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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 >> Kamran, R. v [2025] EWCA Crim 247 (19 February 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/247.html Cite as: [2025] EWCA Crim 247

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT INNER LONDON
HHJ KELLEHER 01MP1060323

		Royal Courts of Justice Strand London WC2A 2LL
		19 February 2025

LADY JUSTICE MACUR:

1. On 20 March 2024, Mohsin Ali Kamran ("the appellant") was convicted of three counts of fraud, contrary to section 3 of the Fraud Act 2006 (being counts 1 to 3 on the indictment) and one count of entering into or becoming concerned in a money laundering arrangement, contrary to section 328(1) of the Proceeds of Crime Act 2002, being count 4. On 1 May 2024, he was sentenced to 18 months' imprisonment on each of the counts 1 to 3 and 4 years' imprisonment on count 4, all to be served concurrently. He appeals against his conviction on count 4 by limited leave of the single judge.
2. The focus of the appeal is the definition of "criminal property". Section 328(1) of the Proceeds of Crime Act 2002 provides that:

"A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person."

Sections 340(3) and (4) of the same Act, define "criminal property" as property which:

"(3)...

(a) constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly).

(b)the alleged offender knows or suspects that it constitutes or represents such a benefit.

(4)It is immaterial—

(a)who carried out the conduct;

(b)who benefited from it;

(c)whether the conduct occurred before or after the passing of this Act."

Section 340(5) of the Act defines:

"(5)A person benefits from conduct if he obtains property as result of or in connection with the conduct."

Relevant background facts

3. The appellant was a director of Sharif Jewellers Ltd ("SJL"), a jewellery and gold bullion company. In September 2020, police were contacted in relation to a transaction using a bank card belonging to "Stephanie Tiley". The subsequent police investigation uncovered a wide-ranging fraud involving a number of identified victims. Fraudsters would pose as police officers and target the victims (most of whom were elderly and vulnerable) and persuade the victims to provide money to them via direct bank transfers, cash withdrawals and/or gold bullion purchases. The police investigation uncovered two sets of direct transactions between victims and SJL and one indirect transaction between another victim and SJL. That which is at the centre of this appeal relates to a series of transactions between 1 July and 31 August 2020, involving a Ms Joanna Driver, purchasing gold bullion to the approximate value of £1.343 million.
4. Ms Driver was an elderly woman (since deceased). The fraudsters told her that her bank accounts were compromised, and she would have to purchase gold bullion bars and leave them outside her house for someone to collect. She would then receive compensation. She was directed, first, to a company named "Gold Bank Ltd", but that company declined to supply her with gold as they had a number of concerns regarding the transactions that were suggested. The fraudsters then asked her to approach SJL. SJL were prepared to deal with her. Gold was ordered by someone posing as Ms Driver but with Ms Driver's knowledge. Ms Driver transferred the funds to SJL, the appellant then purchased the gold and personally delivered the gold to her. The gold was later collected by the fraudsters. Needless to say, Ms Driver was not compensated. There was no dispute that Ms Driver was the victim of a fraud and tricked in to purchasing gold from SLJ.
5. The defence case was that the appellant did not know or suspect Ms Driver was being tricked at any stage. In evidence, he said that she had never told him anything that suggested to him that she was a victim of the fraud. He understood that she had bonds and investment products that she was divesting and converting into gold. She did refer to a nephew ("Robert") to whom the appellant spoke on the telephone on a couple of occasions but never met. He thought she was a genuine customer who wanted to convert her investments into gold. The appellant had no connection to the fraudsters. None of the fraudsters have been apprehended.
6. A submission of no case to answer on count 4 was made on the appellant's behalf. It was submitted that the money paid by Ms Driver into the appellant's business account was not criminal property. The effect of the transaction did not result in the creation of criminal property until it was converted into gold and collected by the fraudster. There was no benefit from the criminal conduct until the gold was taken from Ms Driver. The property only became criminal after the appellant's involvement ended.
7. There was no evidence to allow the prosecution to suggest the gold was criminal at the time Ms Driver purchased it and there was no evidence to demonstrate the appellant's knowledge or suspicion that the property was criminal. The prosecution had not demonstrated frequency or volume of purchases that were out of the ordinary in the gold trade nor out of kilter with the appellant's other customers. It was accepted on the appellant's behalf that it was for the jury to assess whether Ms Driver's age and vulnerability ought to have made the appellant suspicious, but it was said that this was a tenuous basis on which to leave count 4 to the jury, as there was clear evidence she was aware of the transactions and engaging in them.
8. In response to the prosecution's oral submissions opposing the application, Mr Belhadi submitted that the prosecution case had effectively changed. He said that the prosecution case had previously been that the gold represented the criminal property. It could not be right that the money transfer represented the benefit as the fraudsters had no control over the money. A distinction must be drawn between property acquired by criminal means and "criminal property". The gold became "criminal property" at the point the arrangement ended, not when the arrangement was acted upon. He relied upon the authorities: R v GH [2015] UKSC 204 and Holt v Attorney General [2014] 2 All ER 397.
9. The judge rejected the submission. In a concise but ample ruling, he determined that the money became criminal property at the point it was paid into the appellant's bank account, which was then used to further the arrangement the appellant had entered into regarding the purchase of gold. The issue at trial was whether the appellant knew or suspected that that was criminal property and that he was by entering in to that arrangement facilitating the acquisition of criminal property by the fraudsters. There was no submission that the evidence was insufficient to prove that - that was a matter for the jury.
10. The judge disagreed that either of the authorities supported the proposition that the payment from Ms Driver must fall into the hands of the fraudster in one means or another before it became "criminal property".
11. Thereafter, and subsequently, during discussions with counsel, the judge made clear that if Mr Belhadi for the appellant did address the jury in seeking to persuade them that the funds transferred by Ms Driver to SJL was not criminal property, he would correct the position. He said:

