Saik v R

The appellant, Abdul Rahman Saik, appeals by leave of the Full Court against conviction for conspiracy to launder the proceeds of crime. He pleaded guilty to this offence on 18 October 2002 in the Crown Court at Kingston-Upon- Thames and on 22 October 2002 was sentenced by Judge Binning to 7 years imprisonment. He is now aged 39 and was of previous good character. He also applies for leave to appeal against sentence and this application has been referred to us as the Full Court hearing his conviction appeal.

The appellant’s plea was tendered on a very specific basis, which was committed to writing and signed by him. The document reads:

“1.

The defendant Saik pleads guilty on the basis of laundering money which he suspected was the proceeds of crime.

2.

He only became suspicious from about December 2001 when the number of transactions became more.

3.

As to the matrimonial home, the Crown concede that this is a joint asset and that there is no evidence, to date, that it is funded in any way from his business activities at the bureau.”

The third paragraph has no obvious relevance to the basis of plea. We shall return later to the circumstances in which this provision came to be incorporated in the document.

It is necessary at this stage to set out in full the count, which was count 3 in a 16 count indictment, and the only one that involved the appellant. It alleged: “conspiracy to convert the proceeds of drug trafficking and/or criminal conduct contrary to s.1(1) of the Criminal Law Act 1977.” The particulars of offence read:

“German Lemos, Abdul Rahman Saik and Jose Alvarez between the 1st of May 2001 and the 1st of March 2002 conspired together and with persons unknown to convert property, namely banknotes for the purpose of assisting another to avoid prosecution for a drug trafficking offence and/or a criminal offence or avoiding the making of or the enforcement of a confiscation order, knowing or having reasonable grounds to suspect that such property in whole or in part, directly or indirectly, represented another person’s proceeds of drug trafficking and/or criminal conduct.”

There were other defendants. It is unnecessary at this juncture to set out the offences to which each pleaded guilty. The sentences were Lemos 8 years imprisonment, Ruiz 6 years, Cano and Bickenbach each 3½ years; Alvarez and Di Lemme each 3 years. An eighth defendant Funtez-Benitez was later acquitted of importing cocaine.

The main ground of appeal is that the appellant pleaded guilty because he was given erroneous advice in two respects, first the length of sentence he was likely to receive and second as to the security of his matrimonial home in confiscation proceedings.

The second ground of appeal is that reasonable grounds for suspicion or indeed actual suspicion (the basis on which the plea was tendered) is inadequate to found a conviction for conspiracy to money launder and that the plea tendered by the appellant was to a non-existent offence.

Because his grounds of appeal involve criticism of his former legal advisers, the appellant has waived privilege. We have detailed notes made by his former legal advisers as well as their observations. We have not, however, felt it necessary to hear oral evidence from them apart from Mr Paley.

The Crown’s case was that the appellant and his co-accused formed a major money-laundering organisation converting the proceeds of sale of Columbian Cocaine into US dollars, which were then taken overseas, principally to Columbia. Lemos was at the heart of the conspiracy, as a knowing party to the exchange of over $U.S8m between May 2001 and February 2002. The appellant was the manager of the Sirafa Administration Bureau near Marble Arch where all the money was exchanged. There was observation evidence linking Lemos to the appellant and also evidence of telephone links between Lemos and Ruiz who was Lemos’ friend and also a courier. Cano, Di Lemme and Bickenbach were other couriers employed to take the money back to Columbia. Alvarez’s job was to keep the money for passing on to Lemos. A great of deal money was recovered when arrests were made on 28 February 2002.

The Sirafa Administration Bureau was owned by the appellant’s sister and another person. The appellant was described in the annual report as the company secretary. He appeared to be the only person who worked there. It was not, on the face of the books, a successful business or one that did much trade. In the year ended March 2002 the turnover was around £1,000 per week with a profit of about £8,000 per annum. In 1999 the appellant had commenced buying small amounts of foreign currency from a wholesaler, but in October 2001 his pattern of dealing changed and he started buying large quantities of $U.S100 bills. From December 2001 he exchanged some $U.S8m. Many of his meetings with Lemos were observed by surveillance officers. Most were not in the bureau but in Lemos’ car in the Edgware Road or other local streets where sacks containing sterling were seen. Then there would be a further transfer from the appellant to Lemos of $U.S. The Crown’s case was that from December 2001 the appellant knew exactly what was going on but made no report to the authorities of suspicious transactions, as he was obliged by law to do.

When arrested the appellant accepted he had engaged in transactions with Lemos but said he thought he was an honest businessman. He denied any part in a conspiracy.

