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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Burke, R. v [2006] EWCA Crim 3122 (20 December 2006) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/3122.html Cite as: [2006] EWCA Crim 3122

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BASILDON CROWN COURT
HER HONOUR JUDGE SMITH
T2000697

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/12/2006

1. It was nearly six years ago that on 15 February 2001 the appellant, Declan Burke, was convicted of four money laundering offences. He was subsequently sentenced to imprisonment for 30 months and a confiscation order was made in the sum of £16,000 with 12 months to be served in default of payment. He appeals against his conviction by leave of the single judge who also granted the necessary extension of time for the appeal. The ground of appeal is that the appellant was convicted of laundering the proceeds of tobacco smuggling by Andrew Cook, and that on 1 July 2005 Andrew Cook was acquitted of tobacco smuggling. Andrew Cook had been extradited from Spain to face his trial.
2. At his trial the appellant faced an indictment of five counts. The case presented against him in respect of each could best have been ascertained from the summing up. By reason of the passage of time a transcript is no longer available. Nor have counsel's notes of it survived. All that is now available as to how the case was put is a document titled 'Opening Note'. This was prepared for the committal proceedings and was also used subsequently for the trial. It refers only to section 93B of the Criminal Justice Act 1988, which is not a section appearing on the indictment. Information as to the transactions with which the appellant's trial was concerned is available from the summing up at the trial of Andrew Cook.
3. Count 1 of the indictment against the appellant alleged 'assisting another person to retain the benefit of criminal conduct, cont rary to section 93A of the Criminal Justice Act 1988.' The particulars were that between August 1998 and January 2000 the appellant was concerned in an arrangement with Andrew Cook whereby 'the proceeds of the criminal conduct of Andrew Cook and/or others' were used to acquire property for investment, knowing or suspecting that 'Andrew Cook and/or such other persons had carried on or benefited from criminal conduct.'
4. The appellant was acquitted on count 2, and so it can be put on one side.
5. Count 3 alleged 'converting or transferring property knowing or suspecting it to be the proceeds of criminal conduct, contrary to section 93C(2) of the Criminal Justice Act 1988.' The particulars were, in shortened form, that between 2 and 17 June 1999 the appellant had transferred £102,003 to Lloyd & Co for the purchase of Claydike Farm Cottages, knowing or having reasonable ground to suspect that it represented 'another person's proceeds of criminal conduct'. It was alleged that this was done to assist 'Andrew Cook and/or others' to avoid prosecution under Part VI of the Act. Lloyd & Co were solicitors acting in connection with the purchase.
6. Count 4 was similar to count 3. It related to a bank draft for £100,000 transferred to Lloyd & Co on 7 July 1999 for the purchase of Staunton Grange and Staunton Grange Farm.
7. Count 5 was also similar to count 3. It related to £95,000 transferred to Lloyd & Co in October 1999 again for the purchase of Staunton Grange and Staunton Grange Farm.
8. It will be seen that count 1 referred to the criminal proceeds 'of Andrew Cook and/or others'. Counts 3, 4 and 5 referred to 'another person's' criminal proceeds and to assisting 'Andrew Cook and/or others to avoid prosecution'.
9. Andrew Cook faced an indictment of six counts at his trial. The first alleged being knowingly concerned in the fraudulent evasion of duty on cigarettes between June 1998 and September 1999. Counts 2 to 6 alleged money laundering contrary to section 93C(2). The judge directed the jury that Cook should be acquitted on them if he was acquitted on count 1, which he was. The judge's reason was that the case against Cook on counts 2 to 6 was laundering the proceeds of smuggling. Count 2 related to the same money as the appellant's count 2, on which the appellant was acquitted. Count 3 had no equivalent on the appellant's indictment. Count 4 related to the same £102,003 and Claydike Farm Cottages as the appellant's count 3. Count 5 related to the same £100,000 draft and Staunton Grange and Staunton Grange Farm as the appellant's count 4. Count 6 related to the same £95,000 and Staunton Grange and Staunton Grange Farm as the appellant's count 5.
10. It is accepted that, in accordance with Montila [2004] UKHL 50, [2005] 1 Cr App R 26, it was necessary for the prosecution to establish in respect of each count against the appellant that the relevant monies were the proceeds of crime, namely here the proceeds of tobacco smuggling. There were thus two matters which the prosecution had to establish at the trial of the appellant, namely whether the monies dealt with by the appellant were the proceeds of tobacco smuggling, and whether he knew or reasonably suspected that they were such. It appears that the second was the real issue for the jury at the appellant's trial because the appellant was limited in his ability to question the source of the monies. In contrast, at the trial of Andrew Cook the main issue was whether Cook was involved in tobacco smuggling.
11. There was irrefutable evidence of a tobacco smuggling operation. A number of seizures had been made of large quantities of cigarettes hidden in the loads of lorries coming into the United Kingdom. As already indicated, the main issue at the trial of Andrew Cook was whether he was a party to the conspiracy which lay behind those importations. The duty avoided on the first importation referred to in the summing up at Andrew Cook's trial was £164,109. There was no doubt that very large sums of money were involved, and the judge referred to a total of £14 million of duty avoided. Among those who were parties to the conspiracy were Paul Cook, the brother of Andrew, who was convicted on 2 July 2001, that is some months after the appellant, Louis Everson, the operation's 'banker', who was convicted on 25 May 2000, that is prior to the appellant, and Kamalesh Soneji, a professional money launderer connected with a foreign exchange bureau, Link FX, who was convicted on 24 March 2000, again prior to the appellant. Three drivers, George Horn, Melvyn Hoyles, and James McBray were respectively convicted in March, June and August 2001, all after the appellant. Those convictions were all before the trial of Andrew Cook.
12. The evidence of Andrew Cook at his trial was to this effect. Because he was an undischarged bankrupt he dealt in cash and covered his tracks. He had made large sums of money from exporting coloured horses and dealing in cattle. He had also dealt in vehicles. His money did not come from smuggling. He said that he had sent all his dealing records to the appellant. His case on his count 4, Claybank Farm Cottages, was that the purchaser was Everson and that the money came from Everson. He thought Everson was a genuine business man. His case on his counts 5 and 6, Staunton Grange and Staunton Grange Farm, appears to have been that he was the intended purchaser through a fronting company found by the appellant, and that the money was his own, with help perhaps from Everson. Pages 43 and 44 of the transcript of the summing up do not present a clear picture, probably reflecting Andrew Cook's unclear evidence on the transactions. He said he had no connection with Link FX.
13. We were referred to a number of authorities as to our approach to the appeal. We will take them in order of date.
14. In Rowley (1947) 32 Cr App R 147 the appellant pleaded guilty to being an accessory after the fact. It was alleged against him that he had knowingly harboured the receivers of some stolen goods. The receivers were charged on the same indictment and were later tried and acquitted. It was held that the conviction must be set aside because there was an inconsistency on the record.
15. One of the grounds of appeal in Andrews Weatherfoil Ltd (1972) 56 Cr App R 31 was that, as Smith was acquitted of corruptly offering emoluments to Sporle, Sporle's earlier conviction for corruptly accepting those emoluments was unsafe. This court rejected the submission. Eveleigh J stated at page 40:

