Neutral Citation Number: [2006] EWCA Crim 1654

Case No: 2005 02160 B1

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
SITTING AT THE MIDDLESEX GUILDHALL, LONDON
His Honour Judge Martineau

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 11th July 2006

Before :

LORD JUSTICE LONGMORE

MRS JUSTICE GLOSTER
and
HIS HONOUR JUDGE DIEHL QC
(sitting as a Judge of the Court of Appeal, Criminal Division)
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Between :

REGINA Respondent
- and -
HILDA GONDWE DA SILVA Appellant

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---------------------

ROSSANO CIFONELLI Esq for the Appellant

RICHARD MILNE Esq for the Respondent

Hearing dates : 19th May 2006

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Judgment
Judgment Approved by the court for handing down. R v Da Silva

Lord Justice Longmore :

1. On 2nd March 2005 in the Crown Court at the Middlesex Guildhall, the appellant,
Hilda Gondwe Da Silva, was convicted of assisting another person to retain the
benefit of criminal conduct knowing or suspecting that that other person was or had
been engaged in criminal conduct contrary to section 93A(1)(a) of the Criminal
Justice Act 1988 (counts 14 and 15 on the indictment). She was acquitted on counts 1
to 10 which charged her jointly with her co-accused husband of obtaining money
transfers by deception. Her husband, Mario Da Silva, was convicted of obtaining
money transfers by deception (counts 1 to 13). She appeals on one ground only with
the leave of the Full Court, namely whether the judge should have given to the jury
(as he did) a dictionary definition of the word “suspecting” and then (as he did) have
added a further gloss to that definition.

2. In summary the facts were these. AMT is a company which runs coffee-bars. The
coffee-bars at King’s Cross Railway Station were managed by the co-accused who
was responsible for submitting employee time sheets to head office upon which
employee wage payments were based. Between 7th June 2001 and 21st July 2003, on
ten occasions, sums of money representing the wages of three different people, “ghost
workers”, were transferred directly into one of two bank accounts operated by the
appellant at the Halifax. The Crown alleged that three individuals, two of them
sisters, had been employees of the company but at the material times had not worked
at all. It was further alleged that the appellant had given encouragement and
assistance to the co-accused knowing that the wages were being received dishonestly.

3. As an alternative against the appellant, count 14 alleged that between 11th November
2001 and 2nd September 2003 knowing or suspecting that her husband was or had
been engaged in criminal conduct or had benefited from it, she entered into or was
otherwise concerned in an arrangement which involved the deposit and withdrawal of
sums into and from her bank account facilitating his retention or control of proceeds
of his criminal conduct. The sums of money covered by count 14 related to the wages
of the sisters. Count 15 was a similar offence in respect of a second bank account for
the period June 2001 to September 2003. The sums of money here related to one
Daniella Mateus. These two counts charged offences, as we have said, against section
93A(1)(a) of the 1988 Act. That sub-section provides:-

“. . . . if a person enters into or is otherwise concerned in an

arrangement whereby –

(a) the retention or control by or on behalf of another

(“A”) of A’s proceeds of criminal conduct is facilitated
(whether by concealment, removal from the jurisdiction,
transfer to nominees or otherwise)

....................

knowing or suspecting that A is a person who is or has been

engaged in criminal conduct or has benefited from criminal
conduct, he is guilty of an offence.”
Judgment Approved by the court for handing down. R v Da Silva

4. The judge observed to the jury that if they concluded the appellant knew her co-
accused husband had engaged in criminal conduct or had benefited from it, they
would convict her as a participant in the principal offence. If they acquitted her,
however, of the first 10 counts of the indictment and moved on to consider counts 14
and 15 of the indictment, he only needed to direct them about the question whether
the Crown had proved that she suspected her husband was engaged in criminal
conduct or had benefited from it.

