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									Neutral Citation Number: [2009] EWCA Crim 8

                          Case No: 200402882 C5 200506515 B5 200801921 B1
                                                200006003 D2 200103019 D2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT,
SOUTHWARK CROWN COURT, CARDIFF CROWN COURT
AND BIRMINGHAM CROWN COURT
                                                      Royal Courts of Justice
                                                 Strand, London, WC2A 2LL

                                                                          Date: 20/01/2009
                                       Before:
                     LORD JUSTICE LATHAM (VP OF CACD)
                            LORD JUSTICE HUGHES
                           LORD JUSTICE TOULSON
                         MRS JUSTICE RAFFERTY DBE
                                          and
                            MR JUSTICE MADDISON
                            ---------------------
                                      Between:
                               SYLVIA ALLPRESS                                Appellants
                               DEBORAH SYMEOU
                                MIGUEL CASAL
                            PAUL WINTER MORRIS
                               STEPHEN MARTIN
                                       - and -
                                          R                                  Respondent
                            ---------------------
                    A Mitchell QC and C Sherrard for the Defence
            A Bird and D Connolly for the Prosecution in the case of Allpress

                      T Owen QC and A Bodnar for the Defence
            A Bird and D Connolly for the Prosecution in the case of Symeou

                      T Owen QC and A Bodnar for the Defence
                  D Farrell QC for the Prosecution in the case of Casal

                     A M Shaw QC and P Lawton for the Defence
                    A Bird for the Prosecution in the case of Morris

                       Z Ali and N Rimmer for the Defence
         D Aubrey QC and R Griffiths for the Prosecution in the case of Martin
                         Hearing dates: 25 November 2008
                           ---------------------
                            Approved Judgment
Judgment Approved by the court for handing down.                                      Allpress & Ors v R




Lord Justice Toulson:

1.       In May [2008] UKHL 28, Jennings [2008] UKHL 29 and Green [2008] UKHL 30 the
         House of Lords considered a number of questions about the law relating to the
         confiscation of criminal assets.

2.       In May the order under appeal was a confiscation order made under the Criminal
         Justice Act 1988 as amended (“CJA 1988”) against an offender who had been
         involved in a conspiracy to cheat HM Customs and Excise of VAT through a
         “missing trader” scheme, from which he and other conspirators benefited jointly. It
         was held to be immaterial in assessing the value of his benefit how much remained to
         the offender by way of net profit after deduction of expenses or any amounts payable
         to other conspirators. As a joint beneficiary, the benefit was as much his in law as if
         he had been a sole beneficiary.

3.       In Jennings a restraint order was made under the Criminal Justice Act 1988 against a
         defendant charged with a conspiracy to carry out an advance fee fraud. Before the
         case reached the House of Lords, the defendant was convicted. The fraud was carried
         out through a limited company of which the defendant was an employee. His appeal
         against the making of the order was dismissed, but the central issue argued before the
         House of Lords was how the benefit obtained by the defendant was to be assessed.
         The prosecution’s case was that he should be treated as obtaining a benefit equal to
         the total amount of the monies obtained by the fraud, the greater part of which had
         gone through the company’s books. The House of Lords rejected that approach as too
         broad and gave guidance to the court on how it should determine what benefit had
         been obtained by the defendant when it came to hearing the confiscation application
         (which had been adjourned pending the appeal to the House of Lords).

4.       In Green the House of Lords considered the following question:

                   “Where any payment or other award in connection with drug
                   trafficking is received jointly by two or more persons acting as
                   principals to a drug trafficking offence as defined in section
                   1(3) of the Drug Trafficking Act 1994, does the value of each
                   person’s proceeds of drug trafficking within the meaning of
                   section 4(1)(b) of that Act include the whole of the value of
                   such payment or award?”

5.       The Court of Appeal had answered the question in the affirmative and the House of
         Lords upheld that decision.

6.       The opinion of the judicial committee in May contained (as stated in paragraph 2 of
         its report) a broad overview of the legislative schemes in force from time to time and
         a review of a number of the leading authorities. That review included a comparison
         of the language of CJA 1988, the Drug Trafficking Act 1994 (“DTA 1994”) and the
         Proceeds of Crime Act 2002 (“POCA 2002”).

7.       The confiscation provisions of DTA 1994 applied, as the title of the Act would
         suggest, to cases of drug trafficking. The confiscation provisions of CJA 1998
         applied to crimes other than drug trafficking. POCA 2002 brought the two
         jurisdictions together in a single statute. In paragraph 8 of May the judicial committee
Judgment Approved by the court for handing down.                                    Allpress & Ors v R




         observed that despite much refinement and differences between the confiscatory
         provisions of statutes passed in 1986, 1988, 1993, 1994 and 1995, their essential
         structure was the same. The court is required, before making a confiscation order, to
         address and answer three questions:

                   “1. Has the defendant (D) benefited from the relevant criminal
                       conduct?

                   2. If so, what is the value of the benefit D has so obtained?

                   3. What sum is recoverable from D?”

8.       None of the cases before the House of Lords involved money laundering (although
         some of the cases reviewed in the course of the opinion in May did), and the judicial
         committee concluded its opinion in May with the caveat that the position of a money
         launderer might be different from that of a mere courier or custodian of tangible
         property who was rewarded by a fee and had no interest in the property or proceeds of
         sale.

9.       The present appeals all arise from confiscation orders made against defendants who
         had varying degrees of involvement in the safeguarding or transfer of funds which
         represented proceeds of crime. They have been listed together in order for the court
         to consider the application of the confiscation legislation to such cases in the light of
         the recent judgments of the House of Lords.

Summary of the appeals

10.      We begin with a brief summary of the facts of the different cases.

11.      Sylvia Allpress pleaded guilty on 7 February 2000 at Woolwich Crown Court to
         assisting another to retain the benefit of drug trafficking, contrary to s50(1)(a) of DTA
         1994. On 15 September 2000 she was made the subject of a confiscation order under
         that Act in the sum of £154,301.99.

