The Judicial Committee of the Privy Council Decisions

Attorney General for Jersey v. O'Brien (Jersey) [2006] UKPC 14 (14 February 2006)

Privy Council Appeal No 50 of 2005

Her Majesty's Attorney General for Jersey Appellant

v.

Yvonne Edmond O'Brien Respondent

FROM
THE COURT OF APPEAL OF JERSEY - - - - - - - - - - - - - - - - -

REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE

14th February 2006, Delivered the 22^nd March 2006

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Present at the hearing:-

Lord Hoffmann

Lord Woolf

Lord Steyn

Baroness Hale of Richmond

Lord Mance

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[Delivered by Lord Hoffmann]

1. On 5 June 2003 Yvonne Edmond-O'Brien was convicted by the Royal Court (Sir Richard Tucker, Commissioner, and Jurats Rumfitt and Allo) of being concerned in an arrangement to launder the proceeds of drug trafficking by her husband Michael O'Brien, "knowing or suspecting" that he was carrying on drug trafficking, contrary to article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988. The Court sentenced her to seven years' imprisonment, made a confiscation order and imposed a sentence in default. She appealed against both conviction and sentence. On 12 November 2003 the Court of Appeal (Southwell P, Gloster and Vaughan JJA) set aside the verdict, sentence and confiscation order. The Attorney-General, by special leave, appealed to Her Majesty in Council. Mr Batten QC, who represented Mrs O'Brien, informed the Board that she was unable to attend the hearing in person and was assured that this was entirely a matter for her and could in no way affect the Board's opinion of the case. At the conclusion of the hearing the Board announced that it would humbly advise Her Majesty that, for reasons to be given later, the appeal against the setting aside of the conviction should be allowed and the appeal against sentence remitted to be heard by the Court of Appeal. These reasons now follow.
2. By section 25(1) of the Court of Appeal (Jersey) Law 1961 (which substantially reproduces section 4 of the English Criminal Appeal Act 1907) the Court of Appeal must allow an appeal against conviction if it thinks that the verdict "is unreasonable or cannot be supported having regard to the evidence" or on the ground that there was a wrong decision on a question of law or a miscarriage of justice. In the present case the Royal Court is not said to have made any error of law or procedure. The verdict was set aside on the sole ground that it could not be supported by the evidence.
3. Mr O'Brien ran a butchery business and Mrs O'Brien kept a lodging house. There is no dispute that from about the middle of 1996 Mr O'Brien, under cover of his butchery business, started importing drugs into Jersey on a large scale and selling them to retail dealers and pushers. This continued until his arrest in Portsmouth on 15 September 1998. He pleaded guilty to a number of drug charges in Portsmouth Crown Court on 19 February 1999 and was sentenced to six years imprisonment. In May 2002 he was charged in Jersey with laundering drug money and pleaded guilty to two charges.
4. Mr O'Brien maintained a number of bank accounts. Some were designated as business accounts for the butchery business and four were personal accounts with different banks. Mrs O'Brien, who described herself in evidence as "very organised" and "good with figures", was responsible for paying money into the butchery accounts and her husband's personal accounts. She would take the money to the banks and fill in the deposit slips.
5. During the period 1995 to 1998 there was a substantial increase in the amount of money deposited in the business accounts: £256,962 in 1995, £377,801 in 1996, £434,752 in 1997 and £336,191 (the equivalent of £448,254 in a full year) in the first nine months of 1998. But the forensic accountant called by the prosecution accepted that if these had been the only sums of money involved, Mrs O'Brien might reasonably have thought only that the butchery business was becoming more prosperous.
6. The payments into the personal accounts were more difficult to explain. These had amounted in 1995 to £104,880 but they increased to £302,455 in 1996, £1,191,680 in 1997 and £607,754 in the first nine months of 1998. Some of these payments could be explained by reference to the sale of the O'Brien's house and work done on their new home, but the forensic accountant could find no explanation for £870,729 deposited in the personal accounts in 1997 and £537,388 deposited in 1998. Furthermore, £699,330 of the money deposited in 1997 and £451,943 of the money deposited in 1998 had been in cash.
7. There were other unusual features about the deposits. Until the middle of 1996, Mrs O'Brien used to go to the bank once or twice a week. But in 1997 and 1998 it was often three times a week or more. Even more significantly, she began regularly to visit two and sometimes three banks on the same day. In 1997 there were 89 and in 1998 56 occasions on which she went to more than one bank. The Jurats were invited to infer that she had made the deposits, particularly of cash, with different banks and on different days so that no single deposit would be large enough to attract attention.
8. Another feature of the deposits was the large number of £50 notes. These are not commonly used by customers in butchers' shops; indeed, they were at the time and remain rarities in ordinary retail trade. But there was evidence that they were standard in the wholesale drug trade. The numbers of £50 notes paid in by Mrs O'Brien were 1,490 in 1997 and 1,159 in 1998. The prosecution also relied upon what was said, for that time, to be a disproportionately large number of £20 notes.
9. After the arrest of Mr O'Brien, the Jersey police searched the matrimonial home. Detective Constable Grieve gave evidence that he found £19,000 in cash in various places. He asked Mrs O'Brien about £3,000 which he found in a dresser in the dining room and she said that it belonged to "friends", whom she declined to name, for whom she and her husband paid bills so that they did not have to pay tax. Interviewed by the police, she said that she had never noticed the increases in cash going into the accounts, assumed that the money came from the butchery business, never asked why she was paying so much money into the personal accounts and never thought it odd to pay substantial sums into different accounts on the same day.
10. Both Mr and Mrs O'Brien gave evidence. Mrs O'Brien largely repeated the explanation she had given to the police. But she denied having said that the money in the dresser belonged to friends. It was, she said, cash from the butchery and lodging house businesses. Mr O'Brien said that he had papers recording details of drug deals which, as he admitted in cross-examination, he had left "lying around" in the house. He also said that he would count his cash (which at times amounted to £50,000) in the bedroom or downstairs. He appeared not to have taken any very elaborate precautions to prevent his wife from knowing about his activities. But Mrs O'Brien said that she never knew that he was a drug dealer.
11. This and other details (such as Mrs O'Brien's apparent lack of curiosity about her husband's frequent trips to England) were cumulatively relied upon by the prosecution as circumstantial evidence from which the Jurats could infer that Mrs O'Brien must have known or suspected that a substantial part of the money which she regularly deposited was the proceeds of drug trafficking. The Jurats must have accepted this submission and rejected Mrs O'Brien's explanations. Furthermore, the Jurats saw and heard Mr and Mrs O'Brien in the witness box and were entitled, if they saw fit, to take into account their evidence and the way it came out as tending to prove her guilt.
12. It is unclear to the Board whether, in coming to the conclusion that there was no evidence upon which the Jurats could convict, the Court of Appeal were saying that there had been no case to answer at the end of the prosecution evidence or whether they were looking at the evidence for the prosecution and defence as a whole. There had been no submission of no case to answer at the end of the prosecution case and no appeal on the ground that there had, at that stage, been no evidence upon which the Jurats could convict. The Court of Appeal acknowledged (at paragraph 40) that the prosecution had sought to rely "on an inference to be drawn from the totality of the evidence before the Jurats" but then proceeded to analyse "those particular circumstances on which the prosecution relied". The court then went seriatim through the various items of evidence adduced by the prosecution and considered what inferences might be drawn from them. But in each case their account of the prosecution evidence was supplemented by lengthy extracts from the evidence of Mrs O'Brien, which they appeared to weigh against that of the prosecution and at one point (paragraph 58) went so far as to say that it "[had] to be accepted".
13. Although the Board does not sit as a second Court of Appeal, it considers that this approach was wrong in principle. Questions of credibility are a matter for the Jurats. It is not the function of the Court of Appeal to say that the evidence of the accused should have been accepted.
14. Furthermore, although the Court of Appeal said that it was looking at the evidence as a whole, in fact it considered the inferences which could be drawn from each item of evidence in isolation. Thus, in relation to the torrent of money which poured into the various accounts in 1997 and 1998, the President said:

