Ramadan El-Delbi, R v

On the 17 January 2001, in the Crown Court at Isleworth before His Honour Judge McDowell and a jury, the appellant was convicted by a majority of 11 to 1 of conspiracy to deal with the proceeds of drug trafficking or criminal conduct and of a further offence of attempting to remove the proceeds of drug trafficking.

On the 7 March 2001 he was sentenced to concurrent terms of 12 years imprisonment on each count. A confiscation order was made in the sum of £515,075 with 5 years imprisonment consecutive in default. He appealed against conviction with the leave of the full court and against sentence by leave of the single judge. At the conclusion of a resumed hearing once transcripts of the proceedings in the Crown Court had been obtained, we indicated that we rejected the appeal against conviction but allowed the appeal against sentence reducing each sentence to 10 years imprisonment. We now give reasons for our decisions.

The appellant is now aged 40. For some time his family had operated a business in Holland concerned with the shipping and sale of second-hand motor vehicles principally to various West African countries. Initially he worked for the family business but in 1996, he set up his own company and thereafter he employed members of his family and others from the Lebanese community.

In early 1999 he expanded his range of activities into shipping assorted goods from Dubai to Europe in containers. He also owned a jewellery shop in Dubai. It was not in issue that these businesses generated a substantial turnover. The businesses were conducted in cash and in evidence the appellant explained that this was done in order to avoid paying the appropriate tax.

It was the prosecution case that between 1 May and 29 June 2000, the appellant travelled to the United Kingdom on a number of occasions to collect substantial quantities of cash, which it was alleged had been generated by a drugs conspiracy. His involvement with others in dealing with the proceeds of drug trafficking in this way was the basis of the count of conspiracy of which he was convicted.

On 28 June 2000, he was arrested at Heathrow Airport when he was found to be in possession of cases containing over half a million pounds in cash. At least a quarter of the notes were contaminated with higher than usual levels of cocaine and other drugs. This alleged dealing with the proceeds of drug trafficking gave rise to the second count of which he was convicted.

It was the defence case that the appellant was a legitimate businessman, whose trips to this country had no connection with any drugs conspiracy. He accepted that he had on occasions removed funds from the United Kingdom and that he was attempting to remove the very large sum found in his possession on 28 June 2000, but all such sums were family money or funds arising from his orthodox commercial activities.

In order to establish the conspiracy the Crown relied upon events from the end of May 2000 to the date of the appellant’s arrest. On 27 May 2000, a Dutchman called Heemskerk, and others, were arrested in London. At the time Heemskerk was delivering £150,000 in cash to another man called Brownlie at a public house in Mayfair. A flat occupied by Heemskerk at 47 Kendal Steps, St Georges Fields, London W2 was searched. This flat had been rented by a woman of Middle Eastern appearance, who gave the name El Mandani. In the flat police officers found 8 suitcases. They included two large hard shell suitcases. Each had an airline baggage tag in the name El-Delbi. They related to a British Airways flight from Dubai to London Heathrow, which had arrived earlier that morning. One of the cases was empty and the other contained a smaller black canvas suitcase which contained £459,000 in Bank of England and Bank of Scotland notes. Another of the cases in the flat contained a bank note counter and another eleven holdalls and rucksacks. 7 of the 8 suitcases were found to contain traces of cocaine as were a holdall and a suit carrier also found in the flat.

On 14 December 2000 at Guildford Crown Court Heemskerk and others were convicted of conspiring to supply cocaine. Heemskerk was sentenced to 12 years imprisonment.

As a result of the appellant’s apparent connection with the cases that had been found, enquiries were made into his activities. Airline records and passport entries showed that he had travelled to the United Kingdom from Dubai on a number of short visits.

At trial it was agreed that two cases seized from 47 Kendal Steps bore the appellant’s name and had been brought into the United Kingdom from Dubai by him on 26 May 2000. Airline records showed that they weighed 25 kilos. That same day Heemskerk was seen with a person matching the appellant’s description walking through Kendal Steps carrying heavy luggage.

On 27 May, the day after his arrival, the appellant left the United Kingdom from Heathrow airport for Dubai. He had two different pieces of luggage with him weighing 57 kilos. It was the Crown’s contention that this was another money run.

Between 2 and 25 June, the appellant made a series of other short trips to the United Kingdom. On 2 June he arrived at Heathrow in the evening with two pieces of luggage weighing 50 kg. There was no airline evidence of his return but his passport showed that he had re-entered Dubai on the following day, 3 June. Four days later he returned to this country arriving at Heathrow at 6.20 a.m. with one piece of luggage weighing 10 kg. His passport showed his re-entry to Dubai the following day, 8 June. Two days after that, 10 June, he again made a journey to the United Kingdom arriving from Dubai at Heathrow again at 6.20 a.m. He had with him two pieces of luggage weighing 19 kg. Four hours later, he checked in at Heathrow to fly back to Dubai. He now had three pieces of luggage weighing a total of 68 kg. His passport revealed that he was back in this country on 16 June on this occasion arriving at Stansted. British Airways records show that he left the same day bound for Dubai with two pieces of luggage weighing 40 kg. On 18 June, his passport showed another arrival in this country on this occasion at Gatwick and his return to Dubai, the following day 19 June.