12.      A man called Michael was involved with others in smuggling cocaine and cannabis
         into the UK on a large scale. A substantial part of the proceeds would be sent to
         Spain, France or Holland to purchase further drug supplies. Allpress acted as a
         courier for Michael on two occasions. She made trips to Paris on 7 and 17 April
         1998. A ledger kept by Michael showed that the amount carried by her on the first
         occasion was 350,000 French francs, 80,000 Swiss francs and £10,000, amounting to
         a total sterling value of £78,105. It was assumed on the evidence that the amount
         carried by her on the second occasion was similar. On each occasion the money was
         handed to Allpress by another accomplice of Michael, who also travelled to Paris at
         the same time but on a different flight, and was returned by Allpress to that
         accomplice in Paris. Allpress believed that the money which she was carrying came
         from trafficking cannabis but she did not know the exact amount. On each occasion
         she was paid £800 for herself plus her expenses.

13.      It was accepted on behalf of Allpress that she benefited in the sum of £3,600 by way
         of payments and costs, but the prosecution submitted and the judge found that she
Judgment Approved by the court for handing down.                                   Allpress & Ors v R




         benefited additionally in the sum of £156,210 representing the sterling value of the
         money which she carried as a courier. The appeal is against that finding.

14.      Deborah Symeou also acted as a courier for Michael. Between January 1997 and
         April 1998 Symeou made eight or nine trips to Paris on behalf of Michael to deliver
         parcels of cash with a total value of £1,017,752.13. On 4 September 2000 at
         Woolwich Crown Court she pleaded guilty to assisting another to retain the benefit of
         criminal conduct, contrary to s93A of CJA 1988. The basis for her plea was that she
         believed that the money she was transporting came from prostitution. Like Allpress,
         she was paid £800 per trip plus expenses.

15.      On 4 May 2001 a confiscation order was made against her in the sum of £154,301.99,
         representing her realisable assets. It was accepted on her behalf that she had benefited
         in the total sum of £8,803.20 by way of payment for and the cost of the trips. The
         prosecution submitted and the judge found that she benefited additionally in the sum
         of £1,017,752.13 representing the total sums of currency carried by her as a courier.
         She appeals against that finding.

16.      Miguel Casal pleaded guilty on 23 May 2005 at Southwark Crown Court to assisting
         another to retain the benefit of drug trafficking contrary to s50(1)(a) of DTA 1994.
         The background was that a number of conspirators (not including Casal) were
         involved in a multi-million pound drug smuggling operation in which cocaine was
         imported to the UK from Columbia for sale here and the profits were sent back to
         Columbia. One of the conspirators, named Carranza-Reyes, was Casal’s brother-in-
         law. At the instigation of Carranza-Reyes, premises were bought in the name of Casal
         at 770-772 Holloway Road and run as a Columbian Café under the name “La Gran
         Columbia”. Casal did not provide the purchase money. Above the café Carranza-
         Reyes ran a money transfer business, sending parcels of cash to Columbia via a
         money transfer broker, TTT Money Corp. Bogus paperwork was prepared by
         Carranza-Reyes to give the appearance of legitimacy to the money transfers.

17.      Casal pleaded guilty on the written basis that his role in relation to the money
         transfers was limited to physically taking parcels of cash from the La Gran Columbia
         to TTT Money Corp. Casal was a director of the money transfer business run by
         Carranza-Reyes, but it was his case that he did not in fact exercise any managerial
         control over the business.

18.      In the confiscation proceedings there was a schedule of agreed facts. The schedule
         recorded the fact that Casal agreed to act as a director for the money transfer business
         operating from La Gran Columbia, but also stated:

                   “The defendant acted as courier, taking parcels of money from
                   La Gran Columbia to TTT Money Corp. Over the indictment
                   period the defendant carried parcels of cash totalling
                   £9,842,949.99 in value.

                   The defendant was paid a total of £66,148 in wages and
                   disbursements by Carranza-Reyes. To the knowledge of the
                   prosecution he received no other payment or reward for the
                   services which he provided to the money transfer operation
                   save that he ran his café business from the premises.”
Judgment Approved by the court for handing down.                                     Allpress & Ors v R




19.      We heard argument about whether Casal should be regarded as having a greater role
         in relation to the offence to which he pleaded guilty than that of a courier of parcels of
         cash, by reason of the fact of his directorship, but we have concluded that on the bare
         facts set out in the schedule he should not. The fact of his directorship does not of
         itself show that he played a greater role in relation to the money transfers than that
         which was expressly agreed between the parties.

20.      The definition of a drug trafficking offence in s1 of the DTA 1994 includes an offence
         under s50. In the confiscation proceedings it was accepted on Casal’s behalf that he
         received payments or other rewards in connection with drug trafficking amounting to
         £66,148. The prosecution submitted and the judge found that the money which
         passed through his hands, and which Casal knew to be the proceeds of drug
         trafficking, constituted payments received by him in connection with drug trafficking.
         That figure was assessed by the judge at £4.5 million, because Casal had accepted in
         his written basis of plea that he knew that at least that amount of the cash carried by
         him was the proceeds of crime. (It had been his case that when he first started to act
         as a cash courier he believed that the monies constituted sums of cash legitimately
         earned by Columbian nationals working in the country, which were being remitted to
         their families in Columbia, but that the time came when he realised that the money
         must in part at least be the proceeds of crime.) The judge made a confiscation order
         on 2 November 2005 in the sum of £487,352.67, representing the agreed value of
         Casal’s realisable assets. He appeals against that order.

21.      Paul Morris was found guilty by a jury at Birmingham Crown Court on 19 March
         2003 of three offences of assisting another person to retain the benefits of criminal
         conduct contrary to s93A(1)(a) of CJA 1988. The particulars of the first offence were
         that between 18 June 2000 and November 2000, knowing or suspecting that Raymond
         Woolley was or had been engaged in criminal conduct or had benefited from criminal
         conduct, he entered into an agreement or was concerned in an arrangement whereby
         the retention or control by or on behalf of Raymond Woolley of his proceeds of
         criminal conduct, namely money from the account of Viltern Limited, was facilitated.
         The particulars of the second offence were similar except that it referred to money
         from the account of Hocus SL rather than Viltern. The particulars of the third offence
         were that between 24 September 2000 and 11 January 2001, knowing or suspecting
         that Raymond Woolley was or had been engaged in criminal conduct or had benefited
         from criminal conduct, he entered into an agreement or was concerned in an
         arrangement whereby the retention or control by or on behalf of Raymond Woolley of
         his proceeds of criminal conduct, namely money in the client account of A H Brooks
         and Co, was facilitated by removing it from the jurisdiction and transferring it to the
         bank accounts of Thornbush Entertainment Inc (USA) and Raymond Woolley
         (Spain).

