Times 3/3/2000: "Defendant to prove innocence"

[Caspar Bowden]

http://www.the-times.co.uk/news/pages/tim/2000/03/03/timlawcrd01002.html?999
Defendant to prove innocence

Published March 3, 2000

Regina v Gibson (Leonard)

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

Judgment February 23, 2000

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.

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.

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

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.

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 £28,000 by way
of investment in his business to tide him over a cash flow problem.

He had repaid the money a month later, adding to it the sum of £500, 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.

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.

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 £28,000 or had possession of it for adequate consideration.

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.

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.

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.

When he acquired the £28,000 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 £500 did not alter the position.

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.

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.

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).

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.

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.

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.

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

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.

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

Solicitors: Crown Prosecution Service, Ludgate Circus.