On 25 June, three days before his arrest on 28 June 2000, the appellant again entered the United Kingdom arriving at Heathrow from Dubai with two pieces of luggage weighing 22 kg. Customs officers examined his luggage. He had a hard-side suitcase which was empty save that inside it was a soft-sided case, which was also empty, and a black soft sided suitcase inside which was another suitcase containing items of clothing. The appellant was seen to go to the left luggage office to place his baggage and then to go to the underground station. A hotel invoice found in his possession on his arrest suggested that he stayed that night at the Comfort Inn, Finsbury Park. His passport revealed that he arrived back in Dubai on 27 June.

The following day, 28 June, he checked in at Dubai Airport at 3.57 a.m. for a flight back to Heathrow. He arrived at 1.45 p.m. He was seen pushing a trolley on which was a blue soft-sided trolley bag and a computer bag. He was stopped by a Customs Officer and told him that he was making a one day trip to the United Kingdom, and that he was travelling to Amsterdam the following day. The officer searched the trolley bag, packed tight inside it he found there to be a black Samsonsite hard-sided suitcase, which was itself empty. He told the Customs Officer that he had a large family and needed the baggage for them. Having cleared customs he remained at the airport but he was kept under observation.

At about 3.30 pm he was seen to meet up with another man. They went into a lift and emerged with each other’s cases.

Subsequently the appellant bought a ticket for a flight to Dubai and checked in two cases. Customs officers stopped him and it was at this stage that the examination revealed that his cases contained the sum of over half a million pounds, the subject of the second count in the indictment. The appellant when first asked what his luggage contained, claimed that it was textiles. When the officer revealed that they had been opened and the money found, he explained that the money was in connection with his business and had come from his associates in Nigeria.

The Crown also called evidence to establish the use by the appellant of false identities on his trips to London. A London hotel receipt for 7 June 2000 in the name of A. Morney was produced and the appellant admitted when he gave evidence that it was his and that he had given a false name to the hotel.

In his evidence at trial, the appellant said that he did not keep business records because he did not want any difficulties with the tax authorities. The only documents which he had were Bills of Lading and he agreed that neither his name nor that of his company ever appeared on any of his paper work. He said that he did not use banks because in the part of the world where he conducted business it was normal to deal in cash.

He explained that West African currency was not readily convertible and so he would use another member of the Lebanese community, one Ali Saraib, an established money dealer, to convert the currency and transfer it to him via a courier who usually travelled to Holland.

He said that he travelled a great deal using his own name. He dealt with his trip to the United Kingdom on 26 May 2000. He had had an affair in Dubai with a Mrs El Mandani. She lived in Kendal Steps having rented the flat for cash giving false details.

Whilst he was in Dubai Mrs El Mandani’s brother had told him that she was pregnant. He wished to speak to her about this and so decided to go London to see her. Her brother had asked him to take over some luggage for her which he understood to contain clothing and some presents.

Upon arrival at Kendal Steps he met up with a man whom he did not know who took him to the flat. He accepted that the man matched Heemskerk’s description. He left the luggage there and then went to visit his son at his school in Wood Green. He flew back to Dubai the following day.

He denied that his return journey to Dubai on 27 May was a money run as had been suggested by the Crown. His luggage had contained clothing given to him by his former wife, when he visited her in Wood Green. She had lent to him cases which she wanted returned to her and his ex-wife gave evidence in support of this part of the defence case.

The appellant dealt with the events that led up to his arrest on 28 June. Ali Saraib had told him that he had put together money for him (including money from his businesses and money owing to his brother) and that it would be available for collection from a courier who would be in terminal 4 at Heathrow airport at about 3 pm that day. He had brought with him from Dubai his former wife’s cases which he intended returning to her. Whilst at Heathrow, he telephoned Ali Saraib in West Africa who told him that the courier was waiting for him in an airport coffee shop. He and the courier later exchanged cases. He wanted the courier to take the cases he had brought with him to his former wife. He had refused and he had therefore told him to leave them in the left luggage office since he had things to do and he did not want to be “hanging around” with a lot of money. He wanted to return to Dubai as soon as possible.

The appellant agreed that he remained at the airport until 5.30 pm when he bought a ticket for Dubai and not for Amsterdam as he had told the customs officer was his intention. He explained that his contingency plan had been to go to Amsterdam if he had not managed to meet up with the courier. When asked why he did not telephone Ali Saraib before setting off for London, he said that he had forgotten about it because he led a busy life. The money found in the bags was mainly his emanating from his motor vehicle and container businesses. Some of it was his brother’s money. He said that he had had no dealings with the money other than to collect it at Heathrow airport. There was nothing sinister in the fact that he did not give a full explanation when he was arrested. He had not understood the significance of the caution which had been given to him. He did not appreciate that adverse consequences might flow from his saying nothing.

