Outline

1. The case concerned the requisite mental element for criminal attempt contrary to
1. s.1 of the Criminal Attempts Act 1981 (the CAA) in relation to the offences of concealing, disguising or converting criminal property contrary to s327(1) of the Proceeds of Crime Act 2002 (POCA).
2. The particulars of offence stated that the appellants attempted to convert criminal property by accepting and processing lead for sale ‘knowing or suspecting it to represent…the proceeds of criminal conduct…’.
3. The appellants were convicted in the Crown court at Oxford and challenged their convictions on the grounds that (inter alia) the judge
1. incorrectly dismissed their submissions of no case to answer and
2. erred in his instruction to the jury regarding the necessary mens rea.

Facts of the case

1. In response to problems of metal theft and the disposal of stolen metal through scrap yards an undercover police investigation (Operation Symphony) was launched.
2. Operation Symphony involved undercover police officers posing as waste carriers and making a number of visits to TR Rogers & Sons scrap yard (which appellant Rogers owned and ran and where appellant Pace was an employee) to sell metal.
3. The undercover officers wore covert recording devices during their visits.
1. They built up a rapport with the employees giving many nicknames, and deliberately made various remarks during the course of their visits to elicit suspicion that the metal they brought to sell had been stolen
2. for example the officers told appellant Pace that earthing tape had been stolen from a van, and told appellant Rogers that a metal plaque was ‘a bit naughty’.
4. The police subsequently raided the yard and made a number of arrests including of the appellants.
5. No stolen metal or other goods were found during the raid.
6. The present case had been expedited to the Court of Appeal due to the fact that there were a number of similar prosecutions pending following Operation Symphony.
7. It was accepted that the appellants could never have committed the substantive offences under s327(1) POCA because the metal did not in fact represent the proceeds of criminal conduct.

The Court’s decision

1. The appellants were convicted in the Crown court on the basis of a mental element of suspicion.
2. Judge Pringle QC had instructed the jury that they must be satisfied the appellants
1. ‘suspected that the goods were stolen or obtained dishonestly’, and emphasized that suspicion fell below knowledge or belief.
3. As is well known, s327(1) of POCA provides for offences relating to criminal property.
1. Pursuant to s340(3) of POCA, property is ‘criminal property’ if it ‘
1. (a) constitutes a person’s benefit from criminal conduct or represents such a benefit (in whole or part whether directly or indirectly, and
2. (b) the alleged offender knows or suspects that it constitutes or represents such benefit.’

The requirements for criminal attempt are set out in s1 of the CAA as follows:

1. ‘1. Attempting to commit an offence.
1. If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.
2. A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.’
3. The Court of Appeal allowed the appellants’ appeals and held that on a count of attempted conversion of criminal property, proof of a mental element of suspicion only would not suffice.
4. The authorities established that proof of the mens rea for the underlying substantive offence would not necessarily suffice on a count of attempt pursuant to s.1 of the CAA.
2. Therefore, Judge Pringle QC had erred in his instruction to the jury and dismissal of the appellants’ submissions of no case to answer.

The court’s reasoning was as follows:

1. S.1(1) CAA requires ‘intent to commit an offence’.
1. Intent is to be given its ordinary meaning and thus includes an intent to commit all of the elements of an offence;
2. A constituent element of the s327(1) POCA offences is that the property in question, is in fact, criminal.
1. The court found this conclusion was supported by the wording of s340(3) POCA and case law including the House of Lords decision in Montila [2004] UKHL 50;
3. Accordingly, an intent to commit the offence involved an intent to convert criminal property; and that connotes an intent that the property should be criminal property.
4. Although the Court expressed sympathy with difficulties of proof and evidence for the type of offending that the police were seeking to disrupt, the Court nevertheless made clear that the policy behind the substantive POCA offences should ‘not distort the meaning of s.1 of the [CAA] relating to attempts’.
5. The Court was particularly persuaded given that the decision in Montila
1. A decision was reached in the face of similar policy arguments regarding the purpose of money laundering legislation as had been raised in the present case for the Crown.

Commentary

1. As was noted by the Court, the use of POCA charges in these circumstances was indicative of an attempt by the Crown to rely on the lower mens rea of suspicioncontained in s340(3) and applicable to the substantive offences under s327(1) POCA.
1. The Court further suggested that the charges against the appellants would more obviously have been framed as handling offences (which involve a higher standard of mens rea).
2. It is commonly accepted that the purpose behind the money laundering provisions of POCA justifies the use of what are otherwise accepted to be draconian obligations on those who may become involved with criminal property.
3. As the Court of Appeal stated in Bank of Scotland v A [2001] 1 WLR 751, ‘Money laundering is an increasingly common problem of large scale crime.
1. It is of the greatest importance, in the public interest, that the police should be supported by financial institutions in their attempts to prevent money laundering and to detect it when it happens.’
4. The police in this case were already aware of the problem and the facts were amenable to proceedings for handling.
1. It is important that the Crown avoid a perception that POCA will be deployed in cases which do not obviously engage the clear public policy factors that gave rise to its introduction.