22.      The background was that Woolley (but not Morris) had been involved in a conspiracy
         to cheat HM Customs and Excise of VAT through a “missing trader” scheme. The
         estimated loss to the Revenue amounted to over £38 million.

23.      Morris was a solicitor and a partner in the firm of Brooks. The VAT owed, but not
         paid, was diverted by Woolley to a bank account in the name of Viltern, a Dublin
         based company, and a bank account in the name of Hocus SL, a Spanish based
         company. Both these bank accounts had Woolley as sole signatory. By an
         arrangement between Woolley and Morris, Viltern transferred £5,288,694 and Hocus
Judgment Approved by the court for handing down.                                     Allpress & Ors v R




         transferred £2,639,988 into the account of Brooks. The first two offences of which
         Morris was convicted related to the inflow of these funds from Viltern and Hocus to
         Brooks.

24.      The way in which Morris dealt with these receipts was complex. They were
         transferred to the firm’s client account in the names of six different clients, not all of
         which appeared to have been under the direct control of Woolley. Individual
         disbursements were then made in respect of what purported to be ordinary solicitor
         and client transactions, but were a cover for transfers of a very different kind, for
         example, for the purchase of a yacht or an expensive car. Over £4.5 million was
         transferred from Brooks to a company called Thornbush Entertainment Inc (USA).
         Sums in excess of £1.5 million were transferred from different clients’ ledgers to
         Woolley. These transfers were all for the benefit of Woolley and formed the subject
         of the third offence of which Morris was convicted.

25.      In the confiscation proceedings it was argued on behalf of Morris that he had not
         himself obtained any property within the meaning of s71(4) of the CJA 1988; he was
         merely a trustee of funds for Woolley, and he received no personal benefit, direct or
         indirect, from funds in his firm’s client account. The trial judge, H H Judge
         McCreath, rejected the argument that the true nature of Morris’ connection with the
         relevant monies was that of a bare trustee. He said that it was “far more than that”.
         He referred to “the lack of any substantial evidence at trial of any communications
         between Mr Woolley and Mr Morris by which instructions were given by the former
         to the latter and the evidence about the transfers to Thornbush, an organisation to
         which substantial transfers were made and with which Mr Morris had a considerable
         pre-existing connection but with which Mr Woolley had none”. He concluded that
         the true nature of the receipt of the relevant funds by Morris was such as to amount to
         an obtaining of them within the meaning of s71(4). He assessed the amount obtained
         by Morris as £7,928,682.47 and, after a further hearing to consider the amount of
         Morris’s realisable assets, he made a confiscation order on 20 April 2004 in the sum
         of £410,077.20. Morris appeals against that order.

26.      Stephen Martin pleaded guilty at Cardiff Crown Court on 3 July 2006 to possessing
         criminal property between 1 July and 9 December 2004, contrary to s329(1)(c) of
         POCA 2002. He pleaded guilty on the agreed written basis that he allowed his
         brother Michael to store proceeds of Michael’s criminal activity (which included drug
         dealing) at Stephen Martin’s shop premises in Bargoed, but that at no time did he use
         any of the property for the running of his business or for any other purpose.

27.      The background was that brother Michael (but not Stephen) was involved in a
         conspiracy to supply cannabis and amphetamines. On 8 December 2004 the police
         raided Stephen’s shop and recovered £132,000 in cash from a safe. It was common
         ground that this money had been deposited with Stephen by Michael and, as Stephen
         knew, it represented proceeds of criminal activity. Stephen also admitted that he had
         previously received £35,000 in cash from his brother, which he had subsequently
         returned to his brother. So the total amount of cash physically received by Stephen,
         knowing that it was the proceeds of crime, came to £167,000.

28.      At the outset of the confiscation hearing counsel for the prosecution said that it was
         his submission that Michael was using Stephen’s premises as a storage base for his
         cash (meaning Michael’s cash), and this was not disputed. The prosecution submitted
Judgment Approved by the court for handing down.                                        Allpress & Ors v R




         that the money in the safe and the £35,000 which Stephen had returned to Michael
         constituted property which Stephen obtained in connection with his criminal conduct,
         within the meaning of s76(4) of POCA 2002, and therefore constituted a benefit
         within s8. It is apparent from the transcript of the proceedings that the judge, H H
         Judge Denyer QC, was unhappy with that proposition and he reserved his judgment.
         In a carefully reasoned judgment, delivered on 6 March 2008, the judge reviewed the
         authorities. From them he concluded that, applying the relevant statutory provisions,
         “the fact that the property may belong to someone else or that the defendant was
         simply looking after it for someone else is nothing to the point” and that he was bound
         on authority to accept the prosecution’s submission. His conclusion was correct on
         the authorities as they stood, but that was before the decisions of the House of Lords
         in May and others. He also considered whether Article 1 of the First Protocol to the
         European Convention on Human Rights might enable him to avoid having to make a
         confiscation order, but rightly concluded that it did not. He made a confiscation order
         in the sum of £88,255.83, representing the amount of Stephen Martin’s available
         assets. Stephen Martin appeals against that order.

May and others: General principles

29.      In Sivaraman [2008] EWCA Crim 1736, para 12, this court set out the following
         general principles derived from the trio of cases recently decided by the House of
         Lords:

                   “12. In the trio of cases recently decided by the House of Lords
                   a number of matters were made plain:

                      (1) The legislation is intended to deprive the defendants of
                      the benefit they have gained from the relevant conduct
                      within the limits of their available means. It does not
                      operate by way of fine: May, paragraph 48(1); Jennings,
                      paragraph 13.

                      (2) The benefit gained is the total value of the property or
                      pecuniary advantage gained, not the particular defendant's
                      net profit: May, paragraph 48(1).

                      (3) In considering what is the value of the benefit which the
                      defendant has obtained, the court should focus on the
                      language of the statute and apply its ordinary meaning
                      (subject to any statutory definition) to the facts of the case:
                      May, paragraph 48(3) and (4); Jennings paragraph 13.

                      (4) "Obtained" means obtained by the relevant defendant:
                      Jennings, paragraph 14.

                      (5) A defendant's acts may contribute significantly to
                      property or to a pecuniary advantage being obtained without
                      that defendant obtaining it: Jennings, paragraph 14.