The appellant pleaded guilty on Friday 18 October. Pleas of guilty had been entered the previous Tuesday (15 October) by Bickenbach and Alvarez. Di Lemme and Cano also entered pleas of guilty on the Friday. Lemos and Ruiz had pleaded guilty on the Thursday (17 October). Sentence was passed on the following Tuesday (22 October).

During the week beginning 14 October there was a good deal of toing and froing between the prosecution and the defence to see if pleas acceptable to the Crown could be negotiated whilst the judge waited patiently to start the trial. In the event all the defendants bar Fuentez-Benitez, who was subsequently tried and acquitted, tendered acceptable pleas of guilty at some point during that week. It is necessary to look in a little detail at how events unfolded with regard to the appellant. He was represented by Daniel Janner Q.C and William Saunders. Stephen Paley and John Williams were representatives of his solicitors.

The trial had originally been listed to begin on the Monday of the previous week, 7 October, but was adjourned due to a family bereavement affecting counsel for the Crown. The appellant saw leading counsel, Mr Janner, that day, who told him that prosecution counsel had been in touch to say the Crown might be prepared to accept a deal. The appellant’s response was that he was going to contest the case to the end. But he said:

“It’s up to you. If you want to see what is on offer, then that is up to you, but I am pleading not guilty.”

He was back at court the following Monday and was advised by his defence team. We heard evidence from the appellant as to what he says occurred and the advice he was given between then and his plea of guilty the following Friday. He has waived privilege as to the advice he was given and we have full notes of what transpired from leading and junior counsel and his solicitors. He called Mr Paley to give evidence before us. Leading and junior counsel were available at court to give evidence if necessary, and had it been necessary the court would have called them so that they could be cross-examined by those now representing the appellant and by the prosecution. In the event it was not necessary because taking the appellant’s evidence at its highest in his favour we are unpersuaded that there is any basis for setting aside his plea of guilty.

Following a prior conversation between leading counsel and counsel for the Crown, the appellant met with his legal team when the following points were made to him. The Crown would accept a plea on the basis that the money laundered was the proceeds of crime rather than drug trafficking; there would be further negotiation about the start date of the appellant’s criminal conduct. The prosecution were contending for October or possibly November.

There was discussion about the pros and cons of pleading guilty. The appellant was told that if convicted he would almost certainly lose his matrimonial home because of the amount of money involved. Leading counsel thought that if he pleaded guilty he would retain his home albeit he could make no promise.

The appellant was obviously interested in the likely sentence. He was advised that after a trial this was 10 – 12 years but if he pleaded guilty there was a chance it would be as low as 3 – 4 years of which he would have to serve half.

Discussions continued on and off all day until 3.20 pm when the judge agreed to adjourn until the next day. He encouraged the parties to try and avoid a trial. During that Monday the defence team discussed with the appellant in some detail the advantages and disadvantages of pleading guilty but it was made absolutely clear that the decision was his and his alone. He was advised that he had a “slim chance of an acquittal.” He was told that if did not suspect the source of the money the position was black and white he should plead not guilty. Pressed about the likely length of sentence and the very wide range between the top and bottom figures that had been mentioned he was told by leading counsel:

“It is however possible that you could get more than 3 – 4 years on a guilty plea, it could be 5; you could get 9 on a fight.”

At one point leading counsel told the appellant he was optimistic because he had some experience of the judge. The sentence could be as low as 3 years. Junior counsel was more pessimistic. The appellant was also told the prosecution would not press for his house to go.

At some stage during the day the appellant said he wanted a week to consider his position. He was told, as was obviously the case, that this was not practicable. The trial was about to start and there was a limit to how long the prosecution would keep their offer open. He was also told that the longer he delayed the less credit he would receive if he did plead guilty. In a multi- handed case there is sometimes benefit to be gained from being the first defendant to plead guilty.

During the afternoon of 14 October two documents were prepared. One was a draft basis of plea, which has not survived. The other was a document confirming the appellant’s instructions to his legal team: this was signed by him, and reads as follows:

“I Abdul Saik have listened very carefully to the advice given to me today by my legal team.

I understand all the various considerations which have been outlined to me.

I am willing to plead guilty on the basis of the basis of plea document which will be read into the court record today.

However, I maintain that, in respect of paragraph 2, I only became suspicious in about January or February but understand that the prosecution say “about December.” My counsel will mitigate on the basis of February.”

In the event the appellant did not plead guilty on 14 October. Mr Paley told us he had real concerns about the appellant’s proposed plea of guilty on 14 October. He thought the situation was quite rushed and wanted to be sure the appellant did not have any regrets. The proposed plea was not therefore indicated to the court on the afternoon of 14 October; the appellant was given the night to think about it. The following morning Mr Paley wished to be sure the appellant was comfortable with what he had signed.

