Proceeds of Crime

Question 1

What is the purpose of the Proceeds of Crime Act 2002?

Answer 1

Offences and powers under the Proceeds of Crime Act 2002 are connected with day-to-day criminality and are relevant to all police officers

Question 2

What is criminal conduct?

Answer 2

PoCA 2002, s340
(2) Criminal conduct is conduct which—
(a) constitutes an offence in any part of the United Kingdom, or
(b) would constitute an offence in any part of the United Kingdom if it occurred there
Criminal conduct includes the behaviour of D and any other person.
Any offence, committed by any person, anywhere at all and at any time is ‘criminal conduct’.

Question 3

Does a connection need to be proven between the criminal act that gave rise to the criminal property?

Answer 3

No- key question for the jury is whether the property is criminal property and if is believed that there would be no other reasonable explanation other than the property is a direct result of crime.
Do not need to make a link between the offence and the property.

Question 4

What is the purpose of s340(4) of the Act?

Answer 4

s340(4) states that it is immaterial:
- who carried out the criminal conduct;
- who benefited from it;
- whether the conduct occurred before or after the passing of the Act

Question 5

What is criminal property?

Answer 5

PoCA 2002, s340
(3) Property is criminal property if—
(a) it constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or in part and whether directly or indirectly) and,
(b) the alleged offender knows or suspects that it constitutes or represents such a benefit

Question 6

What are the 3 principal offences relating to money laundering?

Answer 6

s327 concealing criminal property
s328 arrangements in relation to criminal property
s329 acquisition, use and possession of criminal property

Question 7

What is the definition of property under s327, 328 and 329?

Answer 7

Definition of property does not just relate to money
S340(9) defines property as all property wherever situated and includes:
- money
- all forms of property, real or personal, heritable or movable and
- things in action and other intangible or incorporeal property (relates to property or an asset that does not have value in material form, such as a right or a patent).

Question 8

What is the MR relating to criminal property and all 3 offences? Case?

Answer 8

MR is knowing or suspecting- dishonesty is not required.
R v Da Silva [2006]- COA upheld conviction, concluding that the word ‘suspect’ meant that D had to think that there was a possibility, which was more than fanciful, that the relevant facts existed. Suspicion alone will suffice which is remarkably less burdensome for the prosecution.

Question 9

What is the offence for concealing criminal property?

Answer 9

PoCA 2002, s327
(1) A person commits an offence if he—
(a) conceals criminal property;
(b) disguises criminal property;
(c) converts criminal property;
(d) transfers criminal property;
(e) removes criminal property from England and Wales and Scotland or from Northern Ireland
(3) Concealing or disguising criminal property includes concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it

Question 10

When is a person not guilty for concealing criminal property?

Answer 10

(2) But a person does not commit such an offence if—
(a) he makes an authorised disclosure under section 338 and (if the disclosure is made before he does the act mentioned in subsection (1)) he has the appropriate consent;
(b) he intended to make such a disclosure but had a reasonable excuse for not doing so;
(c) the act he does is done in carrying out a function he has relating to the enforcement of any provision of this Act or of any other enactment relating to criminal conduct or benefit from criminal conduct

Question 11

What is the difference between offences of concealing criminal property and handling stolen goods?

Answer 11

s327 can be committed during the commission of an offence and for the benefit of the thief
Handling stolen goods only occurs otherwise than in the course of stealing and by or for the benefit of another- this is not the case for this offence!

Question 12

Case- concealing criminal property

Answer 12

R v Fazal [2010]- D allowed his bank account to be used by a friend to launder money, and it was held that he was guilty of converting criminal property (contrary to s. 327(1)(c)) whenever such monies were deposited in, retained in or withdrawn from the account

Question 13

Case- concealing criminal property

Answer 13

R v Pace [2014], COA rejected the argument that, on a charge of attempting to commit the offence under s. 327(1)(c), it would be sufficient for the prosecution to prove that D merely suspected the property in question to be criminal property. Suspicion of this kind suffices for the substantive offence (as it does for all such offences under ss. 327 to 329) but it cannot, said the court, suffice for an attempt

Question 14

What is the offence of arrangements in relation to criminal property?

Answer 14

PoCA 2002, s328
(1) A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person

Question 15

What is the sentence for arrangements in relation to criminal property?

Answer 15

Triable either way
14 years’ imprisonment on indictment and/or a fine

Question 16

What is the meaning of s328(1)?

Answer 16

The natural and ordinary meaning of s328(1) was that the arrangement to which it referred must be one which related to property which was criminal property at the time when the arrangement began to operate on it. To say that it extended to property which was originally legitimate but became criminal only as a result of carrying out the arrangement was to stretch the language of the section beyond its proper limits (R v Geary (Michael) [2010])

Question 17

What is required to establish an offence under s328?

Answer 17

To establish an offence under s328, you need to prove that a person entered into or became concerned in an arrangement which he knew or suspected would make it easier for another person to acquire, retain, use or control criminal property and that the person concerned also knew or suspected that the property constituted or represented benefit from criminal conduct.

Question 18

Example of when this offence would be committed

Answer 18

When someone launders on behalf of others eg: an account who facilitates money laundering on behalf of others in the course of their work.
Can also apply to family members who do the same.

Question 19

Are there any defences available here?

Answer 19

Same defences as under s327 available for this offence (in terms of disclosure)

Question 20

What is the offence of acquisition, use and possession of criminal property?

Answer 20

Proceeds of Crime Act 2002, s329
(1) A person commits an offence if he—
(a) acquires criminal property;
(b) uses criminal property;
(c) has possession of criminal property
This offence is committed where a person knows or suspects that the property which is acquired etc., constitutes or represents his/her own or another’s benefit from criminal conduct; the same defences against committing the offence apply as in s. 327

Question 21

What is the sentence for the acquisition, use and possession of criminal property?

Answer 21

Triable either way
14 years’ imprisonment on indictment and/or a fine

Question 22

What is the purpose of s329?

Answer 22

A thief who uses or retains possession of property that he/she has just stolen (this being criminal property as defined in s. 340) must therefore be guilty of an offence under s. 329(1)(b) or (c), the maximum penalty for which is twice that for basic theft. It does not follow that such a charge would be appropriate

Question 23

What is the additional defence that exists under s329(2)(c)?

Answer 23

States that a person will not commit the offence if he acquired or used or had possession of the property for adequate consideration
The effect of the defence is that persons, such s trades people, who are paid for ordinary consumable goods and services in money that comes from crime are not under any obligation to question the source of the money. However, the defence is not available to a defendant who provides goods or services knowing or suspecting that those goods or services will help a person to actually carry out criminal conduct