                      (6) Where two or more defendants obtain property jointly,
                      each is to be regarded as obtaining the whole of it. Where
Judgment Approved by the court for handing down.                                       Allpress & Ors v R




                      property is received by one conspirator, what matters is the
                      capacity in which he receives it, that is, whether for his own
                      personal benefit, or on behalf of others, or jointly on behalf
                      of himself and others. This has to be decided on the
                      evidence: Green, paragraph 15. By parity of reasoning, two
                      or more defendants may or may not obtain a joint pecuniary
                      advantage; it depends on the facts.”

30.      It was submitted on behalf of the prosecution in some of the appeals that the court was
         wrong to say in para 12(6) of Sivaraman that “Where property is received by one
         conspirator, what matters is the capacity in which he receives it, that is, whether for
         his own personal benefit, or on behalf of others, or jointly on behalf of himself and
         others.” We will come to the question whether any of the legislation requires a
         different approach in relation to money, but we remain of the view that the sentence
         quoted correctly states the effect of May and others. Otherwise, the judicial
         committee would not have concluded its report in May by observing that mere
         couriers or custodians are unlikely to be found to have obtained the relevant property.
         A mere courier or custodian is a bailee who receives physical possession of property
         for another.

31.      In Sivaraman the court also addressed two misconceptions which subsequent cases
         suggest may still be common. One was that in assessing benefit in a conspiracy case
         each conspirator is to be taken as having jointly obtained the whole benefit obtained
         by “the conspiracy”. A conspiracy is not a legal entity but an agreement or
         arrangement which people may join or leave at different times. In confiscation
         proceedings the court is concerned not with the aggregate benefit obtained by all
         parties to the conspiracy but with the benefit obtained, whether singly or jointly, by
         the individual conspirator before the court. The second misconception is a variant of
         the first. It is that anybody who has taken part in a conspiracy in more than a minor
         way is to be taken as having a joint share in all benefits obtained from the conspiracy.
         This is to confuse criminal liability and resulting benefit. The more heavily involved
         a defendant is in a conspiracy, the more severe the penalty which may be merited, but
         in confiscation proceedings the focus of the inquiry is on the benefit gained by the
         relevant defendant. In the nature of things there may well be a lack of reliable
         evidence about the exact benefit obtained by any particular conspirator, and in
         drawing common sense inferences the role of a particular conspirator may be relevant
         as a matter of fact, but that is a purely evidential matter.

32.      Before turning to the arguments for treating money differently from other forms of
         property we should refer to certain relevant passages in May.

33.      In para 15 the judicial committee referred to R v Simons (1994) 98 Cr App R 100
         (brought under the Drug Trafficking Offences Act 1986) and commented as follows:

                   “In that case the appellant had bought five consignments of
                   drugs from a Hong Kong supplier and sold them on to an
                   African buyer, from whom in each case he had received the
                   purchase price which he had paid on to the supplier. The
                   proceeds of sale, the court of appeal held (p 102), were not
                   profit made in the sale but the sale price. The court regarded as
                   clear (p 104) that where there is a chain of contracts each
Judgment Approved by the court for handing down.                                        Allpress & Ors v R




                   purchase price is a payment. The court went on to observe,
                   obiter (p 104), that this result could not be avoided by treating
                   the intermediary as a postman, and that those acting as a
                   conduit should not be treated differently. But this, with respect,
                   is more problematical: under the 1986 Act the first question
                   was always whether, on the facts (and allowing permissible
                   inferences) the defendant had benefited by the receipt of any
                   payment or other reward, which a mere intermediary might
                   possibly not…”

34.      In para 17 the judicial committee referred to a case under DTA 1994, which is directly
         analogous to Allpress, Symeou and Casal. It said:

                   “R v Simpson (David) [1998] 2 Cr App R (S) 111 is a more
                   difficult case. Simpson pleaded guilty to conspiring to posses
                   the proceeds of drug trafficking. He had made five trips to
                   Ireland taking with him a total of £2.5m, the proceeds of drug
                   trafficking. He had been paid £25-30,000 for each trip and on
                   arrest en route to Dublin had £540,000 with him. The trial
                   judge found that he had benefited from drug trafficking to the
                   extent of £3m. He assessed the proceeds of drug trafficking (p
                   116) as equivalent to the aggregate value of the drug deals and
                   not the aggregate value of the rewards paid to the money
                   launderers for their money laundering, basing himself on R v
                   Simons above. The court of appeal, following R v Banks,
                   above, accepted (pp 117-118) that there might be multiple
                   recovery for the same sum passed through the hands of
                   successive dealers, but found no reason ( p 118) to construe the
                   definition of proceeds of drug trafficking as requiring as a pre-
                   condition that property or other rewards should pass to a
                   defendant. It may be agreed that words, not in the statute,
                   should not be read into it. But the question under sections 2(3)
                   and 4(1) of the 1994 Act is whether a defendant has received
                   any payment or other reward in connection with drug
                   trafficking, and this would ordinarily require a payment or
                   reward to him, whether on his own or jointly.”

35.      The judicial committee concluded its report in May at para 48(6) as follows:

                   “D ordinarily obtains property if in law he owns it, whether
                   alone or jointly, which would ordinarily connote a power of
                   disposition or control, as where a person directs a payment or
                   conveyance of property to someone else. He ordinarily obtains
                   a pecuniary advantage if (among other things) he evades a
                   liability to which he is personally subject. Mere couriers or
                   custodians or other very minor contributors to an offence,
                   rewarded by a specific fee and having no interest in the
                   property bought with the proceeds of sale, are unlikely to be
                   found to have obtained that profit. It may be otherwise with
                   money launderers.”
Judgment Approved by the court for handing down.                                      Allpress & Ors v R




36.      The general principle stated in para 48(6) of May was reiterated in para 13 of
         Jennings, with an important observation about the common nature of the approach to
         be taken to the question of obtaining a benefit under CJA 1988 and DTA 1994. The
         committee stated:

                   “In its opinion in R v May, the committee endeavoured to
                   explore the meaning of section 71(4) [of CJA 1988]. It refers,
                   without repetition, to what it there said. …The focus must be
                   and remain on the language of the subsection. The committee
                   regards the meaning of the subsection as in substance the same
                   as the equivalent provisions of the drug trafficking
                   legislation…the rationale of the confiscation regime is that the
                   defendant is deprived of what he has gained or its equivalent.
                   He cannot, and should not, be deprived of what he had never
                   obtained or its equivalent, because that is a fine. This must
                   ordinarily mean that he has obtained property so as to own it,
                   whether alone or jointly, which would ordinarily connote a
                   power of disposition or control, as where a person directs a
                   payment or conveyance of property to someone else.”

