[2014] UKPC 27
Privy Council
Appeal No 0083 of 2013
JUDGMENT
Beezadhur
(Appellant) v The Independent
Commission
against Corruption and another
(Respondents)
From The Supreme
Court of Mauritius
before
Lady Hale
Lord Kerr
Lord Reed
Lord Carnwath
Lord Hodge
JUDGMENT
DELIVERED BY
Lord Carnwath ON
7 August 2014
Heard on 9 and
10 July 2014
Appellant
Satyawan Kailash Trilochun
Javed Allybokus
Ashwina Pittea
(Instructed by Roshan Rajroop)
First Respondent
Kaushik Goburdhun
Ms P Bissoonauthsing
(Instructed by Sultan Sohawon)
Second Respondent
Geoffrey Cox QC
Rashid Ahmine
Edward Risso-Gill
(Instructed by Royds Solicitors)
LORD CARNWATH:
1. This is an appeal against
the judgment of the Supreme Court (N. Devat J and D. Chan Kan Cheong J), of 28
June 2013, dismissing the appellant’s appeal against conviction and sentence
for five offences contrary to Sections 5(1) and 8 of the Financial and Anti-Money
Laundering Act (‘the 2002 Act”). Leave was granted by the Board on 29 October
2013. The appeal raises two issues:
(i) On which party does the onus of proof lie regarding the
application of exemptions under section 5(2) of the Act?
(ii) What is meant by the words “lawful business activities” in the
definition of “exempt transaction” in section 2 of that Act?
The statutory provisions
2. The 2002 Act took effect on 10 June 2002, replacing similar
provisions in the Economic Crime and Anti-Money Laundering Act 2000. Section 5
of the Act (replacing section 20 of the 2000 Act), as amended, provides:
“5. Limitation of payment in cash
(1) Notwithstanding
section 37 of the Bank of Mauritius Act 2004, but subject to subsection (2),
any person who makes or accepts any payment in cash in excess of 500,000 rupees
or an equivalent amount in foreign currency, or such amount as may be
prescribed, shall commit an offence.
(2) Subsection
(1) shall not apply to an exempt transaction.”
3. “Exempt transaction” is defined by section 2:
“ ‘exempt transaction’ means a transaction –
(a) between
the Bank of Mauritius and any other person;
(b) between
a bank and another bank;
(c) between
a bank and a financial institution;
(d) between
a bank or a financial institution and a customer where -
(i) the
customer is, at the time the transaction takes place, an established customer
of the bank or financial institution; and
(ii) the
transaction consists of a deposit into, or withdrawal from, an account
maintained by the Customer with the bank or financial institution, where the
transaction does not exceed an amount that is commensurate with the lawful
business activities of the customer; or
(e) between
such other persons as may be prescribed;” (emphasis added)
The issue in this case turns on the construction of
exemption (d), in particular the italicised words.
4. It is to be noted that since the Supreme Court decision in
this case exemption (d) has been amended with effect from 12 December 2013 by
the Economic and Financial Measures (Miscellaneous Provisions) Act (Act 27 of
2013), in particular to omit the reference to “business” activities. It now
reads:
“(d) between a bank or a financial institution and a
customer where –
(i) the transaction does not exceed an amount that is
commensurate with the lawful activities of the customer, and –
(A) the
customer is, at the time the transaction takes place, an established customer
of the bank or financial institution; and
(B) the
transaction consists of a deposit into, or withdrawal from, an account of a
customer with the bank or financial institution; or
(ii) the chief executive officer or chief operating
officer of the bank or financial institution, as the case may be, personally
approves the transaction in accordance with any guidelines, instructions or
rules issued by a supervisory authority in relation to exempt
transactions;…”
Background to the
legislation
5. Mr Geoffrey Cox QC (for the State of Mauritius) invites the
Board to consider the statute against its background of international pressure
to combat economic crime and money laundering, including recommendations that
cash transactions should be closely monitored and controlled.