"... it seems to me what you cannot say is the money arriving cannot be criminal property because it has not reached the hands of the fraudster because I ruled that that is wrong, a wrong interpretation of what criminal property is… you are still entitled to highlight to the jury the first element of the offence has to be proved, it is not admitted."

Mr Belhadi did not transgress the judge's direction but, of course, makes this the second ground of his appeal.

12. The issue left to the jury therefore was whether or not the appellant had entered into an arrangement knowing or suspecting that he thereby facilitated the acquisition by someone else of the proceeds of the fraud on Ms Driver. The judge directed them on "criminal property" in the following terms:

"Well property is criminal property if it constitutes a person's benefit from criminal conduct, or it represents such a benefit, either in whole or in part, so the whole benefit or part of it, and whether directly or indirectly, and the alleged offender knows that it constitutes such a benefit.

So in this case there is no dispute that Ms Driver was tricked into purchasing gold from Sharif Jewellers and then leaving it outside her house to be collected. The fraud on her was undoubtedly criminal conduct.

The Prosecution say that by accepting Ms Driver's payments and then providing a corresponding amount of gold to her which could then be collected, Mr Kamran had entered into an arrangement which facilitated the acquisition of the criminal property by whoever it was who collected the gold."

He made clear subsequently:

"However, it is for you to decide if the first element of the offence has been proved. You must be sure that Mr Kamran had entered into an arrangement which, in fact facilitated the acquisition by someone else of the proceeds of the fraud on Ms Driver.

If you are sure of that, you must then focus on the real issue in dispute, did Mr Kamran know or suspect that he was facilitating that?

...

Mr Kamran says he did not know or suspect she was being tricked at any stage. He thought she was a genuine customer who wanted to convert her investments into gold. If this is, or might be, true, then your verdict must be not guilty. But if you are sure that he

knew she was being tricked or you are sure that he suspected that, then he would be guilty."