37.      It was argued on the present appeals that because the House of Lords did not overrule
         Simpson, that case remains binding on this court. If so, it would be dispositive of the
         present appeals or at least the appeals by Allpress, Symeou and Casal. We do not
         accept that submission. It would obviously be otherwise if the House of Lords had
         positively affirmed the decision in Simpson, but the terms in which it referred to the
         decision were far from an endorsement of its correctness.

Arguments for a different approach in cases of money laundering

38.      We note first that Part 7 of POCA 2002 is headed “Money Laundering”, and that
         money laundering is defined for the purposes of that part of the Act by s340(11) as an
         offence under ss327, 328 or 329 (and associated secondary or inchoate offences).
         However, ss327, 328 and 329 are not confined to activities involving money but are
         very much broader. Section 327(1)(a) makes it an offence if a person conceals
         criminal property. Property is defined by s340(9) as including all forms of property,
         real or personal, heritable or moveable, and things in action and other intangible or
         incorporeal property. Property is criminal property if it constitutes a person’s benefit
         from criminal conduct and the alleged offender knows or suspects that it does:
         s340(3). So a burglar’s wife or partner who allows him to store property in their
         home, which she suspects he has stolen, may be guilty of a money laundering offence
         in terms of the statute.

39.      Three arguments were advanced by the prosecution for treating money, in one form or
         another, differently from the guidance given by the House of Lords in May and others
         in relation to other forms of property.

40.      One argument was that money laundering offences, in so far as they involve money in
         any form, constitute a special category of offences to which a separate approach
         should apply.
Judgment Approved by the court for handing down.                                    Allpress & Ors v R




41.      A second argument was based on the legal nature of money in the form of cash. It
         was argued that different considerations should apply to cash from any other form of
         property. This argument was not an alternative to the first but a separate and
         additional argument. The third argument was that the language of the statutes,
         especially DTA 1994 and POCA 2002, requires a different approach to be taken in
         relation to money. We will consider these arguments in turn.

Money Laundering Offences – a special category?

42.      Mr Bird argued that a different approach from the guidance given by the House of
         Lords in the recent trio of cases should be taken in cases involving money (whether in
         cash or in another form) received by a person in connection with the commission of
         any of the following offences:

                   CJA 1988, s93A (Assisting another to retain the benefit of criminal conduct)

                   CJA 1988, s93B (Acquisition, possession or use of proceeds of criminal
                   conduct)

                   CJA 1988, s93C (Concealing or transferring proceeds of criminal conduct)

                   DTA 1994, s49 (Concealing or transferring proceeds of drug trafficking)

                   DTA 1994, s50 (Assisting another person to retain the benefit of drug
                   trafficking)

                   DTA 1994, s51 (Acquisition, possession or use of proceeds of drug
                   trafficking)

                   POCA 2002, s 327 (Concealing criminal property, etc.,)

                   POCA 2002, s328 (Being concerned in an arrangement facilitating the
                   acquisition, retention, use or control of criminal property)

                   POCA 2002, s329 (Acquisition, use and possession of criminal property)

                   Terrorism Act 2000, s15 (Fund raising for the purposes of terrorism)

                   Terrorism Act 2000, s16 (Use and possession of money or other property for
                   the purposes of terrorism)

                   Terrorism Act 2000, s 17 (Being concerned in an arrangement by which
                   money or other property is to be made available to another which may be used
                   for the purposes of terrorism)

                   Terrorism Act 2000, s18 (Being concerned in an arrangement facilitating the
                   retention or control by or on behalf of another person of terrorist property)


43.      We reject the argument. The offences themselves may involve dealing with money or
         other forms of property. Mr Bird’s approach would involve treating them as
         constituting a special category of offence for the purpose of confiscation if, but only
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         if, the offending took the form of dealing with money. Mr Bird’s approach would
         also involve treating money received in connection with, or as a result of, an offence
         in his list differently from money received in connection with, or as a result of, an
         offence not on the list. No statutory foundation has been identified which would
         support Mr Bird’s approach, and it would produce obvious anomalies.

44.      To give an example, the language of POCA 2002 s329 is so wide that many offences
         of burglary or handling stolen goods could be charged under that section, and there
         has been some disquiet that this may be happening. Concerns about this were
         expressed by Maurice Kay LJ in R(Wilkinson) v Director of Public Prosecutions
         [2006] EWHC 3012 (Admin), para 8, and by Richards LJ in CPS Nottinghamshire v
         Kevin Rose [2008] EWCA Crim 239, paras 19-20. It would be unsatisfactory if as a
         result of the prosecution choosing to lay a charge under POCA 2002, s329, the
         confiscation provisions of the Act would apply differently than if on the same facts
         the offender had been charged with burglary or handling stolen property.

The legal nature of cash

45.      Mr Bird argued that the legal nature of currency is such that the holder necessarily has
         a power of disposition or control over it of a kind which is different from that of a
         bailee of tangible property. He cited the following passage from the speech of
         Viscount Haldane LC in the well-known case of Sinclair v Brougham [1941] AC 398,
         418:

                   “In most cases money cannot be followed. When sovereigns or
                   banknotes are paid over as currency, so far as the payer is
                   concerned, they cease ipso facto to be the subjects of specific
                   title as chattels. If a sovereign or banknote be offered in
                   payment it is, under ordinary circumstances, no part of the duty
                   of the person receiving it to enquire into title. The reason of
                   this is that chattels of such a kind form part of what the law
                   recognises as currency, and treats as passing from hand to hand
                   in point, not merely of possession, but of property. It would
                   cause great inconvenience to commerce if in this class of
                   chattel an exception were not made to the general requirement
                   of the law as to title.”

46.      However, Viscount Haldane continued in the next paragraph:

                   “But the exception is not extended beyond the limits which
                   necessity imposes. If money in a bag is stolen, and can be
                   identified in the form in which it was stolen, it can be recovered
                   in specie. Even if it has been expended by the person who has
                   wrongfully taken it in purchasing some particular asset, that
                   asset, if capable of being earmarked as purchased with the
                   money, can be claimed by the true owner of the money. This is
                   a principle not merely of equity, but of the common law.”