6. The
2000 Act had been a response to such international criticism, including by the
Financial Action Task Force (or FATF), a body set up in 1989 by the G7
countries to examine measures to combat money laundering. FATF had also drawn
attention to the risks posed by large cash transactions in the economy. Its
“Forty recommendations…on money-laundering” (in the 1990 and 1996 versions) had
included:
“Countries should consider the feasibility and utility
of a system where banks and other financial institutions and intermediaries
would report all domestic and international currency transactions above a fixed
amount, to a national central agency with a computerised data base, available
to competent authorities for use in money laundering cases, subject to strict
safeguards to ensure proper use of the information.
Countries should further encourage in general the
development of modern and secure techniques of money management, including
increased use of checks, payment cards, direct deposit of salary checks, and
book entry recording of securities, as a means to encourage the replacement of
cash transfers.”
7. The Bill on which the 2000 Act and later the 2002 Act were
based was itself the result of detailed consideration over a number of years
with expert advice from overseas, including a report from Professor Norton of
London University in 1998. His report included a detailed review of the draft
Bill (section IV A), of which he commented:
“The draft Anti-Money Laundering and Economic Crime
Bill legislation represents an excellent effort to underlie the development of
a framework to protect the bank and non-bank financial systems from systemic
invasion and corruption by domestic and international criminal
organisations.”
His review of the provisions
relating to cash transactions, including the exemptions (section IV B 2(a),
made no specific comment on the wording of the exemption now in issue, but he
spoke more generally of the need for flexibility –
“… to ensure that the exempt transactions provision is
not abused, but nonetheless sets forth ‘bright line tests’ to identify
particular institutions
where money laundering operations are highly unlikely
or non-existent…”
8. The
general purpose of the Act was later described by the Supreme Court in Abongo v
The State [2009] SCJ 81, cited in part in Meeajun v State [2011] SCJ 141, para
26:
“[The 2002 Act was meant] essentially for the purpose
of combating money laundering offences which had the potential of adversely
affecting the social and economic set up, both at national and international
level to such an extent that they may constitute serious threats not only to
the financial system but also to national security, the rule of law and the
democratic roots of society. By enacting sections 5,6 and 8 of the Act, the
policy of the legislator was clearly designed to achieve the compelling
objective of safeguarding the national and international financial system
against any disruptive intrusion which may be caused by the perpetrators of
certain criminal activities…”
9. The appellant does not challenge the general objectives of
the legislation, but questions whether they require an unduly narrow reading of
the exemption in issue in this case. That view gains some support from the
added flexibility introduced by the amendment in 2013, as noted above, made
apparently in response to the Supreme Court decision in this case.
The facts
10. The appellant gave unchallenged evidence as to the background
and circumstances of the payments.
11. He had left Mauritius in 1959 for the United Kingdom, where he
still lives. He was employed there in the National Health Service, and in 1962
married a nurse working in the same service. When they both retired in 2004,
they obtained a total lump sum of £ 80,000. Since then, he has been receiving a
monthly pension of £2,000 and his wife of £ 1,500. He has been coming to
Mauritius regularly since 1995 and on each visit, he brought his “pocket money”
in cash.
12. The money in question all came from his savings and pension and
those of his wife, all of which were initially deposited into his joint bank
account with his wife in the United Kingdom. The purpose of the money was to
provide for retirement in Mauritius and he intended to invest that money in
Mauritius. He has other deposits in financial institutions in Mauritius, paid
for initially by cheques drawn on the State Bank of Mauritius. He owns a house in Mauritius.
13. Of the
specific cash transactions which were the subject of the charges his evidence
was:
(i) On the
14 June 2002 he made a cash deposit of Rs 600,000 into his State Bank of
Mauritius account;
(ii) On the
12 February 2003, he withdrew 90,000 Euros, representing Rs 2,708,820. This
withdrawal funded the purchase of a property in Spain.