The appellant called witnesses to support his contentions about his genuine business.

The grounds of appeal raised two distinct matters. The first relates to a ruling made by the trial judge when the defendant wished to put himself before the jury as a man of good character. The second relates to the directions given to the jury by the judge as to the inferences that they could draw from the defendant’s failure to mention matters relied upon in his defence when first questioned by the police.

It appears that the appellant had told those acting for him at trial that he had not previously been convicted of any offence. However, at some stage during the trial process, the prosecution informed the defence that whilst the appellant had no convictions in this country, he did have a conviction in Holland for money laundering.

In October 1998, the appellant was convicted by a Dutch court of 2 of 7 counts that he faced. The offences related to money laundering. He was sentenced to a term of imprisonment but since he had been in custody awaiting trial, he had already served the sentence that was imposed and he was released. An appeal was launched against this conviction which was due to be heard in November 1999. The appellant sought and obtained a postponement of that hearing and no doubt largely because of his arrest and detention in this country, there has been no hearing to date of the appeal.

When counsel then acting for the appellant, Mr Woodcock, learnt of the suggestion that the appellant had this conviction, he caused inquiries to be made about it. At a late stage in the proceedings, probably during the appellant’s evidence, counsel raised the matter with the trial judge. Unfortunately, it has not been possible to obtain a transcript of what counsel said to judge initially about the matter. However later the same day after the conclusion of the defence evidence, there is a record that he said to the judge that there was a dispute as to whether the appellant did have a conviction in Holland and that he had spoken to the appellant’s Dutch lawyer who said that he did not. He asked for further time to investigate the matter and was allowed a further opportunity to speak on the telephone to the Dutch lawyer. When counsel returned to court, he indicated that the lawyer was faxing an explanation as to the position. The Judge was anxious to proceed with the trial and it was agreed that prosecuting counsel’s final speech, the next step in the trial, should start, but subject to the character issue being raised at a later stage if appropriate. Prosecuting counsel began his address to the jury and after a short time the court adjourned for its mid-day break. When the court reconvened, counsel for the appellant raised the matter again in the absence of the jury. By this stage counsel had received a fax, which he made available to the judge, which contained the following passage:

“According to Dutch law, a sentenced/convicted person is considered innocent until his or her sentence/conviction is irrevocable and no criminal record is (sic) been made.”

Mr Woodcock said to the judge:

“… in a sense it explains why we’ve been at odds as to whether there has been a conviction. What it says there is that according to Dutch law a convicted person is considered innocent until essentially the appeal procedure is complete, it doesn’t count as a convicted person, no criminal record being made …So it seems to me that if it doesn’t count as conviction as such in Dutch law, it couldn’t be proved as a conviction in this court, and Mr El-Delbi, I would submit, would be entitled to having a description of someone who has no convictions, and a formula of that sort to put before the jury.”

The Judge invited a response from Mr Brompton, prosecuting counsel. He responded:

“I think it's a very difficult state of affairs. It appears that the defendant has been convicted of an offence in Holland, and in the parallel circumstances in this country he would be regarded as a convicted person and a conviction would be recorded on the relevant archives. It appears that the only distinction between the situation in this country and in the Netherlands is that it is not recorded or archived as a conviction until the appeal procedure is over. I find it difficult to see how in those circumstances the defendant could be entitled to the good character direction, even if it were to technically be correct to say that there was not a conviction recorded against him in the Netherlands.”

After hearing from prosecuting counsel, the judge said:

“I’m bound to say that in terms of an instant reaction to it, I don’t feel happy about misleading the jury, because this information does not exactly suggest, as I say, he’s of good character.”

Mr Woodcock responded:

“I didn’t ask for that.”

The judge made clear that he was equally unhappy for the jury to hear that the Dutch case related to money laundering because of the possible prejudicial effect.

Later there was the following interchange:

“Mr Woodcock: So I don’t seek an assertion that the defendant is of previous good character, and Your Honour will probably, in the light of the defendant’s own evidence about tax evasion or avoidance, I always get the two confused

Judge: No, avoidance is legitimate, paying as little tax as you have to, evasion is not paying what you should be.

Mr Woodcock: But on that basis Your Honour probably thought it would be pushing the character direction in any event, but I don’t seek that. But what I think I am entitled to is the direction as far as it can go, in terms of Mr El-Delbi is a person without previous convictions.”

With every respect to Mr Woodcock, we do not fully understand the position that he was taking. The only relevance of no previous convictions would be to establish that he was a man of good character so as to invite the jury to take that into account when considering his credibility and also the likelihood that he would have committed the offences with which he was charged. An assertion that a person has no previous convictions is undoubtedly an assertion to establish good character. Yet Mr Woodcock was acknowledging that he could not expect the court to treat the appellant as if he were a man of good character.

The judge then indicated that he thought the trial should proceed with prosecuting counsel’s speech which was not affected by the issue and he would give time later for further discussion. When that stage was reached, the judge invited counsel to see if they could reach agreement as to a form of words that could be used indicating that if they could and it did not involve misleading the jury he would probably agree it.