Appeal

13. The appeal proceeds on two grounds:
14. The judge erred in rejecting the submission of no case to answer on count 4.
15. The judge wrongly prevented counsel from addressing the jury on the issue of whether the property was criminal at the time the arrangement operated on it.
16. In his written submissions, further amplified orally before us today, Mr Belhadi contends that the gold bullion was "the property" and only became criminal upon collection by the fraudsters. That is, prior to that time, Ms Driver's transaction with SJL was a legitimate exchange cash for gold. He cites GH and the cases referred therein as support for this proposition and seeks, certainly in writing, to suggest that this case is akin to that of Geary [2011] 1 Cr App R(S) 8.
17. In fact, the Supreme Court distinguished the case of Geary from the that of GH saying that it would have been artificial in Geary to regard the property as changing its character between the defendant receiving and repaying it to Harrington. We refer to the facts of this case in more detail subsequently.
18. The prosecution opposes the appeal. The appellant acknowledges that property cannot be deemed "criminal property" purely by virtue of the arrangement acting upon it. The property must be criminal by virtue of some prior criminality, for example, the fraud perpetrated by the fraudsters against Ms Driver. The money which Ms Driver transferred to the account controlled by the appellant was criminal property, because the transfer was induced by the fraud perpetrated upon Ms Driver. It represented indirectly the benefit that the fraudsters expected to gain, see section 340(3). It was converted into gold by the appellant and delivered up which enabled the fraudsters to steal it. The ultimate property obtained was the gold and it was the delivery of the gold which was the arrangement which the appellant affected. If the appellant is right that the property could not be criminal unless and until stolen by the fraudsters, then the appellant could not be guilty of an offence under section 328, even if he knew that Ms Driver had been deceived and that the gold would be misappropriated, unless he had entered into an agreement and was in fact party to the conspiracy with the fraudsters to that end.
19. As to ground 2, the argument advanced in the submission of no case to answer was on a point of law. The issue was whether the fraud and the money transferred had generated criminal property. The judge ruled against the defence on that point. He did not in his admonition to Mr Belhadi withdraw any defence from the jury. The appellant's defence related to a different element of the offence, that is: did he know or suspect that a fraud had been perpetrated on Ms Driver?

Discussion

20. We have not called on counsel for the respondent to amplify his written submissions and have no hesitation in rejecting Mr Belhadi's submissions on both grounds. His reliance upon GH is misplaced and his attempt to align the facts of this case with Geary is doomed. In Geary, the defendant agreed to help a friend named Harrington to hide some money for a period. Under the arrangement, Harrington transferred around £123,000 into the defendant's bank account. The defendant used some of it to make purchases for Harrington and, after an interval, he repaid the balance to Harrington less about £5,000. The prosecution case at the outset was that the money represented proceeds of a fraud carried out by a bank official, who stole it from dormant accounts. The stolen money was then laundered through a network of recipients, each one of which retained a small sum as payment for his services. The recipients included Harrington and the defendant. The defendant's case, to the contrary, was that he was approached by Harrington with a story that he was about to become involved in divorce proceedings and that the defendant was asked to help Harrington to hide money from Mrs Harrington and the court, which he agreed to do. He denied that the money had a criminal source.
21. In the course of the trial, the judge was invited to indicate how he proposed to direct the jury. He said that, in his view, the defendant's account of the facts did not provide him with a defence to the charge under section 328 and the defendant then pleaded guilty on the basis of the facts alleged by him, which the prosecution accepted. The defendant (as he then was - the appellant as he became) then appealed against the conviction on the ground that the judge's ruling was wrong. It was argued by the prosecution at the Court of Appeal, that the arrangement on the accepted version of the facts involved a conspiracy to pervert the course of justice in relation to the divorce proceedings. The money transferred was therefore criminal property at the moment of being paid into the defendant's account. Alternatively, the arrangement involved not only the receipt of the money but then its retention, use or control and so constituted the offence in two parts of section 328. Both parts of the argument were rejected. Moore-Bick LJ, giving the judgment of the Court, said at [19]:

"In our view the natural and ordinary meaning of section 328(1) is that the arrangement to which it refers must be one which relates to property which is criminal property at the time when the arrangement begins to operate on it. To say that it extends to property which was originally legitimate but became criminal only as a result of carrying out the arrangement is to stretch the language of the section beyond its proper limits. An arrangement relating to property which has an independent criminal object may, when carried out, render the subject matter criminal property, but it cannot properly be said that the arrangement applied to property that was already criminal property at the time it began to operate on it."

This, as in the case of GH, was completely different from the extant case. On the accepted facts Ms Driver had been the victim of fraud.

22. In accordance with section 340(3) and (4) "criminal property" constitutes a person's benefit from criminal conduct or it represents such a benefit, in whole or part and whether directly or indirectly. It is immaterial who carried out the conduct and who benefited from it.
23. The issue at the heart of Mr Belhadi's submission below and before us, is that the sums received into the appellant's account did not constitute "criminal property" before being paid into the appellant's account. This engages with the issues identified by Lord Toulson in GH at [29], namely:

"(1) Does the commission of an offence under section 328 require the property to constitute criminal property prior to the arrangement coming into operation?