(iii) On the
11 January 2006, he made a cash deposit of Rs 500,000 into his State Bank of
Mauritius account.
(iv) On the
17 January 2006, he made a cash deposit of Rs 500,000 into his State Bank of
Mauritius account.
(v) On the
10 January 2007, he made a cash deposit of Rs 820,000 into his State Bank of
Mauritius account. He initially changed £7,500 at Shibani Finance Co. Ltd,
obtaining Rs 495,750 and added the difference of Rs 324,250 before depositing
the total into his bank account.
14. In the intermediate court, the magistrate accepted that the
money in question did not have a “tainted” origin, but was the fruit of his
savings. However, he held that the Act did not require the prosecution to aver
in the information that the money emanated from tainted origins. The appellant
did not at that stage argue that the transactions were
“exempt” under section 5(2).
The magistrate found the appellant guilty as charged and sentenced him to pay a
fine of Rs 10,000 under each of the five counts, and costs of Rs 500.
15. His appeal to the Supreme Court was dismissed. The court held
that the burden had been on him to bring himself within exemption (d), which he
had not sought to do, but that in any event the exemption was not applicable to
his case. “Business activities” meant “activities which are money making or
profit making, in short commercial activities and purposes” (p 17). Further he
had not shown that he was an “established customer” of the bank.
The issues
16. As already noted, the grounds of appeal raise two issues:
burden of proof and construction of exemption (d). It is convenient to deal
first with the issue of construction, which in the Board’s view is
determinative against the appeal. However, the issue of burden of proof may be
of some general importance and has been fully argued. Accordingly it will be
appropriate to express some conclusions on it.
Lawful business activities
17. The Supreme Court held that the word “business” in this context
had the effect of limiting the scope of the exemption to “money making or
profit making activities of a commercial or professional nature” (p 17). It was
designed for businesses which routinely handle large amounts of cash as part of
their normal operations:
“As rightly pointed out [by counsel], there are
supermarkets, hypermarkets or businesses of similar nature which everyday deal
with and deposit substantial amounts of cash exceeding Rs 500,000. Now such
businesses would be everyday contravening section 5 were it not for the defence
of ‘exempt transaction’. It is precisely with these businesses in mind that the
legislator has thought it fit to provide for a form of exemption to those
engaged in activities which necessarily involve dealing in cash beyond the
prohibited limit…” (p 17)
Consequently, it had no
application to private or personal transactions, even if otherwise lawful and
morally unobjectionable, such as those of the appellant.
18. Mr Trilochun argues that this interpretation is too
narrow. He submits that the word “business”
is apt to describe a person’s regular occupation, profession or trade, whether
or not “commercial” in the sense used by the Supreme Court. It could cover, for
example, a major charity collecting donations in cash and depositing them with
its regular bank. That would be a “lawful business activity”, even if not
commercial. In the same way, the appellant’s “business” was his occupation as a
retired nurse, and all the impugned transactions were commensurate with his
lawful activities in that occupation.
19. The Board is inclined to agree that the Supreme Court’s
interpretation may have been too narrow, in so far as it restricted the phrase
to commercial or “money-making” activities. Mr Cox accepted that a charity
collecting donations, in Mr Trilochun’s example, would be covered by the
exemption, but he suggested that the Supreme
Court’s reference to
“money-making” was wide enough to embrace such an activity. Whether or not the
Supreme Court’s language can be stretched to that extent, the Board sees no difficulty
in treating money-raising activity by a charity as a “business activity” in the
ordinary meaning of that expression.
