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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Bell and Ors -v- AG 25-January-2006 [2006] JCA 014 (25 January 2006) URL: http://www.bailii.org/je/cases/UR/2006/2006_014.html Cite as: [2006] JCA 014, [2006] JCA 14 |
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[2006]JCA014
COURT OF APPEAL
25th January, 2006
|
Before : |
Sir John Nutting, Bt., Q.C., President; |
Nicholas John Macdonald Bell
And
Caversham Fiduciary Services Ltd
And
Caversham Trustees Limited
-v-
The Attorney General
Appeal against the decision of the Royal Court on 13th October, given by Commissioner F.C. Hamon, O.B.E. on the defence submission of no case to answer in relation to charges of failing to comply with:
Article 2 1(a) of the Money Laundering (Jersey) Order, 1999 contrary to Article 37(4) of the Proceeds of Crime (Jersey) Law, 1999.
Advocate S. M. Baker for the Appellants.
B. H. Lacey, Crown Advocate.
JUDGMENT
Smith JA:
Introduction
1. On 13 October 2005 the Appellants stood trial before the Inferior Number of the Royal Court, Mr. F. C. Hamon, OBE, Commissioner, presiding, on the following counts:
Count 1
Statement of Offence
Failing to comply with the requirements of Article 2(1)(a) of the Money Laundering (Jersey) Order 1999 contrary to Article 37(4) of the Proceeds of Crime (Jersey) Law 1999.
Particulars of Offence
Caversham Fiduciary Services Limited and Nicholas Bell, whilst acting as a Director of Caversham Fiduciary Services Limited, in the course of carrying on a financial services business between the 3rd December 2002 and 9th March 2004 contravened or failed to comply with the requirements of Article 2(1)(a) of the Money Laundering (Jersey) Order 1999 in that a business relationship with 'Gary Stevens' was formed without maintaining procedures in relation to:
(i) identification under Article 5 of the Money Laundering (Jersey) Order, 1999, and in particular Article 5(2) in respect of the identity of 'Mr. Lee';
(ii) appropriate control and communication to ensure that the identification of 'Mr. Lee' was so obtained;
contrary to Article 37(4) of the Proceeds of Crime (Jersey) Law 1999.
Count 2
Statement of Offence
Failing to comply with the requirements of Article 2(1)(a) of the Money Laundering (Jersey) Order 1999, contrary to Article 37(4) of the Proceeds of Crime (Jersey) Law 1999.
Particulars of Offence
Caversham Trustees Limited and Nicholas Bell, whilst acting as a Director of Caversham Trustees Limited, in the course of carrying on a financial services business between the 3rd December 2002 and 9th March 2004 contravened or failed to comply with the requirements of Article 2(1)(a) of the Money Laundering (Jersey) Order 1999 in that a business relationship with 'Gary Stevens' was formed without maintaining procedures in relation to:
(i) identification under Article 5 of the Money Laundering (Jersey) Order 1999, and in particular Article 5(2) in respect of the identify of 'Mr. Lee';
(ii) appropriate internal control and communication to ensure that the identification of 'Mr. Lee' was so obtained;
contrary to Article 37(4) of the Proceeds of Crime (Jersey) Law 1999.
2. The Appellants all pleaded not guilty. At the end of the prosecution case Advocate Stephen Baker, who appeared for the Appellants before the Royal Court and in this Court, submitted that on the facts alleged there was no case to answer - none of the Appellants could lawfully be convicted of the offences as charged. The Commissioner rejected this submission and the Appellants changed their pleas to guilty. The Appellants have appealed to this Court on the basis that the Commissioner erred in law.
The Evidence at the Trial
3. The prosecution case comprised admissions of fact agreed between the Crown and the Appellants which included a number of appended documents as well as a copy of the "Trust Company Business Codes of Practice" issued by the Jersey Financial Services Commission ("JFSC") and certified as such in accordance with Article 19(5) of the Financial Services (Jersey) Law 1998 and which were stated to have been in force in 2002 and 2003 plus an agreed statement from an official of the JFSC to which was exhibited a copy of the JFSC's "Anti-Money Laundering Guidance Notes for the Finance Sector". Only one witness - the investigating police officer - gave oral evidence at the trial but his evidence added nothing to that which was included in the admissions.
