No: 201401550/C1 
Neutral Citation Number: [2014] EWCA Crim 1958
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 14th August 2014
 
B e f o r e:
LORD JUSTICE DAVIS 

MRS JUSTICE THIRLWALL DBE 
MRS JUSTICE ANDREWS DBE 
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R E G I N A

v 

NIKI WINSTON THOMAS
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Mr I Austin appeared on behalf of the Appellant
Mr R Hall appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE DAVIS:  The appellant was convicted on 14th February 2014, after a trial at the Central Criminal Court before His Honour Peter Thornton QC and a jury, of a count of conspiracy to possess criminal property.  The trial was conducted and the jury was directed in the summing‑up on the footing that the appellant could be guilty of the offence if either he knew or he suspected that the property was criminal property.  It is now said that the conviction is irredeemably flawed in that suspicion could not have been the applicable mens rea for the offence of conspiracy to possess criminal property as charged.  The applicable mens rea could only, in the circumstances of a case of such as this, be knowledge.  The Crown before us concede that to be so.  We agree.  The appeal, for which leave had previously been granted by the single judge, must therefore be allowed and the conviction quashed.
2.	The facts can be shortly stated for present purposes and are these.  At the relevant time the appellant was working as a full‑time chauffeur and courier.  Indeed his employer was one of those to attend court on his behalf and give him a glowing reference.  On the day in question he had been contacted by a man calling himself "Jaz" who enquired whether the appellant was available to deliver some paperwork to a destination in Southall.  The appellant made some enquiries of Jaz as to how he had attained his details.  He received what he considered an acceptable explanation and agreed to meet Jaz and then deliver the package to an industrial estate in Southall.  He met Jaz at a location in Battersea and agreed a fee of £60.  He took possession from Jaz of three bags which he placed on the back seat of the car.  Accordingly to him he entered the post code of where he was going into his navigation system and started his journey.  During the journey he was contacted at least three times by Jaz for updates as to where he was.  Upon arriving at the address in Southall he was contacted by Jaz again over the phone and was told that he should wait for someone to come to the car.  A man, who he now knows to be Mr Jawad Khan, approached the car and sat in the front seat.  The appellant informed him that the bags were on the back seat.  The man then got out of the car and took the bags with him.  As the appellant was driving away he was stopped and arrested by the police.
3.	Jawad Khan and another man called Singh were themselves arrested at the industrial estate.  Khan was in possession of the three bags which in fact contained £189,000 in cash.
4.	There was no dispute at trial that Singh and Khan had been in effect running a money laundering business and there was no dispute that the £189,000 in the bags represented criminal property.  In due course Singh was to plead guilty of the relevant offending.  It appears that Khan absconded and left the country.
5.	It was accepted by the prosecution that there had, during the journey, been no telephone contact between the appellant and either Singh or Khan.  The appellant was to accept that he had touched the three bags but said that he was unaware of what was in them.  His fingerprints were found on two of the bags.  Inside those bags there were sealed boxes from which the contents of the boxes could not be seen, even if one had looked into the bags.  None of the appellant's fingerprints were found on the boxes found within the bags.  None of his fingerprints were found on the cash, or on any other object inside the bag.  It was said that this was consistent with his version that he had simply placed the bags on the back seat of the car before embarking on his journey.
6.	The only real issue therefore at trial was as to the appellant's state of mind.  As to that, after the evidence was concluded, the trial judge conscientiously provided written legal directions on this and on other aspects in advance of speeches.  He discussed them with counsel.  Those directions were not disputed by counsel appearing for the prosecution and for the appellant.  Among other things, those directions of law as provided by the judge stated this:  
"For the purposes of this case the prosecution must prove against the defendant all of following elements:  
(1) The defendant handed over the cash to Mr Jawad Khan.  There is no dispute about that.  The defendant admits that he handed over the bags which contained the cash.  
(2) The cash was criminal property, the proceeds of crime.  There is no dispute about that.  That is proved at the very least by the conviction of Mr Singh who pleaded guilty on the basis that he played a part, as the admissions show, in the money laundering operation.  
(3) The defendant agreed that he would hand over the cash.  There is no dispute about that.  He has given evidence that he agreed to deliver and hand over the three bags which contained the cash.  He gave evidence that he agreed to hand over the bags to somebody in Southall.  
(4) At the time of the hand over he knew or suspected that there was cash in bags and the cash was the proceeds of crime.  I have highlighted these words in bold because this element is in dispute and is the sole issue in this case.  
8. Therefore, the sole question for you to answer is as follows, bearing in mind that the prosecution must prove the case so you are sure:  When the defendant delivered the three bags to Southall for somebody to pick up from the car he was driving, did the defendant know or suspect at the time that bags contained criminal property?   
9.  The defendant does not have to know who precisely was going to collect the bags or how much cash was in them, so long as he agreed to make a delivery of criminal property, knowing or suspecting that it was criminal property ... 
11.  The prosecution say that when you look at all the circumstances of this transaction, it is obvious that the defendant knew, or at the very least suspected, that he was dealing with criminal property ..."
7.	So there the judge was proposing, both specifically and repeatedly, to direct that the jury that the jury could convict if they were sure that the appellant either knew or suspected that the bags contained criminal property.  The direction was not confined to proof of knowledge alone.
8.	That is precisely the way in which the judge then summed‑up to the jury, indeed he handed to them copies of his directions of law and also read them out as being incorporated into his summing‑up.