20. In Town Investments Ltd v Department of the Environment [1978]
AC 359, 383
(concerning the term
“business tenancy” in UK counter-inflation legislation), Lord Diplock described
the word “business” as an “etymological chameleon” which suited its meaning to
the context in which it was found, and whose dictionary meanings (in the words
of Lindley L.J. in Rolls v. Miller (1884) 27 Ch.D. 71, 88) embraced “almost
anything which is an occupation, as distinguished from a pleasure…”. In the
Court of Appeal in the same case ([1976] 1 WLR 1126, 1149 Buckley LJ
(preferring the metaphor “protean”) had suggested that it was “easier to say what
is not ‘business’ than what is”, and that it was “to a great extent a question
of degree” and dependent on the character of the particular activity. He gave
some examples:
“Purely domestic activities are not ‘business’. Purely
recreational activities are not in my opinion ‘business’ unless, maybe, when
carried on by a body of persons… Nor, I think, are purely cultural pursuits,
distinct from a business of providing education. A commercial element may not
be essential… a serious undertaking earnestly pursued for the purpose of
fulfilling a social obligation may constitute a business, even if not
undertaken for profit….”
21. Although no conclusive guidance is to be found in authorities
under other statutes or in legal dictionaries, in none of them has Mr Trilochun
been able to find support for treating the occupation of a retired nurse as a
“business activity” in any context comparable to the present. It is unnecessary
to attempt a complete definition of the expression “business activities” in the
2002 Act, either for the purposes of this case, or (following its amendment)
for the future. It is enough to express agreement with the Supreme Court that,
on the ordinary meaning of that term, the appellant’s activities are not within
it. Indeed, to hold otherwise would deprive the word “business” of any meaning
in the definition.
22. The wording of the exemption must be looked at as a whole. It
is concerned with “business activities” not just business in a loose general
sense. Furthermore the emphasis is, not so much on the business activities as
such, as on the nature and amount of the cash transactions, which must be
“commensurate” with the activities of that business. This tends to support the
Supreme Court’s view that the exemption is directed at businesses, typically in
the retail trade, in which substantial cash transactions are a routine activity
and provide an appropriate comparison for the transactions in issue.
23. Nothing in the background or purposes of the statute calls for
a wider interpretation. Strict control of cash transactions was clearly seen as
an important part of the strategy for countering financial abuse. The
exemptions were narrowly defined, being directed principally at transactions
under the control of the central bank, or between recognised banks and
financial institutions. The last category extends the exemption more widely,
while still subject to some control by the banks, but it is not surprising to
find it limited to businesses with a pattern of cash transactions, as opposed
to the public at large.
24. On this issue therefore the appeal must fail.
Burden of proof
25. Section 10 of the Constitution provides:
“(2) Every person who is charged with a criminal
offence –
(a) shall be presumed to be innocent until he is
proved or has pleaded guilty;
…
(11) Nothing contained in or done under the authority
of any law shall be held to be inconsistent with or in contravention of –
(a) subsection (2)(a), to the extent that the law in
question imposes upon any person charged with a criminal offence the burden of
proving particular facts;…”
26. Section 10 gives expression to a fundamental rule of the common
law, that the general burden of proof in criminal cases lies on the
prosecution. That rule is subject to a well-established exception, the best
known statement of which is probably in the judgment of Lawton LJ in Reg. v.
Edwards [1975] Q.B. 27, 39-40. He described the line of authority which “over
the centuries” had evolved an exception to the fundamental rule:
“This exception… is limited to offences arising under
enactments which prohibit the doing of an act save in specified circumstances
or by persons of specified classes or with specified qualifications or with the
licence or permission of specified authorities. Whenever the prosecution seeks
to rely on this exception, the court must construe the enactment under which
the charge is laid. If the true construction is that the enactment prohibits
the doing of acts, subject to provisos, exemptions and the like, then the
prosecution can rely upon the exception.”
The exception has been held
equally relevant where the general rule is enshrined in a constitutional
provision (see A-G for Hong Kong v Le Kwong-kut [1993] AC 951, 96870, relating
to article 11(1) of the Hong Kong Bill of Rights, which provided: “Everyone
charged with a criminal offence shall have the right to be presumed innocent
until proved guilty according to law.”)