Leading counsel was not present on this occasion but there was a conference that began at 9.30am with junior counsel and the solicitors. The likely sentence was again discussed, as was the fact that if the appellant pleaded guilty he could not go back on it. Junior counsel’s view was that a conviction based on drug money would result in a sentence around 9, 10 or 11 years, whilst a plea of guilty on the basis of proceeds of crime could be around 4. The appellant was told there was no guarantee he would keep the house but there was every chance he would if he pleaded guilty. The Crown had said they would not press for it to be sold on what they knew at the time.

Like many defendants in a similar position the appellant was faced with a dilemma. A plea of guilty would result in a certain prison sentence. A plea of not guilty on the one hand left him with the chance of an acquittal but on the other the risk of conviction and a substantially longer sentence. It is plain that the appellant was troubled also by the risk of losing the matrimonial home and consequently his family’s accommodation. At the end of Tuesday 15 October he had still not decided to plead guilty and he was given a further day to consider his position.

The question of the mental element necessary for the offence to which the appellant eventually pleaded guilty was ventilated before the judge. Behind this lay a possible argument that a higher level of mens rea was required for a conspiracy than for the substantive offence. Junior counsel for the appellant told the judge that lurking in the background was the possibility that the appellant might seek a preliminary ruling on the necessary mens rea. Mr Peters Q.C, for the prosecution, and the judge both observed that suspicion was enough. The judge said this was certainly his view subject to persuasion. No formal ruling was made and the matter was not raised again. It may be that this explains why the terms of appellant’s plea were actual suspicion rather than reasonable grounds for suspicion.

Leading counsel for the appellant was again not present on Wednesday 16 October. There was a further conference with junior counsel and the solicitors that afternoon. During it he was again told there was no guarantee on a plea he would keep the house; it was up to the judge. Sentence was again discussed. Junior counsel appears to have revised his view upwards that on a plea the likely sentence was 5 years. He repeated there was a good chance of a conviction. Again, because he continued to maintain his innocence, the message was emphasised to the appellant that he should only plead guilty if he was guilty; a plea was an admission of guilt. It is also plain that the start date of the guilty knowledge (suspicion) continued to be an important factor for the appellant in offering any plea. He wanted still more time.

Again leading counsel for the appellant was not present and nothing appears to have occurred that is of relevance to this appeal except that Lemos and Ruiz both pleaded guilty.

By this time other defendants had reached agreements with the prosecution. The appellant says he felt betrayed by the terms they had negotiated. This obviously increased the pressure on him to plead guilty. There were several conferences during the day. One issue was the date the appellant’s suspicion first arose. The prosecution was now arguing December; the appellant was adamant that it was not until January/February. The appellant says leading counsel told him the prosecution had said they would not dispute January/February and this meant the judge would have to sentence him on that basis. Not surprisingly the judge was pressing for a decision on the plea by 12 noon. The appellant said in evidence he asked for a letter from the prosecution saying they were not interested in his house. This was not forthcoming. He told us there was a further conference with his legal team at 11.50am. He was told the prosecution was not prepared to provide a letter but Mr Janner did “not believe any court would enforce it”. Nor was the prosecution any longer prepared to accept January/February for the start of guilty knowledge. They were insisting on December. There was then discussion about when in December and agreement was finally reached with the prosecution that they would call no evidence to refute the appellant’s assertion that the relevant date was at the end of December.

The appellant then signed the basis of plea document set out in paragraph 2 of this judgment and an explanatory note which was for the benefit of his legal team. The note reads as follows.

“I Abdul Saik wish to clarify and amend my previously signed statement of 14 October 2002.

1.

I am pleading guilty of my own free will understanding that this constitutes an admission of guilt. That is, that from January 2002, I conspired with Lem(m)os, having suspected that monies he provided to me for exchanging were the proceeds of criminal activity.

2.

Despite the terms of paragraph 3 of the basis of plea, I understand, that there is a risk, that the judge may order confiscation of my matrimonial home. However, I have been advised that in all the circumstances this is unlikely.

3.

I have been advised that although the prosecution will open the case to include December, that mitigation will be on the basis of the end of December January and February (and not just February as indicated in my previous statement). And that the Crown will not challenge that mitigation by way of evidence or otherwise.

4.

I understand that the float will be forfeited in confiscation proceedings, but my counsel will argue to the contrary.”

