of justice. The prosecution does not even have to prove that the perversion of the course of justice was likely to be achieved.  It is sufficient if the defendant created a risk that a perversion of justice might have taken place. Now, the prosecution says that the defendant's acts created the possibility of injustice in a number of ways. Before I set them out, I direct you that acts may have a tendency to pervert the course of justice even if they are in themselves, perfectly legal. "

We interpolate that up to this point the direction is faultless and indeed the subject of no criticism.

78.      The Commissioner continued:-

"Let's take an example. If you burn your old shirt in the garden bonfire there is (no) wrong, generally speaking in that. But if the old shirt that you have burned is stained with the blood of the man you have just murdered and you are burning it to destroy the evidence, that is an act with a tendency to pervert the course of justice.  Let's take the example a little further. Suppose the forensic scientists are so clever that, notwithstanding the destruction of the shirt by fire, they are able to discover from the ashes the DNA of the murdered man. The fact that the burning of the shirt could not have achieved its purpose-that is, the destruction of evidence- does not mean that it is not an act tending to pervert the course of justice.  The fact that you cannot, in fact, achieve your purpose does not alter the character of the act having a tendency to pervert.  In the context of this case, the defence says that these transfers of property were lawful and that is correct.  In themselves, there was nothing wrong or unlawful in the acceptance by the defendant of these assets. Whether they had the character of acts tending to pervert the course of justice is a different matter and depends, as in the example of the shirt that I have just given you, on all the circumstances of the case."

79.      The Commissioner was using the example of the burned shirt only to emphasise that whether or not a particular act had a tendency to pervert the course of justice depends on ''all the circumstances of the case". He did not suggest that the Applicant (or Peter Michel) sought to conceal the transfers. The evidence of Advocate Whelan, if accepted, had been that the transfers were "completely transparent."  He also said "but it was highly suspicious".

80.      The force of Advocate Preston's complaint about the analogy depends upon his premise that concealment is a sine qua non of the offence, alternatively that a discoverable act cannot constitute it.  In short that there is a need for the prosecution to prove subjective or objective concealment. For reasons set out in paragraph 36 above, we consider the premise to be unsound and the complaint accordingly without weight.

81.      The complaint (vi) that the Commissioner should have directed the jury that the concession by the Attorney-General that the transfers would not have been missed by the Jersey investigators meant that there was no risk that they might have been missed confuses and conflates two different scenarios. That they would not have been missed does not mean that they might not have been. We refer to paragraphs 38-47 above.

82.      The complaint (v) that the Commissioner gave no direction in what was characterised as "the central argument" for the defence i.e. that the gift provisions of POCJL themselves prevented the acts relied on by the prosecution as having any tendency to pervert assumes that the argument had any inherent validity. We have rejected that argument which is in essence one of law, not fact and refer to paragraph 48 above.

83.      The complaint (vii) that the Commissioner did not remind the Jury of what was characterised as the "central issue" in the case i.e. whether the acts relied on had a tendency to pervert the course of justice by creating a risk that the realisable tally of Peter Michel's assets might have been reduced below the benefit figure again seems to us to have as its false premise the argument that the fact that some later action by a third party  would be required before justice was perverted means that the defendants acts must ipso facto lack the required tendency.

84.      Context, as always, is important.

85.      The jury were reminded by the Commissioner of the prosecution case that there were three reasons why the transfer of assets caused the risk of injustice. The first was that the police investigation was an investigation into Peter Michel's assets and that the transfer of Peter Michel's assets might have led the police to miss some of these assets when identifying his realisable property.  The jury were told that the Crown had conceded that the police had information about all the transferred assets which would have in due course led them to know about the transfers and of the consequent defence response of "how could these transfers have led to a perversion of the course of justice?"  The jury were directed that the question is whether the defendant's (i.e. the applicant's) actions in accepting the transfers of property created a risk that injustice might result.

86.      The second was that injustice might have resulted from the fact that the POCJL gives the court a discretion to leave gifts out of the account in determining the amount of realisable property of Peter Michel to meet a confiscation order. The jury were told that the defence response was that before the transferred assets could be left out of account Peter Michel or someone else would have to do something more ,such as produce a false affidavit. The jury were directed that the question for them to decide was whether the defendant (i.e. Applicant) had done enough to create the risk of injustice or did he need to do anything more?