47.      We were also referred to Mann on the Legal Aspect of Money (6th Ed). It is a complex
         subject and this judgment is not an appropriate place for attempting a detailed
         analysis. We are concerned with the construction of provisions in criminal statutes
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         designed, as the House of Lords has emphasised, to deprive criminals of the benefit
         which they have gained from the relevant conduct and not to operate by way of fine.

48.      To take an everyday example away from the criminal context, if a shopper in a
         supermarket gives money to a till operator at the checkout, which the till operator puts
         in the till, nobody would ordinarily think of the till operator benefiting from that sum
         of money or of the money being under the till operator’s power of disposition or
         control in the sense in which the judicial committee used that expression in May and
         Jennings. The money in specie would be the shop’s money from the moment that the
         till operator took it from the customer. It may be that the till operator would have
         physical power to dispose of the money elsewhere; it may be that he or she could put
         it in their pocket undetected, but that is no different from the physical power of any
         bailee to use the property for a different purpose from that of the bailment. Moreover,
         one would not ordinarily regard the till operator’s physical possession of the money as
         a benefit to the till operator, or as the possession of money which was theirs to control
         or dispose of, merely because if the operator were to misappropriate and spend it, an
         innocent recipient would obtain good title. It is a fallacy to argue that because the
         recipient would obtain a valid title, therefore the money was the till operator’s. The
         exception to the nemo dat rule exists for commercial reasons, but does not operate so
         as to confer title on a thief. Were the position otherwise, Viscount Haldane would not
         have said that money stolen in a bag, and identifiable in the form in which it was
         stolen, could be recovered in specie.

49.      So far we have been considering the position of a custodian of untainted money. It is
         difficult to see why the nature of a custodian’s interest in money should be different
         merely because the custodian knows or suspects that it is tainted by crime. If a
         criminal asks D, for a reward, to deliver stolen property to a professional receiver and
         to collect an envelope containing the price which the receiver has agreed to pay, and
         D does so, we do not see why as a matter of general principle D should be regarded as
         having an interest in the money which he collects (any more than in the property
         which he delivers to the receiver) simply because he knows or suspects that the
         property was stolen, or simply because if D had instead spent the money in a shop the
         shop keeper would have obtained a good title to it.

50.      We turn from these general arguments to the language of the statutes.

CJA 1988 and DTA 1994

51.      CJA 1988 s71(4) provided:

                   “For the purposes of this Part of this Act a person benefits from
                   an offence if he obtains property as a result of or in connection
                   with its commission and his benefit is the value of the property
                   so obtained.”

52.      DTA 1994 s2(3) provided:

                   “For the purposes of this Act, a person has benefited from drug
                   trafficking if he has at any time (whether before or after the
                   commencement of this Act) received any payment or other
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                   reward in connection with drug trafficking carried on by him or
                   another person.”

53.      As already noted, in Jennings the judicial committee said that it regarded the meaning
         of CJA 1988 s71(4) as in substance the same as the equivalent provisions of the drug
         trafficking legislation, that is, DTA 1994 s2(3) and its statutory predecessors.

54.      CJA 1988 and DTA 1994 also contained materially indistinguishable provisions for
         assessing the value of property.

55.      CJA 1988 s74 provided:

                   “(4) Subject to the following provisions of this section, for the
                   purposes of this Part of this Act the value of property (other
                   than cash) in relation to any person holding the property-

                      (a)where any other person holds an interest in the property,
                      is-

                          (i) the market value of the first-mentioned person’s
                          beneficial interest in the property less

                          (ii) the amount required to discharge any encumbrance
                          (other than a charging order) on that interest; and

                      (b) in any other case, is its market value.

                   (5) References in this Part of this Act to the value at any time
                   (referred to in subsection (6) below as “the material time”) of
                   any property obtained by a person as a result of or in
                   connection with the commission of an offence are references
                   to-

                      (a) the value of the property to him when he obtained it
                      adjusted to take account of subsequent changes in the value
                      of money; or

                      (b) where subsection (6) below applies, the value there
                      mentioned,

                      whichever is the greater.

                   (6) If at the material time he holds-

                      (a) the property which he obtained (not being cash); or

                      (b) property which, in whole or in part, directly or indirectly
                      represents in his hands the property which he obtained,

                      the value referred to in subsection (5)(b) above is the value
                      to him at the material time of the property mentioned in
                      paragraph (a) above or, as the case may be, of the property
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                      mentioned in paragraph (b) above so far as it represents the
                      property which he obtained, but disregarding any charging
                      order.”

       DTA 1994 s7(1), (2) and (3) contained similar provisions.

56.      It was argued on behalf of the prosecution that where a courier or custodian receives a
         parcel of cash to pass on or safeguard in return for a fee, the fee and the parcel of cash
         both constitute payments received by him (for the purposes of DTA 1994 s2(3)) or
         property obtained by him (for the purposes of CJA 1988 s71(4)).

57.      The difficulty with that argument was identified by the judicial committee in May,
         para 17 (set out in para 34 above), where it observed in relation to the decision of the
         Court of Appeal in Simpson:

                   “But the question under 2(3) and 4(1) of the 1994 Act is
                   whether a defendant has received any payment or other reward
                   in connection with drug trafficking, and this will ordinarily
                   require a payment or reward to him, whether on his own or
                   jointly.”

58.      The phrase “payment or other reward” implies that the payment must be in the nature
         of a reward in order to fall within the relevant section, and that is consistent with the
         rationale of the confiscation scheme as explained by the House of Lords. The final
         sentence of para 17 in May would make no sense if physical receipt of a sum of cash
         by D constitutes ipso facto the receipt of a payment or other reward, whether the
         payment is for himself or not.

59.      We therefore reject the argument that the language of DTA 1994 s2(3) and CJA 1988,
         s71(4) compels a different approach to sums of cash than to other forms of property.

POCA 2002

60.      Section 6(4) requires the court to decide whether D has benefited from his criminal
         conduct (either general or particular). Section 76 provides:

                   “(4) A person benefits from conduct if he obtains property as a
                   result of or in connection with the conduct.

                   (5) If a person obtains a pecuniary advantage as a result of or in
                   connection with conduct, he is to be taken to obtain as a result
                   of or in connection with the conduct a sum of money equal to
                   the value of the pecuniary advantage.