Both documents were not only signed and dated by the appellant, they were also read over to him, probably more than once. He confirmed that he understood them and that he could not go back on his basis of plea once entered. It was made clear to him by the defence team that this was the best possible deal that could be reached if he was guilty of the offence. We were impressed by the evidence we heard from Mr Paley who was clearly doing his best to give us a dispassionate account of his recollection of events and how he had seen matters at the time. Whereas on the Monday Mr Paley had concerns about the appellant pleading guilty and that it was an equivocal plea, he had no such concerns on the Friday.

At 12.40 pm on the Friday the appellant pleaded guilty to count 3 on the basis agreed. Pleas of Di Lemmo and Cano were also accepted at that time.

We have set out the events of the week beginning Monday 14 October in a little detail because the appellant’s case is not that he entered an equivocal plea of guilty but that he entered it on the basis of erroneous advice as to the length of sentence he would receive if he pleaded guilty and as to the security of his matrimonial home.

There is no doubt that the appellant was extremely concerned both about the length of sentence and about retaining his house for his wife and children. It is also plain that he is a very intelligent man and was desperate to extract himself with the least damage to himself and his family from the grave predicament in which he found himself. He alone knew whether he had the necessary state of mind to make him guilty of the offence. The fact is the evidence against him was strong and no one could quarrel with the advice that the prospect of being acquitted after a trial was slim.

This is a case where there were four main reasons why the terms of the plea negotiated were likely to attract a substantially lower sentence than that which might be expected after a contested trial. These were:

There was some difference of emphasis in the advice from leading counsel and the rest of the defence team. Leading counsel was thinking in terms of a rather shorter sentence than the others and it is clear that the appellant was more likely to listen to him than the others perhaps because he was telling him in part what he wanted to hear. The appellant was, however, aware there was no certainty about the sentence he would receive. As an intelligent man he realised that this was a matter for the judge as the facts unfolded before him. He also knew there was a right of appeal against an excessive sentence.

Whilst it is difficult to imagine a judge passing a sentence as low as 3 – 4 years this was not the universal view of the defence team and in any event the figure had been revised upwards by the Friday when the plea was tendered. Mr Janner himself was then talking of 4½ to 5 years.

One of the factors that plainly influenced the judge on sentence was a submission on behalf of Ruiz that he fell lower down the scale of culpability than the appellant. The judge in sentencing Ruiz pointed out that he was involved throughout the whole of the duration of the conspiracy and that the amounts of money and the duration spoke for themselves. He, though active, was junior to Lemos and accordingly the sentence for Ruiz was 6 years as against 8 for Lemos. Arguments about position in the hierarchy are just the kind of submission that are likely to be advanced when several defendants plead guilty to conspiracy. The outcome it is not always easy to anticipate before the pleas are entered. For reasons to which we shall come when giving our decision on the appeal against sentence, we think that in the light of the basis of plea the appellant’s sentence of 7 years was manifestly excessive.

We do not think that the advice the appellant received as to his likely sentence forms any basis for setting aside the plea of guilty. The advice he received shortly before he pleaded was, in any event, not far from the mark, given our view that the correct sentence was 5½ years. There was never any question of any offer or inducement by the Court. The advice was never more than an expression of opinion. Erroneous sentences are subject to appeal and the appellant was well aware that there was no guarantee of the length of sentence he would receive.

It is regrettable that the appellant does not appear to have been given correct and accurate advice about the confiscation proceedings that were likely to follow his conviction (whether he pleaded guilty or was convicted). We do, however, wish to make it clear that we have not heard oral evidence from counsel. The appellant was led to believe that if he pleaded guilty it was unlikely his house would be confiscated but that there was a risk. What he should have been told is that following sentence there would be confiscation proceedings in which the court would assess first the extent to which he had benefited from his criminal conduct and then the amount of his realisable property which if, as in this case, it was a lower figure would be the amount of the confiscation order. The appellant should also have been advised it was a matter for him how he paid the confiscation order but that there would be a period of imprisonment imposed in default of payment of the confiscation order within the time allowed.

The erroneous advice appears to have been given because of the failure to appreciate that the offence was committed after 1 November 1995 and that the confiscation proceedings were therefore governed by the amendments to the Criminal Justice Act 1988 made by the Criminal Justice Act 1993 and the Proceeds of Crime Act 1995. The critical changes are that the minimum figure for a confiscation order is removed and so is the discretion of the judge to make an order for some smaller sum than the lower of the defendant’s proceeds of crime or his realisable assets. The cases of Lee [1996] 1 Cr.App.R.(S ) 135 and Taigel [1998] 1 Cr.App.R. (S) 328, on which counsel apparently relied, are no longer relevant. These cases suggested the court would be slow to make an order that would result in the matrimonial home being sold where the defendant’s wife had an interest in it and was living in it. But Parliament, through the Proceeds of Crime Act 1995, took away the judge’s discretion that had previously permitted this result. That this is so is confirmed by R v Ahmed and Qureshi [2004] EWCA Crim 2599. But, as Latham LJ pointed out at para 12 of the court’s judgment, Article 8 rights come into play if the confiscation debt is not met and enforcement action is taken. It is at that point, if the court is asked to make an order for the sale of the matrimonial home, that it would have to consider whether, in all the circumstances, an order for sale was proportionate.