5. He then said this:-

“So, probably, ‘knowing’ will not arise and what will arise
instead is ‘suspecting’, which is a very different state of mind
to knowing. To suspect something, you have a state of mind
that is well short of knowing that the matter that you suspect is
true. It is an ordinary English word. Members of the jury, if
the Crown can show that the defendant said to herself, ‘I
suspect that this money is the proceeds of criminal conduct, but
it may be, on the other hand, that it is not’, that would fall
within the definition of ‘suspicion’. The dictionary definition,
which I direct you is relevant, to the meaning of the word, is
this. The dictionary definition of ‘suspicion’: ‘an act of
suspecting, the imagining of something without evidence or on
slender evidence, inkling, mistrust’. Therefore, any inkling or
fleeting thought that the money being paid into her account
9950 might be the proceeds of criminal conduct will suffice for
the offence against her to be proved.”

6. The passage to which exception is taken, and in relation to which leave to appeal has
been given, is the passage where the judge referred to the (Chambers) dictionary
definition which he directed the jury was relevant and then added the concept
“fleeting thought” to the word “inkling”. The Full Court, granting leave, thought that
it was arguable that the judge should not have given that dictionary definition to the
jury and that in so doing he introduced a gloss or qualification to the ordinary English
word of suspecting or suspicion which was uncalled for and indeed potentially
misleading. The court added that it might be the case that, whatever view the court
hearing the appeal took about the direction that was given, they would nevertheless
conclude that the evidence against the applicant was sufficiently strong for there not
to be any doubts about the safety of her convictions on counts 14 and 15. That
however is another matter.

7. Mr Cifonelli, who appeared for the appellant, sought to extend the ground on which
he was given leave to appeal by arguing that the word “reasonably” ought to be read
before the word “suspecting” in the statutory wording or (which comes to the same
thing) the word “on reasonable grounds” ought to be read in after the word
“suspecting”. He submitted that it was impossible to suppose that Parliament
intended that a facilitator should be guilty of an offence if he or she suspected that the
relevant other person was or had been engaged in criminal conduct but had no
reasonable grounds for that suspicion.

8. We regard this as an impossible argument. This court could not, even if it wished to,
imply a word such as “reasonable” into this statutory provision. To do so would be to
Judgment Approved by the court for handing down. R v Da Silva

make a material change in the statutory provision for which there is no warrant. This
is all the more the case when one sees that the draftsman is aware of the difference
between “suspecting” and “having reasonable grounds to suspect” and on occasion
uses the latter phrase in preference to the former word. Thus in section 93C which
deals with “concealing or transferring proceeds of criminal conduct”, we see sub-
section 2 which provides:-

“A person is guilty of an offence if, knowing or having

reasonable grounds to suspect that any property is . . . . another
person’s proceeds of criminal conduct, he

(a) conceals or disguises that property; or

(b) converts or transfers that property . . . .”

In the light of this express reference to “reasonable grounds” for suspicion in section
93C of the 1988 Act, it is impossible, in our judgment, to read in similar words in
93A(1) when the words are just not there.

9. Mr Cifonelli sought to explain the distinction between the two sections historically by
saying that section 93A of the 1988 Act (originally inserted into the 1988 Act by the
Criminal Justice Act 1993) was modelled on section 24 of the Drug Trafficking Act
1986, whereas section 93C (likewise inserted by the Criminal Justice Act 1993) was
modelled on section 14 of the Criminal Justice (International Cooperation) Act 1990
(which was later re-enacted in the Drug Trafficking Act 1994). The argument
appeared to be that Parliament had not thought about the matter carefully enough at
the first stage of the confiscatory legislation in 1986 but by 1990 had come to realise
that suspicion on its own was inappropriate and therefore provided for such suspicion
to have reasonable grounds. The court should therefore interpret the provisions
deriving from the 1986 Act in a similar way. Ingenious as the argument may be, that
is not an appropriate approach to statutory construction. Whatever the ultimate
derivations of the various provisions of the 1998 Act may be, they must be construed
as a whole and it is impossible to ignore the fact that one section provides for
reasonable grounds for suspicion whereas the section with which this case is
concerned (section 93A) does not. It seems, to us, that these considerations are also
supported by the speeches in R v Saik [2006] UKHL 18, [2006] 2 WLR 993.

