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2016 | OriginalPaper | Buchkapitel

2. Impacts upon Substantive Laundering Law

verfasst von : Peter Alldridge

Erschienen in: What Went Wrong With Money Laundering Law?

Verlag: Palgrave Macmillan UK

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Abstract

Thus far the book has traced the curious development of AML, and questioned the empirical foundations upon which the AML/CFT movement was established, and of the narrative underpinning the AML industry. It would be surprising if this series of developments had given rise to a neat, easily comprehensible and rationally defensible set of substantive laws, whose application in any unforeseen cases judges were able easily to divine. That is not what happened. The charge sheet is as follows. AML law has brought a very serious criminal offence into existence without a clear idea of what was wrong with it. It has failed to properly assess the nature of the principle against allowing a criminal to benefit from his/her crime, and in particular without a clear limiting principle based upon its application. It has legislated at every level on the repeated but baseless assumption that financial institutions are endangered by laundering. It has on successive occasions allowed incremental expansion of that crime without appropriate reassessments, and it has afforded insufficient significance to the distinction between crimes with and without victims. It is suggested that for predatory offences restitution to victims rather than confiscation by the government is the appropriate response.

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Vorheriges Kapitel Introduction and a Short History

Naylor, RT, Counterfeit Crime Criminal Profits, Terror Dollars, and Nonsense (Montreal/Kingston: McGill-Queens University Press, 2015) at 112. This has yet fully to be recognised in the ‘restoration’ cases, as to which see below, page 69.

Whether successful or not: see National Audit Office, Confiscation Orders (HC 738, 2013–2014), Hodge, Margaret (Chair) House of Commons Public Accounts Committee, Forty-ninth Report of Session 2013–2014, Confiscation Orders (HC 942, 2014).

Theft Act 1968 s 22. The extension is that acts that could generate liability as accomplice must be before or contemporaneous to the offence.

Theft Act 1968 s 24(4): the qualifying predicates are theft, fraud, and blackmail.

How exactly this proposition is embodied in local complicity law varies from jurisdiction to jurisdiction.

And see Unger, Brigitte et al., The Amounts and the Effects of Money Laundering, Report for the (NL) Ministry of Finance (Amsterdam: Ministry of Finance, 2006) chapter 5 for more detail and a clear sense of proportion.

And were made in respect of BCCI, above page 19.

Preamble to the First EU Money Laundering Directive (1991/308/EEC) recital 1.

Preamble to the Fourth Money Laundering Directive (EU) 2015/849 recital 1.

Levi, Michael & Peter Reuter, ‘Money laundering’ (2006) 34 Crime and Justice: A Review of Research 289–376.

Financial Services (Banking Reform) Act 2013 s 36 introduced the criminal offence, committed by senior management, of recklessly decision causing a financial institution to fail. Pontell, Henry N, William K Black, Gilbert Geis, ‘Too big to fail, too powerful to jail? On the absence of Criminal Prosecutions after the 2008 Financial Meltdown’ (2014) 61 Crime, Law and Social Change 1.

And see above, page 45.

Tanzi, Vito, Money Laundering and the International Financial System, IMF Working Paper 96/55 (Washington DC: International Monetary Fund, 1996).

International Monetary Fund, Anti-Money Laundering and Combating the Financing of Terrorism (AML/CFT)—Report on the Review of the Effectiveness of the Program Prepared by the Legal Department (Washington DC: IMF, 2011).

See Simester, AP and Andreas von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Oxford: Hart, 2011) para 4.4 et seq.

In the UK this is currently done by Money Laundering Regulations 2007 SI 2157.

This is required by the FATF: see recommendation 39.

POCA s 327.

S 328.

S 329.

S 340(11).

S 340.

P v P (Ancillary Relief: Proceeds of Crime) [2003] EWHC Fam 2260; [2004] Fam 1.

Bowman v Fels [2005] EWCA Civ 226; [2005] 1 WLR 3083.

‘Although the statute has often been described as “draconian” that cannot be a warrant for abandoning the traditional rule that a penal statute should be construed with some strictness.’ R v Waya [2012] UKSC 51; [2013] 1 AC 294 para 8 (Lord Walker and Sir Anthony Hughes).

