Woman convicted of money laundering loses conviction appeal based on Crown knowingly leading false evidence

About this case:

• Citation:
  [2024] HCJAC 13
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Lesley Clarkson was convicted of two money laundering offences together totalling £63,766, reduced by £4,650 from the charges originally libelled. She argued that the Crown’s failure to disclose a report before trial and the consequences thereof had resulted in a miscarriage of justice.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Doherty and Lord Matthews. Culross, advocate, appeared for the appellant and McKenna, advocate depute, for the Crown.

Did not have knowledge

The case against the appellant was built on three strands of circumstantial evidence. These included evidence of her relationship with a known criminal, David Togher, various transactions on bank accounts held in her name, and a search of her address during which officers recovered £14,571.20 in cash along with notebooks containing names, numbers, and sums of money.

It was maintained by the appellant that the main source of the cash in the account came from her assisting Mr Togher to realise his share of his roofing business and sell his equipment. Some of the cash was also from her parents, in particular her father. Evidence from two experts noted various identifiers of money laundering relating to sums in the accounts.

Evidence was given on three transactions totalling £4,650 paid to Thomas Cook for a holiday, which one of the Crown’s experts, Mr Black, conceded had come from the appellant’s father based on a report by the appellant’s expert, Mr O’Donnell. In examination-in-chief the other expert, Mr Murray, indicated that the suns were unaccounted cash deposits. When Mr O’Donnell’s report on these sums was put to him in cross-examination, he referred to a supplementary report that the defence previously did not have knowledge of.

The defence sought desertion simpliciter on the basis that the Crown deliberately failed to disclose the supplementary report and had led evidence known to be untrue. However, the sheriff considered the matter could be dealt with by direction and refused the motion. Prior to the resumption of evidence, the parties entered into a joint minute agreeing that the sums were from the appellant’s father’s account, and at the end of the Crown case the charges were amended to reduce the overall sum.

Counsel for the appellant submitted that the Crown had acted in an oppressive manner by leading evidence they knew to be inaccurate and had no intention of relying on before the jury. Even if the prejudice could be removed by directions, those given by the sheriff were inadequate and had the effect of “rehabilitating” the evidence of Mr Murray.

Incontrovertibly corrected

Lady Dorrian, delivering the opinion of the court, said of the Crown’s conduct: “The Crown’s approach to this case at trial was incomprehensible. Whatever may have been agreed between the parties, the Crown categorically should not have led evidence known to be inaccurate, in the knowledge that the expert also accepted it to be inaccurate, and which it was known would not be relied upon in seeking conviction. The report should have been disclosed upon receipt, and the libel should have been amended at the start of the trial.”

She continued: “The court is very concerned that this situation should have arisen. Nevertheless, the ultimate question for the court is whether the trial was unfair and resulted in a miscarriage of justice. It is difficult to identify exactly where the enduring prejudice to the appellant is said to lie.”

Explaining this further, Lady Dorrian said: “Any erroneous impression given regarding the three payments was incontrovertibly, and conclusively, corrected by the joint minute and the amendment of the libel. The jury were specifically told that the contents of the joint minute had to be regarded by them as conclusively proved, and that ‘you must accept these facts as true and you must take account of them in your deliberations’. The matter could not have been made any clearer.”

She concluded: “It was not contended that the supplementary report, or its late disclosure, had a significant bearing on any issue beyond the three sums referred to and their source. The content of the defence speech made it plain that the most important issue was Mr Murray’s concession that he had given false evidence in examination-in-chief, thus, the defence argued, undermining his evidence as a whole.”

In a postscript noting that the case had been ongoing since July 2021, Lady Dorrian added: “The court notes with alarm the lamentable procedural history of the case, which suggests both a lack of enthusiasm on the part of the parties to progress the case, and a concerning lack of case management by the various sheriffs involved.”

The appeal was therefore refused.