Mr Peters concedes that erroneous advice was given to the appellant about the matrimonial home. The Crown’s concession, as recorded in the appellant’s plea, that the matrimonial home was a joint asset and that there was no evidence that it was funded in any way from his business activities in the bureau was immaterial. Mr Peters however points out that the erroneous advice about the house only goes so far. From the very start on 14 October it was made clear to the appellant that there could be no promise he would retain the matrimonial home. Indeed on 15 October the appellant was concerned, as the note records, “that everything was on balance too risky, especially the matrimonial home.” When he signed the clarification document for his lawyers on 18 October it contained an express provision that whilst he had be advised it was unlikely the judge would order confiscation of the matrimonial home there was a risk.

As we understand it, although we heard no evidence about it, no assurances were, in the event, given by the Crown about the confiscation proceedings. One can envisage circumstances in which, if the prosecution sought to go back on an agreement, subsequent confiscation proceedings might be stayed as an abuse of process. But that is not this case. Mr Peters drew our attention to Lennon [2004] EWCA (Crim) 1125 where the defendant pleaded guilty to conspiracy to supply cannabis. The Crown had expressly accepted that the defendant had no involvement in drug trafficking before the incident in respect of which she pleaded guilty. The judge gave no reason for ignoring in the confiscation proceedings the Crown’s concession and simply relied on the statutory assumption. The Court of Appeal held he was wrong and set aside the confiscation order. We think Lennon is plainly distinguishable from the present case.

Mr Peters also drew our attention to the reply of the appellant that has been filed in the confiscation proceedings. It is signed by him and dated 20 February 2003. He says his share in the equity in the property is £6,925 but makes no mention of the advice on which he now says he based his plea of guilty. Mr Peters submits that the confiscation position is still open. One cannot at this stage tell what the final outcome will be. If the equity in the house is as small as the appellant suggests, it is far from certain that a way cannot be found to retain it.

Finally on this aspect of the case we were referred to Sheikh [2004] EWCA (Crim) 492. The three defendants were charged with conspiracy to defraud and with various offences under the Trade Marks Act 1994. They offered pleas that were acceptable to the Crown and the remaining counts were ordered to lie on the file on the usual terms. They were put back for sentence, but in the meantime the Crown served restraint orders and made clear its intention to pursue confiscation proceedings. The defendants sought, unsuccessfully, to vacate their pleas of guilty on the basis that they had not been warned of the possibility of confiscation proceedings. The judge in rejecting the applications took the view that the confiscation proceedings were peripheral to the pleas of guilty and that all three of the defendants had tendered their pleas freely after full and informed consultation. It was argued on appeal that they were far from peripheral; large sums were at stake, possibly £11m. Mantell LJ said at paragraph 16:

“It is well accepted that quite apart from cases where the plea of guilty is equivocal or ambiguous, the court retains a residual discretion to allow the withdrawal of a guilty plea where not to do so might work an injustice. Examples might be where a defendant might be misinformed about the nature of the charge or the availability of the defence or where he has been put under pressure to plead guilty in circumstances where he is not truly admitting guilt. It is not possible to attempt a comprehensive catalogue of the circumstances in which the discretion might be exercised. Commonly, however, it is reserved for cases where there is doubt that the plea represents a genuine acknowledgement of guilt.”

In dismissing the appeal Mantell LJ concluded by saying:

“Here, as noted, the judge heard evidence from counsel representing the appellants at the time when the pleas of guilty were entered. He found that the appellants had been properly advised as to the nature of the offences and what it was necessary for the prosecution to prove before they could be found guilty. He further found that by their pleas the appellants were freely confessing their guilt. The only matter of which they had not been informed was, following conviction, the possibility of confiscation proceedings taking place. That, of itself, could have no bearing on their acceptance of guilt.”

He concluded that the appeal could only succeed if the judge had misdirected himself or exercised his discretion erroneously in the Wednesbury sense.