4. The admissions conceded that the Appellant companies each carried on financial services business within the meaning of that phrase as used in the Proceeds of Crime (Jersey) Law 1999 ("the Law"). They also acknowledged that the Appellant Bell was "a principal person" - an allusion to the Financial Services Law - "of the relevant Caversham businesses" - meaning the Appellant companies. The significance of this acknowledgment is that, in respect of each company, it brought Mr. Bell within the scope of Article 37(5) of the Law, which we set out below.
5. Certain of the documents referred to in the admissions and appended thereto were described as having been handed to the police on behalf of the Appellant companies on 12 April 2005. They included a letter dated 4 December 2002 to Mr. Bell from a Mr. Timothy Clarke, solicitor and sole principal in the firm of Timothy Clarke & Co, Southwark Bridge Road, London. It refers to a conversation between Mr. Clarke and Mr. Bell on the same day and in it are listed the following enclosures (all or some of which - it is not clear - appear to have been copies):
"1. Letter of introduction.
2. Signed last page of Fees and Disbursements sheet.
3. Client Questionnaire.
4. Trust Creation Questionnaire.
5. Certified copy of Mr. Stevens' passport."
The letter goes on to say that "... Mr. Stevens has recently, as Attorney for Mr. Lee, received monies from the proceeds of the sale of a sauna in London and they now wish to re-invest those monies. Mr. Lee is non-resident who wishes the monies to be kept offshore in the first instance." It continues by stating that certain parts of the trust creation documentation had been left blank by Mr. Stevens for Mr. Bell to complete and Mr. Clarke asks for bank account details "... for the transmission of the monies from the sale."
6. The letter of introduction, dated the same day, addressed to Caversham Financial Services Limited (which subsequently became Caversham Fiduciary Services Limited) and signed by Mr. Clarke, gives Mr. Stevens' address as 8 Wansunt Road, Bexley, Kent, and his date of birth as 23 January 1965. It purports to certify Mr. Stevens' identity and to enclose "... a certified true copy of that person's passport." It goes on to "... confirm that the above person's address and date of birth correspond with our records and that we have known the individual for four years." It testifies to Mr. Stevens' good character.
7. The "Fees and Disbursements" document specifies £1,250 as a "Formation fee" and £1,000 as an "Annual Trustee fee" and clearly refers to the establishment of a trust. Payment was to be made to "Caversham Financial Services Limited" and the document appears to have been signed by Mr. Stevens.
8. The "Client Questionnaire" is actually entitled "Client questionnaire and declaration" a pro forma document apparently emanating from the "Caversham Group." Certain particulars relating to Mr. Stevens had been inserted but in this document his address is given as "89 Wansunt Road" and his date of birth as 7 January 1965. Again, this document appears to have been signed by Mr. Stevens.
9. The "Trust Creation Questionnaire" is also a Caversham Group pro forma document. The "Nature of Trust" is described as "Discretionary". The "Name of Settlor" is stated to be Gary Stevens and the "Details of initial settled property" are given as "Monies from sale of business from Mr. Lee." Finally, what appears to be the page from Mr. Stevens' passport bearing his particulars is certified as a true copy of the original by Mr. Clarke. This gives the holder's date of birth is 7 January 1965.
10. On 5 December 2002 Mr. Bell e-mailed Mr. Clarke "Subject: Mr. Stevens" stating, among other things, that "The documentation looks to be in order and I would be grateful if you could send me originals of the same as soon as possible. One item that does require clarification, however, is the list of beneficiaries as I will need to have details of these in order to create the trust deed. I would accordingly be grateful if you could provide me with details of the relevant names and addresses as soon as possible. In this context, I confirm that it is perfectly possible under Jersey law for Mr. S to be the sole beneficiary of the trust ab initio. Please also find attached a schedule giving remittance details for my trust company's sterling clients' account. Please let me know when a transfer is to be made and what amount is expected ... "
11. On 10 December 2002 Mr. Bell sent an e-mail to Mr. Clarke confirming the receipt "into my clients' account today" of £850,000. It continues:
"Please would you be kind enough to confirm if these funds relate to Mr. S and, if so, shall the entirety of the amount be treated as settled capital of the proposed trust? If the funds are for Mr. S we can proceed with the formation of the trust, subject only to receiving further information regarding the beneficiaries as per my e-mail of 5 December."
12. On 12 December 2002 Mr. Clarke wrote to Mr. Bell. The letter refers to a telephone conversation between them (it is not clear when) and asks Mr. Bell to transfer various amounts totalling £825,000 to four accounts in bank branches in the United Kingdom "... from the funds you hold for Gary Stevens."