When they returned, counsel for the prosecution said:

“I’ve discussed the matter with my Learned Friend. I have said to him obviously if he was satisfied with that the defendant could be described as a man who has been convicted on one occasion of an unspecified offence in relation to which appeal proceedings are pending. He doesn’t wish to do that and I understand the reason, of course. But having said that, it seems to me that having regard to the fact that he has been convicted of an offence by a Dutch court, it would be inappropriate to mislead the jury by suggesting that he had never been convicted of an offence and then going onto give what must inevitably be a good character direction in those circumstances.”

Mr Woodcock responded:

“I repeat in a sense what I said before, in Dutch law it’s a procedure whereby the conviction doesn’t count as a conviction until the appeal process is completed. It wouldn’t count as a conviction in Holland; it shouldn’t count for these proceedings. Therefore, it is not misleading to say he is a person without convictions, that being a term of answer in law. Now I indicated to my friend that I’d be happy with a formulation to say he is someone without a criminal record. But other than repeating everything that we’ve said before, it’s becoming very circular, it seems a different procedure in Holland. But bearing in mind, as I understand it, that in a sense there’s mutual recognition of each other’s judicial systems, if it doesn’t count as a conviction there it shouldn’t count for these proceedings either.”

The judge commenced his ruling by saying:

“The problem arises in relation to any direction that might be given about the character of the defendant, Mr El-Delbi.”

The judge then recited the factual background and then continued:

“It seems to me, that the one thing that would be inappropriate, would be to mislead the jury, by indicating that Mr El-Delbi had never been in trouble with the law.

It seems to me, that it would be legitimate, to indicate, that there is only one matter involving his appearance in a criminal court, which is, presently, the subject of an Appeal. That, it seems to me might well be acceptable, but it seems to me, to give a ‘good character’ direction, when it is known that he has, in fact, been the subject of a first instance conviction, which may, or may not, be confirmed in due course, to give the impression of good character then, would be wrong. It would be active misleading of the jury.

It seems to me, therefore, that the course that is open to the defence, is to indicate there is only one matter known, involving an appearance in a criminal court, and that that is currently the subject of an appeal process. I might even consider a different formula, saying that there is a matter which is still not finally concluded, or something of that sort. I do not think it can be right to give the impression of positive good character.”

The judge concluded:

“I, therefore, rule, that if the defence wish, it would be appropriate for an admission to be made that there is a criminal matter in Holland, that is not finally disposed of, and that Mr El-Delbi is of, otherwise, good character. I do not propose to permit anything further than that.

I should say, of course, that if the defence wish to put the entire matter before the jury so that they understand the full position, they would be entitled to do that, but I rather think they would not.”

Mr Woodcock considered that revealing in any way that there was another matter, whatever the formula employed, was potentially more damaging to the appellant’s case then making no reference at all to character. Hence following the judge’s ruling, and having consulted the appellant the matter was taken no further. Thus, there was no evidence on the subject before the jury and accordingly the judge gave no character direction of any kind.

As we understand the position the prosecution were prepared if the trial judge considered any matter should go before the jury to make a formal admission in the terms approved by the judge. Their objection was to the making of an admission which would create an impression which misled the jury.

The grounds of appeal in respect of this matter contend

The first ground which was drafted without the benefit of transcripts of the application made by Mr Woodcock cannot be justified. Mr Woodcock was not seeking to establish that the appellant was “a man of good character without qualification”. He merely wanted to establish that the appellant was someone with no previous convictions and in the exchange we have set out above he seems to have been acknowledging that he could not put the appellant forward as a man of good character. The ruling of the judge was that it would be wrong to assert that he was a man of no previous convictions in the circumstances without any reference being made to the Dutch finding of guilt.

Since the evidence when concluded was silent on the appellant’s character, it seemed clear to us that the judge was right not to give a good character direction. Without that evidential basis, there was nothing upon which the jury could be directed. It followed that the essential consideration under this heading was whether the judge was right to rule as he did. We did not see this approach as in anyway inconsistent with the decision of this court in Warden (unreported, 6 July 2000) to which we were referred in which because of the judge’s ruling the appellant was not recalled to give evidence of good character and the court concluded that the ruling was wrong and deprived the appellant of a good character direction that should have been given.

Mr Spencer QC on behalf of the appellant, having had an opportunity to see the transcript of the exchanges between Mr Woodcock and the judge, whilst accepting that Mr Woodcock’s position was far from clear from the transcript, submitted that he was really asking for an admission to be made that the appellant was a man with no previous convictions and that this should then have led to a qualified good character direction. He argued that the judge was wrong not to indicate that the prosecution should make such an admission without any reference to the matters in Holland and that this failure led to the appellant being deprived of the direction to which he was entitled.