"As long as it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another. Such a result may be due to differences in the evidence presented at the two trials or simply to the different views which the juries separately take of the witnesses. That the result produced by such inconsistency is "unsatisfactory" cannot be disputed, but it is the unsatisfactory character of the Guilty verdict to which section 13 of the Criminal Justice Act 1968 is directed, rather than an unsatisfactory result of the two trials as a whole. When inconsistent verdicts are returned by the same jury, the position is usually more simple. If the inconsistency shows that that single jury was confused, or self-contradictory, its conclusions are unsatisfactory or unsafe and neither verdict is reliable. Very often, however, an apparent inconsistency reflects no more that the jury's strict adherence to the judge's direction that they must consider each case separately and that evidence against one may not be admissible against the other : for example, where there is a signed confession. So too, where the verdicts are returned by different juries, the inconsistency does not, of itself, indicate that the jury which returned the verdict was confused or misled or reached an incorrect conclusion on the evidence before it. The verdict "Not Guilty", includes "Not Proven." We do not therefore accept Mr Hazan's submission that inconsistent verdicts from different juries ipso facto render the Guilty verdict unsafe. If, as will usually be the case, the evidence at the two trials was significantly different, this not only explains the different verdicts but also defeats the claim that inconsistency alone renders the Guilty verdict unsafe. If the difference in the evidence consists of additional material favourable to the accused being called at the second trial, the first accused should seek to call that evidence in this Court and not rely merely on the inconsistent verdicts.