"In our judgment, though they would have indicated to Mrs O'Brien that the total amounts going through the personal accounts had increased, as also had the frequency, we do not consider that on this evidence alone the Jurats would have been entitled to infer that Mrs O'Brien knew or suspected that the moneys were the proceeds of drug trafficking. In the context of businesses…which were predominantly cash businesses…there was in our judgment nothing in the payments in, viewed by themselves, which bore the mark of drug moneys." (Emphasis supplied).

15. The Court of Appeal then went on to consider the other elements of the prosecution case. The presence of £20 notes was summarily dismissed as not carrying any weight. The Court accepted that "the consistent appearance of £50 notes might perhaps be thought to carry some weight" but then made an analysis of the payments which included £50 notes and concluded that they had been present in "a little under half of the payments in". That was not enough to be evidence which would suggest knowledge or suspicion.
16. Unfortunately the Court of Appeal, which carried out its analysis after announcing its decision but before drafting the reasons, was unable to put its calculations to the prosecution. If it had, it may have discovered that it had based its calculations upon a mere sample of paying in slips placed before the Jurats rather than the total sums paid in. It had thereby underestimated the number of £50 notes by a factor of 11 in 1997 and 18 in 1998. If it had appreciated the true figures, it might have taken a different view of the significance of this evidence.
17. The Court of Appeal also seems to have misunderstood the nature of the prosecution case about the number of separate payments into bank accounts and the amounts paid in. It analysed the payments and said that although, during 1997 and 1998, "in total, larger amounts were paid in, there were relatively few payments-in which were individually of an amount which by itself would attract attention." They then analysed ten payments in excess of £10,000 and noted that Mr Beamish, the forensic accountant called by the Crown, had in each case said that there was a possible legitimate explanation.

In conclusion, the President said:

"We have examined these larger payments-in with some care, because the considerable emphasis placed on them by the prosecution has to be put in the context of the complete or partial explanations offered by Mr Beamish."