13. On 13 December 2002 the Advent Trust was created under the common seal of Caversham Trustees Limited and witnessed by Mr. Bell and a colleague. The "Initial Property" is stated in the deed to be £850,000. Mr. Stevens is the only beneficiary. The settlor is not identified. There is no mention of Mr. Lee.
14. On the same day, 13 December 2002, Mr. Bell and another person instructed Barclay's Bank to effect the transfers requested by Mr. Clarke and it appears that the sums in question were all paid away. On 16 December 2002, 31st December 2002 and 25 January 2003 fee notes totalling £2,653.65 were raised addressed to Advent Trust. The admissions do not identify from which of the two Appellant companies these emanated but it was asserted in the course of the Crown advocate's opening speech at the trial, and not disputed, that they were issued by Caversham Financial Services Limited.
15. In a fax dated 31 January 2003 and headed "Advent Trust" Mr. Bell informed Mr. Clarke that "my Compliance department have drawn to my attention that the reference you kindly provided me with relating to the Settlor of the above named trust has a couple of small errors in the heading and have asked me to obtain a corrected version from you. In this context, please find attached a copy of the reference you provided from which you will note that Mr. S' house number and his date of birth are slightly incorrect and I would therefore be grateful if you would be kind enough to produce a revised reference and send the same to me for my files." It would appear that the "reference" is the letter of introduction described in paragraph 6 above.
16. After a reminder a revised letter of introduction appears to have been received from Mr. Clarke (it is not clear when). In it Mr. Stevens' address has been changed to 89 Wansunt Road (which tallies with the client questionnaire and declaration but not with the original letter of introduction) and the date of birth to 27 January 1965 (which differs from the dates given in both the original letter of introduction and the page from Mr. Stevens' passport). This state of affairs appears to have been accepted by whoever was dealing with compliance but we observe that neither of the offences charged relates to the identification of Mr. Stevens.
17. The admissions stop at this point. However, to complete the picture we would add that according to the "Summary of Facts and Conclusions" put before the Royal Court at the sentencing stage by the prosecution and which would have been agreed with the defence, in May 2003 written instructions were received from Mr. Clarke to transfer the remaining monies in the Advent Trust to an account in the name of Mr. Stevens in a bank in London and shortly afterwards Caversham Trustees Limited wrote to Mr. Clarke confirming that the payment had been made but explaining that the trust could not be wound up as it was necessary to clarify the reason for the four payments away which had been made the previous December. The summary also records that an inspection by the JFSC in 2004 identified the above facts as of concern.
18. Portions of the JFSC Codes of Practice, to which we have referred, were opened without protest to the Royal Court on the basis that the Appellant companies were trust companies within the meaning of the Financial Services Law and before us Mr. Baker indicated that it was accepted by them that this was the case. By virtue of Article 19(4) of the Financial Services Law any such code is admissible in evidence "in any proceedings under this Law or otherwise ... if it appears to the court conducting the proceedings to be relevant to any questions arising in the proceedings, and shall be taken into account in determining any such question." It is not necessary for us to make detailed reference to the codes but generally speaking, and as might be expected, they lay down principles for the conduct of trust company business and describe in detail what such companies should do and have in place in order to minimise the risk of becoming involved in such activities as money laundering.
19. Perhaps rather more in point are the JFSC anti-money laundering guidance notes. Article 37(8) of the Law provides that in determining whether a person has complied with a requirement that is contained in any Order made under Article 37 of the Law "... a court - (a) shall take account of any relevant guidance that applies to the person and is issued, adopted or proved by the Commission ..." The prosecution opening included the quotation of long passages from the guidance notes, but for the purposes of this appeal we will refer to two aspects of them only.
20. First, we quote from the "Background" section:
Secondly, we note that the guidance notes repeatedly explain the need for effective identification procedures and contain detailed advice as to what the various categories of financial sector business must do in this regard. In Section 7, which applies to trust companies, the need for such companies to "know your customer" is described as being "... vital for the prevention of money laundering and underpins all other activities." And one of the points clearly made in the extensive section dealing with "Verification Procedures" under the subheading "Establishing Satisfactory Evidence of Identity" is that where funds are supplied on behalf of a third party the identity of that person should also be established and verified.