The jury in the present case had the opportunity of hearing Sporle in the witness-box, and there has been no suggestion that evidence favourable to Sporle was given in Smith's trial which was not given in the trial of Sporle. There are, therefore, no grounds for concluding that the verdict against Sporle was unsatisfactory."

16. The charge in Shannon (1974) 59 Cr App R 250 (H.L.) was a conspiracy between the two defendants and no others to handle stolen goods. One defendant pleaded guilty. The other was later tried and acquitted. The Court of Appeal set aside the conviction of the former on the ground that that the acquittal of the latter invalidated it. The House of Lords restored the conviction. It held that there was no longer any rule that required the conviction to be quashed because there were inconsistent outcomes on the one indictment, that is to say, 'an error on the face of the record'. It was said that dicta in Rowley among other cases could not stand. At page 261 Lord Morris stated:

"If, however, on a charge that A and B conspired with each other there are separate trials, it may well happen that the available evidence at the trial of one of them is not the same as the available evidence at the trial of the other. If A is first tried the jury cannot convict unless on the evidence they are satisfied that he did conspire with B. That necessarily involves that the jury are satisfied that B conspired with A. But that conclusion of the jury for the purposes of that trial cannot affect B or be evidence against B if and when he is later separately tried. If A has been fairly and properly tried with the result that on the evidence adduced he was properly convicted, I see no reason why his conviction should be invalidated if for any reason B on his subsequent trial is acquitted. The reasons for the acquittal of B may have nothing to do with A. The circumstances that B's acquittal will result from the absence of proof of the case against him does not diminish the fact that he can fully assert that he has been cleared of the charge against him. As I have earlier indicated I think that it is very desirable, where there is a charge of conspiracy against A and B, that they should be tried together. If however for any reasons this cannot be, then if A pleads Guilty or is found Guilty I see no reason why his conviction must be set aside if B on his later separate trial is acquitted."

17. At page 266 Viscount Dilhorne 266 cited with approval the passage we have quoted from the judgment in Andrews Weatherfoil, as did Lord Simon at page 269.
18. At page 275 Lord Salmon stated in a passage which is of particular assistance here:

"In the case which I have postulated [two persons indicted together for conspiring with each other and no one else], B's acquittal will no longer, of itself, give A the right in law to have his own conviction quashed. A should however (……..) be able to seek leave to appeal against his conviction upon the ground that B's acquittal makes A's conviction unsafe or unsatisfactory. Whether or not A would succeed would depend, not upon technicalities but upon all the relevant facts and circumstances which the Court of Appeal would be in a position fully to investigate."

19. In Hui Chi-Ming (1992) 94 Cr App R 236 four persons were indicted for murder. Two pleaded guilty to manslaughter. The third, A, was convicted of manslaughter. It was he who had struck the fatal blow with a length of pipe. The fourth was acquitted by direction of the judge. Later two further members of the group were indicted for murder. One pleaded guilty to manslaughter. The other was convicted of murder. He appealed contending that his conviction of murder could not stand with A's acquittal of murder and conviction of manslaughter. The appeal to the Privy Council was dismissed. Part of the headnote reads:

"In the absence of some exceptional feature, evidence of the outcome of an earlier trial arising out of the same transaction was irrelevant and thus inadmissible because the verdict of a different jury at the earlier trial, whether on the same or different evidence amounted to no more than the evidence of the opinion of that jury. Further, a person might be properly convicted of aiding and abetting an offence even though the principal be acquitted. Accordingly, the evidence that A had only been convicted or manslaughter was inadmissible at the later trial of the appellant and had been rightly excluded."

At page 251 Lord Lowry stated:

"Cases cited earlier in this judgment show that the trial of a secondary offender can proceed although the alleged principle has been acquitted in an earlier trial."

