Michel v Att. Gen

JurisdictionJersey
CourtRoyal Court
JudgeBeloff, Steel and McNeill, JJ.A.
Judgment Date27 July 2011
Date27 July 2011
COURT OF APPEAL
Beloff, Steel and McNeill, JJ.A.

M. Preston for the applicant;

M.T. Jowitt, Crown Advocate, for the Attorney General.

Cases cited:

(1) Att. Gen. v. Weston, 1980 J.J. 43, applied.

(2) B, Re, [2008] EWHC 3217 (Admin), dicta of David Holgate, Q.C. considered.

(3) Bhojwani v. Att. Gen., 2011 JLR 249, considered.

(4) H.M. Advocate v. Harris, [2010] HCJAC 102; 2011 J.C. 125; 2011 S.C.L. 54; 2010 S.C.C.R. 931, considered.

(5) R. v. Brown, [2004] EWCA Crim 744; [2004] Crim. L.R. 665, applied.

(6) R. v. Clark, [2003] 2 Cr. App. R. 23; [2003] R.T.R. 27; [2003] EWCA Crim 991, considered.

(7) R. v. Cohen (1909), 2 Cr. App. R. 197, referred to.

(8) R. v. Cotter, [2003] Q.B. 951; [2003] 2 W.L.R. 115; [2002] 2 Cr. App. R. 29; [2002] EWCA Crim 1033; [2002] Crim. L.R. 824, considered.

(9) R. v. F(S), [2011] 2 Cr. App. R. 28; [2011] EWCA Crim 1844, referred to.

(10) R. v. Galbraith, [1981] 1 W.L.R. 1039; [1981] 2 All E.R. 1060; (1981), 73 Cr. App. R. 124, considered.

(11) R. v. Headley, [1996] R.T.R. 173; [1995] Crim. L.R. 737, referred to.

(12) R. v. Jabber, [2006] EWCA Crim 2694, considered.

(13) R. v. Kellett, [1976] Q.B. 372; [1975] 3 W.L.R. 713; [1975] 3 All E.R. 468; (1975), 61 Cr. App. R. 240; [1975] Crim. L.R. 576, considered.

(14) R. v. Lalani, [1999] 1 Cr. App. R. 481; [1999] Crim. L.R. 992, considered.

(15) R. v. Machin, [1980] 1 W.L.R. 763; [1980] 3 All E.R. 151; (1980), 71 Cr. App. R. 166; [1980] R.T.R. 233, considered.

(16) R. v. Murray, [1982] 1 W.L.R. 475; [1982] 2 All E.R. 225; [1982] R.T.R. 289; (1982), 75 Cr. App. R. 58, considered.

(17) R. v. Rimmington, [2006] 1 A.C. 459; [2005] 3 W.L.R. 982; [2006] 1 Cr. App. R. 17; [2006] H.R.L.R. 3; [2005] UKHL 63, considered.

(18) R. v. Rowell, [1978] 1 W.L.R. 132; [1978] 1 All E.R. 665; (1977), 65 Cr. App. R. 174, referred to.

(19) R. v. Selvage, [1982] Q.B. 372; [1981] 3 W.L.R. 811; [1982] 1 All E.R. 96; (1981), 73 Cr. App. R. 333, considered.

(20) R. v. Silcock, [2004] 2 Cr. App. R. (S.) 61; [2004] Crim. L.R. 493; [2004] EWCA Crim 408, referred to.

(21) R. v. Stewart (D.), 2003 CILR 443, distinguished.

(22) R. v. Vreones, [1891] 1 Q.B. 360, applied.

(23) Styles v. Att. Gen., 2006 JLR 210, applied.

(24) T v. R., [2011] EWCA Crim 729, considered.

Legislation construed:

Proceeds of Crime (Jersey) Law 1999 (Revised Edition, ch.08.780, 2010 ed.), art. 2(1):

"In Part 2, 'realisable property' means—

(a) any property held by the defendant;

(b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by Part 2; and

(c) any property to which the defendant is beneficially entitled."

art. 2(3): The relevant terms of this paragraph are set out at para. 30.

art. 2(9)(b): The relevant terms of this sub-paragraph are set out at para. 30.

European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4th, 1950; Treaty Series 71 (1953)) (Cmnd. 8969) (Human Rights (Jersey) Law 2000 (Schedule 1, Part 1)), art. 7(1): The relevant terms of this paragraph are set out at para. 28.

art. 8:

"1. Everyone has the right to respect for his private and family life .?.?.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society .?.?. for the prevention of disorder or crime .?.?."

Texts cited:

Archbold, Criminal Pleading, Evidence & Practice, para. 28-1, at 2651 (2010 ed.).

Gordon, Criminal Law, vol. 1, 3rd ed., para. 1.32, at 29 (2000).

Law Commission, Criminal Law: Offences relating to the Administration of Justice (Law Com. Working Paper No. 62), para. 11, at 7.