R v Rogers [2014] EWCA Crim 1680; [2014] 2 Cr App R 32 (noted at [2014] Crim LR 910–915), Holt v Attorney General [2014] UKPC 4; [2014] Lloyd’s Rep FC 335, R v GH [2015] UKSC 24; [2015] 1 WLR 2126.

Defined in s 340(2).

POCA s 340.

POCA ss 327–329.

POCA s 330(1).

R v Da Silva [2006] EWCA Crim 1654; [2007] 1 WLR 303.

Fisher, Jonathan, ‘The anti-money laundering disclosure regime and the collection of revenue in the United Kingdom’ [2010] BTR 235 draws attention to another line of cases on the meaning of suspicion which might have cast the net less widely—see especially Hussein v Chong Fook Kam [1970] AC 942.

N2J Ltd v Cater Allen [2006] EWHC B10.

Eg Customs and Excise Management Act 1979 s 170A.

For an example of its use in an advanced fee fraud case, see R v Emu and Nusi, Winchester CC 8th September 2014.

R v J [2004] UKHL 42; [2005] 1 AC 562.

POCA s 6(7).

Criminal Justice Act 2003 s 134(1) defines ‘criminal proceedings’ as ‘criminal proceedings to which the strict rules of evidence apply’.

R v Silcock & Levin [2004] EWCA Crim 408; [2004] 2 Cr App R (S) 323, in which, at para 69, the Court of Appeal declined even to certify this question as being of general public importance. Silcock and Levin decides that they do not, and this was affirmed in R v Clipston [2011] EWCA Crim 446; [2011] 2 Cr App R (S) 101.

R v Clipston, fn 40, at para 64(b), a notion that might apply to other types of evidence that would be excluded under the criminal rules. Compare the position in civil recovery, below, page 91.

POCA s 13(4).

HM Advocate v McIntosh [2001] UKPC D1; [2003] 1 AC 1078 paras 14 et seq; Phillips v United Kingdom (2001) 11 BHRC 280, R v Rezvi [2002] UKHL 1; [2003] 1 AC 1099; R v Benjafield [2002] UKHL 2; [2003] 1 AC 1099.

POCA s 10.

Hodgson Report, page 14 fn 39 above.

And that precept is embodied in POCA s 13.

Burrows, Andrew, The Law of Restitution (Oxford: OUP, 3rd edition, 2010).

This is a particularly problematic aspect of the decisions in R v Rezvi [2002] UKHL 1; [2003] 1 AC 1099 and R v Benjafield [2002] UKHL 2; [2003] 1 AC 1099.

Phillips v United Kingdom (2001) 11 BHRC 280.

Criminal Justice Act 1988 s 71 et seq, which did not differ in relevant particulars from those under the Proceeds of Crime 2002.

R v Rezvi [2002] UKHL 1, [2003] 1 AC 1099.

R v Benjafield [2002] UKHL 2, [2003] 1 AC 1099.

HM Advocate v McIntosh [2001] UKPC D1; [2003] 1 AC 1078.

These are the provisions that apply in confiscation proceedings to provide the assumption that all property acquired by the defendant in the 6 years prior to the conviction was acquired by crime.

The House also dealt briefly and dismissively with the argument that the First Protocol was put in issue: ‘Counsel argued that Article 1 of the First Protocol [A1P1] requires a different conclusion on proportionality. That cannot be right. The legislation is a precise, fair and proportionate response to the important need to protect the public. In agreement with the European Court of Human Rights in Phillips v United Kingdom I would hold that the interference with Article 1 of the First Protocol is justified’ (Lord Steyn in Rezvi [a case decided in the context of the DTA 1994] at para 17). See now amended POCA s 6(5), and below, fn 144 and accompanying text.

Boucht, Johan, ‘Extended confiscation and the proposed Directive on freezing and confiscation of criminal proceeds in the EU: on striking a balance between efficiency, fairness and legal certainty’ (2013) 21 EurJ CrimeCrLCrJ 127–162. The Article 6.2 position was regarded as beyond argument in R v Bagnall, R v Sharma [2012] EWCA Crim 677; [2013] 1 WLR 204.