21. Neither the prosecution opening nor the evidence at the trial specifically identified the respective roles played by the two appellant companies. However, it appears from the sentencing summary to which we have already referred that Caversham Fiduciary Services Limited (then Caversham Financial Services Limited) took on the business, received the funds and paid them over to Caversham Trustees Limited and that Caversham Trustees Limited took on the business, established the Advent Trust, received the funds from Caversham Fiduciary Services Limited and paid away most of the money shortly afterwards.
The Relevant Legislation
22. Article 37(1) of the Law provides that the Finance and Economics Committee shall, by Order, prescribe certain listed procedures, including identification procedures, "... to be maintained, by persons who carry on financial services business, for the purposes of forestalling and preventing money laundering." Article 37(4) reads as follows:
23. Article 37(5) of the Law states that where an offence under Article 37(4) by a body corporate is proved "... (a) to have been committed with the consent or connivance of; or (b) to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate or any person who is purporting to act in any such capacity he or she, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly."
24. On foot of Article 37 of the Law the Finance and Economics Committee made the Money Laundering (Jersey) Order 1999 ("the Order"). Article 2(1) of the Order provides that:
25. Article 3 of the Order is headed "Identification Procedures in Respect of Business Relationships and One-Off Transactions". The case against the Appellants did not relate to any failure to maintain those procedures but rather to the failure to maintain identification procedures in accordance with Article 5 which applies where an applicant for business is or appears to be acting otherwise than as a principal. Article 5(2) of the Order says that:
26. Article 37(10) of the Law provides that "In proceedings against a person for an offence under this Article, it is a defence to prove that the person took all reasonable steps and exercised due diligence to avoid committing the offence."
The Argument on Behalf of the Appellants Advanced at the Trial
27. In the Royal Court Mr. Baker submitted that the offence with which the Appellants were charged in the two counts before the court was intended to prevent systemic failure in the maintenance of procedures. He argued that the prosecution had not provided sufficient evidence to raise a case of systemic failure by either of the Appellant companies. It was not enough to show a single breach of procedures.
The Commissioner's Ruling
28. The Commissioner ruled against Mr. Baker's submission. In his short judgment he acknowledged that there was no evidence of a failure in the maintenance of procedures over a period of time or with more than one client and that there was no evidence of a failure to maintain procedures in any but the particular case before the court. After quoting Article 37(10) of the Law the Commissioner continued:
The Grounds of Appeal
29. A brief advice on appeal prepared by Mr. Baker was attached to the Appellants' Notice of Appeal. This, in turn, adopted the reasons set out in an opinion from Mr. David Farrer, QC which was annexed to Mr. Baker's advice. The nub of Mr. Farrer's opinion is that no offence had been proved against the Appellants "because the offence lies in the failure to establish procedures, not the infringement of such procedures, once established."
The Appellants' Argument in this Court
30. Mr. Baker furnished a written outline of his arguments and developed them orally before us. We summarise them, we hope accurately, as follows:
(a) The offence charged is intended to prevent a systemic failure in the maintenance of procedures.
(b) Evidence of a single breach of prescribed procedures might, in an appropriate case, be evidence from which a systemic failure to maintain procedures could be inferred. However, the prosecution had not taken this approach at the trial and could not seek to adopt it in the Court of Appeal.
(c) If the States had intended to create the offence as conceived by the Crown and as defined by the Commissioner it would have used different words.
(d)The critical question is the meaning of "maintains" in Article 2(1)(a) and elsewhere in the Order.
(e) By Article 2(1)(a) financial services businesses are required to maintain procedures at the time when new business relationships are formed. This strongly suggests that the aim is to ensure that the procedures are in place and in routine use so that new relationships will be properly sanctioned.
(f) The word "maintained" in its different inflected forms bears the same meaning throughout the Order. Its use in Article 5(2) (in the form of "maintained") and corresponding provisions strongly indicates that the requirements relate to the content of the procedures and is wholly inconsistent with any claim that a single failure to comply results in a failure to maintain. If Article 2 of the Order was intended as a provision dealing with a breach of identification procedures it is hard to understand why the words "maintained by a person" appear in Article 5(2). They could simply have been left out.
(g) If the prosecution interpretation is correct the offence could be committed through the agency of an officer who was perfectly properly performing the required procedures in respect of a new client if there had been a single breach of procedure in relation to another customer which had taken place a day, a week, or a month before and be wholly unknown to the officer conducting the new business.
(h) The JFSC Guidance Notes support the Appellants' interpretation. Nowhere do they suggest that one breach of procedures will amount to a failure to maintain.