87.      The third was the alleged lie in the "November letter".

88.      The Commissioner summed up the defence case on tendency by reminding the jury that the burden of proving the realisable amount is on a defendant and said:-

"The defence responds, as I explained earlier on, that under the law the amount of benefit is the amount of the Confiscation Order unless the convicted person persuades the Court that he does not have sufficient assets available. So before these transferred assets could have been left out of account, Peter Michel or someone else would have had to do something more; produce a false affidavit or something of that kind. Members of the jury, it is true that in confiscation proceedings the convicted person has the burden of proving that his realisable property is less than the benefit that he has received. But I direct you that the fact that further action by Peter Michel would have been necessary is irrelevant.  The question for you is whether the defendant Justin Michel had done enough to create the risk of injustice. Did the defendant need to do anything more?'"

89.      We do not accept that the jury were misdirected in relation to proof of the requisite tendency to create a risk that injustice would result from the receipt of the company assets by the Applicant. We do not understand any part of the summing up to be such as to give the impression that proof of risk was unnecessary.  On the contrary the Commissioner stressed the need for this element to be proved.

90.      The Commissioner adequately explained the defence arguments on the gift provisions and the burden of proof. He told the jury that a defendant's benefit would be confiscated unless he discharged the burden of proof and that this required something more from Peter Michel or someone else.   The correct issue for the jury in the context of the offence charged was, however, did this defendant have to do more?

91.      The directions to the jury accurately set out the law as stated in Murray and as previously ruled by the Commissioner. We repeat; acts have the requisite tendency if they create a risk that justice will be perverted. The risk need not be likely. It is not relevant that to achieve injustice further steps by someone other than the Applicant will be needed, or that the police or prosecution were bound to foil the attempt.  The transfers created a risk that the property would be missed by the investigators which would be a perversion of the investigation, saisie judiciaire and application for confiscation.  The transfers turned realisable property into property that was only so at the discretion of the Court. The creation of a discretion produced a risk of a flawed exercise of that discretion which would be a perversion of the application for confiscation.

92.      Furthermore, it is not relevant that the transfers were open, registered and not concealed, nor that the acts were not of themselves illegal. Unlawful acts are not a prerequisite of this offence. The fact that the prosecution conceded that the police were bound to discover the transfers is equally irrelevant. The Crown submitted that because a risk is unlikely to materialise it is illogical to conclude that the risk does not exist.  The scope for error in this investigation was substantial and the risk was always present.  The concession in any event related to the transfer of company assets; other assets, being real property, were discovered later and might in fact have been missed. The freezing of Peter Michel's assets in an amount allegedly available to meet any confiscation order cannot deprive acts previously carried out of the relevant tendency.  Indeed in our view more elaborate analysis of the provisions of POCJL might have distracted the jury from the real issues.

93.      As to the November letter the jury were told that:-

"the prosecution relied on those words as an attempt, not a very good attempt, but an attempt to persuade the Crown that those assets had been transferred as payment for the legal work that the defendant had done for his father. If that had been true and the prosecution had accepted that position, then the assets would not have been liable for confiscation."

94.      As to the element of intent the jury were reminded of the defendant's evidence that he did not intend to imply that there had been a contract, he did not really mean too much in using the word cause: he did not expect it to be closely analysed;, moreover the transfer was a family arrangement and in law there is a presumption that family arrangements do not create binding contracts.  

95.      As to the element of tendency the jury were told that the defence was that there was no contract and were reminded that the evidence of Crown Advocate Whelan was that he would not accept without further evidence that the transfers were for the performance of legal work done.  The Commissioner reminded the jury of the burned shirt example and stated. "Even if your attempt is not likely to succeed or is bound to fail it does not mean that the act does not have a tendency to pervert.  The question for you, taking all the evidence that you have heard into account is whether this phrase in the letter was such as to cause the possibility that injustice might result".

96.      The Applicant submits that the November letter referred only to the company assets transferred and the defendant's services in running the companies and had no bearing on the transfer of the other assets. The Commissioner should have directed the jury that the fact that some value is given for a transfer does not exclude the value of the transferred asset out from the gift provisions: the letter was unlikely to persuade the prosecution without further detail as to the value of the services, and that indeed there was no application to vary the saisie.

97.      The Applicant further submits that the Commissioner did not mention the "without more" issue in relation to the letter and he should in this context have directed the jury to consider whether the letter itself had any tendency and whether in fact the defendant would have had to have done more to have created the risk of injustice.

