Du, R. v

Factual and Procedural Background

The case concerns an application for leave to appeal against conviction, an extension of time of 363 days, and leave to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968. The appellant, referred to as the Plaintiff for anonymity, was convicted on 16 June 2022 at the Crown Court by a majority verdict of 11-1 of acquiring criminal property contrary to section 329(1)(a) of the Proceeds of Crime Act 2002. The Plaintiff was acquitted on a second count of possessing criminal property. She was sentenced on 16 September 2022 to an 18-month suspended imprisonment with 100 hours unpaid work and a victim surcharge. The conviction related to approximately £725,954.59 transferred into seven bank accounts in the Plaintiff’s name, including a joint account with the Plaintiff's spouse, between 1 January 2018 and 31 December 2020. The prosecution alleged the funds were proceeds of criminal conduct linked to prostitution, supported by evidence including bank transactions to adult advertising platforms and phone connections.

The Plaintiff, a Chinese national who does not speak English, gave evidence in her defense claiming she was coerced into sex work after being drugged and threatened by individuals who took control of her identity documents and bank cards. She denied knowledge or control over the bank accounts and asserted she was a victim of modern slavery. The trial judge provided directions to the jury, but the Plaintiff contended these directions were legally deficient concerning the elements of the offence.

The Single Judge refused leave on one ground but referred the other ground and the extension of time application to the Full Court. Fresh evidence was admitted de bene esse, including translated threatening text messages sent to the Plaintiff. The Full Court granted all applications, quashed the conviction, and provided these written reasons.

Legal Issues Presented

1. Whether the legal directions to the jury on the elements of the offence were deficient in failing to require the jury to consider separately whether the Plaintiff had "acquired" the funds and whether she knew or suspected the funds were criminal property.
2. Whether fresh evidence in the form of threatening text messages should be admitted and whether it rendered the conviction unsafe.
3. Whether an extension of time to apply for leave to appeal should be granted despite a delay of 363 days.

Arguments of the Parties

Appellant's Arguments

• The jury directions were legally deficient because they did not separately address the two essential elements of the offence: acquisition of the property and knowledge or suspicion that it was criminal property.
• Fresh evidence consisting of threatening text messages was not adduced at trial and should be admitted as it supports the defense that the Plaintiff was coerced and fearful, explaining the delay and undermining the safety of the conviction.
• The delay in filing the appeal was explained by the Plaintiff’s circumstances, including fear and difficulty in identifying threats, justifying an extension of time to avoid significant injustice.

Respondent's Arguments

• The Respondent accepted the legal directions were technically deficient but contended the conviction was not unsafe despite this deficiency.
• The Respondent questioned the provenance and veracity of the fresh text messages but did not dispute their relevance to the defense.
• The Respondent did not oppose the extension of time application on the basis that the delay did not cause difficulty in resolving the substantive grounds of appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v McCook [2014] EWCA Crim 734	Waiver of privilege over communications with previous legal advisers and professional obligations of former counsel in appeal cases.	Used to explain the process of obtaining information from previous legal representatives and the importance of professional conduct in appeals.
R v O [2019] EWCA Crim 1389	Considerations in granting extensions of time where delay is exceptionally long and prior representatives cannot assist due to lack of recollection or documents.	Distinguished as not applicable; prior representatives in this case could assist, highlighting the unusual nature of that precedent.
R v Hughes [2009] EWCA Crim 841	Extension of time granted only where there is good reason and ordinarily where the defendant would suffer significant injustice without it.	Applied to assess the adequacy of reasons for delay and whether significant injustice would occur without extension.
R v Thorsby [2015] EWCA Crim 1	The principled approach to extensions of time requires the court to grant an extension if in the interests of justice, considering merits and public interest including liberty of the individual.	Guided the court’s assessment of extension of time, emphasizing the balance of justice and public interest.

Court's Reasoning and Analysis

The court examined the legal directions given to the jury and found a technical deficiency: the jury was not separately directed to consider whether the Plaintiff had "acquired" the funds and whether she knew or suspected the funds were criminal property, both essential elements of the offence under section 329(1)(a) of the Proceeds of Crime Act 2002. Although the Plaintiff accepted at trial that the funds were likely criminal property based on knowledge gained post-arrest, the court held that the jury must assess knowledge or suspicion as at the time of the alleged offence, not at trial.

The court accepted the credibility of the Plaintiff’s explanation for the delay in adducing fresh evidence, particularly the threatening text messages translated by a paralegal with relevant language skills. These messages corroborated her defense of coercion and fear, providing a reasonable explanation for the failure to present this evidence at trial.

Applying the statutory criteria under section 23 of the Criminal Appeal Act 1968, the court found the fresh evidence credible and relevant, justifying its admission. The court further considered the lengthy extension of time sought and, applying the principles from R v Hughes and R v Thorsby, concluded that the delay was adequately explained and that refusal to extend time would cause significant injustice.

Given these findings, the court held the conviction unsafe due to the defective jury directions and the supporting fresh evidence, warranting quashing of the conviction. The Crown decided not to seek a retrial, particularly as the Plaintiff had already served the sentence imposed.

Holding and Implications

The court granted leave to appeal on Ground Two, allowed the application to adduce fresh evidence, granted the extension of time, and allowed the appeal, resulting in the quashing of the conviction.

The direct consequence is that the Plaintiff’s conviction for acquiring criminal property is quashed, and no retrial will be pursued by the Crown. The Plaintiff has already served the sentence imposed. No new legal precedent was established beyond the application of existing principles to the facts of this case.