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Money laundering part 8

The issue brought before the Court of Appeal regarding suspicion was thought to include three elements: "(1) Was the judge entitled to assist the jury by giving any definition and in particular a dictionary definition of the ordinary English word "suspect" or "suspicion"?

(2) Is the dictionary definition given by the judge the correct way to interpret the word "suspecting" in section 93A?

(3) Did the judge's introduction of the concept "fleeting thought" (not part of the dictionary definition cited by the judge) constitute a misdirection?". The court obviously then went on to consider them.

Paragraphs 13-17 of the judgement set out the meaning of suspicion for this purpose and repay careful consideration. (Emphasis in bold is added)

13. " If a judge justifiably decides to assist the jury about the meaning of a word, the dictionary definition is, in the absence of judicial authority, likely to be a sensible starting place. There is no English authority in a criminal context to which we were referred on the meaning of "suspect" or "suspicion"; definitions given in civil cases are sometimes in the context of "reasonable suspicion" of eg the police in relation to the commission of an offence, rather than in the context of simple "suspicion". Thus in Hussien v Chang Fook Kam [1970] AC 942, in which the Privy Council decided that reasonable suspicion was not the same as prima facie proof, Lord Devlin said at page 948:- "Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end."
14. This dictum was followed in a similar context by the Court of Appeal in Holtham v Commissioner of the Police of the Metropolis, Times, 28th November 1987. This definition would not have been particularly helpful to the jury in the present case since the appellant was not, of course, making any investigation but the first part which refers to a "state of conjecture or surmise" gives a general indication of the general meaning of "suspicion".
15. In the civil context of blind eye knowledge, and dishonest accessory liability for breaches of trust, the authorities indicate that the suspicion has to be "clear" or "firmly grounded". They show that, in civil cases of this type, there is a requirement that the suspicion must be of a certain strength. Thus in Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd ("The Star Sea") [2001] UKHL 1, [2003] 1 AC 469, a case of alleged blind eye knowledge of unseaworthiness, Lord Scott stated the following at paragraph 116:- "In summary, blind-eye knowledge requires, in my opinion, a suspicion that the relevant facts do exist and a deliberate decision to avoid confirming that they exist. But a warning should be sounded. Suspicion is a word that can be used to describe a state-of-mind that may, at one extreme, be no more than a vague feeling of unease and, at the other extreme, reflect a firm belief in the existence of the relevant facts. In my opinion, in order for there to be blind-eye knowledge, the suspicion must be firmly grounded and targeted on specific facts. The deliberate decision must be a decision to avoid obtaining confirmation of facts in whose existence the individual has good reason to believe. To allow blind-eye knowledge to be constituted by a decision not to enquire into an untargeted or speculative suspicion would be to allow negligence, albeit gross, to be the basis of a finding of privity."
In other words, a vague feeling of unease was not sufficient, nor was gross negligence; see also paragraph 25 per Lord Hobhouse. The suspicion had to be firmly grounded and targeted on specific facts Likewise, in Barlow Clowes International Ltd v Eurotrust International Ltd, [2005] UKPC 37, [2006] 1 All ER 333, a case against an alleged money launderer based upon the defendant's dishonest assistance in a breach of trust, the Judicial Committee stated that it was sufficient, on the facts of that case, that the defendant "entertained a clear suspicion" that there had been a misappropriate of monies; see paragraph 28 of the judgment, and also paragraph 19, where the rubric "solid grounds for suspicion" was approved.
16. What then does the word "suspecting" mean in its particular context in the 1988 Act? It seems to us that the essential element in the word "suspect" and its affiliates, in this context, is that the defendant must think that there is a possibility, which is more than fanciful, that the relevant facts exist. A vague feeling of unease would not suffice. But the statute does not require the suspicion to be "clear" or "firmly grounded and targeted on specific facts", or based upon "reasonable grounds". To require the prosecution to satisfy such criteria as to the strength of the suspicion would, in our view, be putting a gloss on the section. We consider therefore that, for the purpose of a conviction under section 93A(1)(a) of the 1988 Act, the prosecution must prove that the defendant's acts of facilitating another person's retention or control of the proceeds of criminal conduct were done by a defendant who thought that there was a possibility, which was more than fanciful, that the other person was or had been engaged in or had benefited from criminal conduct. We consider that, if a judge feels it appropriate to assist the jury with the word "suspecting", a direction along these lines will be adequate and accurate.
17. The only possible qualification to this conclusion, is whether, in an appropriate case, a jury should also be directed that the suspicion must be of a settled nature; a case might, for example, arise in which a defendant did entertain a suspicion in the above sense but, on further thought, honestly dismissed it from his or her mind as being unworthy or as contrary to such evidence as existed or as being outweighed by other considerations. In such a case a careful direction to the jury might be required. But, in our view, before such a direction was necessary there would have to be some reason to suppose that the defendant went through some such thought process as set above. The present case was not a case where any such direction could be thought to be necessary.

Having set out these tests, in respect of the particular direction the court considered that using the words "inkling" or "fleeting thought" was liable to mislead and thought that if such words were to be used, it would normally be advisable to add the qualification the court mentioned in paragraph 17 of its judgment. The court considered that in all the circumstances, notwithstanding that the conviction should stand.

Therefore if you think there is a possibility that is more than fanciful you are likely to suspect for these purposes. The absence of reasonable grounds, whilst it might influence a jury in deciding whether there was suspicion, is not of itself a defence.

Michael J. Booth QC