“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.”
“(3)... (a) constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly). (b)the alleged offender knows or suspects that it constitutes or represents such a benefit. (4)It is immaterial— (a)who carried out the conduct; (b)who benefited from it; (c)whether the conduct occurred before or after the passing of this Act.”
“(5)A person benefits from conduct if he obtains property as result of or in connection with the conduct.”
“... it seems to me what you cannot say is the money arriving cannot be criminal property because it has not reached the hands of the fraudster because I ruled that that is wrong, a wrong interpretation of what criminal property is… you are still entitled to highlight to the jury the first element of the offence has to be proved, it is not admitted.”
“Well property is criminal property if it constitutes a person’s benefit from criminal conduct, or it represents such a benefit, either in whole or in part, so the whole benefit or part of it, and whether directly or indirectly, and the alleged offender knows that it constitutes such a benefit. So in this case there is no dispute that Ms Driver was tricked into purchasing gold from Sharif Jewellers and then leaving it outside her house to be collected. The fraud on her was undoubtedly criminal conduct. The Prosecution say that by accepting Ms Driver’s payments and then providing a corresponding amount of gold to her which could then be collected, Mr Kamran had entered into an arrangement which facilitated the acquisition of the criminal property by whoever it was who collected the gold.”
“However, it is for you to decide if the first element of the offence has been proved. You must be sure that Mr Kamran had entered into an arrangement which, in fact facilitated the acquisition by someone else of the proceeds of the fraud on Ms Driver. If you are sure of that, you must then focus on the real issue in dispute, did Mr Kamran know or suspect that he was facilitating that? ... Mr Kamran says he did not know or suspect she was being tricked at any stage. He thought she was a genuine customer who wanted to convert her investments into gold. If this is, or might be, true, then your verdict must be not guilty. But if you are sure that he knew she was being tricked or you are sure that he suspected that, then he would be guilty.”
“In our view the natural and ordinary meaning of section 328(1) is that the arrangement to which it refers must be one which relates to property which is criminal property at the time when the arrangement begins to operate on it. To say that it extends to property which was originally legitimate but became criminal only as a result of carrying out the arrangement is to stretch the language of the section beyond its proper limits. An arrangement relating to property which has an independent criminal object may, when carried out, render the subject matter criminal property, but it cannot properly be said that the arrangement applied to property that was already criminal property at the time it began to operate on it.”
“(1) Does the commission of an offence under section 328 require the property to constitute criminal property prior to the arrangement coming into operation? (2) Does the property have to exist at the time when the defendant enters into or becomes concerned in the arrangement? [and (3) not being relevant] (4) Was the actus reus of the offence committed by reason of the arrangement facilitating the retention, use or control of the money paid into the respondent’s accounts?”
“Yes”; see [32]: “The Court of Appeal’s interpretation of ‘criminal property’ in the various money laundering sections as meaning property which already has the quality of being criminal property, as defined in section 340, by reason of criminal conduct distinct from the conduct alleged to constitute the actus reus of the money laundering offence itself, accords not only with the natural meaning of the sections but also with the purpose underlying them.”
“No”; see [40]: “The Court of Appeal was therefore right in the present case to hold that it does not matter whether criminal property existed when the arrangement was first hatched. What matters is that the property should be criminal at a time when the arrangement operates on it... The contrary interpretation would not accord either with a natural reading of the words used or with the obvious purpose of this section. Question 4, which is the issue in this appeal: Answer: “Yes”; see [43] – [47] and [50]: “43. The particulars in the indictment...should have been alleged that the defendants entered into or became concerned in an arrangement which, as they knew or suspected, facilitated the retention, use or control of criminal property (or words to that effect). 44. Looking at the substance of the matter, the money paid by the victims into the accounts was lawful money at the moment at which it was paid into those accounts. It was therefore not a case of the account holder acquiring criminal property from the victims. But by the arrangement the [defendant] facilitated also the retention, use and control of the money by or on behalf of B [the fraudster]. Did the arrangement regarding the facilitation of the retention, use and control of the money fall foul of section 328 on the basis that it was criminal property at that stage, since it was the proceeds of a fraud perpetrated on the victims? 45. It was submitted on behalf of the prosecution before the Court of Appeal and in this court that in that respect the arrangement fell squarely within the ambit of section 328. The Court of Appeal treated the case as indistinguishable from Geary and rejected the argument... 46. There is an important distinction between the facts of Geary and the present case. In Geary it would indeed have been artificial to regard the property as changing its character between the defendant receiving it and repaying it. The property belonged to Harrington at all times and, more importantly, his interest in it was lawful on the facts known to the defendant. It was not a case of the defendant holding proceeds originating from a crime independent of the arrangement made between them. It was Harrington’s lawfully owned property when it was paid to the defendant, and it remained his lawfully owned property throughout the time that the defendant had possession of it. It bore no criminal taint apart from the arrangement made between them. The fact that the arrangement involved a conspiracy to pervert the [course] of justice did not mean that the money had a criminal quality independent of the arrangement. 47. The present case is different. The character of the money did change on being paid into the [defendant’s] accounts. It was lawful property in the hands of the victims at the moment when they paid it into the [defendants’] accounts. It became criminal property in the hands of B, not by reason of the arrangement made between B and the [defendant] but by reason of the fact that it was obtained through fraud perpetrated on the victims. There is no artificiality in recognising that fact, and I do not see it as illegitimate to regard the respondent as participating in (or, in the language of section 328, entering into or becoming concerned in) an arrangement to retain criminal property for the benefit of another. For that reason, the ruling that the respondent had no case to answer was erroneous and this appeal should be allowed... 50. The phrasing of the certified question is not entirely apt because it asks whether the arrangement to receive and retain money in a bank account can be treated as both rendering the property ‘criminal property’ and facilitating its retention, use or control. What rendered the property which the [defendant] received from the victims ‘criminal property’ was not the arrangement made between B and the [defendant], but the fact that it was obtained from the victims by deception. For the reasons explained, the arrangement between B and the [defendant] for its retention is capable of constituting an offence under section 328.”