R v Waya [2012] UKSC 51; [2013] 1 AC 294.

That is, those governed by POCA s 75 and Second Schedule.

Section 10(6)(b).

Para 25. And see Fortson, Rudi, Misuse of Drugs and Drug Trafficking Offences (London: Sweet and Maxwell, 6th edition, 2012) paras 13–131.

By Serious Crime Act 2015 Schedule 4 para 19.

The criminal burden applies, exceptionally, in some lifestyle cases where the prosecution seeks to infer benefit from crimes not admitted. R v Briggs-Price [2009] UKHL 19; [2009] 1 AC 1026, and see R v Moss [2015] EWCA Crim 713.

Per Lord Steyn in R v Rezvi [2002] UKHL 1, [2003] 1 AC 1099, para 17, above, page 56.

Below, pages 33–47.

A1P1 ‘imports, via the rule of fair balance, the requirement that there must be a reasonable relationship of proportionality between the means employed by the State in, inter alia¸ the deprivation of property as a form of penalty, and the legitimate aim which is sought to be realised by the deprivation’. Para 12, citing Jahn v Germany (2006) 42 EHRR 1084, para 93.

Much turns on the metaphor of proportionality, but it is a metaphor (of comparative magnitude) and can be used to make decisions appear more rational than they are. The relative magnitude of the impact of the order, on the one hand, and the aims of confiscation, on the other, cannot quantified.

And see Alldridge, Peter, ‘Two Key Areas of Proceeds of Crime Law’ [2014] Crim LR 170–188, and the provision inserted into POCA s 6(5), by Serious Crime Act 2015 Schedule 4 para 19.

Paras 108, 111, 113.

Using Human Rights Act 1998 s 3.

Para 16.

Waya, paras 12–16.

Waya, para 24.

R v Nield [2007] EWCA Crim 993.

R v Morgan and Bygrave [2008] EWCA Crim 1323; [2009] 1 Cr App R(S) 60 (sum already repaid to victim).

R v Shabir [2008] EWCA Crim 1809; [2009] 1 Cr App Rep (S) 84 (claims to large sums legitimately owed inflated by small percentage: confiscation order in respect of total held to be abuse of process). Confiscation of profits not proceeds would be a more principled resolution, but the statutory formulation of ‘benefit’ does not permit it.

Para 18.

Para 103.

Para 19.

See, eg, R v James, below fn 115 (expression ‘obtain’ did not extend to acquisition of leasehold without power of disposal or other right envisaged by Jennings and obtaining ‘as a result of or in connection with criminal] conduct’ did not extend to ‘ordinary everyday transactions with supplier in transactions that were perfectly lawful in themselves’).

This will not be affected by the placing of the proportionality issue on a statutory footing by the provision inserted into POCA s 6(5), by Serious Crime Act 2015 Schedule 4 para 19.

R v May [2008] UKHL 28; [2008] AC 1028, one of three cases (the others being CPS v Jennings [2008] UKHL 29; [2008] AC 1046, and R v Green [2008] UKHL 30; [2008] AC 1053) in which, on an earlier occasion, the House of Lords had attempted to bring order to the confiscation régime.

‘It also follows from this clear line of authority that not infrequently, and perhaps even ordinarily, the amount of money confiscated will exceed the profit made by the criminal from his offence.’ Shabir, above, fn 75, para 13 (Hughes LJ).

Para 26.

R v Ahmad, R v Fields [2014] UKSC 36, [2015] AC 299.

Ahmad at para 74. And see R v Dad [2014] EWCA Crim 2478.

Para 27.

Statements in the previous cases of R v Nield [2007] EWCA Crim 993 and R v Forte [2004] EWCA Crim 3188, that a confiscation order could be imposed in such a case because the purpose of the statute was to impose an additional punitive sanction were disapproved in May at para 48 and Waya at para 28.

Above fn 94.

Waya, para 30. Rose, it was said, preceded both Morgan and Bygrave, above, fn 74, and also May, and neither A1P1 nor any issue of proportionality was addressed in argument.

Para 33.