98.      In our view the interpretation of the evidence in respect of the letter (including whether it was limited to transfer of company assets), its content and its consequences were essentially matters for the jury and we do not accept that there was any misdirection from the Commissioner.  They were correctly instructed as to the law; they were reminded of the evidence and they were reminded of the defence case.

99.      The jury were directed to consider the following, first, was there a risk that the transfers of property might have caused the investigators to miss something when the time came for a Saisie judiciaire to be obtained or a confiscation order to be sought?  Secondly, was there anything more that the defendant needed to do apart from accepting the transfers into his name, so as to cause difficulties in relation to the seizure and confiscation of assets and thus to create a risk of injustice? Thirdly, did the immense cause letter create a risk that the prosecution might think that the transfers were payment for the legal work that the defendant had done for Peter Michel so that they would not be liable for confiscation?  As the Commissioner put it "In simple terms; did the defendant's actions create a risk that injustice might result?"  Simple terms were, in our view, appropriate, coupled, as they were, with a direction that proof of tendency was a sine qua non of the offence.

100.   The jury were then directed that the third element of the offence was whether the defendant had an intention to pervert the course of justice.   The Commissioner said this:-

"When the defendant accepted the transfer of these assets did he intend to shield them in some way from the processes of seizure and confiscation which would inevitably follow if his father were convicted of money laundering? Now intention is something that in a person's mind and none of us is, of course, a mind reader.  So how does one judge what a person intends?  The answer is that you the jury are entitled to draw inferences from facts you find to be proved and from what the defendant said and what the defendant did.  It's really a matter of commonsense.''

101.   The Commissioner then went on to set out the issues in relation to the question of intent with reference to the transfers and the November letter and to summarise the evidence and the defendant's responses and explanations.  No submissions critical of that direction are made.

102.   The final ground of appeal is that the Commissioner made repeated comments that were critical of the case and evidence for the defence which exceeded the boundary of proper judicial comment and failed to balance those comments with an adequate summary of the case for the defence and/or a summary of the evidence of the defendant.  The Applicant submits that, taken together, the criticisms of the content of the summing up render the conviction unsafe.

103.   In his summing up the Commissioner reminded the jury of the evidence concerning the transfer of a picture to Peter Michel's mistress and the defendant's (apparently accepted) case that it was nothing to do with him and that he knew nothing about it.  The Commissioner continued "But if you conclude that one gift was plainly a sham, does that tell you anything about the remaining transfers?"  The Applicant contends that this was not relevant to the intent of the defendant unless the jury were sure that he knew of it. There was no evidence that he knew of it and the jury were not reminded of this.

104.   The Crown response to this complaint is that although there was no positive evidence that the Applicant knew of the mistress at the time of the transfer it was for the jury to consider all the transfers and Peter Michel's motives.  If they concluded that transfer was a sham, and he had the relevant intention, it was open to them to consider whether this had a bearing on the character of the other transfers and if these transfers were all construed as evidence of a plan by Peter Michel to pervert the course of justice.  The jury had next to decide whether the defendant was a party to that plan.  As to this the jury were, in particular, directed that the intent of the defendant and of Peter Michel might be quite different. They were told that even if they thought that Peter Michel was guilty of an attempt to pervert the course of justice by making all these transfers of property, it does not follow that his son, this defendant is also guilty. Given that unambiguous direction, we do not consider that the jury could have been misled by the question the Commissioner raised by reference to the transfer to the mistress.

105.   The Applicant raises concerns about comment by the Commissioner on the evidence of Colin Parry, (who was the business partner of Peter Michel in four companies, Le Blond & Mallen, Parade Hire Cars, Pelin Holdings and PMP Holdings.) The jury were reminded of Colin Parry's evidence that when company financing became difficult he suggested that the shares be transferred from Peter Michel to the defendant and it was done. The Commissioner set out the particulars of the transfers and that the defendant had said in evidence that his father had told him that it was the neatest way to do it and that it all seemed natural to him.  The Commissioner went on to say:-

"Whether it seemed natural or not, the effect of transferring the loan accounts was to reduce the assets of Peter Michel significantly at a time when a serious police investigation was underway for no apparent commercial reason. Does that tell you anything about the intentions of the defendant? Did he accept these assets worth more than £500.000 just because the bank was being difficult?  Well, that is a matter for you to consider."

