R v Saik

Facts

The appellant operated a bureau de change. He was charged with conspiracy to convert or transfer property knowing or having reasonable grounds to suspect that it represented another person's proceeds of drug trafficking or criminal conduct, contrary to s 1 of the Criminal Law Act 1977 and the money laundering provisions of the Drug Trafficking Act 1994 and the Criminal Justice Act 1988. He pleaded guilty on a written basis that he suspected, but did not know, that the money he was exchanging was the proceeds of crime.

History

After pleading guilty, the appellant appealed against conviction; the Court of Appeal dismissed the appeal and he appealed to the House of Lords.

Issue

Whether a defendant can be guilty of conspiracy to commit a money laundering offence, which can be committed by a person who has reasonable grounds to suspect that property is criminal proceeds, where he only suspected and did not know that the property was criminal proceeds.

Held

Appeal allowed (Lord Brown dissenting); the conviction was quashed.

Ratio

• By s 1(2) of the Criminal Law Act 1977, where the substantive offence can be committed without knowledge of a fact or circumstance necessary for its commission, a person is guilty of conspiracy to commit it only if he and at least one other party intend or know that the fact or circumstance shall or will exist when the conduct constituting the offence takes place. The criminal origin of the property is such a circumstance, so suspicion of it, though enough for the substantive offence, is not enough for conspiracy.

The judgments

Key reasoning

• Section 1(2) was enacted to ensure that conspiracy cannot be committed with a lesser mental element as to circumstances than knowledge or intention, even where the substantive offence imposes liability on a lesser basis, such as suspicion or strict liability.
• The word know in s 1(2) is not satisfied by suspicion, even strong suspicion, and the reference to reasonable grounds to suspect in the substantive offence cannot be carried over into the conspiracy.
• Since the appellant's basis of plea was suspicion only, the facts admitted did not amount to the conspiracy charged, and the conviction could not stand.

Where it fits in the module

In the inchoate liability topic, Saik is the key House of Lords authority on the fault element of conspiracy and illustrates the principle that inchoate liability, being further removed from harm, should demand more culpability than the substantive offence. It invites comparison with R v Khan [1990] 1 WLR 813 on recklessness as to circumstances in attempts, which allows a lesser fault as to circumstances than Saik does for conspiracy.

Criticisms

• The decision creates a mismatch: a person who actually launders money on reasonable suspicion commits the full offence, yet a person who agrees to do so on the same suspicion commits no conspiracy, so planning is treated more leniently than doing.
• Requiring knowledge of facts that lie in the future, such as the provenance of money not yet received, stretches the concept of knowledge, which is why the speeches had to speak of intention as to unidentified property.
• In support of the decision, it can be said that conspiracy criminalises conduct far from harm, and a demanding fault requirement is the main safeguard against its use to convict on weak evidence of agreement and suspicion.