Practice and Procedure


PUBLISHED June 20, 2003

Where the appellant had a first instance conviction in Holland the judge had been correct to permit him, if he wished, to mention his character but with a reference to the conviction. It was the appellant's choice to say nothing and since there was no evidence of good character, no direction was required from the judge about it. The proper sentence was 10 years imprisonment and 12 years was manifestly excessive.Appeal by the appellant ('D') against conviction and sentence in the Crown Court for conspiracy to deal with the proceeds of drug trafficking or criminal conduct and for a further offence of attempting to remove the proceeds of drug trafficking. D had travelled to the United Kingdom on a number of occasions to collect substantial quantities of cash, which the Crown alleged was generated by a drugs conspiracy. He was arrested at Heathrow airport when he was found to be in possession of cases containing over ?500,000 in cash. His defence was that he was a legitimate businessman and had no connection with any drugs conspiracy. When D was interviewed following his arrest he chose not to answer questions. At trial his reasons for this were that: (i) his solicitor had told him that he had a choice whether to answer everything or nothing, so he chose not to say anything; and (ii) he had not appreciated the significance of the caution. During the trial it emerged that although D had no convictions in this country he did have a conviction in Holland for money laundering which because of a different procedure did not count yet as a conviction. The judge ruled that to give a good character direction when it was known that D was the subject of a first instance conviction would be misleading to the jury. and the conviction needed to be mentioned if D's good character was brought up. This resulted in the defence making no reference to character at all. D was convicted and sentenced to concurrent terms of 12 years imprisonment. The grounds of appeal were that: (a) the judge was wrong in declining to allow D to be presented as a man of good character without qualification; (b) the judge should have given a full good character direction or in the alternative a good character direction restricted to its relevance to credibility; (c) the judge had given inadequate directions as to inferences that could be drawn from D's failure to answer certain questions; and (d) the sentence imposed was manifestly excessive.HELD: (1) Whether or not the finding of the Dutch court was a "conviction" it came within the broader category of matters about which questions could properly have been permitted both as a to finding of guilt and as to the underlying facts. D was properly afforded the opportunity to choose whether to say nothing, or whether to give the jury information that would not mislead them but would minimise any prejudice he might suffer. It was D's choice to say nothing and since there was no evidence of good character, no direction was required from the judge about it. (2) The jury would have understood from the judge's direction regarding inferences that it was only if D had not answered the questions because he had not had a chance to prepare his story that any inference could be drawn against him. (3) It was D's choice not to answer questions and he did not rely on advice from his solicitor. The judge properly reminded the jury of this and no more was required. (4) So far as D's understanding of the caution was concerned, the judge reminded the jury of his evidence. It was for the jury to decide the truth or otherwise of his assertion that he did not appreciate the significance of what had been said to him. There was no reason to doubt the safety of the convictions, the evidence was overwhelming. (4) The proper sentence was 10 years imprisonment and 12 years was manifestly excessive. The sum found on D showed that although he had been dealing in significant sums, they were not on the same scale as in R v Sabharmal (2001) 2 Cr App R (S) 81. In that case the appellant also received 12 years but the sums involved were many times greater, in excess of £50 million.Appeal against conviction dismissed. Appeal against sentence allowed and concurrent sentences of 10 years imprisonment substituted on each count.

[2003] EWCA Crim 1767