Proceeds of Crime Flashcards
It is an offence under what act to benefit from any kind of proceeds of crime?
Proceeds of Crime Act 2002 (POCA)
Criminals will often try and convert the proceeds of crime into assets in order to make their origin appear legitimate, often referred to as money laundering.
There are three main offences under POCA, and these cover most eventualities in benefiting from the proceeds of crime:
Proceeds of Crime Act 2002 (POCA)
Concealing criminal property (s 327)
Arrangements in relation to criminal property (s 328)
The acquisition, use and possession of criminal property (s 329)
Criminal conduct is conduct which—
s340(2) Proceeds of Crime Act 2002
(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.
(4) 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.
Property is criminal property if–
s340(3) Proceeds of Crime Act 2002
(a) It constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and
(b) The alleged offender knows or suspects that it constitutes or represents such a benefit.
The offences under s327, 328 and 329 are often referred to as…
‘Money laundering’.
The mens rea relating to criminal property and the offences under s327, 328 and 329 is –
Knowing or suspecting (there was a possibility).
Offence of Concealing Criminal Property
s327 Proceeds of Crime Act 2002
(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 or from Scotland or from Northern Ireland.
Suspecting the property is criminal property is sufficient here rather than beleving.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 14 years and/or fine.
Offence of Concealing Criminal Property
A person does not commit an offence under this section if…
s327(2) Proceeds of Crime Act 2002
(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.
What is the difference between offences of concealing criminal property and handling stolen goods?
Handling only occurs ‘otherwise than in the course of stealing’ and ‘by or for the benefit of another’.
The offence under s327 can potentially be committed during the commission of an offence and for the benefit of the thief.
What is an example of an offence of concealing criminal property (s327)?
- 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 whenever such monies were deposited in, retained in, or withdrawn from the account.
- John steals a Porshe. On the same night he takes it to his garage and changes the colour from white to orange, he alters the lights, puts on a cloned plate and prints a new logbook. He plans to take the Porsche to his villa in Spain.
Offence of Arrangements in relation to Criminal Property
s328 Proceeds of Crime Act 2002
(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.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 14 years and/or fine.
What is an example of an offence of arrangements in relation to criminal property (s328)?
Those who launder on behalf of others. This could catch persons who work in financial or credit institutions, accountants etc, who in the course of their work facilitate money laundering by or on behalf of other persons and also family members (husband/ wife, partner etc).
e.g. Sebastian is an accountant with no criminal history. He is approached by Don Mancini who agrees to give 10% of everything he deposits in Sebastian’s account as long as the money is available for Don Mancini whenever he requires it. Sebastian is aware that Don Mancini earns his money through drug importation.
Offence of the acquisition, use and possession of criminal property
s329 Proceeds of Crime Act 2002
(1)A person commits an offence if he—
(a) Acquires criminal property;
(b) Uses criminal property;
(c) Has possession of criminal property.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 14 years and/or fine.
When is it more appropriate to charge for money laundering then for handling stolen goods?
Money laundering may be more appropriate if ‘either a defendant has possessed criminal proceeds in large amounts or in lesser amounts, but repeatedly and where assets are laundered for profit.
What is an example of an offence of acquisition, use and possession of criminal property (s329)?
Don Simone directs his men to steal a lorry filled with premium whisky. They steal the lorry whilst it is parked up and bring the whisky to Don Simone. He tries the product which is good. He values the haul in the region of 1.2 million pounds and plans to sell them by the case load back in Italy.