27. The same
approach has been followed by the Supreme Court of Mauritius in a number of
decisions, which it also relied on in the present case. They have treated
section 10(11)(a) of the Constitution as giving effect to the exception. Thus
in Police v Moorbannoo (1972) MR 22, 25-26 the Court said:
“The principle which section 10(11)(a) of the
Constitution aims at expressing in a compendious and general form may be
expounded thus. To say that an accused party is to be presumed innocent is
really to say that the burden is on the prosecution to prove every ingredient
of the charge against him. It has long ago been realised, however, that if that
rule were strictly adhered to, many acts or omissions which the Legislature
deems of the utmost importance to prohibit for the public good would have to be
left unpunished, because the prohibition would be incapable of enforcement, and
there has from early times been elaborated a qualification to the rule which
is, that facts which bring a defendant within the ambit of a particular
exception, if they are peculiarly or exclusively within his knowledge, should
be regarded as matters which it is for him to establish.”
Similarly in Police v Fra
(1975) MR 157, 158-159, the court said:
“It is also permissible for the legislature, subject
to [the Constitution], to make the doing of any particular act an offence, save
in specified circumstances, or by persons of specified classes, or with special
qualifications or with the permission of license of specified authorities; the
effect of the enactment being in such a case to prohibit either expressly or by
necessary implication the doing of the act in question subject to a proviso,
exception, excuse or qualification, and the burden of proving that the proviso
and the like applies being placed on the contravener. Such an enactment would
not infringe subsection (2)(a) of section 10 of the Constitution and is
expressly allowed by subsection (11)(a) of that section, which provides that a
law that imposes upon a person charged with a criminal offence the burden of
proving particular facts is not inconsistent with the presumption of innocence
protected by subsection (2)(a)”.
28. These
passages were quoted and applied by the Supreme Court in Abongo v The State
[2009] SCJ 81 (in the context of the 2002 Act itself), and more recently in
Fakira A.G v The State 2012 SCJ 466, in which reference was made also to R v
Edwards. In Fakira reference was also made to section 125(2) of the District
and Intermediate Courts (Criminal Jurisdiction) Act, which can be seen as
expressing the same principle in statutory form:
“Any exception, exemption, proviso or qualification,
whether it does or does not accompany the description of the offence in the law
creating such offence, may be proved by the defendant but need not be specified
in the information or proved by the prosecutor”
29. In the
present case, Mr Trilochun for the appellant does not question the general
principle as embodied in section 10(11)(a), but relies on what he says are two
qualifications:
(i) Following
the Supreme Court in Moorbannoo, it should be treated as placing the burden of
proof on the defendant only in respect of matters “peculiarly or exclusively
within his knowledge”.
(ii) On its
proper construction, section 10(11)(a) only applies where “the law in question”
expressly imposes upon the person charged the burden of proof.
30. In his closing submissions he made what appeared to be a wholly
new point: that the principles stated in R v Edwards (1975) were inapplicable
in Mauritius, because the judgment post-dated the 1968 Constitution and was
therefore no part of the system of law established under it. The Board sees no
merit in this argument. The varied sources of the law of Mauritius have been
discussed in other cases (see eg Ahnee v DPP [1999] 2 AC 294), but that debate
has no relevance in the present context. As made clear in the judgment of
Lawton LJ in Edwards the principles there discussed derived from authorities
developed “over the centuries” and long before the 1968 Constitution. As
recognised by the Supreme Court, they are reflected in section 10 of the
Constitution itself, and in the Board’s view are a legitimate aid to its
interpretation.
31. Under his first suggested qualification, he argues that the
issues arising under exemption (d) - that is whether the appellant was an
established customer, and whether the amount was commensurate with his lawful
activities - were not matters “peculiarly or exclusively” within his knowledge.
Both the bank and the prosecuting authorities had the means to obtain the
necessary knowledge. Under its “Know Your Customer” procedure the bank was or
should have been able to investigate such matters as a customer’s sources of
income, his businesses activities, his living standard, and the number of times
and the purpose for which he travels during a year. Under section 17(c) of the
2002 Act, the prosecuting authority had the power to seek a court order for
records held by a bank, and obtained such an order in this case for the
appellant’s bank statements.
