The Proceeds of Crime Act 2002 (POCA) created a single set of money laundering offences applicable throughout the UK to the proceeds of all crimes.
For the principal offences of money laundering the prosecution must prove that the property involved is criminal property. This means that the prosecution must prove that the property was obtained through criminal conduct. Money laundering offences assume that a criminal offence has occurred in order to generate the criminal property which is now being laundered. This is often known as a predicate offence.
No conviction for the predicate offence is necessary for a person to be prosecuted for a money laundering offence.
The prosecution must also prove that, at the time of the alleged offence, the defendant knew or suspected that the property was criminal property.
Knowledge means actual knowledge. There is some suggestion that wilfully shutting one’s eyes to the truth may amount to knowledge. However, the current general approach from the criminal courts is that nothing less than actual knowledge will suffice.
The term ‘suspects’ is one which the court has historically avoided defining; however because of its importance in English criminal law, some general guidance has been given to the effect that the essential element in the word “suspect” in this context, is that the defendant must think that there is a possibility, which is more than fanciful, that the relevant facts exist. A vague feeling of unease would not suffice.
The test for whether a person holds a suspicion is a subjective one.
When considering the principal money laundering offences, be aware that it is also an offence to conspire or attempt to launder the proceeds of crime, or to counsel, aid, abet or procure money laundering.
Defences to principal money laundering offences
There are a number of defences one can raise when charged with money laundering. In this section, I examine three of the most commonly raised defences: lack of knowledge or suspicion, deposit taking bodies and adequate consideration defence.
Lack of knowledge or suspicion
None of the principal money laundering offences is committed if the persons involved did not know or suspect that they were dealing with the proceeds of crime.
If someone has made an innocent error, even if such an error resulted in benefit and constituted a strict liability criminal offence, then the proceeds are not criminal property for the purposes of POCA and no money laundering offence has arisen until and unless the offender becomes aware of the error.
Deposit taking bodies
There is a further exemption for deposit taking bodies (accountants and lawyers holding clients’ money cannot use this exemption) who may continue to run an account containing criminal property where the each transaction is less than the threshold amount (currently £250).
Adequate consideration defence
This is a defence to offences under Section 329 and applies if there was adequate consideration for acquiring, using and possessing the criminal property, unless the accused knows or suspects that those goods or services may help another to carry out criminal conduct.
If arrested take the following five steps:
1. Instruct a reputable solicitor as soon as possible to assist with the police station interview
2. Consider carefully whether it is appropriate to answer police questions. Are the transactions you are being asked about matters that you are aware of? Are the historic transactions which you can’t now remember? Do you need to provide a prepared statement
3. Whilst on police bail, ensure your solicitor pursues a pro-active strategy with the police
4. If charged, identify counsel quickly and make arrangements to instruct a barrister at an early stage
5. Consider whether a forensic accountant needs to be instructed
Tanveer Qureshi specialises in financial crime, he can recommend a suitable solicitor and can assist at every stage of criminal proceedings.
This content is up to date at the time of publication. However, the law may change and your rights may also be different for other alleged offences. Therefore, if you are arrested, seek professional legal advice immediately.