There are obvious differences between Skeikh and the present case. In Sheikh the court was concerned with review of a judge’s decision not to vacate a plea. Also, Sheikh involved non-advice given by counsel rather than erroneous advice. What Sheikh does in our view emphasise, however, is that bad advice or non-advice must go to the root of the plea of guilty rather than be of peripheral relevance if it is to threaten the security of the plea. The all important question is whether the plea represents a genuine acknowledgment of guilt.

In R v Ullah [2000] 1 Cr.App.R. 351 the Court of Appeal held that where a challenge to the safety of a conviction was based on counsel’s conduct only significant fault was sufficient. It was not enough that other counsel might have acted differently. What had happened in that case however was not just a mistake or an understandable tactical decision within the scope of counsel’s permissible discretion but a matter of very serious misjudgement. Rose LJ said at 358B:

“It may be, although we express no final and concluded view on this aspect of the case, that it is a proper and convenient approach to apply a Wednesbury test to the decision which is contained, i.e. was it one which no reasonable counsel or solicitor could have reached?”

The obvious distinction between Ullah and the present case is that Ullah was concerned with counsel’s conduct of the case during trial whereas here we are concerned with advice before plea. The bottom line in Ullah was the safety of the conviction whereas the present concern is the reliability of the appellant’s confession of guilt (his plea) on which his conviction is based.

It is we think necessary to focus on cases relating to pleas of guilty. The first is DPP v Shannon (1974) 59 Cr.App.R. 250. The House of Lords referred to s.2(1) of the Criminal Appeal Act 1968. The defendant had pleaded guilty but as there had been no verdict of a jury, no wrong decision on any question of law and no material irregularity in the course of the trial, no appeal lay to the Court of Appeal under the Act. The law was later changed by s.44 of the Criminal Appeal Act 1977.

The next case is Inns (1974) 60 Cr.App.R. 231 where it was held that a plea of guilty made by a defendant after pressure had been put on his counsel by the judge to change from an intended plea of not guilty was not a proper plea and the ensuing trial was a nullity. Lawton LJ, who gave the judgment of the Court said:

“When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment, a nullity. It is on that basis that we come to consider what at one time seemed to be a rather difficult point for this court to decide because of the decision of the House of Lords in the case of DPP v Shannon….”

Next comes the case of Lee (1984) 79 Cr.App.R. 108 where the defendant had unequivocally pleaded guilty to manslaughter by reason of diminished responsibility and to various offences of arson. His counsel had expressed disquiet at the time, not least because the public enquiry into one of the offences of arson in which three boys had died had concluded the fire had been started accidentally. The grounds of appeal included:

“(i)

he was of low intelligence and from a deprived and institutionalised background; his pleas were prompted not by any acknowledgment of his guilt but out of a desire for notoriety and publicity;

(ii)

his legal advisers had grave doubts as to whether on a trial the prosecution could prove his criminal responsibility.”

The defendant said his pleas of guilty were tendered not because they represented the truth but because he felt so overborne by the pressure of events generally that he felt he could not take any more. The Court of Appeal held that the fact the defendant was fit to plead, knew what he was doing and pleaded guilty without equivocation after receiving expert advice, although highly relevant to whether the convictions or any of them were unsafe or unsatisfactory could not of themselves deprive the court of jurisdiction to hear the appeals. Lee had insisted on pleading guilty notwithstanding advice and, as Judge Roberts Q.C pointed out during argument, his was not an equivocal plea of guilty and the only avenue open to him was s.2 of the Criminal Appeal Act 1968 as amended. His plea was not a nullity. There was fresh evidence to show he was not guilty of the offence; it was a classic case of matters going to the safety of the verdict.

The well known case of R v Turner (1970) 54 Cr.App.R. 352 involved a defendant’s change of plea to guilty during the course of the prosecution case. He did so following strong advice from his counsel but, significantly, advice that was reinforced by a visit of counsel to the judge followed by the opinion, conveyed by counsel to the defendant, that if he was convicted there was a very real possibility he would receive a prison sentence, whereas if he pleaded guilty at the stage the case had reached a non custodial sentence would be imposed. Lord Parker C.J said that once the defendant felt there was an intimation emanating from the judge it was idle to think that he really had a free choice in matter. The Court therefore treated the plea as a nullity, concluded that the trial that had taken place was a mistrial and ordered a venire de novo.

Mr Krolick argues that the present case falls within the principle of Turner; the appellant received the wrong advice in respect of two matters, length of sentence and confiscation. He did not have a free choice in the matter and his plea, as Turner’s, should be treated as a nullity. We do not agree. No one could say that what happened in Turner was peripheral to the plea of guilty; it went to the very heart of it. But that in our view is not so in the present case.

