oct ewj 24 online - Flipbook - Page 105
Part 5 of POCA provides a scheme to reclaim the
proceeds of crime through civil proceedings. It permits the recovery of criminal assets where there has
been no conviction. Section 240 explains that the purpose of Part 5 is to enable the recovery in civil proceedings of property which is, or which represents,
“property obtained through unlawful conduct”, as
well as enabling such property to be forfeited in civil
proceedings.
“329 Acquisition, use and possession
(1) A person commits an offence if he –
(a) acquires criminal property;
(b) uses criminal property;
(c) has possession of criminal property.”
Section 329(2)(c) establishes an exemption if a person
acquires or has possession of criminal property for
“adequate consideration.” It provides:
Section 241 defines unlawful conduct in the following
terms:
“241 ‘Unlawful conduct’
(2)But a person does not commit such an offence if—
…
(c)he acquired or used or had possession of the property for
adequate consideration;…”
(1) Conduct occurring in any part of the United Kingdom is
unlawful conduct if it is unlawful under the criminal law of
that part.
For the purposes of each of the offences contained in
sections 327 to 329, “criminal property” is defined in
the interpretation section, section 340, by reference to
another concept, “criminal conduct”. Section 340
provides, so far as is relevant:
“(2) Criminal conduct is conduct which –
(2) Conduct which–
(a) occurs in a country or territory outside the United
Kingdom and is unlawful under the criminal law applying in
that country or territory, and
(b) if it occurred in a part of the United Kingdom, would
be unlawful under the criminal law of that part, is also
unlawful conduct.
(2A) Conduct which–
(a) occurs in a country or territory outside the United Kingdom,
(b) constitutes, or is connected with, the commission of a gross
human rights abuse or violation (see section 241A), and
(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.
(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 part and whether directly
or indirectly), and
(c) if it occurred in a part of the United Kingdom, would be
an offence triable under the criminal law of that part on indictment only or either on indictment or summarily, is also unlawful conduct.
(b) the alleged offender knows or suspects that it constitutes or
represents such a benefit.
(4) It is immaterial–
(3) The court or sheriff must decide on a balance of probabilities whether it is proved– (a) that any matters alleged to constitute unlawful conduct have occurred, or (b) that any person
intended to use any property in unlawful conduct.”
(a) who carried out the conduct;
(b) who benefited from it;
(c) whether the conduct occurred before or after the passing of
this Act.
Part 7 of POCA creates three distinct “money
laundering” offences (sections 327-329):
(5) A person benefits from conduct if he obtains property as a
result of or in connection with the conduct.
…
Section 327(1) is concerned with certain specified dealings with “criminal property”. It provides:
“327 Concealing etc.
(8) If a person benefits from conduct his benefit is the property
obtained as a result of or in connection with the conduct.
(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.”
Section 328(1) creates an offence of becoming involved
in an arrangement to launder “criminal property”. It
provides as follows:
(9) Property is all property wherever situated and includes(a) money;
(b) all forms of property, real or personal, heritable or moveable;
(c) things in action and other intangible or incorporeal
property.”
The Ruling
The appeal focused on whether the NCA had acted
correctly in deciding not to use its investigatory powers under POCA to investigate the import of certain
cotton products from XUAR. The Court of Appeal
found that the NCA’s decision was based on two incorrect legal propositions, that that were “wrong as a
matter of law”.
“328 Arrangements
(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.”
“… it is clear that, on a fair reading of the decision letter, the
NCA proceeded on the basis of an error of law. The decision
letter, read as a whole, would convey to the reasonable reader
Section 329(1) creates an offence of acquiring, using,
or possessing “criminal property”. It provides:
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