CPS Nottinghamshire v Rose, Court of Appeal - Criminal Division, February 21, 2008, [2008] 1 WLR 2113,[2008] 2 Cr App R (S) 80,[2008] 3 All ER 315,[2008] 2 Cr App R 15,[2008] Crim LR 650,[2008] EWCA Crim 239

Reporting Judge: [2008] 1 WLR 2113,[2008] 2 Cr App R (S) 80,[2008] 3 All ER 315,[2008] 2 Cr App R 15,[2008] Crim LR 650,[2008] EWCA Crim 239

President: CPS Nottinghamshire v Rose

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Extract

Neutral Citation Number: [2008] EWCA Crim 239

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM

(1) THE CROWN COURT AT NOTTINGHAM

(2) THE CROWN COURT AT BRADFORD

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/02/2008

Before :

LORD JUSTICE RICHARDS

MR JUSTICE OPENSHAW

and

HIS HONOUR JUDGE STEPHENS QC

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Between :

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David Perry QC and William Hays (instructed by the Crown Prosecution Service) for the Crown

Paul Mann QC and Martin Hurst (instructed by Tracey Barlow Furniss & Co.) for

Kevin Rose

Paul Mann QC and Martin Robertshaw (instructed by Carr & Co. Solicitors) for

Gareth Whitwam

Hearing date : 6 December 2007

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JudgmentLord Justice Richards :

1. These two cases were listed for hearing together because they raise related issues under the Proceeds of Crime Act 2002 (``the 2002 Act''). In the case of Gareth Whitwam, there is an application for leave to appeal against conviction which raises the question whether stolen goods acquired by a thief or handler are ``criminal property'' for the purposes of the offence of acquiring criminal property contrary to s.329(1)(a) of the 2002 Act. In the case of Kevin Rose there is a prosecution appeal against a confiscation order which raises the question how such criminal property is to be valued for the purpose of deciding the amount of the defendant's benefit. The facts of the cases prompt a further question about the appropriateness of charging a money laundering offence under Part 7 of the 2002 Act in respect of conduct which has the hallmarks of ordinary burglary/theft or handling stolen goods.

Gareth Whitwam

2. On 30 March 2007 in the Crown Court at Bradford, after a trial before Mr Recorder Mansell and a jury, Gareth Whitwam was convicted by a majority of 11 to 1 on a single count of acquiring criminal property, contrary to s.329(1) of the 2002 Act. He was later made the subject of a community sentence. His application for leave to appeal against conviction was referred to the full court by the Registrar.

3. The facts of the offence can be briefly stated. A 50cc child's motorcycle owned by a Mr Kelly was stolen in the course of a burglary at Mr Kelly's home. On the day of the theft, the applicant was seen in possession of the motorcycle. He was confronted by Mr Kelly, who gave evidence that the applicant said to him: ``It's only a broken window, you can claim on the insurance''. The applicant disputed this in his evidence, saying that Mr Kelly raised the subject of his broken window and that the applicant replied that he could claim on his insurance. In any event, when the police were called to the scene, the applicant told them that he had come across some youths trying to start the motorcycle and he had bought it from them for £20. He was arrested and charged.

4. At the conclusion of the prosecution evidence the recorder rejected a submission of no case to answer, advanced on the basis that no evidence had been adduced by the prosecution that the motorcycle was ``criminal property'' for the purposes of the 2002 Act. The applicant then gave evidence in support of his defence that he had bought the motorcycle for £20 and that at no stage did he suspect that it was criminal property. In his summing up, the recorder directed the jury that there was no dispute that the motorcycle was criminal property but the prosecution had to make them sure that the applicant knew or suspected that it was criminal property.

5. The basis of the application to this court was that the recorder was wrong to reject the submission of no case.

6. Section 329 of the 2002 Act reads:

``329.(1) A person commits an offence if he -

(a) acquires criminal property;

(b) uses criminal property;

7. Relevant definitions are to be found in s.340:

``340. ... (3) Property is criminal property if -

(a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly); and

(b) the alleged offender knows or suspects that it constitutes or represents such ...

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