(i) The Commissioner erred in holding that the defence set out in Article 37(10) of the law was of value in construing the Order.
(j) The legislation was at least uncertain and ambiguous and, therefore, should have been construed in favour of the Appellants.
The Respondent's Response
31. The Attorney General provided a written argument and before us Crown Advocate B. H. Lacey supplemented it with oral submissions. It was contended that the purpose of the Law and the Order was to provide for the establishment of procedures to forestall and prevent money laundering and that the legislature intended that the prescribed procedures would have that effect. It followed that the States must have intended such procedures to be applied by financial services providers otherwise the Law and the Order could not achieve the purpose described. It was submitted that, although, by definition, "maintain" includes "establish" this is not exhaustive of the interpretation. "Maintain" means "to keep up" in the same way that in common usage a boxer who drops his gloves and allows in a knock out blow is said to have failed to maintain his guard. The facts relied on by the prosecution at the trial gave rise to the inference either that there was no system of identification in existence, or if there was, it had not been kept up or applied.
Our Conclusions
32. There is no authority on the statutory provisions under consideration - the investigating police officer said at the trial that there had never been a previous prosecution under the relevant legislation in Jersey or under its English equivalent. However, in our opinion the interpretation to be put on the provisions is clear from the words used by the legislature. The fundamental provision is Article 37(1) of the Law, which both requires and authorises the making of the Order. This, as we have seen, requires the prescription of procedures "... for the purposes of forestalling and preventing money laundering" and these words are reiterated in Article 2 of the Order.
33. In our view what this and the statutory endorsement of JFSC guidance in Article 37(8) of the Law mean is that the States have chosen to combat the facilitation of money laundering by those involved in financial services business in Jersey not simply by listing a series of offences but by requiring such persons to avoid facilitation, and by laying down the means by which they should do so. In other words, rather than seeking merely to lock the stable door after the horse (in the form of the money) has bolted, the clear objective is that "dirty" money should not enter Jersey or its financial system in the first place.
34. In order to achieve this objective the States have decreed not only that those involved in financial services business must adopt certain types of procedures but also that must they maintain them. In our view the main thrust of the Appellant's contention - that in a particular case the procedures could fail to bite but that they nevertheless could be said to have been maintained - is untenable. Apart from the fact that this proposition would involve the Jurats in considering and construing a word not found in the legislation ("systemic") it would also, in our opinion, rob it of much of its effectiveness. Given the manifest danger to the Island of any appearance of laxness in relation to money laundering we cannot believe that this could have been the intention of the States.
35. In our judgment the word "maintained" in Article 37(1) of the Law, and its cognates elsewhere, require the procedures to be kept up in proper working order - an interpretation with which Mr. Baker felt unable to disagree when it was put to him in the course of the hearing before this Court. That this is the correct approach seems to us to be confirmed by reference to the statutory defence set out in Article 37(10) of the Law (upon which, incidentally, none of the Appellants sought to rely) and which, in our view, is consistent only with a requirement that the prescribed obligations be met in respect of every relevant transaction, subject only to defendants being excused where there are circumstances which are beyond their control - and we do not accept the Appellants' contention that this provision is of no value in construing the legislation or that the Commissioner erred attaching significance to it. In the instant case the evidence adduced by the Crown at the trial was open to two possible inferences: one that the Appellant companies had no procedures of the requisite types; the second that they had the procedures but, by reason of the fact that they did not bite in relation to Mr. Lee, they had not been kept up in proper working order. Either inference would have supported the conviction of the Appellants.
36. What we have said deals directly or indirectly with the Appellants' arguments and we do not think it necessary to address them all specifically. However, we make the following comments on some of them.
37. While we agree that Article 2(1)(a) of the Order requires persons carrying on financial service business to maintain procedures at the time when new business relationships are formed, we do not accept that their obligation is limited to the requisite procedures being in place and in routine use. In our view they must also be effective in relation to the relationship formed or the transaction carried out, as the case may be. If it were not so no offence would be committed if the procedures were not applied in a particular case through laziness or indifference or even if it were simply decided not to apply them. Once again, this cannot be what the States intended and it is not consistent with the inclusion in the Law of Article 37(10).
38. We do not think that on our interpretation of the legislation the words "maintained by a person" in Article 5(2) of the Order are redundant. If they were omitted the remaining words would merely describe the content of the relevant identification procedures and might be open to the interpretation that all that was required was the existence of procedures with that content. In our opinion the additional words were included to make it clear that the procedures must not just exist but, applying our paraphrase of "maintained", must also be kept up in proper working order.
