oct ewj 24 online - Flipbook - Page 104
How Clean is Your Cash?
Fatima Jama examines the Court of Appeal’s decision in R (World Uyghur Congress) v National
Crime Agency [2024] EWCA Civ 715, and its implications.
Introduction
The Court of appeal recently addressed in R (World
Uyghur Congress) v National Crime Agency [2024] EWCA
Civ 715 a single, narrow issue, namely, whether the
Respondent, the National Crime Agency (“NCA”) misdirected itself in law in one or more material respects
when reaching the decision (i) not to investigate alleged offences under Part 7 of the Proceeds of Crime
Act 2002 (“POCA”) and (ii) not to commence a civil recovery investigation under Part 5 of POCA, in respect
of certain cotton products brought into the UK and
monies derived from or connected to their purchase.
In response, the WUC filed a judicial review claim
against several government agencies, including the
NCA regarding their decision not to investigate the
export of cotton products from the XUAR to the
United Kingdom. The WUC had provided extensive
evidence of forced labour and human rights abuses in
the XUAR, which the High Court acknowledged as
“undisputed evidence of instances of cotton being manufactured in the XUAR by the use of detained and prison labour
as well as by forced labour in the facilities.” The WUC argued that the agencies should have investigated
whether the imported cotton products were made
with forced labour or other human rights abuses perpetrated by the People’s Republic of China. The High
Court ruled against the WUC, finding that the requirements of POCA were not satisfied. The WUC
appealed this decision to the Court of Appeal.
Background
The World Uyghur Congress (“WUC”), a non-governmental organisation advocating for exiled Uyghur
groups, submitted a report to the National Crime
Agency (“NCA”) in April 2020, urging an investigation into whether shipments of cotton goods from the
Xinjiang Uyghur Autonomous Region of China
(“XUAR”) were produced using forced labour.
In a landmark ruling in June 2024, the Court of
Appeal issued its judgment which overturned the
High Court’s decision, stating that the NCA’s choice
not to investigate was unlawful. The case was remitted
to the NCA for reconsideration. This judgment
confirmed that criminal conduct in a supply chain
could lead to liability for money laundering offences
under the POCA and that the threshold for commencing investigations is low. Furthermore, the decision clarified the limited application of the “adequate
consideration” exception. It remains unclear if this
ruling will be appealed to the Supreme Court. A
spokesperson for the NCA said: “We respectfully note
the judgment of the Court of Appeal and are considering our next steps”.
The NCA declined to investigate, stating that it
needed to first identify a specific product as “criminal
property”. This would involve proving that criminal
activity occurred and that the property in question
was a benefit obtained from that criminal activity. The
NCA further contended that if someone in the supply chain received the goods for “adequate consideration” (i.e. market value), this would not only provide
a defence against section 329 POCA (which pertains to
acquiring, using, or possessing criminal property) but
would also cleanse the goods for all subsequent parties
in the supply chain. Consequently, the authorities
would be prevented from recovering the goods under
Part 5 of POCA.
EXPERT WITNESS JOURNAL
The relevant provisions of POCA
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