Turner was followed in R v Smith and Beaney [1999] EWCA (Crim) 906. The defendants were illiterate which made it virtually impossible for them to represent themselves at trial. They applied for a short adjournment to seek fresh advice and other representation but this was refused. Then they were told their solicitor and counsel could only act for them if they pleaded guilty. Henry LJ referred to Lord Parker’s observation in Turner that an accused, having considered counsel’s advice, must have complete freedom of choice whether to plead guilty or not guilty. Circumstances had combined to deprive the defendants of that choice and the pleas must be treated as a nullity and a venire de novo ordered.

There are no doubt many defendants who, although they know they are guilty of the offence alleged against them, nevertheless enter a plea of not guilty in the hope of being acquitted. In making the decision one way or the other many factors may fall to be taken into account. The Bar Council’s Code of Conduct makes clear that defence counsel should explain to the accused the advantages and disadvantages of a guilty plea. It goes on that he must make it clear that the client has complete freedom of choice and that the responsibility for the plea is that of the accused. It is common practice, endorsed by paragraph 12.5.1, to tell an accused that he should plead guilty only if he is guilty. In the present case the Bar Council’s code was followed to the letter. The appellant deliberated over his plea over the best part of a working week. He was very keen that his counsel should strike the best possible deal with counsel for the prosecution. This involved limiting his involvement in the conspiracy to a minimum. He was under no pressure or illusions as to the position he was in. True the advice he was given on sentence and particularly on confiscation was somewhat optimistic but the reality, in our judgment, is that he entered his plea of guilty without any pressure from counsel, the court or anyone else. The only pressure was, like with many defendants, from the situation in which he found himself. In our judgment it cannot be said that the appellant’s plea was not a true acknowledgment of guilt and was entered only because of erroneous advice. In so far as the advice he was given fell short of what might reasonably have been expected (and this really only applies to the house) it was in our judgment peripheral to the plea, albeit that the appellant would now have us believe it was not.

There is no doubt that at all times the appellant was fully in command of his faculties. His plea of guilty was tendered after a very great deal of thought and negotiation. He admitted the offence to his lawyers by endorsing a document acknowledging his plea. He then tendered his plea in open court and listened to his counsel mitigating on his behalf without questioning what he said. The evidence against him was extremely strong. His bureau was a concern with a small turnover of less than a £1,000 per week and yet he changed some $U.S 5.8m to £4m. The exchange transactions took place in streets or cars and he received sacks of money, which he exchanged for large denomination notes. The plain inference is that he pleaded guilty because he was guilty.

For an appeal against conviction to succeed on the basis that the plea was tendered following erroneous advice it seems to us that the facts must be so strong as to show that the plea of guilty was not a true acknowledgment of guilt. The advice must go to the heart of the plea, so that as in the cases of Inns and Turner the plea would not be a free plea and what followed would be a nullity.

It is very difficult to see how erroneous advice as to the length of sentence could ever go to the heart of a plea – except perhaps where the maximum penalty for the offence is understated – for the decision on length of sentence lies with the judge or the Court of Appeal. The appellant knew that in this case. He knew there was no certainty as to the length of sentence the judge would impose upon him. He also knew there was no certainty what would happen to his house following confiscation proceedings.

In our judgment the advice that the appellant received does not invalidate his plea of guilty.

There is a further point taken by Mr Krolic. In considering this point we have taken account of Mr Krolick’s further written submissions of 5 November 2004 dealing with the recent authorities. The point arises in this way. The conspiracy alleged against the appellant was a statutory conspiracy under s.1(1) of the Criminal Law Act 1977 (the 1977 Act). The underlying offence, in so far as it related to the proceeds of crime rather than drug trafficking was created by s.93C(2) of the Criminal Justice Act 1988 which reads, so far as material for present purposes, as follows:

“A person is guilty of an offence, if knowing or having reasonable grounds to suspect that any property is, or in whole or in part directly or indirectly represents, another person’s proceeds of criminal conduct, he……converts or transfers that property….for the purpose of assisting any person to avoid prosecution for an offence to which this Part of this Act applies or the making or enforcement in his case of a confiscation order.”

The particulars of the offence followed the wording of the subsection.

Mr Krolick’s submission is that a charge of conspiracy to convert money “knowing or having reasonable grounds to suspect that certain property…….” was the proceeds of crime cannot amount in law to a statutory conspiracy. This is because:

The first difficulty the appellant faces is that he pleaded guilty to the offence and did so on the basis of actual suspicion. The question of the mens rea of the offence was floated before the judge but not fully argued and was never the subject of a formal ruling.