106.   A further concern is that the Commissioner failed to remind the jury of the evidence of David Eastwood who was a Senior Manager in the Banking division of the Jersey Financial Service Commission and who in August 2001 was chief Manager of NatWest Bank in Jersey. He gave evidence about the Bank's inability to lend money to Colin Parry due to Peter Michel's "current problems" and the risk that his assets would be frozen. It is submitted that in that context the Commissioner should have directed the jury that if they considered that the explanation for the transfer of the shares was or may have been true, then they should ignore those transfers. In our view such a direction was otiose. The issues were clear.

107.   It is submitted that the Commissioner did not deal fairly with the question of whether the defendant realised that gifts were not safe from confiscation until shortly before he wrote the November letter. We do not agree; all the evidence and submissions were before the jury.

108.   Complaint is made that the Commissioner referred to the transfer of a Porsche motor car by Peter Michel to his mistress, which, like the Ferrari, remained at Pot de Rocher, and made the comment "Were these sham transfers showing a guilty mind in relation to the Ferrari on the part of the defendant? Well, that is a matter for you."  Complaint is further made that the Commissioner failed to remind the jury of the evidence that the defendant knew nothing of the mistress at that stage.  In our view repetition of this point would have been gratuitous and was not required.

109.   We consider all these matters together for the purpose of assessing whether the comments in the summing up and the summing up itself were unfair and/or unbalanced, we conclude that they were not. The matters are peripheral.  There was in this case abundant evidence from both the prosecution and the defendant himself on which the jury could convict.  We are not persuaded that the comments said to be unfair were in fact so.  The Commissioner was under no obligation to remind the jury of all the evidence in the case or all the arguments submitted by counsel.

110.   At the outset the Commissioner had given the standard direction that:-

"You will wish to take into account the arguments in speeches by counsel for the prosecution and the defence, but, of course you are not bound to accept them. Equally if during the course of my review of the evidence, I appear to express any views concerning the facts or I emphasise a particular aspect of the evidence, do not accept those views unless you agree with them.  Similarly, as I will only be summarising the evidence rather than rehearsing it all, I may leave out something that you think is important.  If I do, you should have regard to that evidence and give it such weight as you think fit. In a nutshell, when it comes to the facts of this case it is your judgment alone that counts."

111.   The draft summing up had been considered and accepted by both Counsel in this case. The trial had occupied eleven days and inevitably there was a wealth of evidence to be concisely reviewed. At the conclusion of the evidence and counsel's submissions the jury would have been well familiar with the case.  The jury were directed as to the elements of the offence and in relation to each separate aspect of the Crown case, reminded of the defence case and evidence. 

112.   We are not persuaded that the "strong" - or as one of us, put it in the course of the hearing 'robust'- comments in relation to the evidence did exceed the boundary of proper judicial comment nor that the Commissioner failed to balance the comments with an adequate summary of the defence case and/or evidence. A Judge is entitled to express his opinion strongly in a proper case provided he leaves the issues to the jury, R v Colin Bateman 20 App R.197 CCA.  The standard direction itself (here duly given) assumes that a judge in summing up to a jury may express or be thought to express views on the merits and explains to the jury how to react to such expression. Prudent judges will always take care not to exceed the boundaries of what is permissible or sensible.

113.   Finally we are invited to consider the point that in the direction regarding verdict, which was that:-

"we have been considering the transfers to the defendant in five categories and, of course you need to consider his state of mind in relation to each category.  But you have, in fact, to be satisfied only in relation to one of the categories, that the defendant intended to pervert the course of justice, to return a verdict of guilty. For example, if you thought that there might be some doubt as to whether the transfer of the Ferrari involved an attempt to pervert the course of justice but you were otherwise satisfied that the transfers were part of a plan to defeat the seizure and confiscation of assets you would still be required (to be), satisfied in all other respects to return a verdict of guilty."

114.   The complaint is that the Commissioner did not direct the jury as to the need for unanimity in relation to any one transfer.

115.   However, this direction accords with the law set out in R v Kevin Brown 75 Cr App R 115 CA and is unobjectionable. The jury were properly and generally directed on unanimity at the conclusion of the summing up.

116.   None of the grounds that we have considered leads us to conclude either that the conviction should be set aside on the ground of a wrong decision of any question of law, or that on any ground there was a miscarriage of justice. The jury were entitled to conclude in the light of directions properly given and the evidence adduced before them that this was another example of an attempt to pervert the course of justice which simply - as appears not infrequently to be the case - failed.

117.   This application for leave to appeal conviction is granted; but, for the reasons set out herein, the appeal is dismissed.

Authorities

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