Before reciting the argument advanced by Mr Spencer QC, it is necessary to record further information made available to this court about the position in Dutch law, which was not before the trial judge. A statement has been obtained from Professor Reijntjes, head of the Criminal Law and Criminology Department of the Open University of the Netherlands. He explains that in Dutch Criminal Law the presumption of innocence “is applied in such a manner that no effect whatsoever may be given to it, and no conclusion may be drawn from a decision by a criminal (examining) magistrate or a criminal court, unless appeal against this decision is or has become impossible. Exceptions to this general rule may only be made by statute law”.

The Professor also explains:

“In appeal a criminal case will be adjudicated as is it were totally new, although some procedural acts do not have to be repeated and the court may in certain circumstances take into account what happened in the first instance – but it is never allowed to take what has been decided in that instance into account. The decision made by the court of first instance (conviction or not) may have no influence at all (but a higher penalty may only be imposed unanimously).”

He concludes:

“The conclusion has to be that, although no provision in statute law states this in so many words, under Dutch criminal law it is not allowed to derive a conclusion regarding the character of a person from his conviction for an offence, until his conviction has been irrevocably upheld on appeal or the time for lodging an appeal has elapsed.”

Mr Spencer’s argument can be put very shortly, namely if the conviction is not to be treated as a conviction in the country where it is recorded until the appeal is heard, it should not be treated as one in this country. The status of a foreign conviction must be assessed by reference to the applicable foreign law. Thus since the finding of the Dutch court, which was the subject of appeal, did not rank as “a conviction”, the appellant should have been entitled to refer to himself as a person with no previous convictions without exposing himself to any reference to the Dutch proceedings. Once he had been established as a person “with no previous convictions”, he was entitled to a good character direction, although Mr Spencer accepted that the judge may have been entitled to limit the direction, perhaps only giving the credibility limb of such a direction and not the propensity limb.

Mr Spencer submitted that the position has to be equated to the situation where a person wishes to put himself forward as of good character but faces other criminal proceedings in this country (or indeed elsewhere) which have not yet been heard. In Warden this court had to consider such a situation and concluded at paragraph 29:

“ … we do not think that, in the absence of special circumstances which we do not at present envisage, the existence of outstanding criminal charges which have never been admitted or proved can possibly be regarded as a case where it is clear … that the defendant has been guilty of criminal behaviour similar to the offence charged. We further consider that, in a case where credibility is heavily in issue, as it was here, a favourable character direction of some kind is of great importance to the appellant.”

The Court in that case further rejected the prosecution’s submission that if the appellant had asserted she had no previous convictions, they could have sought and obtained leave to cross-examine her about the subject matter of those charges. Potter LJ giving the judgment of the court said (at paragraph 34):

“In regard to that application for leave, the judge would have been bound to have borne in mind the question of the relationship between prejudice and probative value involved in respect of such a cross-examination. The only argument which could have been advanced would have been either that the Crown sought to establish or suggest the appellant’s guilt of the offence, in which case the judge would have been obliged to give her advice as to self incrimination.”

Mr Spencer submitted that direct authority on the relevance of foreign criminal proceedings to good character is surprisingly sparse. He drew attention to McGregor (1992) 95 Cr App R 240. That was a case where a defendant had entered a plea of nolo contendere to the charge she faced in a court in Florida. However the plea involved no admission of guilt nor was there any adjudication of guilt by the court and as such it seems to us that it cannot in any way be equated to the present case.

Mr Spencer further commented on an analogy drawn by the judge who compared the situation to that where a defendant had been convicted before the magistrates but had an outstanding appeal to the Crown Court. He submits that this is a quite different situation because in English law the finding of guilt stands as a conviction unless and until it is overturned on appeal whereas in Dutch law the situation is quite different.

It was submitted, therefore, that since there was no irrevocable conviction recorded in Holland, the appellant ought to have been able to assert that he had no previous convictions without the jury needing to hear any more; that the judge’s ruling wrongly placed defence counsel in a cleft stick, and that the appellant was, therefore, effectively deprived of a good character direction, which might have had a significant effect in this case. Accordingly it was argued that the resulting conviction is unsafe.

Mr Brompton on behalf of the prosecution responded that the information from Professor Reijntjes does not detract from the fact that the appellant had recorded against him a finding of guilt that had the characteristics of a conviction within the meaning of the Criminal Evidence Act 1898 (“the Act”) save that it was revocable by an appellate court and as a result did not rank for the purposes of Dutch law as ‘a conviction’ until the appellate procedure was exhausted. He submitted that this qualification does not prevent the adjudication constituting a conviction within the meaning of the Act. Thus if the appellant had in evidence asserted his good character or lack of previous convictions, the prosecution could, and should, have been allowed to establish the Dutch adjudication.

Alternatively it was argued that if the finding was not a conviction for the purpose of the Act, the appellant could nonetheless have been cross-examined as to the finding since questioning as to character is not limited to previous convictions.

Counsel drew attention to Marsh [1994] Crim LR 52 where a rugby player was charged with inflicting grievous bodily harm on another player in an off the ball incident and was held to be liable to cross-examination under section 1(f)(ii) of the Act about his disciplinary record for violent play on the rugby field. Such disciplinary findings were in no sense convictions but nonetheless could properly be raised in cross-examination as to character.