More significantly the point has already been dealt with by this Court in R v Rizvi and Christi [2003] EWCA (Crim) 3575. Tuckey LJ said at paragraph 11:

“The more difficult question is what the effect of s.1(2) is on a person who has reasonable grounds for suspicion that the money is “hot”.”

He continued:

“In this situation again it seems to us that there is no question of liability without knowledge of any particular fact or circumstance. In other words the liability is not absolute. It depends on the defendant’s knowledge of the facts or circumstances which ought to give rise to the suspicion. On this analysis there is no lack of knowledge of “any particular or circumstance for the purpose of s.1(2). We do not think there is anything in Anderson (1985) 81 Cr.App.R. 753 or its consideration in Siracusa (1990) 90 Cr.App.R. …..which casts doubt on that conclusion.”

A similar point arose in R v Sakavickas and Reichwald [2004] EWCA (Crim) 2686 albeit not under the identical statutory provision. The Court gave tacit approval to Rizvi and Christi. Kennedy LJ said that decision made it very difficult for the appellant’s argument to succeed. Again in Sakavickas mere suspicion as apposed to actual knowledge did not mean that s.1(2) of the 1977 Act was fatal to the convictions.

Even if the matter were free from authority, we think that there would be formidable difficulties in the way of Mr Krolick’s submission on the facts of the present case, where there was an express admission of actual suspicion that the money represented the proceeds of criminal conduct.

A person who suspects that property which he is converting or transferring represents the proceeds of criminal conduct will also, almost inevitably, realise (a) that there is a risk of a criminal prosecution being brought against those who may be responsible for the criminal conduct in question and (b) that by converting or transferring the property he is helping to reduce that risk. It is not a big step from there to say that he realises that the purpose of the conversion or transfer is to assist others to avoid prosecution for the criminal conduct which he suspects (though he does not know for certain) has been committed. If that is the position, he has the mens rea of the offence under s. 93C(2). It is obvious that Parliament intended that a person should be guilty of that offence if he converts or transfers property with this state of mind.

As regards conspiracy, if two people (in this case Lemos and the appellant) agree that property shall be converted or transferred, and each of them knows or suspects that the property represents the proceeds of criminal conduct and realises that the purpose of the conversion or transfer is to assist someone to avoid prosecution for the criminal conduct which they know or suspect has been committed, that is sufficient to make each of them guilty of conspiracy to contravene s.93C(2). There is nothing in s.1(2) of the 1977 Act which in any way affects this conclusion.

A plea of guilty to any offence amounts, on its face, to an acknowledgment of each ingredient of that offence, including the necessary state of mind. In this case the appellant by his plea acknowledged that he had agreed with Lemos that the money should be converted in circumstances where each of them had the state of mind necessary to make them guilty of conspiracy to contravene s.93C(2). There was nothing in the appellant’s “basis of plea” document which was in any way inconsistent with the presence of all the ingredients of the offence to which he pleaded guilty. The plea was therefore an unequivocal plea to conduct amounting in law to a statutory conspiracy as alleged.

In the result we are not persuaded there is any merit in this ground. The appeal against conviction therefore is dismissed.

There is in our judgment one valid ground of appeal against sentence on which we grant leave. The appellant was sentenced to 7 years imprisonment and was therefore placed in the hierarchy between Lemos (8 years) and Ruiz (6 Years). The judge regarded it as an aggravating feature (and he was entitled to do so) that the appellant had betrayed his duties in running the bureau de change in the way that he did. Although the judge made a general observation that he took into account in all cases the basis of plea, he made no specific reference to it in the appellant’s case. It was important because it limited the period during which the appellant was involved in the conspiracy. Ruiz, on the other hand, was involved over the whole conspiracy. During mitigation there was an issue about the amount of the laundered money which depended on the start date in December 2001 of the appellant’s guilty knowledge. His case was £2m; the Crown’s £4m. As the judge pointed out, whatever it was it was in millions.

It may be that the judge was influenced in sentencing the appellant by Ruiz’s mitigation in which his counsel was suggesting he came lower on the scale than the appellant. Be that as it may we do not think the judge paid adequate regard to the appellant’s basis of plea. There can be no doubt that in the light of the evidence available to the Crown Mr Janner negotiated a very favourable basis of plea on behalf of his client. But, the plea having been accepted by the Crown, the judge had to sentence the appellant on that basis. In our view the sentence of 7 years does not properly reflect the appellant’s position in the hierarchy of the conspiracy on the basis of his plea. In our view the appropriate sentence would have been 5½ years and accordingly the appeal against sentence is allowed to that extent. The sentence of 7 years is quashed and replaced with one of 5½ years.