Case Updates

A person who allows his account to be used by another to facilitate fraud “converts” criminal property: R v Fazal [2009] EWCA Crim 1697; [2010] 1 Cr. App. R. 6 

The defendant was charged with seven counts of converting criminal property contrary to s.327 (1) (c) of the Proceeds of Crime Act 2002. Seven deposits were made into the defendant’s bank account; these were not disputed to have been the proceeds of fraud. Six deposits came from individuals who had paid for items on the internet which were not delivered and were never intended to be delivered. A seventh deposit was a stolen, forged cheque fraudulently processed through the account. The defendant’s case was that he had given his account details to B, a friend, who claimed to have a problem with his own account and needed to use the defendant’s account in order to have his wages paid. At trial the judge was required to rule as to whether there was any evidence before the jury of “converting” criminal property. It was submitted that there was no act of converting criminal property attributable to the defendant.

 Appeal dismissed. The defendant had committed an offence under s.327 (1) (c). The reference to “converting” criminal property in s.327 (1) (c) of the Proceeds of Crime Act 2002 was similar to the tort of conversion which was concerned with wrongfully taking, receiving, retaining or parting with someone else’s property. Therefore, for the purposes of s.327 (1) (c) there were successive acts of “converting” criminal property when the moneys were lodged, when they were credited to the defendant’s account, when they were retained in it and withdrawn from it; all of which were done with the full co-operation, knowledge, approval and authority of the defendant.

The provisions of the Youth Justice and Criminal Evidence Act 1999 s.53 regarding the competence of a four year old witness to give evidence were clear and unequivocal and the judge had been entitled to establish that she was competent to give evidence in relation to an allegation of rape: R v B [2010] EWCA Crim 4

The appellant (B) appealed against his conviction for rape of a child under 13 years of age. B had been convicted of the anal rape of a child (X) who was two years old at the time of the offence and approximately four and a half years old when she gave achieving best evidence (ABE) interview. The judge concluded that X's competence had been established not only before she gave evidence but also afterwards. B contended that a close analysis of X's evidence revealed that attempts to examine her had been futile and that he had been unable effectively to challenge her account and put his case to her. B further contended that without X's evidence there could have been no conviction, the result being an unfair trial.Appeal dismissed. Provided the witness could understand the questions put to them and could give understandable answers, they were competent. What was required was the making of a judgment as to whether the witness fulfilled the statutory criteria. Although the age of the child would inevitably help inform the judicial decision regarding competence, the decision was one about the individual child and their competence to give evidence in that particular trial. Credibility was to be assessed by the jury. When the issue was whether the child was lying or mistaken, it should not be over problematic for an advocate to formulate short, simple questions which put the essential elements of the defendant's case and to fully air before the jury the areas of evidence which bore on the child’s credibility. The competence test could be re-analysed after the witness had given evidence.

Where a defendant had pleaded guilty to an offence of assisting an offender, his conviction in consequence of that plea was not rendered unsafe by the principal offender's subsequent acquittal of the offence with which he was charged.

 R v Naseer Ahmed Zaman [2010] EWCA Crim 209 The appellant (Z) appealed against his conviction for assisting an offender contrary to the Criminal Law Act 1967 s.4(1) and against a total sentence of 15 years imprisonment imposed on him following his pleas of guilty to two offences of conspiracy to import cocaine and heroin. On the conspiracy counts Z had pleaded guilty to agreeing with others to import half a kilogram of cocaine at 100 per cent purity, and to negotiating with others as to the importation of five kilograms of heroin at 100 per cent purity. Z had also pleaded guilty to assisting another (M) to leave the scene of a different conspiracy. M was subsequently acquitted of any involvement in that conspiracy. In sentencing on the drugs charges the judge had taken a starting point of 10 years in respect of the cocaine importation and had indicated that the harm done by the importation and distribution of Class A drugs outweighed the very significant personal mitigation presented by Z (good behaviour in custody). Z submitted that (1) his conviction for assisting an offender was unsafe because M had subsequently been acquitted of the principal offence, and his plea to the assisting offence had been based on belief rather than knowledge; (2) in sentencing for the drugs offences the judge had taken too high a starting point and had failed properly to take into account his personal mitigation. Appeal allowed in part. (1) The conviction on the s.4 offence was not unsafe. s.4 refers to the commission of the relevant offence by the principal offender, not to his conviction. This left open the possibility that the commission of the relevant offence by the principal offender could be established in the case of the assister, even if it was not established against the principal offender himself. By his unequivocal plea of guilty Z had relieved the Crown of the need for any further proof that M had indeed committed the relevant offence. By his plea Z conceded not that M might have committed the offence, but that he had in fact done so. Whether that concession was on the basis of knowledge or belief was immaterial, on either basis he was guilty of assisting M. (2) The total sentence of 15 years' imprisonment was manifestly excessive and would be reduced to 12 years. Although there were a number of aggravating features and while the conspiracies related to different drugs with different contacts and sources in two different countries, it was a case of rather less persistence than that of Attorney General's Reference (Nos.117 and 118 of 2005), Re [2006] EWCA Crim 1157, [2007] 1 Cr. App. R. (S.) 22. 

Moreover, while there were limits to which even exceptional personal mitigation could take a case where there were sophisticated conspiracies for the importation of drugs, it could not be said that Z's personal mitigation was without any value.

The court was not prepared to circumvent the statutory maximum sentence of 10 years' imprisonment available for firearms offences by imposing consecutive rather than concurrent sentences in respect of an offender found with a number of guns and ammunition which had come into his possession on one single occasion:

R.v. Ralphs [2009] EWCA Crim 2555  The Attorney General referred as unduly lenient a total sentence of six years' imprisonment imposed on an offender (P) following his guilty pleas to firearms offences.  P had received concurrent sentences for possession of two firearms, a silencer and a large quantity of ammunition, which were found in a box at his address. His basis of plea was that he was only a minder of the box and that, although he did not know what was in it, he knew or suspected that the contents were illegal. The judge sentenced P on the basis that he was only a minder but that he knew perfectly well what he was minding. The Attorney General submitted that the total sentence should have been at least 10 years' imprisonment and that consecutive sentences should therefore have been imposed. P argued that the sentence was sufficient to reflect his overall criminality. 

Reference allowed. Subject to possible consecutive sentences, the range for possession of firearms was between 5 and 10 years' imprisonment, with an appropriate discount from the maximum for a guilty plea. That left little room for case-specific flexibility. The aggregate of the sentences had to be appropriate to the Defendant’s criminality in the context of the available mitigation. Consecutive sentences could be justifiably imposed where distinct offences were committed in circumstances where they could properly be said to increase criminality or for offences committed on the same occasion when there were exceptional circumstances justifying a departure from the usual practice. However, the court was being invited to circumvent the statutory maximum sentence on the basis that it believed it to be too low and to achieve that objective by disapplying well understood sentencing principles. This is a problem that has to be addressed by legislation. Notwithstanding the constraints on the sentencing powers, The Defendant's sentence was unduly lenient. He was in possession of more than one lethal weapon, with ammunition fit for use in both, and a silencer. Those who provided a safe hiding place for such weapons made a significant and distinctive contribution to the use of firearms on the streets and elsewhere. The pleas were tendered in circumstances which asserted a lower level of criminality than the judge had been prepared to accept. The sentence would therefore be increased to eight years' imprisonment.