9.	The jury had plainly focused carefully on those directions.  After they had retired to consider their verdict, the jury sent in a note.  That included details which the judge, for understandable reasons, did not think it appropriate to discuss with counsel; but one of the questions raised on the jury note was this:  "Can we decide guilt on point 8 alone?" We add this that court has seen the full text of the relevant jury note and it is clear from that that a number of members of the jury were in fact focusing on the issue of suspicion.
10.	The judge having received this note and having discussed it with counsel, then had the jury back, read out that part of note, namely: can we decide guilt on point 8 alone and answered it in this way:  
"The prosecution must prove so that you are sure, all elements which I have set out in paragraph 7 elements 1, 2, 3 and 4, as I say.  However, both prosecution and defence agree that elements 1, 2, and 3 are proved.  There is no dispute about that.  Only element number 4 in paragraph 7 is in issue, so it must be proved so that you are sure that at the time of the hand over he knew or suspected that [there] was cash in the bags and that the cash was the proceeds of crime.  I have highlighted these words in bold because this element is in dispute and is the sole issue in the case	."
The judge then went on to give further instruction in corresponding terms.  The jury then by a majority verdict convicted the appellant.
11.	The count which the appellant had faced at trial was framed as a count of conspiracy to possess criminal property, contrary section 1(1) of the Criminal Law Act 1977.  The particulars offence contained on minute were these:  
"GURSHARN SINGH and NIKI WINSTON THOMAS [SINGH] on or before the 30th day of June 2012 conspired together with Jawad Khan and others unknown to possess criminal property ... namely £189,990."  
Section 1 of the Criminal Law Act 1977 relating to offences of conspiracy reads as follows:  
"The offence of conspiracy
 (1)Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either— 
 (a)will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or 
 (b)would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, 
he is guilty of conspiracy to commit the offence or offences in question.
 (2)Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place."
12.	The substantive offence of possessing criminal property is dealt with by section 329 of the Proceeds of Crime Act 2002.  The definition of "criminal property" is important for that purpose.  By section 340(3) of the 2002 Act, this is provided: 
"(3)Property is criminal property if— 
(a)it constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and 
(b)the alleged offender knows or suspects that it constitutes or represents such a benefit." 
13.	The drafting of the statute thus makes clear that for property to be criminal property it must in fact constitute benefit from criminal conduct or represent such benefit.  But, further, for the substantive offence the alleged offender must either know or suspect that it represents such a benefit.
14.	The problem with the way in which the jury were instructed in the present case however is that they were instructed almost as if the appellant were facing a substantive count of possessing criminal property.  But he was not.  He was facing a charge of conspiracy to possess criminal property contrary to section 1 of the Criminal Law Act 1977.
15.	Once one focuses on that, as one has to, the mistake then becomes clear.  It is authoritatively been decided, some years ago now, by a decision of the House of Lords, in the case of R v Saik [2007] 1 AC 19 [2006] UKHL 18, that the mens rea applicable to the offence of conspiring to launder criminal proceeds is not to be equated with the mens rea applicable for the substantive offence.  Further, so as far the actus reas of the substantive offence is concerned it is required that the property must in fact be the proceeds of crime.
16.	Consequently, in a case of conspiracy in this context an alleged conspirator must be proved, having regard to the terms of section 1 of the Criminal Law Act 1977 as interpreted by the House of Lords, to have known that the proceeds were criminal proceeds where such proceeds existed, or to have intended that they be such proceeds, where the position was looking to the future.  Suspicion alone would not suffice, as the House of Lords decided.
17.	Although the decision in Saik related to the underlying provisions of the Criminal Justice Act 1988, it is accepted before us that the same approach is required by reference to conspiracy to launder money by reference to the provisions of section 327 and 329 of the 2002 Act.  It follows therefore that the mens rea for the offence of possessing criminal property is not to be taken as commensurate with the mens rea required to be proved in a case of conspiracy to possess criminal property.  That is the consequence of the decision of the House of Lords in Saik.
18.	Such a conclusion, moreover, has been reaffirmed in subsequent decisions of the Court of Appeal following on from the decision in Saik, in cases such as R v R [2007] 1 Cr App R 150 and R v KS and X [2008] 1 Cr App R(S) 1:  cases indeed arising primarily because of applications for leave to appeal out of time, by reason of the law having been declared in Saik to be other than it had previously been thought to be.
19.	In the present case however it is plain that the jury were addressed on the footing of the law as it stood before Saik.  It is most regrettable that no one noticed this point at any stage of the trial or corrected the trial judge's own misapprehension.  It is particularly unfortunate that that should have been so, not only given the long‑standing decisions of various courts on the point, starting with Saik, but also given that the whole point is fully discussed in for example Blackstone 2014 edition at A5‑56 and Archbold 2014 edition at 33‑4.
20.	All that being so it is unnecessary for this court to say any more.  As we have indicated, the appeal must be allowed and the conviction must by quashed, as the Crown have fairly and realistically conceded.  Mr Hall, on behalf of the Crown, has also accepted that there is no lesser alternative offence which is capable of appropriately being substituted or conviction therefore being substituted by this court.  Mr Hall did make the observation that there could have been no difficulty in the judge directing the jury as he did had only the offence which the appellant was facing had been charged as the substantive offence under section 329, which on the facts he says it could well have been.  But that was not in the event the count which the appellant actually faced at trial, as Mr Hall had to acknowledge.  The result is therefore as we have indicated.
21.	LORD JUSTICE DAVIS:  Mr Hall, is there any application? 
22.	MR HALL:  There is no application.  Thank you my Lord.
23.	LORD JUSTICE DAVIS:  Very well.  We hope this sort of thing will not happen again. It follows your client is entitled to be released.
24.	MR AUSTIN:  My Lord, thank you.