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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Solanki & Anor, R v [2020] EWCA Crim 47 (24 January 2020) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2020/47.html Cite as: [2020] EWCA Crim 47 |
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CRIMINAL DIVISION
The Strand London WC2A 2LL |
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B e f o r e :
MR JUSTICE SPENCER
and
HIS HONOUR JUDGE LEONARD QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
____________________
R E G I N A | ||
- v - | ||
BIPIN KUMAR SOLANKI | ||
DEVENORAKUMAR PATEL |
____________________
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
Mr P Raudnitz appeared on behalf of the Applicant Devenorakumar Patel
Mr G Underhill and Mr J Patel appeared on behalf of the Crown
____________________
Crown Copyright ©
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
Friday 24th January 2020
LORD JUSTICE SINGH:
Introduction
The Factual Background
"Bipin Kumar Solanki and Devenorakumar Patel together with others unknown, between the 16th day of February 2010 and the 22nd day of July 2014, entered into or became concerned in an arrangement, namely the use of Laxcy London Limited to receive and transmit criminal property, namely money, and, creating false money transfer orders, invoices and accounting records, to disguise the source of those funds, knowing or suspecting that the arrangement would facilitate the acquisition, retention, use or control of criminal property, namely money, by or on behalf of another person."
(1) The way in which the money was handled by the defendants;
(2) The creation of false customer transfer records; and
(3) The use of false passports to open associated bank accounts.
(1) The huge volume of transfers being processed in a short space of time and the high number of daily transfers;
(2) The creation of false customer records and transfer receipts;
(3) The lack of proper secure collection and delivery of cash;
(4) The circumstances of the seizure of £33,000 and £32,191 in cash from Solanki and the finding of £30,000 in cash at a garage owned by him; and
(5) The messages on the mobile phones of Solanki and Patel with "token" references.
"In your definition of criminal property within the written legal directions, can criminal property come from tax evasion or tax avoidance?"
At trial the jury had heard no evidence about the use of the MSB to evade tax. It was never put to Solanki that the property with which he was dealing might have been chargeable to tax. No reference was made to tax in any of the closing speeches or in the summing-up.
"Tax avoidance is not a crime, whereas tax evasion is a criminal offence. In this case there is no evidence to link the alleged monies to tax evasion, which may in some cases result in criminal property. It is important the jury do not speculate in their deliberations as to how the monies were created."
"As I have already directed you, criminal property is property which is the benefit of another person's crime. Such a crime could be fraud, including tax fraud committed by someone else – in other words, the benefit of any crime committed by a person other than [Laxcy] or one of the defendants personally. There is no direct evidence of any particular crime, including tax fraud, being committed. Question 2 of your Route to Verdict depends upon whether there is an irresistible inference, so that you are sure, that some of the monies were the benefit of another person's crime, whether tax fraud or another crime."
(1) The prosecution case was that Solanki was concerned in an arrangement to launder criminal property by or on behalf of others through the use of his business to receive and transmit their money, rather than to launder the proceeds of his own criminal conduct;
(2) The prosecution did not place any evidence of the underlying criminality before the jury and could not say of which crime or crimes the money was the proceeds;
(3) The issue for the jury was whether they were sure that the money was the proceeds of crime(s). There was no need for them to come to any conclusion as to what particular crime(s) that was;
(4) In the circumstances of this case it would have been a misdirection for the jury to be told that the underlying crime could not be a crime of fraud, including tax fraud;
(5) The case of R v Anwar [2013] EWCA Crim 1865 is distinguishable.
The Crown also submit that this was not one of those cases in which a Brown direction was required.
The First Ground of Appeal against Conviction
"(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.
(4) It is immaterial –
(a) who carries out the conduct;
(b) who benefits from it;
(c) whether the conduct occurred before or after the passing of this Act."
"Can tax evasion in the UK constitute criminal conduct for the purposes of this case?"
"To answer your question shortly, members of the jury, for the purposes of this case can tax evasion constitute criminal conduct? Well, tax evasion is a criminal offence in the United Kingdom, so that that is the long and short of it."
"8. In opening the case at trial the prosecution made clear – and this, indeed, accorded with the indictment – that it was not alleging any particular kind of criminal conduct. Its case was, in a nutshell, that the circumstances were such that it was an irresistible inference that the cash represented, and the acquisition of the cars derived from, the proceeds of unspecified crime. …"
The Second Ground of Appeal against Conviction
"By contrast, it is not the case that the jury must be unanimous about which piece of evidence they accept, so long as they are unanimous about the essential elements of the offence."
The Recorder continued that, in the present case:
"… the essential elements of the offence relevant to this issue are that the property was criminal property. There are no particulars within the indictment specifying what that criminal property was. If each member of the jury is sure that there was criminal property, that is sufficient …"
"If the individual members of the jury find him guilty of different parts of the count, is he guilty of the whole count, and is the verdict of guilty unanimous?"
The trial judge directed the jury that it was sufficient if all were agreed that there was a dishonest inducement, even if they differed as to the statement in the particulars which they relied upon as the inducement. The appellant appealed on the ground that the jury had been misdirected. The appeal was allowed and his conviction was quashed.
"In a case such as that with which we are now dealing, the following principles apply:
1. Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction).
2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged."
"… The situation dealt with in Brown was one where each count in the indictment contained particulars of a number of different statements relied upon by the prosecution as constituting fraudulent inducements."
At [70] Hamblen LJ said that the court agreed with the prosecution that that was very different from the situation in that case. In that case "there were no such multiple particulars, any one of which could form the basis of convictions". At [74] he said:
"This is not a case in which two distinct incidents were being alleged, either of which might constitute the offence charged or where there were different offences."
Finally, at [75], Hamblen LJ recalled that this court stated in R v Mitchell 26 HLR 394 that a Brown direction:
"… will be necessary only in comparatively rare cases. In the great majority of cases, particularly cases alleging dishonesty and cases where the allegations stand or fall together, such a direction will not be necessary. It is of the first importance that the directions for juries should not be overburdened with unnecessary warnings and directions which serve only to confuse them."
In the circumstances of that case, the court said that no Brown direction was required.
"… One way of proving that money comes from crime is to prove a specific offence was committed; for example, to show that a particular person had carried out a drug deal, had obtained a particular quantity of cash in exchange, and then given it to Laxcy. That is not always possible, as you may think that criminals will take steps to keep the person committing the crime away from the money chain, so even if the police become aware that large sums of money are being transferred, it will not be apparent how that money was obtained. So the law also allows you to draw inferences. If the evidence that the circumstances in which the property was handled were such as to give rise to an irresistible inference that it could only have been derived from crime, then you could also be sure that the money was the benefit from another person's offending …"
"Was any of this money criminal property?"
It was made clear that if the jury were not sure about that, their verdict had to be not guilty.
The Applications for Leave to Appeal against Sentence
Conclusion
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400
Email: rcj@epiqglobal.co.uk