(2) Does the property have to exist at the time when the defendant enters into or becomes concerned in the arrangement? [and (3) not being relevant]

(4) Was the actus reus of the offence committed by reason of the arrangement facilitating the retention, use or control of the money paid into the respondent's accounts?"

24. In Lord Toulson's judgment, with whom their lordships unanimously agreed, gave answers as follows.

Question 1: "Yes"; see [32]:

"The Court of Appeal's interpretation of 'criminal property' in the various money laundering sections as meaning property which already has the quality of being criminal property, as defined in section 340, by reason of criminal conduct distinct from the conduct alleged to constitute the actus reus of the money laundering offence itself, accords not only with the natural meaning of the sections but also with the purpose underlying them."

Question 2: "No"; see [40]:

"The Court of Appeal was therefore right in the present case to hold that it does not matter whether criminal property existed when the arrangement was first hatched. What matters is that the property should be criminal at a time when the arrangement operates on it... The contrary interpretation would not accord either with a natural reading of the words used or with the obvious purpose of this section.

Question 4, which is the issue in this appeal: Answer: "Yes"; see [43] – [47] and [50]:

"43. The particulars in the indictment...should have been alleged that the defendants entered into or became concerned in an arrangement which, as they knew or suspected, facilitated the retention, use or control of criminal property (or words to that effect).

44. Looking at the substance of the matter, the money paid by the victims into the accounts was lawful money at the moment at which it was paid into those accounts. It was therefore not a case of the account holder acquiring criminal property from the victims. But by the arrangement the [defendant] facilitated also the retention, use and control of the money by or on behalf of B [the fraudster]. Did the arrangement regarding the facilitation of the retention, use and control of the money fall foul of section 328 on the basis that it was criminal property at that stage, since it was the proceeds of a fraud perpetrated on the victims?

45. It was submitted on behalf of the prosecution before the Court of Appeal and in this court that in that respect the arrangement fell squarely within the ambit of section 328. The Court of Appeal treated the case as indistinguishable from Geary and rejected the argument...

46. There is an important distinction between the facts of Geary and the present case. In Geary it would indeed have been artificial to regard the property as changing its character between the defendant receiving it and repaying it. The property belonged to Harrington at all times and, more importantly, his interest in it was lawful on the facts known to the defendant. It was not a case of the defendant holding proceeds originating from a crime independent of the arrangement made between them. It was Harrington's lawfully owned property when it was paid to the defendant, and it remained his lawfully owned property throughout the time that the defendant had possession of it. It bore no criminal taint apart from the arrangement made between them. The fact that the arrangement involved a conspiracy to pervert the [course] of justice did not mean that the money had a criminal quality independent of the arrangement.

47. The present case is different. The character of the money did change on being paid into the [defendant's] accounts. It was lawful property in the hands of the victims at the moment when they paid it into the [defendants'] accounts. It became criminal property in the hands of B, not by reason of the arrangement made between B and the [defendant] but by reason of the fact that it was obtained through fraud perpetrated on the victims. There is no artificiality in recognising that fact, and I do not see it as illegitimate to regard the respondent as participating in (or, in the language of section 328, entering into or becoming concerned in) an arrangement to retain criminal property for the benefit of another. For that reason, the ruling that the respondent had no case to answer was erroneous and this appeal should be allowed...

50. The phrasing of the certified question is not entirely apt because it asks whether the arrangement to receive and retain money in a bank account can be treated as both rendering the property 'criminal property' and facilitating its retention, use or control. What rendered the property which the [defendant] received from the victims 'criminal property' was not the arrangement made between B and the [defendant], but the fact that it was obtained from the victims by deception. For the reasons explained, the arrangement between B and the [defendant] for its retention is capable of constituting an offence under section 328."

25. In our view, this case falls squarely into [47] of GH. The monies transferred into the account of SJL was monies that were deposited as a result of the fraud that had been practised upon Ms Driver. That rendered the monies, once received, as "criminal property". The arrangement which acted upon that criminal property was the purchase of gold bullion subsequently collected by the fraudsters from Ms Driver's address, for which she received no recompense whatsoever.
26. This ruling of the judge was a ruling on a point of law. We endorse the judge's ruling. In those circumstances, the judge was right to prevent a closing speech being made on behalf of the appellant by Mr Belhadi which sought to undermine that ruling or the direction of law that he was to give as to which we have already made reference. In those circumstances, this appeal against conviction is dismissed.