REGINA v Anwar

Factual and Procedural Background

The Appellant faced multiple counts on an indictment alongside a co-accused, including counts of possessing articles for use in fraud to which both pleaded guilty. Three further counts were pursued to trial: possessing criminal property contrary to Section 329(1)(c) of the Proceeds of Crime Act 2002, and two counts of disguising or converting criminal property contrary to Section 327(1)(b) and (c). None of these counts specified the precise nature of the underlying criminal conduct.

During a search of the Appellant's home, police found a significant sum of cash linked to one count. The other counts related to purchases of BMW cars using large cash payments and debit card transactions. The Appellant denied ownership of the cash and claimed legitimate sources of funds including wages, rental income, and gifts.

The trial before Her Honour Judge Dean and a jury lasted four days, resulting in unanimous convictions on the two counts pursued to verdict and a total sentence of twenty-two months' imprisonment, including the counts to which the Appellant had pleaded guilty.

The prosecution case was that the cash and car acquisitions represented proceeds of unspecified crime, relying on an inference from the circumstances rather than specific criminal conduct. Evidence included official income records showing modest earnings inconsistent with access to large sums.

The Appellant and his sister gave evidence, offering explanations involving sales of bridal gold, gifts, and cash provided by a friend. The jury submitted notes during deliberations, including one asking if tax evasion in the UK could constitute criminal conduct for the purposes of the case.

The judge responded by instructing the jury that tax evasion was a criminal offence in the UK, without providing further legal explanation or addressing the absence of any evidence or allegation of tax evasion during the trial.

Legal Issues Presented

1. Whether the trial judge erred in her direction to the jury in response to their question about whether tax evasion in the UK could constitute criminal conduct for the purposes of the case.
2. Whether the convictions were safe given the judge’s response and the absence of tax evasion as part of the prosecution case or evidence.
3. Whether a retrial should be ordered following the quashing of the convictions.

Arguments of the Parties

Appellant's Arguments

• The Appellant’s counsel objected to an unequivocal affirmative answer to the jury’s question on tax evasion, noting that tax evasion is a complex legal matter and had not been part of the prosecution’s case or evidence.
• It was submitted that the jury should not have been allowed to consider tax evasion as a form of criminal conduct without proper legal instruction or any evidential basis.
• Counsel argued that the judge should have either declined to answer the question on tax evasion or given a detailed legal direction explaining the elements of any relevant offence.
• Regarding retrial, the Appellant’s counsel emphasized the age of the offences and the custodial sentence already served, arguing against a retrial.

Prosecution's Arguments

• The Crown’s counsel accepted that the judge’s direction "could have been better" but submitted that the direction was not materially misleading.
• It was argued that the jury were entitled to a straight answer to their question and that tax evasion was a criminal offence in the UK, thus could constitute criminal conduct under the relevant statute.
• The Crown sought a retrial following the quashing of the convictions.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework of the Proceeds of Crime Act 2002, particularly Sections 327(1), 329(1), and 340, which define offences relating to criminal property and the meaning of criminal conduct. The court noted that the prosecution in this case relied on an inference from the circumstances rather than proving any specific criminal conduct, such as tax evasion.

The jury’s question about tax evasion raised a legal issue that had not been part of the trial evidence or submissions. The court observed that tax evasion is not a defined statutory offence and can involve complex distinctions between lawful tax avoidance and unlawful evasion. The judge’s response to the jury was a brief affirmation that tax evasion is a criminal offence without providing the jury with any guidance on the legal elements or the absence of evidence on this point.

The court compared the present case to prior authorities (Gabriel and Yip) where similar jury questions led to material errors in jury directions because the prosecution had not relied on tax-related criminal conduct and the jury had not been properly instructed.

The court concluded that the judge’s direction constituted a material misdirection because it allowed the jury to convict on a basis not supported by evidence or legal explanation, effectively introducing a new theory of criminal conduct without notice or opportunity for the defence to address it.

Given the short time between the judge’s instruction and the unanimous verdicts, the court could not be satisfied that the convictions were safe.

Holding and Implications

The court ALLOWED THE APPEAL and QUASHED THE CONVICTIONS.

The court declined to order a retrial, considering factors including the age of the offences and the custodial sentence already served by the Appellant. The direct effect is that the Appellant’s convictions on the counts pursued to verdict are overturned. No new precedent was established beyond the application of existing principles concerning jury directions and the necessity of evidence and proper legal instruction when new issues arise during deliberations.