Mr Brompton recognised that the courts are reluctant to entertain cross-examination as to a charge that has not been determined but contends that this is for two distinct reasons. First a mere allegation is not relevant because it establishes nothing (see Maxwell v D.P.P. [1935] AC 309). Second cross-examination about a charge would tend to circumvent a defendant’s right to silence in respect of the other matter charged (see R v Smith 1989 Crim LR 900). However where, as in this case, there has been an adjudication by a properly constituted court it is submitted neither of these considerations apply.

In the further alternative, it was submitted that if an assertion of good character had been made, the prosecution could have cross-examined on the underlying facts which in the terms of the Act would be “questions tending to show that he had committed … any offence”. In so far as the judge would have had a discretion to exclude such cross-examination, it is argued that the fact of the Dutch court’s finding of guilt would have been a powerful consideration in favour of permitting such cross-examination.

Mr Brompton summarised the prosecution’s position by reference to the observations of Lord Steyn in R v Aziz & others [1995] 2 Cr App R 478 at 488 where he said:

“I would therefore hold that a trial judge has a residual discretion to decline to give any character directions in the case of a defendant without previous convictions if the judge considered it an insult to common sense to give directions in accordance with Vye.”

He submitted that to allow the jury to believe that this was a man of good character would in all the circumstances be to mislead them and that the giving of a good character direction would in such circumstances be an “insult to common sense”.

In reaching a conclusion on these competing arguments, it is perhaps right to note at once that the matter is complicated by the fact that the information necessary to make the application to the judge was not available until a late stage of the trial. That is not the fault of anyone other than possibly the appellant because if he had fully informed his own lawyers of the position they could have investigated the matter earlier. We think, however, that the appellant should be in no worse and no better position than if the information about the Dutch proceedings had been fully understood at the time when he was due to go into the witness box and start his evidence. If that had been the situation Mr Woodcock would have been able to raise the matter with the judge and ask for a direction that if the appellant asserted in evidence that he had no previous convictions, the prosecution should not have been able to raise the matters relating to Holland. That application would clearly have been opposed by the prosecution and the judge would have been required to rule. The application, although directed to the end of securing some sort of good character direction, would not have directly raised the nature of the direction that the judge would have given and the judge would have made his decision as to what, if any, direction was appropriate before he summed the case up to the jury. It is clear that the judge would have ruled that if the appellant asserted that he had no previous convictions, he would have permitted some degree of cross-examination about the Dutch proceedings and/or the underlying facts since he viewed the bald statement that the appellant had no previous convictions as over favourable to the appellant to the point where it ran the risk of misleading the jury. It would then have been for counsel for the appellant to weigh up the advantages and disadvantages to the appellant of asserting that he had no previous convictions, when this would expose him to some, albeit very limited reference to the Dutch proceedings. In considering the course to take Mr Woodcock would inevitably have had to recognise that apart from any other consideration that his client’s explanation for his conduct that led to the matters which the jury were considering, amounted to an admission of criminal conduct, namely tax evasion, albeit not likely to strike the jury as being as reprehensible as the laundering of drug money. Mr Woodcock, himself, clearly recognised that these admissions had to be seen as bound up with the appellant’s credibility. There is no reason to think that Mr Woodcock would have done any different from that which he actually did, namely decide that if there was any mention of the Dutch proceedings it was best to leave character well alone.

Thus it seems to us that the real issue in this case is not what direction the judge should have given but whether the judge was entitled to rule that there had to be some reference to the Dutch proceedings if the appellant was to assert that he was of good character to the extent of having no previous convictions. It was this ruling that was decisive and the judge was never asked to indicate what if any direction he would give to the jury if the defendant chose to put his character in issue in the way that was open to him on the judge’s ruling. It is clear from what was said that the judge would not have considered a full good character direction appropriate but it is not obvious what course he would have taken if character had been raised in the way that he ruled permissible and he was not asked by counsel to give an indication in this respect.

In considering these matters, it is perhaps helpful to remember the circumstances in which section 1 of the Act (which deals with cross-examination of an accused as to character) came to be enacted. Until the Act came into force, remarkable though it would seem to the modern lawyer, a defendant was not entitled to give evidence in his own defence. When that prohibition was swept away, if the legislation had remained silent on the issue, a defendant would have been placed in precisely the same position as any other witness. He would, therefore, have been liable to cross-examination on any matter going to his credit. Parliament clearly considered that such a situation would be unfair and in general provided that such cross-examination should not be permitted. However in certain circumstances, such a shield without qualification for the defendant was seen as being unfair to the prosecution. Accordingly in defined circumstances, the defendant would, like any other witness be liable to be asked questions “tending to show that he has committed or been convicted of or been charged with any offence”. He would be no worse off than any other witness but equally he would be in no better position. One of the exceptions to the general rule (contained in section 1(f)(ii) of the Act) was when the defendant sought “to establish his own good character”.