Criminal Law—perverting course of justice—tendency to pervert—knowing receipt of assets, transferred by subject of money laundering investigation facing possible confiscation, has tendency to pervert course of justice (i.e. investigation, saisie judiciaire and confiscation)—without more by transferor, hypothetical prosecution might miss transfers—actual prosecution's knowledge of them irrelevant

Criminal Law—perverting course of justice—tendency to pervert—representation to Attorney General by recipient that assets transferred by subject of money laundering investigation facing possible confiscation were payment for legal work, or mere gift, rather than sham has tendency to pervert course of justice (i.e. investigation, saisie judiciaire and confiscation)—irrelevant that unlikely to be believed

The applicant was charged in the Royal Court with attempting to pervert the course of justice.

The applicant, a qualified lawyer, had received assets from his father totalling £1.1m. (including shares and director's loan accounts). At the time of the transfers, the applicant had been aware that his father was under investigation for money laundering. The Attorney General applied successfully for a saisie judiciaire, claiming that the father's transfer of shares was a sham designed to disguise his continued beneficial ownership of the companies. The applicant then wrote to the Attorney General stating: "I have provided immense cause for the transfers in light of the arrangement that I have with my employers and my father as to the legal fees that he has been charged to date and will continue to be charged. I have also spent a not inconsiderable amount of time in running the relevant companies since the date of their transfer." The father was subsequently charged with and convicted of money laundering offences. He was sentenced to a term of imprisonment and a confiscation order was made against him.

The Proceeds of Crime (Jersey) Law 1999 provided that, when making a confiscation order, the court would determine a defendant's benefit from his offending, then "the amount that might be realised," and order him to pay the lesser amount. Under art. 2(1), the defendant's "realisable property" was property (a) held by him; (b) held by a person to whom he had made a gift caught by the Law; or (c) to which he was beneficially entitled. A gift would be caught by the Law if it was made after the commission of an offence and "the Court considers it appropriate in all the circumstances to take the gift into account" (art. 2(9)(b)). Whereas, therefore, property owned or held by a defendant was his realisable property, gifted property might be treated as such, at the court's discretion as to proof.

The applicant was charged in the Royal Court with attempting to pervert the course of justice, namely the investigation of his father's assets, the applications for a saisie judiciaire over those assets and the confiscation of his proceeds of criminal conduct. It was alleged that he had performed acts which had a tendency to pervert the course of justice, namely accepting the transfer to him by his father of assets which were subject to the investigation; and falsely representing to the Attorney General in the "immense cause" letter that (a) the transfers were payment for legal services which he had provided to his father; and (b) the transfers of shares in certain companies were payment for services he provided in respect of those companies. The Royal Court (Bailhache, Commr.) rejected the applicant's submission that there was no case to answer (that decision is noted at 2011 JLR N [12]). He was subsequently convicted and sentenced.

He applied for leave to appeal against his conviction, submitting that the Royal Court should not have ruled that there was a case to answer because (a) the receipt of an open transfer of legitimate assets by a transferee, knowing that the transferor was the subject of a police investigation, was an act capable of having a tendency, without more by the transferee, to pervert the course of justice, namely future confiscation proceedings against the transferor, given the gift provisions of the Proceeds of Crime (Jersey) Law 1999; (b) an open transfer of assets could have such a tendency where the prosecution was aware of the existence of the assets and had conceded that the assets would not have been missed by the investigators, and in the absence of any attempt to hide the transfers or the assets; and (c) the writing of the "immense cause" letter was capable without more of having a tendency to pervert the course of justice. The applicant also submitted that the Commissioner had misdirected the jury in respect of the above matters, among others.

Held, granting leave to appeal but dismissing the appeal:

(1) There were four elements to the customary law offence of attempting to pervert the course of justice, i.e. that a person or persons (i) acted or embarked on a course of conduct (ii) which had a tendency to, and (iii) was intended to, pervert (iv) the course of public justice. Proof of each of the elements was necessary. Although it might, at first glance, appear that where no perversion of justice actually occurred the offence should strictly be characterized as an attempt, it had been established that the concept of attempt was inappropriate in connection with the substantive offence, i.e. conduct which had a tendency and was intended to pervert the course of justice. The risk of perversion of the course of justice had to be more than de minimis, i.e. it had to be of real significance, but the risk need not have materialized for the offence to be completed. Indeed, it need not be probable or likely that the risk would materialize but would be sufficient if it were possible that it would. The act of a defendant, without more by him, had to have a tendency to pervert the course of justice. Whether further action by others was necessary before injustice could occur was irrelevant. There had to be a positive act (as distinct, for example, from a mere plan) but the act did not have to be one of concealment, nor did it have to be unlawful. Acts of omission could sometimes just as easily be characterized as acts of commission. A...

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1 cases
  • R v Kenny
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 30 January 2013
    ...regard to a number of authorities and, in particular, the decision of the Jersey Court of Appeal in Michel v Attorney-General for Jersey [2011] JLR 634 (to which we return later), Judge Henderson came to a different conclusion from that reached by Judge Head in R v Ludlam. He held instead t......

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