39. As to the argument that the offence could be committed even if there was detachment between an officer dealing with a new client in a perfectly proper way and a previous and unrelated breach of procedures we do not see how this proposition could logically be extrapolated from our interpretation of the statutory provisions. It is quite clear from Article 2(1) of the Order that for an offence to be committed there must be a triggering event - the formation of a business relationship or the carrying out of a one-off transaction. In our view it follows inexorably from this that, to be culpable, the failure to maintain the requisite procedures must relate to that triggering event and not to some other unconnected event in the past.
40. It will by now be apparent that in our view the Commissioner's ruling was correct.
The Defence under Article 37(10) of the Law
41. We have already quoted Article 37(10) of the Law. Although, as we have said, none of the Appellants sought to rely on it at the trial in his written argument the Attorney General dealt in some detail with the compatibility of Article 37(10) with Article 6(2) of the European Convention on Human Rights (which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law) and drew our attention to Attorney General's Reference No. 1 [2004] EWCA Crim 1025 and Sheldrake -v- DPP [2004] UKHL 43.
42. Mr. Baker did not address this Court on this issue. The Human Rights Law (Jersey) 2000, which is the equivalent of the Human Rights Act 1998 applicable in England, Wales and Northern Ireland, has not yet been brought into force. The Convention is only significant for the purposes of Jersey law to the limited extent described by Southwell JA in Benest -v- Le Maistre [1998] JLR 213 at 218:
So what we are about to say is obviously tentative and must be subject to subsequent decisions made after the bringing into force of the Human Rights Law in cases in which the relevant right is engaged and there has been full argument.
43. Before expressing our tentative view we would point out that although the Attorney General focussed on Article 37(10) of the Law, it is necessary to consider not merely the defence available under it but also the relevant offence. This seems to us, as it did to the Commissioner, to be one of absolute liability: mens rea is not required. We say this because this is the natural meaning of the words used and also because if it were not so the defence adumbrated in Article 37(10) would be largely otiose.
44. As Lord Bingham pointed out in Sheldrake's case (at para. 21) the Convention does not outlaw presumptions of fact or law and it is open to states to define the constituent elements of a criminal offence excluding the requirement of mens rea. However, the substance and effect of any presumption adverse to a defendant must be examined and must be reasonable. Relevant to any judgment as to unreasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but by an examination of all the facts and circumstances of the particular provision as applied in the particular case.
45. Lord Bingham referred at some length to an earlier House of Lords decision in R. -v- Johnstone [2003] UKHL 28. That case concerned Section 92 of the Trade Marks Act 1994 and, in particular, the defence provided for in subsection 5. It was held that the subsection imposed a legal burden on the defendant and as such it prima facie derogated from the presumption of innocence.
46. In the course of his opinion in Johnstone's case (with which the other members of the Committee agreed) Lord Nicholls of Birkenhead considered a number of factors bearing on the question of whether it was permissible to place that legal burden on the defendant (see para. 52). These bear a striking resemblance to the equivalent factors in the instant case: Money laundering is a serious contemporary problem - the JFSC Anti-Money Laundering Guidance Notes (an agreed document in this case) state that in recent years there has been growing recognition that it is essential in the fight against crime that criminals be prevented, whenever possible, from legitimising the proceeds of their criminal activities by converting funds from "dirty" to "clean" (para. 1.05); the relevant offence is of absolute liability; it attracts a serious level of punishment (if the person is a body corporate an unlimited fine; if the person is not, imprisonment for a term not exceeding two years or an unlimited fine or both - Article 37(7) of the Law); those concerned in financial services businesses are aware of the need to be on guard against "dirty" money; they are aware of the need to have and maintain the requisite procedures and of the risks they take if they do not; the defence under Article 37(10) relates to facts within the accused person's own knowledge and his or her state of mind; conversely, by and large it is to be expected that those who attempt to launder money, if traceable at all by outside investigators, are unlikely to be co-operative.
47. In Johnstone's case the House of Lords held that the burden placed on an accused person by Section 92(5) of the Trade Marks Act was compatible with Article 6(2) of the Convention. Our tentative view is that, in the light of the factors to which we have referred, the imposition of the legal burden on the accused by Article 37(10) of the Law would also be compatible with Article 6(2).
Disposition
48. The appeals against conviction must be dismissed.