32. The Board cannot accept this submission. Exclusivity of
knowledge, as such, is not an essential requirement for the application of the
exception. The important issue is –
“the extent to which the
burden on the accused relates to facts which, if they exist, are readily
provable by him as matters within his own knowledge or to which he has ready
access.” (R v Johnstone [2003] 1 WLR 1736 para 50 per Lord Nicholls).
This clearly applies to the
customers’ knowledge of his status as an established customer of a bank, of the
nature and purpose of his own cash transactions, and of whether they were
commensurate with his lawful activities in general. It is not affected by the
possibility that the prosecuting authority may be able to obtain some of the
information indirectly by a court order for disclosure of bank records.
33. On the other hand the fact that the bank, which was the other
party to the cash transaction, had, or could have had, access to information
about its customer’s activities is nothing in point. That information may be as
important for the bank in relying on exemption (d) as for the customer. It has
to be borne in mind that the offence is committed by both the person who makes
the cash payment and the person who accepts. There is no exemption for banks as
such in their dealings with their customers. Indeed the shared responsibility
of the bank and its customer for ensuring that a cash transaction is covered by
the exemption appears to be an important aspect of the statutory scheme.
34. In support of his second qualification, Mr Trilochun pointed to
a number of statutes in which it was expressly provided that the burden of
proof in respect of particular matters lay on the defendant. In the leading
case of Moorbannoo, for example, the relevant statute (Electricity Ordinance s
32) imposed criminal liability on any person who “without lawful authority or
excuse, the proof whereof shall lie on him… abstracts, consumes or uses
energy…” (emphasis added). Mr Trilochun went as far as to submit that similar
wording could be found in the statutes in issue in all the cases in which
section 10(11)(a) had been applied by the Supreme Court.
35. It is unfortunate that the last point appears to have been made
for the first time in his oral submissions to the Board. It was not therefore
addressed by the Supreme Court, which would have been better equipped than the
Board to put it to a general test. However, the point does not appear as part
of the reasoning of that court in any of the judgments to which the Board has
been referred. It appears to be falsified by at least one of them. In Fakira
(above), the alleged offence (under section 258(1) of the
Criminal Code) was that of
sequestration “without any order from the constituted authorities”. The section
contained no specific reference to a burden of proof placed on the defendant.
However, the Supreme Court held, relying on section 10(11)(a) and Moorbannoo,
that it was not necessary for the prosecution to prove absence of such an
order.
36. In agreement with the Supreme Court in the cases to which
reference has been made, the Board reads section 10(11)(a) as intended to give
constitutional effect to the common law principle enunciated in cases such as R
v Edwards. It applies whenever the relevant law (“the law in question”),
interpreted in the light of that principle, has the effect of placing the
burden of proof on the defendant. If that effect is clear from the form of the
provision in issue, it does not need to be spelt out in express terms. In the
present case, the structure and content of the statutory offence and of the
specific exemptions are in the Board’s view clearly designed to bring into play
the Edwards principle. The Supreme Court was right to hold that, in accordance
with section 10(11)(a), it was for the defendant to show that the transaction
was within one of the exempt categories.
Conclusion
37. The Board has considerable sympathy for the appellant. It is
accepted that the source of his cash deposits was entirely legitimate, as was the
reason for his cash withdrawal. There is no reason to believe that he had any
intention to break the law. At the time of the first transaction the 2002 Act
had only been in operation for a matter of days, and, although the 2000 Act had
contained similar restrictions, it is not clear how much publicity had been
given to them. Furthermore, one might have expected that his bank which
certainly would have known the law, would have drawn it to his attention and
refused either to accept his deposits (if not the first, then certainly the
second, third and fourth times) or to pay out the cash. (Indeed, on the
material before the Board, it is unclear why he alone was prosecuted for an
offence, which on the face of it was also committed by the bank. In response to
questions from the Board, Counsel for ICAC (the first respondent) was unable to
explain why no prosecution had apparently been taken against the bank. In the
absence of any representative of the bank it would be wrong to comment
further.) Although there is no appeal against sentence, we would observe that
in the circumstances as we know them the penalty seems harsh and consideration
could properly have been given to a non-penal disposal.
