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Money Laundering - A problem solved, but at what price?

by James Pavry

Two suspects are stopped at Heathrow Airport as they are about to board a flight to Beirut. They are in possession of a substantial sum of money in high denomination currency concealed in their clothing. Each gives an unsatisfactory and inconsistent explanation for the money. Their passports reveal frequent travel between Beirut, Geneva and London. There is an abundance of evidence to support the conclusion that they are in possession of "illicit money", but does the money represent the proceeds of drug trafficking or the proceeds of other crime?

The prosecutor has a dilemma as to whether to charge an offence under Section 49(2) of the Drug Trafficking Act 1994 or an offence under Section 93C(2) of the Criminal Justice Act 1988. If he charges both offences as alternatives he may run the risk that the jury will be unable to decide which offence has been committed. An unmeritorious acquittal will follow.

In the recent interlocutory judgement of AH,SB and NB v R (2002) EWCA Crim 06 the Court of Appeal has resolved the problem. The Court held that a count in an indictment charging a single conspiracy to commit either offence in the alternative was properly laid in law. It may be thought that this decision has a limited significance having regard to the fact that the dichotomy giving rise to the problem will be eliminated when The Proceeds of Crime Bill currently before Parliament is enacted and comes into force. Clause 329 of the Bill defines "criminal conduct" and "criminal property" in inclusive terms. Furthermore, the Court warned prosecutors against adopting a charge of conspiracy to commit alternative offences as an easy option and emphasised that the judgement arose from and was peculiar to the legislation with which it was concerned.

The difficulty here, like it or not, is that this recent judgement is the first to consider the proper construction of a statutory conspiracy under Section 1(1) (a) of the Criminal Law Act 1977 in addressing the problem of charging conspiracy to commit alternative and mutually exclusive offences and the problem is not a new one for the prosecutor.

The Court appears to have recognised that the decision raises a point of public importance and has certified a point of law for consideration by the House of Lords under Section 33(2) of the Criminal Appeal Act 1968 namely whether the count is properly laid in law. As the matter is not beyond further argument it mat be profitable to look more closely at the argument advanced by the Crown.

The Crown were unable to point to any precedent either at common law or under statute in the last twenty-five years where the charge alleged a conspiracy to commit crime A or crime B. The Court appears to have accepted that the dilemma could only be addressed by construing the 1977 Act and held that "there is no compelling reason why "offence or offences" should be construed exclusively conjunctively".

The Court went on to observe that no difficulties arose because the maximum sentence for each substantive offence was the same. If the sole issue is one of construction then the fact that in this case the sentences are the same is entirely fortuitous. If "any offence or offences" may be read so as to permit alternative offences it may follow that a charge of conspiracy to commit alternative offences where the maximum sentence for the substantive offences differ is now an offence known to the law. If so, a jury will be directed to convict the defendants if they are satisfied that they conspired to commit the less serious offence and the defendants may be sentenced to the maximum term for the more serious offence. Can this have been the intention of Parliament?

In order to support the submission that an offence of conspiracy to commit alternative offences was an offence known to the law the Crown relied upon an ingenious analogy that smacked of desperation. Whilst acknowledging that the agreement of the kind postulated was "rather unlikely" it found favour with the Court "Mr Perry submitted to the court that an agreement to commit crime A or crime B is entirely possible as an agreement. For example, two or more people may agree that if the next person that walks round the corner is a man, they will kill him: but if the next person is a woman, they will rape her"

It is respectfully suggested that when this analogy is subjected to closer examination it becomes apparent that we have arrived in Wonderland. It is a pleasurable experience so lets stay a while. Obviously if our villainous conspirators agreed to kill the next man who walked round the corner and to rape the next woman who walked round the corner the analogy has no force. There would be a conspiracy to commit both offences. The analogy is dependant upon a chance which will determine the offence which is committed.

The analogy is fanciful because those who embark upon a criminal enterprise are unlikely to surrender the outcome to chance and where chance intervenes to frustrate performance the agreement will usually remain a criminal conspiracy. Putting aside this pedestrian quibble, let us consider the position if our conspirators are more single minded and less ambitious. Suppose they agree to rape the next person to walk round the corner if that person is a woman, but propose to continue to eat their sandwiches or engage in some other innocent pastime if the next person to walk round the corner is a man. Whilst this scaled down criminal enterprise will be a comfort to some, surely there are many right-minded people who would remain deeply concerned if such an agreement fell outside the ambit of a statutory conspiracy.

In order to be consistent the Crown must argue that no offence of conspiracy is made out. It is suggested that the law on criminal conspiracy and agreements dependant upon circumstances beyond the control of the conspirators is not so inflexible. The conspirators have agreed that provided a set of circumstances exist which they are powerless to influence ( woman coming round the corner first ) a course of conduct will be pursued which will necessarily amount to the commission of an offence of rape. If this is right we can return to the Crown's analogy.

The conspirators have also agreed that provided a different set of circumstances exist which they are powerless to influence ( man coming round the corner first ) a course of conduct will be pursued which will necessarily amount to the commission of an offence of murder. It follows that the conspirators may be indicted on two conspiracies: one to commit rape, the other to commit murder. There is no injustice in such a course and no need to charge a single conspiracy to commit alternative offences.

All is not lost. Watch this space!

11 February 2002

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