Regina v Gibson

[Donald Ramsbottom]

Another case. Do not bother with it if you do not like looking beyond the
facts at the wider interpretation. It is from todays Times Law report.

It is a tricky one, the prosecution in a money laundering case do not seem
to have to prove their case beyond reasonabl doubt, and do not have to
disprove the defendants defence. It is apparently up to the defence to prove
such a defence rather than the duty of the prosecution to disprove it.There
was also talk of looking beyond the statute at parliament's intentions. It
is not crypto, but does give some indication of how severe the money
laundering rules can be and how fiercely they are interpretted. It may give
some hints as to what the future may hold for the recipients of S:46 notices
etc. The penultimate paragraph may be the crucial one.




Regina v Gibson (Leonard)=20

  Before Lord Justice Beldam, Mr Justice Dyson and Mr
  Justice Richards=20

  Judgment February 23, 2000=20

  On a charge of acquiring, using or having possession of
  the proceeds of criminal conduct, it was not necessary for
  the prosecution to disprove the defence that the defendant
  had acquired or used or had possession of it for adequate
  consideration. It was for the defendant to raise and to
  show on the balance of probability that the defence
  applied.=20

  The Court of Appeal, Criminal Division, so held in a
  reserved judgment dismissing an appeal by Leonard
  Gibson against his conviction in March 1999 at
  Southwark Crown Court (Judge Hardy and a jury) of
  acquiring, possessing or using the proceeds of criminal
  conduct, contrary to section 93B of the Criminal Justice
  Act 1988, as inserted by section 30 of the Criminal
  Justice Act 1993. He was sentenced to nine months
  imprisonment, suspended for two years.=20

  Mr Barnaby Waylen, assigned by the Registrar of
  Criminal Appeals, for the appellant; Mr Martin Hicks for
  the Crown.=20

  LORD JUSTICE BELDAM, giving the judgment of the
  court, said that the appellant was a property developer
  whose business included the management of a property at
  19 Firs Avenue, Muswell Hill.=20

  He said that he had rented out that property to a man he
  believed to be one John Bargetto, who, in February 1996,
  had offered to lend him =A328,000 by way of investment in
  his business to tide him over a cash flow problem.=20

  He had repaid the money a month later, adding to it the
  sum of =A3500, which he said was interest. Nothing,
  however, was recorded in writing and there were no
  documents of any kind to support an agreement with "Mr
  Bargetto". John Bargetto had in fact died in April 1995.=20

  It was the prosecution case, at the appellant's trial on a
  charge of acquiring, using or possessing the proceeds of
  criminal conduct, contrary to section 93B and was clear
  upon the evidence, that the man calling himself "John
  Bargetto" was Michael Aguda, a co-accused of the
  appellant, and that the 19 Firs Avenue address had been
  used for the purpose of facilitating transactions to launder
  money concealed from John Bargetto's executors.=20

  At the close of the prosecution case, Mr Waylen
  submitted that the defendant had no case to answer since
  the prosecution had failed to disprove the defence open to
  the appellant under section 93B(2) that he had acquired
  or used the =A328,000 or had possession of it for adequate
  consideration.=20

  Mr Hicks submitted that it was for the defence to raise
  and show on the balance of probability that the defence
  applied and that the appellant had not done so.=20

  The prosecution submitted that the burden of proof under
  subsection (2) was upon the defence, at least to the extent
  of calling evidence to raise an issue that consideration had
  been given by the appellant. The judge ruled that the
  defence did not arise on the facts proved.=20

  On appeal, Mr Waylen submitted that the judge ought to
  have allowed the jury to consider the defence In their
  Lordship's view there was plainly a case for the appellant
  to answer.=20

  When he acquired the =A328,000 he had given no
  consideration for its use. Nor was there any express or
  implied promise or obligation on his part to pay for its use.

  When he paid the cheque into his bank account he had
  done an act which amounted to having possession of it.
  He had thus committed the offence and had no ground to
  argue that he had a defence under section 93B(2). The
  payment of the extra =A3500 did not alter the position.=20

  In the absence of any promise, agreement or obligation to
  make the payment when he acquired, took possession of
  or used the money, he had given no consideration within
  the meaning of the Act.=20

  As to the burden of proof under section 93B(2), in their
  Lordships' view, the effect of the words used in the
  subsection had to depend on the intention of the
  enactment.=20

  In its interpretation the court was not simply confined to
  the language of the statute: "It must look at the substance
  and the effect of the enactment": see R v Hunt ([1987]
  AC 352, 380).=20

  In so doing, the history of the legislation was important
  and in this case significant. The 1993 Act introduced into
  the 1988 Act three money laundering offences.=20

  Section 93B was clearly modelled on the provisions of
  section 14(3) of the Criminal Justice (International
  Co-operation) Act 1990 which created an offence of
  acquiring property knowing or suspecting that it
  represented the proceeds of drug trafficking.=20

  In that section the failure to give any or adequate
  consideration was an ingredient in the statement of the
  offence whereas in section 93B(2) the draftsman had
  clearly taken the provisions concerning the giving of
  adequate consideration out of the statement of offence to
  provide for a defence if adequate consideration had been
  given.=20

  Parliament's intention might also be revealed by the
  practical consequences of holding where the burden of
  proof should rest.=20

  An accused would know whether he had given any
  consideration and its nature and extent. The facts
  surrounding the transaction were within his and not the
  prosecution's knowledge.=20

  The judge's ruling was correct and the appeal would be
  dismissed.=20

  Solicitors: Crown Prosecution Service, Ludgate Circus.=20


Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors

Internet Law & Global Cryptology Law Specialists