10. Finally on this point we would observe:-

(1) the Proceeds of Crime Act 2002, which is now the

governing statute, likewise sometimes uses the words
“suspects” as in eg section 328(1) (the equivalent of
section 93A), section 330(2)(a) and section 331(2)(a)
and, at other times, the phrase “reasonable grounds for
suspecting” in eg sections 330(2)(b) and 331(2)(b);

(2) Mr Cifonelli’s concern about inappropriate convictions

is unlikely to arise in practice since, if a potential
defendant in fact has no reasonable grounds to suspect
that the facilitated person is or has been engaged in
criminal activity, it is unlikely that a prosecution will
Judgment Approved by the court for handing down. R v Da Silva

be taking place and, if it does, extremely unlikely that

a jury will decide that a defendant has a suspicion
when no reasonable ground exists for entertaining such
a suspicion.

11. We turn then to the ground on which leave was granted. This raises three questions:-

(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?

12. The judge could not, in our judgment, have been criticised if he had declined to define
the word “suspecting” further than by saying it was an ordinary English word and the
jury should apply their own understanding of it. Of course, the danger with saying
nothing is that the jury might actually ask for assistance about its meaning and, if they
did, the judge would have to assist as best he can. This judge, however, volunteered
to assist the jury in relation to the word “suspecting” and we certainly do not consider
that he can be criticised for doing so. The mere fact that a word is an “ordinary
English word” within Cozens v Brutus [1973] AC 854 does not prevent a judge
assisting a jury with its meaning, see R v Gillard (1988) 87 CAR 189, 194. If he does
so assist the jury, it needs hardly be added, he must do so correctly.

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”.
Judgment Approved by the court for handing down. R v Da Silva

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.
Judgment Approved by the court for handing down. R v Da Silva

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.

18. That leaves the question whether the judge’s direction by reference to the meaning of
the Chambers’ dictionary meaning of suspicion with the addition of the phrase
“fleeting thought” constituted a misdirection. Neither counsel could tell us the source
of the judge’s direction but it is noteworthy that HHJ Martineau adopted exactly the
same approach as the leading work on the topic. In Mitchell, Taylor and Talbot on
Confiscation and Proceeds of Crime one finds that the authors say (at para. 9.022 of
the edition current at trial), referring to section 50 of the Drug Trafficking Act 1994
(the drugs equivalent to section 93A),:-

“Since suspicion is a word of ordinary English, it may be

helpful to consider the dictionary definition of suspicion.”

They then cite the 7th edition of Chambers and continue:-

“Suspicion is a word in daily usage, it should be given its

ordinary meaning. Thus any inkling or fleeting thought that the
property might be the proceeds of drug trafficking will suffice
for this section. This wide, all-encompassing section
emphasises, yet again, the draconian effect of the legislation.”

19. It is difficult to criticise the judge for giving a direction authorised by the leading text-
book but we think, with respect, that using words such as “inkling” or “fleeting
thought” is liable to mislead. If they are to be used, it would normally be advisable to
add the qualification we have mentioned in paragraph 17 above. Most cases can be
more conveniently dealt with solely by reference to the suggested direction in
paragraph 16. We are, therefore, driven to the conclusion that there was here, through
no fault of the judge, a misdirection of a technical kind. It is not, however, a
misdirection which causes us to have any doubt as to the safety of the conviction.

20. The Crown had a good prima facie case. The appellant chose to remain silent when
she was interviewed about her joint participation with her husband in relation to
counts 1-10 of the indictment. Her case at trial (as was that of her husband) was that
her husband told her that he had had an instruction from his area manager that he
should make a bank account available for staff workers who could not obtain a bank
account of their own. There was no evidence of that apart from that of the co-accused
husband (whom the jury disbelieved). The appellant did not herself give evidence.
We are satisfied that the convictions are safe and the appeal will be dismissed.
Judgment Approved by the court for handing down. R v Da Silva

21. We regret the delay in issuing this judgment but the court wished to assimilate the
arguments made to the Civil Division of this court in K Ltd v National Westminster
Bank Plc in which the judgment will be delivered shortly.