Neutral Citation Number: [2009] EWCA Crim 922

Case No: 200803394/C4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Wednesday, 22 April 2009

B e f o r e:

LORD JUSTICE HOOPER 

MR JUSTICE DAVID CLARKE 
 
HIS HONOUR JUDGE ROBERTS QC
(Sitting as a Judge of the Court of Appeal Criminal Division) 
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R E G I N A 

v 

RAHILA KAUSAR
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Mr S Farrell QC and Mr W J Jones appeared on behalf of the Applicant 
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 J U D G M E N T 

1.	LORD JUSTICE HOOPER:  This is a renewed application by Rahila Kausar to appeal against her conviction of acquiring criminal property contrary to section 329(1)(a) of the Proceeds of Crime Act 2002.
2.	At the start of today's proceedings we asked Mr Farrell QC, who appears for the appellant along with Mr Jones, to reconsider some of the grounds of appeal upon which reliance was going to be placed and to consider whether further grounds of appeal might be necessary.  Mr Farrell has now produced a document containing four grounds of appeal.  We give leave on those four grounds.  
3.	The issue raised by the case can be simply stated, whether it is appropriate, either in law or in practice, for the prosecution to use the offence of acquiring criminal property contrary to section 329(1)(a) of the Proceeds of Crime Act 2002 as against the person who is alleged to have obtained the property by deception.  We invite the Crown Prosecution Service to be ready on the hearing of this appeal to give such assistance as they are able to do so to the court on the use of this section in the circumstances of this case against this particular appellant.  
4.	We have granted legal aid for Mr Farrell QC and for Mr Jones.  Mr Jones did the trial and Mr Farrell has convinced us that Mr Jones may be of assistance to him in the preparation of and hearing of this appeal given that this was a trial which involved a number of other defendants and a number of other issues.  However, we make it clear that the assessment officer when considering the taxation of any fees should take into account that Mr Jones need now do very little additional legal work because Mr Farrell and Mr Jones have together already done that.
5.	We have ordered Mr Farrell to produce a new skeleton argument, which should be headed "final skeleton argument", and should make it clear in the document that it is not necessary to refer to any other document.  I reserve this case for myself unless that is impractical.
6.	LORD JUSTICE HOOPER:  Mr Jones, who prosecuted in the court below? 
7.	MR JONES:  Malcolm Morse, my Lord, leading Miss Saleena Mahmood.  Both from Midlands Chambers.
8.	LORD JUSTICE HOOPER:  Would you draw to his attention what I have just said? 
9.	MR JONES:  My Lord, certainly.  We are in contact still.  
10.	LORD JUSTICE HOOPER:  The court will need considerable assistance in this area.  
11.	The only thing I want to add is that presumably the textbooks have start trying to analyse this offence.  Smith and Hogan.
12.	MR FARRELL:  Yes, they have.
13.	LORD JUSTICE HOOPER:  Any academic writings from any of the book that have looked at this will again be of assistance.
14.	MR FARRELL:  When you say "this" do you mean ‑‑ 
15.	MR JUSTICE DAVID CLARKE:  The use of this section on facts of this sort.
16.	LORD JUSTICE HOOPER:  Thank you.
17.	MR FARRELL:  As I say, I will lodge the skeleton in seven days.
18.	LORD JUSTICE HOOPER:  Everyone agrees, is it right, that what is called the predicate offence is obtaining by deception.  
19.	MR FARRELL:  Yes, obtaining money through ‑‑ now, of course, it would be a Fraud Act offence which would simply be the making of a dishonesty representation.  But because of the date of this offence the underlying predicate offence is obtaining a money transfer by deception contrary to section 15A of the Theft Act.  
20.	LORD JUSTICE HOOPER:  With the consequences that one has to understand that offence before one can get into the acquiring.
21.	MR FARRELL:  Yes.  There is, of course, the interesting case of Rose, where the issue has been engaged already, as to if I steal a cycle do I possess criminal property that was not criminal before I got it.  There is very strong authority that I do possess criminal property even if it is legitimate before I got it.
22.	LORD JUSTICE HOOPER:  Thank you very much.
23.	JUDGE ROBERTS:  There might be an important distinction between the present position, where it would be charged as an offence under the Fraud Act, and a section 15A offence, because a section 15A offence presumably is not completed until the precise moment at which the prosecution in this case say your client committed an offence under POCA and it seems as little bit off where it can't be criminal property until that moment that you should be said to be guilty under POCA.
24.	MR FARRELL:  Yes, it's very interesting because at what point is the underlying offence completed.  Presumably it's not when the deception is operative.  It's when the property is transferred to you because it is obtaining property, money transfer by deception.  
25.	LORD JUSTICE HOOPER:  The two offences are committed, if they are committed ‑‑ 
26.	MR FARRELL:  Therefore you get the position that two criminal offences come into the existence at exactly the same time on these particular facts with different issues arising in respect of them.  And if we are right on that consideration then you have to go on and consider that as well.  It is an interesting point.  But certainly if I there are any academic writings I will do a trawl and include them.