There can be no doubt that this was what the appellant was seeking to do, but he did not wish revealed to the jury the whole picture. The whole picture would have shown that following a hearing before a properly constituted court, he had been adjudged guilty of similar conduct to that with which he was charged at trial.

Our instinctive reaction is that if the outstanding appeal enabled concealment from the jury of these facts so as to lead to a direction as if they did not exist, it would in Lord Steyn’s words be an “insult to common sense”. The trial judge was, therefore, right to be cautious about permitting such a situation. It is clear that he was equally alert to the potential for prejudice arising from giving the jury the fullest information. He was not, for example, prepared to have the jury told that the finding of guilt in Holland was for a similar offence and he was prepared to have the proceedings described in as neutral a fashion as possible with the assertion that the proceedings were subject to appeal or had not yet been fully concluded. Again our instinctive reaction is that this was a proper balance to avoid misleading the jury whilst being fair to the appellant by keeping a tight rein upon any potential prejudice. The appellant, on advice, chose not to go down this path and that was a choice which was entirely for him. If he had elected to take the course which the judge found to be acceptable, the judge would have had to consider what direction, if any, was appropriate as to character. We find it impossible to speculate what directions he would then have concluded were required. In any event the appellant had given evidence of his own dishonest conduct in relation to his tax affairs. Thus it seems to us that the essential question for us to decide is whether our instinctive reaction to the judge’s ruling is right in law.

It was not suggested that the mere fact that an appeal had been lodged against a conviction would automatically require a judge to exercise his discretion and prevent cross-examination about a conviction following an assertion of good character. If the conviction was recorded in this country, there is no reason to think that the law distinguishes between an appeal to the Court of Appeal following conviction on indictment and an appeal to the Crown Court from a conviction before the Magistrates. Thus it does not seem to matter whether the appeal was by way of review or by way of rehearing. Thus the only real distinction between the present case and an English conviction is the way in which the appealed finding of guilt is treated by Dutch law.

If the effect of section 1(f) is that a defendant is placed in the same position as any other witness if he asserts his good character, then it is pertinent to ask whether a question would be permitted of a witness who was not the defendant. Clearly if the question did not satisfy the relevance test, it would not be permitted. Thus questions about a mere allegation made by someone would not generally satisfy the relevance test and would not be allowed to be asked of any witness.

It is on this basis that questions about a charge will generally not be allowed in relation to an accused person since at the stage of charge, they are no more than an allegation made by the prosecuting authorities. However, once there has been an adjudication by an independent body that has heard both sides and reached a conclusion, the law considers that the matter has gone beyond the situation of a mere allegation and has become one where the questions can properly be asked about it.

Again at the stage when there is no more than a charge, the courts are naturally anxious to protect the integrity of the process relating to that charge. A witness asked about a charge may feel the need to respond to that charge thereby losing his right to silence in respect of the charge. Once, however, a trial has taken place in respect of the charge, such sensitivity no longer militates against questions. The witness will already have had the opportunity to put forward his answer to the charge in the way that he wishes to deal with it. His defence will have been made known publicly at the trial.

Thus it seems to us that those considerations which would normally lead to the exclusion of questions about a charge do not apply to a situation such as that in this case.

It is to be noted that the prohibition that was to be lifted in the excepted circumstances was one on asking questions “tending to show that he has committed or been convicted of or been charged with any offence” and not merely a prohibition of questions about convictions. Clearly Parliament contemplated the possibility of questions in circumstances where there was no conviction as such.

If the wording of the statute limited cross-examination to convictions, then it might very well be necessary to address the issue whether an appealed conviction in Holland was to be treated as a conviction in this country for these purposes. However, whether or not the finding of the Dutch court is “a conviction” for these purposes, it seems to us that it certainly comes within the broader category of matters about which questions could properly have been permitted both as to finding of guilt and as to the underlying facts as suggested by the prosecution. Nor was there any reason of law or policy to prevent such questions as would be the case with a mere charge. The appellant was properly afforded the opportunity to choose whether to say nothing or whether to give the jury information that would not mislead them by painting a false picture but which would nonetheless minimise any prejudice he might suffer. Accordingly we are satisfied that the judge’s ruling was correct. 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. This ground of appeal therefore failed.

The second ground of appeal related to the fact that when he was interviewed the appellant chose not to answer questions. In his summing up the judge gave directions as to the inferences that could be drawn from his failure to mention matters.

It was contended that his directions were inadequate in three distinct respects:

The appellant had in evidence explained why he did not answer questions. He explained that before he was silent he had an opportunity to speak with his solicitor and that he was told something to the effect of “You’ve got a choice – you’ve either got to answer everything you’re asked, or you answer nothing”. He said that by that stage it was obvious that whatever he said the Customs Officers would not simply let him go and catch the next flight to Dubai since he was in no position to prove that what he was saying was right and so he decided to make no comment to the questions. He agreed that he had been cautioned but he said that he had not appreciated the significance of the warning that inferences might be drawn against him if he did not mention matters upon which he later relied. He said this was because of language difficulties but he accepted that at the time he had said that he understood. He also contended that he did not want the tax authorities in any relevant country to learn of his business affairs.