18. The Crown, however, placed no reliance upon the larger payments-in. On the contrary, it was precisely the fact that there were "relatively few payments-in which were individually of an amount which by itself would attract attention" upon which they relied as an indication that money was being laundered. There was police evidence that this was a common money laundering technique, known in the trade as 'smurfing'. The Court of Appeal seems to have paid no attention to the implausibility of Mrs O'Brien's evidence that she saw nothing strange in the fact that day after day she was going round the banks of St Helier depositing huge sums of money split up into small sums which would not individually attract attention.
19. In fact, the Court of Appeal said that "as far as Mrs O'Brien was concerned…the system of her paying in the moneys into the bank accounts continued in the same way in 1997 and 1998 as it had in the previous years and there was no suggestion that new accounts were opened or a new system operated." As it happens, Mr O'Brien opened a new personal account with the Midland Bank on 16 January 1997. But the more important point is that Mrs O'Brien must have appreciated that the frequency and pattern of her visits to the bank had changed.
20. The Court of Appeal dealt with Mrs O'Brien's explanation of the money in the dresser simply by saying that she denied having told Detective Constable Grieve that it belonged to a friend. The Court does not seem to have recognised that if the Jurats believed the Detective Constable (as they were entitled to do), it would follow that Mrs O'Brien's first reaction on being asked about the money was to tell a lie. The Court of Appeal seem to have taken it upon themselves to disbelieve the Detective Constable because, having said that he found a loose bundle of cash in the dresser, he then said that it was "bagged and sealed". This was regarded as a contradiction which destroyed his credit. It is obvious, however, that the Detective Constable was merely saying that in accordance with normal forensic procedures the loose money which he found was put into a bag and sealed.
21. Having thus reviewed the evidence against Mrs O'Brien, the Court of Appeal said that on the totality of the evidence "the Jurats could not properly decide that Mrs O'Brien knew or suspected" that the money was the proceeds of drug trafficking and that the verdict could not "be supported having regard to the evidence."
22. Their Lordships were told that no other case had been found since the establishment of the Court of Appeal in Jersey in which a verdict of the Jurats had been set aside solely on this ground. In Aladesuru v The Queen [1956] AC 49, 54-55 Lord Tucker, speaking of a Nigerian statute in similar terms to the Jersey La, said that it conferred only the right to?

"a limited appeal which precludes the court from reviewing the evidence and making its own valuation thereof"

and added that the cases in England in which a verdict had been set aside "as one which no reasonable tribunal could have found" were exceptional. As Lord Goddard CJ said in R v Hopkins-Husson (1949) 34 Cr App R 47, 49:

"[T]he fact that some members or all the members of [this] court think that they themselves would have returned a different verdict is…no ground for refusing to accept the verdict of the jury, which is the constitutional method of trial in this country. If there is evidence to go to the jury, and there has been no misdirection, and it cannot be said that the verdict is one which a reasonable jury could not arrive at, this court will not set aside the verdict of guilty which has been found by the jury."

23. The reason why such an event in Jersey appears to have been not merely exceptional but previously unknown may be because the Jurats, unlike an English jury, are not chosen at random. As the European Court of Human Rights recorded in Snooks and Dowse v United Kingdom [2002] JLR 475, 484 —

"Jurats are…elected by a special electoral college whose members include the bailiff, the jurats, advocates and solicitors of the Royal Court and members of Jersey's legislature, the States Assembly. Jurats do not necessarily have a legal qualification, but are usually individuals with a known history of sound judgment and integrity, which has been consistently demonstrated throughout a lengthy professional, business or civic life."

24. In England the test laid down in R v Hopkins-Husson was found to be somewhat too restricted and was replaced (by section 2 of the Criminal Appeal Act 1968) with a duty to allow an appeal "under all the circumstances of the case [the verdict] is unsafe or unsatisfactory". No such change has been made in Jersey, but their Lordships would not exclude the possibility of a more liberal interpretation of the old statutory language.
25. In the present case, if the Court of Appeal was saying that there was no case to answer after the prosecution evidence, not only was that not the ground of appeal, it was without any basis; the prosecution's evidence raised a compelling prima facie case, which could be dispelled, if at all, only by oral evidence from Mrs O'Brien. If the Court of Appeal was (as its references to Mrs O'Brien's evidence suggest) looking at the matter after all the evidence, their Lordships consider that the Court of Appeal simply usurped the function of the Jurats. They tried the case on the written record and allowed the appeal because, on their own somewhat imperfect understanding of the prosecution's case, they would not have convicted. Although they said that they had reviewed the evidence "separately and together", there is little indication that they had regard to the cumulative weight of the various items of evidence, to each of which they had, sometimes not altogether plausibly, assigned a possible innocent explanation. It is in the nature of circumstantial evidence that single items of evidence may each be capable of an innocent explanation but, taken together, establish guilt beyond reasonable doubt. The Jurats also had the opportunity to see Mr and Mrs O'Brien and the police witnesses give evidence. They disbelieved Mr and Mrs O'Brien. The Court of Appeal did not have the same advantages and their Lordships consider that they were not entitled to disturb the verdict: compare Barlow Clowes International Ltd (In Liquidation) v Eurotrust International Ltd [2006] 1 All ER 333.