                   (6) References to property or a pecuniary advantage obtained in
                   connection with conduct include references to property or a
                   pecuniary advantage obtained both in that connection and some
                   other.

                   (7) If a person benefits from conduct his benefit is the value of
                   the property obtained.”
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61.      Section 84 provides:

                   “(1) Property is all property wherever situated and includes-

                              (a) money;

                              (b) all forms of real or personal property;

                              (c) things in action or intangible or incorporeal property.

                      (2) The following rules apply in relation to property –

                              (a) property is held by a person if he holds an interest in it;

                              (b) property is obtained by a person if he obtains an interest in it;

                              (c) property is transferred by one person to another if the first one
                              transfers or grants an interest in it to the second;

                              (d) references to property held by a person include references to
                              property invested in his trustee in bankruptcy…

                              (e) references to an interest held by a person beneficially in property
                              include reference to an interest which would be held by him
                              beneficially if the property were not so vested;

                              (f) references to an interest, in relation to land in England and Wales
                              or Northern Ireland, are to any legal estate or equitable interest or
                              power;

                              …

                              (h) references to an interest, in relation to property other than land,
                              include references to a right (including a right to possession).”

62.      Sections 79 and 80 contain provisions about valuation similar to CJA 1988 s74(4)–
         (6), but expressed at greater length. The effect of s79(3) is that if a person obtains a
         limited interest in property, it is the market value of that limited interest which is
         relevant for the purpose of confiscation proceedings against that person.

63.      It is not in dispute that “obtaining” in the present context includes assuming an
         interest in property (whether unlimited or limited). In other words, a thief cannot be
         heard to say in confiscation proceedings that the relevant value is not the market value
         of the stolen property, but the value of his interest subject to the interest of the true
         owner, which would result in a nil or nominal valuation on the part of the thief. By
         stealing the property the thief has assumed the rights of the true owner, and his benefit
         is what it would have cost him to acquire the property lawfully, i.e. its open market
         value: CPS Nottinghamshire v Rose [2008] EWCA Crim 239.

64.      It was submitted on behalf of the prosecution that, whatever may have been the
         position under CJA 1988 and DTA 1994, the statements of the judicial committee in
         May, para 48(6), and Jennings, para 13, set out in para 36 above, (to the effect that
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         ordinarily D will obtain property only if he owns it or, we interpolate, assumes the
         rights of an owner, which would ordinarily connote a power of disposition or control),
         cannot properly be applied to POCA 2002, because s84(2) provides a wider statutory
         definition of property. It was further submitted that in so far as those comments were
         intended to guide courts dealing with confiscation applications under POCA 2002,
         they were obiter and wrong.

65.      The first point to note is that logically this submission is not confined to property in
         the form of money. The effect of the submission is that in any case where D has
         possession of criminal property in connection with an offence, D is liable to a
         confiscation order in the amount of the market value of the property (or the amount of
         the money, where the property is money).

66.      Para 145 of the explanatory notes to POCA 2002 states:

                   “Sections 79-81 set out how the Court is to work out the value
                   of property held by a person, the value of property obtained
                   from criminal conduct and the value of a tainted gift. These
                   sections broadly reproduce the property valuation principles set
                   out in the earlier legislation.”

67.      The explanatory notes to an Act are an admissible aid to its construction by providing
         a pointer to the mischief at which the legislation was aimed: Westminster City Council
         v NASS [2002] UKHL 38, para 5 (Lord Steyn).

68.      The submission that the observations of the judicial committee in relation to POCA
         2002 were obiter is accurate in the strictest sense, but it is plain that the judicial
         committee considered in some detail the provisions of that Act, which it summarised
         in paragraph 14 of May without giving any hint of a suggestion that POCA 2002
         required a difference in approach to the key questions which the judicial committee
         was considering. It described the Act as bringing together the regimes, hitherto
         distinct, previously established and also providing for the making of confiscation
         orders against those found to have a criminal lifestyle. In the endnote to its opinion in
         May the judicial committee gave guidance to courts specifically under POCA 2002
         (see para 48(5) of the opinion) on how to determine whether D has obtained property
         or a pecuniary advantage and, if so, the value of any property or advantage so
         obtained. Such guidance may have been technically obiter, but that is indeed in the
         circumstances a technicality. The guidance given represents the judgment of the
         judicial committee on issues central to the confiscatory framework, after
         consideration of the relevant sections. The report in May, para 14, referred explicitly
         to the definition of property in s84(1), and we do not believe it credible to suppose
         that the members of the committee were unaware of the provisions of s84(2).

69.      We consider that the point made by the prosecution in relation to s84(2), and in
         particular para (h) (“references to an interest, in relation to property other than land,
         include references to a right (including a right to a possession)”) is a red herring.

70.      It is important to note that s84(2)(h) speaks not of de facto possession (i.e. mere
         custody) but of “a right to possession”. There is a significant difference between the
         two.
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71.      In Ancona v Rogers (1876) 1 Ex D 285, 292 Mellish LJ said that:

                   “…there is no doubt that a bailor, who has delivered goods to a
                   bailee to keep them on account of the bailor, may still treat the
                   goods as being in his own possession, and can maintain
                   trespass against a wrong doer who interferes with them. It was
                   argued, however, that this was a mere legal or constructive
                   possession of the goods, and that in the Bills of Sale Act the
                   word “possession” was used in a popular sense, and meant
                   actual or manual possession. We do not agree with this
                   argument. It seems to us that goods which have been delivered
                   to a baileee to keep for the bailor, such as a gentleman’s plate
                   delivered to his banker, or his furniture warehoused at the
                   Pantechnicon, would, in a popular sense, as well as in a legal
                   sense, be said to be still in his possession.”

72.      In the case of the statute which we are considering, the answer to the question whether
         a person is intended to be regarded as holding an interest in property by mere manual
         possession, or whether something more is required, is put beyond doubt by the words
         “a right to possession”.

73.      Some bailments may be on terms which give to the bailee a right to possession as
         against the bailor, that is, a right to possession for his own benefit, and others will not.

74.      Crossley Vaines on Personal Property (5th Ed), (1973) p 70 states:

                   “Bailment eludes precise definition because the term covers a
                   host of legal relationships which have as a common
                   denominator only that one is in possession of another’s chattel.
                   Possession is the salient feature, but the forms and incidents of
                   bailment are miscellaneous…The bailment may be for the
                   benefit of the bailor e.g., a deposit, or for that of the bailee, e.g.,
                   a loan.”

