Proceeds of crime act 2002 Flashcards
What does Section 328 of the Proceeds of Crime Act 2002 state
A person commits an offence if they enter into or become concerned in an arrangement they know or suspect facilitates the acquisition, retention, use, or control of criminal property by or on behalf of another person.
What is the mental element required for an offence under Section 328 (arranging)?
The person must “know or suspect” that the arrangement facilitates an act regarding the proceeds of crime. The threshold for suspicion is subjective - Suspicion involves thinking there is a possibility, more than fanciful
What is the definition of ‘criminal property’ under Section 340 of POCA 2002?
Criminal property is any person’s direct or indirect benefit from criminal conduct, including stolen property and profits from the crime - the person must know or suspect that the property constitutes or represents a benefit from criminal conduct.
What is a defence to the offence under section 328 (arranging) of the Proceeds of Crime Act
The making of an authorised disclosure is available as a defence to the offence under section 328.
Under s.338, who must make the disclosure to avoid committing an offence?
The disclosure must be made by the person who, but for the disclosure, would be committing an offence.
What must a disclosure under section 338 relate to in order to be authorised?
The disclosure must relate to criminal property and satisfy specific requirements regarding timing and the person to whom it must be made.
Who can a disclosure under section 338 be made to?
disclosure can be made to a constable, an officer of His Majesty’s Revenue and Customs, or a nominated officer. for sols it will be the nominated officer.
What is the responsibility of the nominated officer regarding money laundering?
The nominated officer must report concerns about money laundering to the National Crime Agency (NCA).
What is a Suspicious Activity Report (SAR)?
A SAR is a report filed by the nominated officer to the NCA when there is suspicion of money laundering or other suspicious financial activity
Is the nominated officer obligated to file a SAR if concerns are raised by others in the firm?
No, the nominated officer must exercise their own judgement to determine if the concerns warrant reporting to the NCA.
What risk does the nominated officer face if they fail to report reasonable suspicions of money laundering?
The nominated officer risks committing a criminal offence if they fail to file a report when there are reasonable grounds to suspect money laundering.
Under what condition does a solicitor avoid committing an offence under s 328?
If the solicitor makes an authorised disclosure to the firm’s nominated officer as soon as is practically possible prior to the transaction taking place and obtains consent from NCA.
What prevents a nominated officer from giving consent after making a SAR to the NCA?
The nominated officer cannot give consent until specific conditions set by the NCA are met
What is the first condition under which a nominated officer can give consent after making a SAR
If the NCA explicitly grants consent.
What is the second condition allowing a nominated officer to give consent after a SAR?
If the NCA does not respond within seven working days, starting from the first working day after the disclosure.
What happens if the NCA refuses consent?
The nominated officer cannot give consent unless:
- The NCA subsequently grants consent within 31 days of refusal, or
- 31 days have passed since the date of refusal without further action.
When can a solicitor make an authorised disclosure DURING a prohibited act under s 338?
If the disclosure is made while the act is ongoing, the solicitor did not initially know or suspect the property was criminal, and the disclosure is made promptly upon suspicion.
=> disclosure MUST be made on sols own initiative.
When can a solicitor make an authorised disclosure AFTER completing a prohibited act?
If the solicitor has a good reason for not disclosing beforehand and makes the disclosure as soon as practicable on their own initiative.
What is the overseas defence to s 328 (arranging)?
Where the individual knew or believed that the ‘criminal conduct’
occurred abroad and the conduct in question was lawful in the country where it took place.
=> secretary of state can override this provision.
When does a person commit an offence under s.329 - Acquisition, use or possession
When they acquire, use, or have possession of criminal property.
Who is typically prosecuted under s 329 (acquisition, use or possession)?
Those who had no involvement in the original crime but have benefited from it, such as family members who lived off the proceeds of crime.
How might s 329 (acquisition, use or possession) be relevant to solicitors?
It may apply if a solicitor receives money for costs where there is a possibility that the money is criminal property, such as from a client charged with a criminal offence
What defences are available under s 329 (acquisition, use or possession)?
1.Authorised disclosure defence
2 .Overseas defence
3. Adequate consideration defence
What is the adequate consideration defence under s 329 (acquisition, use or possession)?
An offence is not committed if adequate consideration was given for acquiring, using, or possessing criminal property unless the individual knew or suspected the goods or services might help carry out criminal conduct.