38. In conclusion the Board sees no alternative but to dismiss the
appeal and uphold the convictions.
LORD KERR (DISSENTING):
39. I agree with the judgment of the majority on the issue of the
burden of proof. The provisions in section 10(11)(a) of the Constitution are
dispositive of that issue. But the consequence of fixing the appellant with the
burden of proving that the transactions in which he engaged were exempt from
section 5(1) of the 2002 Act must surely be that a generous approach should be
taken to the availability of the exemption under section 5(2) of the Act.
40. Bennion on Statutory Interpretation, 5th ed, 2008 at Section
182 states:
“Strict and liberal construction.
(1) Where
the legal thrust of an enactment yields an adverse result, the interpretative
factors may on balance indicate that the court should curtail its application.
This is known as strict construction.
(2) Where
the legal thrust of an enactment yields a beneficent result, the interpretative
factors may on balance indicate that the court should widen its application.
This is known as liberal construction.
(3) The
same construction may be strict from one point of view but liberal from
another.”
This has been frequently
approved, most recently by the Privy Council in Selassie v The Queen [2013]
UKPC 29 per Lord Wilson at [17].
41. That the legislature did not intend that the activities of an
innocent person such as the appellant should be criminalised is put beyond
doubt by the rapid amendment of section 5 of the 2002 Act by the Economic and
Financial Measures (Miscellaneous Provisions) Act (Act 27 of 2013). True it is
that amending legislation does not necessarily provide an insight into the
intention of Parliament in enacting the original provision. But it seems to me to be wholly unrealistic
to ignore the fact that the legislature moved so quickly to correct what it
must have perceived as an unintended consequence of the original Act. In this
connection I should say that I do not consider that the fact that the
legislation had been considered by experts before it was enacted is at all relevant. It is abundantly apparent that none of these
experts had adverted to the anomaly that this case has thrown up. Their
contribution did not inhibit, much less deter, Parliament from putting right
the obvious wrong which the appellant’s conviction had exposed.
42. Business can be read as meaning occupation, profession or
trade, as the appellant has argued.
‘Activities’ can be regarded as the transactions involved in carrying
out one’s occupation etc. This may not
be the conventional connotation but it is certainly a possible one and, in
keeping with the rule enunciated by Bennion, if it is possible, then it should
be adopted.
43. The Oxford English Dictionary provides these definitions of
‘business’: “(a) a person’s official or professional duties as a whole; one’s
regular, habitual or stated profession, trade or occupation; (b) an instance of
this: a particular occupation or means of earning a living; a trade, profession
or pursuit.” The transactions which are the subject of the charges against the appellant
involved use of money which was earned in the course of his profession.
“Business activities” and “business” can both be interpreted as involving
commercial activity. What the appellant
was engaged in was certainly commercial, in the broader sense of that
term. If I deposit money in my bank
account, I am doing business with my bankers.
While that action may not immediately appear to constitute business
activities, it is not an unduly strained meaning of the term.
44. Quite apart from this, interpretation of section 5(2) to
include normal transactions with one’s bank involving the deposit of money
earned from one’s work avoids the absurdity that charities would commit an
offence if they have a successful collection and deposit the proceeds in an
account. The respondents’ attempts to suggest that, on the interpretation that
they commend, this consequence could be avoided seem to me entirely
implausible. Moreover, none of the policy objectives of the legislation is any
less well served if the exemption extends beyond the world of commerce. Cash in
hand businesses are more likely to be used for money laundering but it does not
make sense to confine the exemption solely to them.
45. I would therefore have allowed the appeal.