All aspects of this explanation were properly summarised by the trial judge and he contrasted them with the prosecution contentions in this respect saying:

“The Crown say this is not, in fact, the true position. He did appreciate what the position was, that if he did not give his account of himself now then that was because he wanted to know in full detail just what the Crown had got against him, so that he could then, if you like, adjust his story to fit factual matters that he could not argue with – I mean, to know whether he had been observed, what documentation he had got, or whatever.”

Later he continued:

“I mean the Crown say that there is no reason why he should not have (given at least in broad detail all the material he is putting before you), no valid reason except, of course, he had not had a chance to prepare his story.”

The judge instructed the jury how to resolve these competing contentions saying:

“And I hope I have made absolutely plain to you, it is for the Crown to establish that, if you like, there is no good reason why he was not answering questions.”

When the whole of the relevant passage is examined, we can see no possibility that the jury would not have understood that it was only if the Crown’s contention was right that the appellant did not answer questions because he “had not had a chance to prepare his story”, that they could draw any inference against the appellant. This in the context of this case was precisely the same as saying that they could only draw an inference if satisfied that the appellant failed to mention the facts because he had no answer then or none that would stand up to scrutiny.

The appellant did not assert that he did not answer questions on the advice of his solicitor. He explained what the advice was and that advice was that he had a choice whether to answer questions or not but in effect it would be unwise to answer some questions but not others. Of the two options, it was not suggested that the solicitor favoured one rather than the other and so the choice between the two was entirely that of the appellant with no reliance on advice tendered by the solicitor. The judge properly reminded the jury of this aspect of the appellant’s evidence and we do not see in the circumstances that more was required of him. This was not a case in which the appellant suggested that he had kept quiet when he would otherwise have mentioned matters but for the advice he had received.

So far as the appellant’s understanding of the caution was concerned, the judge reminded the jury of the appellant’s evidence. It was for the jury to decide the truth or otherwise of his assertion that he did not appreciate the significance of what was said to him, particularly as he had said at the time that he did understand what was said. It is clear from the whole of the judge’s directions that if this might have explained his failure to mention facts, no inference adverse to him was to be drawn. We do not see that there was any greater requirement on the judge in this regard and we are confident that the jury will have understood the relevance of these matters to their deliberations.

For these reasons we rejected these grounds of appeal as well. We considered the matter in the round and could see no reason to doubt the safety of the convictions. The evidence in this case was in our view overwhelming. Accordingly the appeal against conviction failed.

The sentence imposed was one of 12 years imprisonment. Mr Spencer pointed to the fact that the maximum for such an offence is 14 years and contended that a figure so close to the maximum was manifestly excessive.

The judge made reference to the case of Simpson [1998] 2 Cr App R (S) 111. Simpson was one of several defendants but was not the most seriously involved. He pleaded guilty to money laundering the proceeds of drug trafficking and was sentenced to 11 years which was upheld by the Court of Appeal. Mr Spencer points out that Simpson’s guilty plea was said not to justify a discount of 3 years and hence he submits that following a trial, the sentence would have been 12 or 13 years. Simpson’s role in the conspiracy was said to be “crucial and pivotal”. He had made 5 trips to Ireland laundering a total of about £2.5 million.

Mr Spencer contrasted the present case and contends that it was not as serious in that it did not involve such large sums of money, so many trips, or evidence of any such critical role.

He further pointed to the fact that Heemskerk. and another man, Brownlie, involved in the drugs conspiracy that generated the money laundering by the appellant themselves only received 12 years sentences following trial. Each was said to be “a long way up the chain of supply”.

Mr Spencer further pointed to Sabharmal [EWCA] Crim 392; [2001] 2 Cr App R (S) 81 where the appellant also received 12 years for money laundering the proceeds of drug trafficking. In that case the sums involved were many times greater, in excess of £50 million.

We thought that there was merit in the arguments advanced by Mr Spencer. Those who launder large sums which are the proceeds of drug trafficking play an essential role in enabling the drugs conspiracy to succeed and as such can expect severe sentences comparable to others playing a significant role in the supply of drugs although it has to be borne in mind that Parliament has provided different upper limits to a judge’s sentencing process for dealing in Class A drugs (life imprisonment) and money laundering (14 years). There will be no direct arithmetical relationship between the sums recovered by the Customs or shown to be involved but nonetheless sentences very close to the maximum have to be reserved for cases where the evidence establishes laundering on a very large scale. The sum found to be on the appellant showed that he was dealing in significant sums but not for example on the same scale as in Sabharmal. We thought some distinction was called for.

In our judgment the proper sentence on the appellant was 10 years imprisonment and 12 years was manifestly excessive. We therefore allowed his appeal against sentence and substituted on each count concurrent sentences of 10 years imprisonment.