75.      That general statement remains accurate. To return to the example of the till operator
         in the supermarket, he or she has manual possession of the money paid by the
         customer until it is placed in the till (and will continue to have some manual control
         over the contents of the till during the operator’s shift, because he or she can take
         money from the till to give to another customer by way of change), but the till
         operator has no right to possession of the money; he or she holds the money for the
         employer.

76.      The point was made in argument that a bailee can maintain an action for the value of
         the goods against a third party who wrongly interferes with his possession. See, for
         example, The Winkfield [1902] P 42. The reason is that as a matter of policy the law
         will not allow a wrongdoer to enquire into the nature or limitation of the possessor’s
         right, but as between the possessor and the wrongdoer the law will presume “that the
         person who has the possession has the property”, in the words of Lord Campbell in
         Jeffries v Great Western Railway Company (1856) 5 E & B 802, 806, cited by Collins
         MR in The Winkfield (p 55). That is far removed from the question whether a mere
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         custodian has a right to possession so as to have an interest in property for the
         purposes of POCA s84(2).

77.      Moreover, even if the mere custodian were held to have a limited interest in the
         property, the relevant value would be the value of that interest, which if the property
         was being held purely for another would be nil.

78.      In the criticised passages of May (para 48(6)) and Jennings (para 13), the committee
         used the word “ordinarily”. It was no doubt aware that there might be cases (which
         did not call for consideration in the trio of cases before it) where it might be said that
         D had a limited interest in goods. D might, for example, use criminal proceeds to pay
         for the charter of a yacht or the leasing of an aircraft or land vehicle. In such cases D
         would have a right to possession and the interest could be of substantial value. But
         the fact that POCA s84(2) and s79(3) contain provisions for cases where an offender
         obtains a limited interest in property, and for the means of valuing such an interest, is
         beside the point in the ordinary case where no suggestion is being advanced that the
         offender obtained a limited interest in the relevant property.

79.      For those reasons we reject the argument that the judicial committee’s observations in
         May and Jennings were incorrect or inapplicable in relation to POCA 2002, either in
         cases involving other forms of property or in cases involving money.

The cash courier

80.      We conclude that if D’s only role in relation to property connected with his criminal
         conduct, whether in the form of cash or otherwise, was to act as a courier on behalf of
         another, such property does not amount to property obtained by him within the
         meaning of POCA 2002 s80(1) or CJA 1988 s71(4) or to “payment or other reward”
         within in the meaning of DTA 1994 s2(3).

81.      It follows that the appeals by Allpress, Symeou and Casal are allowed. The amount
         of the confiscation orders will be reduced to £3,600 in the case of Allpress, £8,803.20
         in the case of Symeou and £66,148 in the case of Casal.

The cash custodian

82.      We reach the same conclusion in relation to a mere custodian of cash for another.
         Accordingly the appeal by Stephen Martin is allowed and the confiscation order
         against him is quashed.

The money launderer through the banking system

83.      In Morris’ case Mr Shaw QC submitted that the same approach should be applied as if
         he had been a cash courier. He argued that Morris had no personal interest in the
         monies which went from Viltern and Hocus into the account of Brooks. The money
         was held in that account in accordance with the Solicitors Accounts Rules 1998.
         Morris was a mere trustee of the funds, acting at all times on behalf of Woolley and
         under Woolley’s instructions. Mr Bird submitted on behalf of the prosecution that the
         Solicitors Accounts Rules have no relevance since the Brooks account was not being
         used for a genuine professional purpose, and the use of the firm’s client account could
         give Morris no more protection than if the money had gone into another account
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         opened by Morris. Mr Bird also submitted that the trial judge had been entitled to
         reject on the evidence before him the argument that the true nature of Morris’
         connection with the relevant monies was that of a bare trustee.

84.      We agree with the prosecution’s submissions. The Solicitors Account Rules are
         irrelevant in considering the true nature of Morris’ interest in the money in
         circumstances where the firm’s account was being used as a mere façade.

85.      The account was an account of Morris and his partners with their bank. Payment of
         monies into that account gave rise to a thing in action in favour of Morris (jointly with
         his partners). The starting point (as in R v Sharma [2006] EWCA Crim 16, [2006] 2
         Crim App R (S) 416), is that this was therefore his property. In Sharma the defendant
         caused the proceeds of a fraud in which he was engaged to be paid into a company
         account of which he was the sole signatory. It was held that the money in the account
         was money held for his benefit as the sole signatory on the account, and that decision
         was approved by the House of Lords in May (para 34). In this case the account was
         not only in the name of the firm of which Morris was a partner, so that he had a thing
         in action against the bank, but he also had in fact sole operational control over the
         account.

86.      We do not exclude the possibility of a case where money is paid into a bank account
         in the name of D, but which is in reality operated entirely by P for the benefit of P,
         and where it would be wrong, unusually, to conclude that D obtained monies paid into
         the account. This is more likely to arise in a domestic than a commercial context. We
         have in mind, for example, the possibility of a husband or father operating an account
         in the name of his wife or child, which he treats entirely as his own and in respect of
         which the wife or child is a mere nominee. But in the present case the judge was not
         satisfied on the evidence that Morris was a bare trustee or nominee in relation to the
         funds in the account. It is true that the offences of which Morris was convicted all
         contained the ingredient of assisting Woolley to retain control of the proceeds of his
         criminal conduct, but with that ultimate objective Morris received funds, in respect of
         which he had legal ownership and also practical control. The case was no different in
         principle than if a dishonest money changer had been paid a £1million and had agreed
         to transfer an equivalent amount to an offshore account in a different currency. The
         £1million received by the money changer would have been money obtained by him.
         In this case Morris received funds in his account in England in exchange for which he
         remitted funds to the USA and Spain.

87.      The appeal by Morris is therefore dismissed.

Postscript

88.      Before the orders in the various appeals are finalised we invite written submissions on
         any consequential matters. We are aware that Morris seeks an extension of time for
         payment and that the prosecution resists this both as a matter of jurisdiction and on
         the merits. The Court has not considered this question but will do so in the light of
         the parties’ written submissions.

89.      The laundering of money or other criminal property can take many forms. This
         judgment does not attempt to address all of them, but only the types of case which we
         have been directly considering.

								
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