20. We were also cited Donald & Donald (1986) 3 Cr App R 49, but we do not find it of assistance.
21. We have referred to the wording of the indictment against the appellant. It was nonetheless submitted by Mr David Harounoff on behalf of the appellants that at the appellant's trial the case against him had been that he had assisted Andrew Cook to conceal the proceeds of Cook's tobacco smuggling and not the proceeds of any other person's smuggling. He referred to the 'opening note' saying that it related solely to Cook's role in the smuggling operation. He referred to the sentencing remarks of the judge as recorded on his advice dated 27 February 2001 describing the appellant 'as having fulfilled an important and professional role in assisting Andrew Cook in laundering the proceeds of his tobacco smuggling business.' Lastly the confiscation proceedings related solely to monies which the appellant had received from Cook for his services to Cook. Before us Mr Julian Christopher accepted on behalf of the prosecution that at the appellant's trial the case had been put on the basis that he had laundered the proceeds of Andrew Cook's criminal conduct. We should thus proceed on the basis that the reality of the case against the appellant was that he had laundered the proceeds of Andrew Cook's smuggling, and that he did not face a case that he had laundered the proceeds of the smuggling operation from whomever they came.
22. Mr Harounoff further submitted that this was not a case where at the second trial there was less evidence, or less cogent evidence, before the jury – a situation postulated in some of the authorities we have cited. He submitted that the second jury was in a better position to determine whether the monies in question were the proceeds of smuggling because they had the evidence of Cook, which was not available at the appellant's trial, Cook being in Spain.
23. Mr Harounoff submitted that, if the evidence of Andrew Cook at his own trial had been available at the appellant's trial, the jury would have been directed to consider first whether it was made out that the monies dealt with by the appellant were the proceeds of Cook's smuggling, and that in all the circumstances the verdict was unsafe.
24. Mr Christopher submitted that it did not automatically follow from the acquittal of Cook that the conviction of the appellant is unsafe. We agree. That clearly follows from, in particular, Shannon. He submitted that the evidence of Cook might have caused the focus of the trial to shift from Cook to others involved in the conspiracy to smuggle, but that the proceeds, the identified sums, would have remained unchanged. He submitted that the conviction of the appellant was safe.
25. In the passage which we have cited from his judgment in Shannon Lord Salmon states that in cases which we consider include the present it is for the Court of Appeal to investigate the relevant facts and circumstances to determine whether an appeal should succeed. In the passage we have cited from Andrews Weatherfoil Eveleigh J stated 'If the difference in the evidence consists of additional material favourable to the accused being called at the second trial, the first accused should seek to call that evidence in this Court and not merely rely on the inconsistent verdicts.' It may have been with that in mind that Mr Harounoff stated in his advice dated 28 June 2006 that a transcript of Cook's evidence at his trial should be obtained so that it could be utilised as fresh evidence. That evidence could then have been submitted to the court for consideration pursuant to section 23 of the Criminal Appeal Act 1968. That has not been done, and no application under the section has been made. Section 23 was not referred to in the submissions we heard.
26. Once it is appreciated that the suggested inconsistency between the verdicts at the two trials is not of itself any reason to hold the appellant's conviction unsafe, a further reason must be identified as to why that may be so. We consider that in the circumstances here this can only be found in the evidence of Andrew Cook, which was not heard by the jury which convicted the appellant. It follows that, if it is anything, it is to be treated as a fresh evidence appeal.
27. The court is thus being asked to allow the appeal on the ground of fresh evidence where there is no application before the court to receive the evidence, where the evidence in question, namely that of Andrew Cook in the form of a witness statement, is not placed before the court, and where the witness is not available to give evidence to the court. The effect is that the court is asked to assume that the court would find the evidence of Andrew Cook credible and that it would exculpate the appellant. This has come about in a situation where the need to comply with the court's procedures as to fresh evidence had at least passed through the mind of the appellant's advisers and Andrews Weatherfoil had been considered by them. We do not suppose that Andrew Cook would welcome an opportunity to give evidence to this court. In his evidence at his own trial he put part of the blame for the situation in which he found himself on the appellant. Paragraph 10.4 of Mr Harounoff's advice points out that aspects of Cook's evidence are disputed by the appellant. What Andrew Cook would say to this court is a matter of speculation. We accept that the appellant and his advisers may have been in a difficult position. Nonetheless we are being asked to allow the appeal without an opportunity to give proper consideration to the proposed new evidence. That is not a course which we should adopt.
28. For these reasons the appeal must be refused.
29. We should lastly record that at the start of the hearing of the appeal we were informed that a review was being carried out of a number of cases in which Link FX featured. That could only be relevant to count 4. On the brief information with which we were provided it seemed unlikely that the review would affect the appellant's position. In any event it did not affect the issues raised by the appeal. We concluded that we should proceed with the hearing of the appeal.