R v Farquhar [2008] EWCA Crim 806; [2008] 2 Cr App R (S) 104.

Para 68.

Cabinet Office Performance and Innovation Unit, Recovering the Proceeds of Crime (London: Cabinet Office, 2000), Box 3.5. and para 3.13.

Per Lord Toulson in R v GH [2015] UKSC 24; [2015] 1 WLR 2126 at para 49, citing R (Wilkinson) v Director of Public Prosecutions [2006] EWHC 3012 (Admin) and R v Rose [2008] EWCA Crim 239; [2008] 1 WLR 2113.

Powers of Criminal Courts (Sentencing) Act 2000 ss 148–149.

And see R v Davenport [2015] EWCA Crim 1731.

Para 68.

This was part of Lord Rodger’s argument in R v Smith (David Cadman) [2001] UKHL 68; [2002] 1 WLR 54, above, 76 for making a confiscation order even when stolen goods (or, as in that case, a tax advantage) are only possessed very briefly.

Powers of Criminal Courts (Sentencing) Act 2000 s 130.

Para 34.

100

R v Jawad (Mohid) [2013] EWCA Crim 644; [2014] 1 Cr App R (S) 16.

101

R v Smith (David Cadman) [2001] UKHL 68; [2002] 1 WLR 54. And see the attempt to amend the Bill at HC Debs 26 February 2002, Col 639, HL Debs 22 April 2002, Col 57 et seq.

102

But incorrectly valued. If the pecuniary advantage is the deferment of a debt, the value of the pecuniary advantage is the value of the deferment, not the value of the debt. In most tax cases this value will be small or nil.

103

Para 33. Permission had been given in Waya to challenge the correctness of Smith (David Cadman), but in the event the challenge did not get off the ground. See now, eg, R v Kakkad (Freshkumar) [2015] EWCA Crim 385.

104

Alldridge, Peter, ‘Smuggling, Confiscation and Forfeiture’ (2002) 65 MLR 781–791.

105

R v Rowsell [2011] EWCA Crim 1894.

106

Para 26 (Cranston J).

107

And see, when there is no lawful market, R v Islam [2009] UKHL 30; [2009] 1 AC 1076.

Waya at para 68.

Para 26.

Waya at para 26.

It was unclear whether or not this had been achieved by the insertion, by the Finance Act 1992 and Finance Act 1993, of Income and Corporation Taxes Act 1988 s 577A. It was finally put beyond argument, from 1st April 2002, by Finance Act 2002 s 68(2).

112

Income Tax (Trading and Other Income) Act 2005 s 55.

113

As was shown in R v Harvey, below fn 125.

114

R v James (Michael) [2011] EWCA Crim 2991; [2012] 2 Cr App R (S) 44.

115

The Yukos affair in Russia, in which a ‘normal’ oil company was able to be characterised as a criminal organisation, is a prime example. See Stephan, Paul B III, ‘Taxation and expropriation The destruction of the Yukos Oil Empire’ (2013) 35 Houston J Int Law 1.

116

R v Sale [2013] EWCA Crim 1306; [2014] 1 Cr App R (S) 60.

117

R v Ahmad (CA) [2012] EWCA Crim 391.

118

R v Chahal and another [2015] EWCA Crim 816 [2015] 1 Lloyd’s Law Reports: Financial Crime Plus 45.

119

R v King (Scott) [2014] EWCA Crim 621; [2014] 2 Cr App R (S) 54.

120

Following R v Beazley [2013] EWCA Crim 567; [2013] 1 WLR 3331.

121

Department for Works and Pensions v Richards [2005] EWCA Crim 491.

122

R v Eddishaw [2014] EWCA Crim 2783; [2015] Lloyd’s Rep FC 212.

123

A general issue exists in ascribing benefits to conspiracies rather than their implementation. The courts seem to ignore the distinction between inchoate and complete offences for this purpose.

124

R v Harvey (CA) [2013] EWCA Crim 1104, R v Harvey [2015] UKSC 73.

125

R v Harvey [2015] UKSC 73.

126

Powers of Criminal Courts (Sentencing) Act 2000 s 148. A restitution order is an order to give the victim back his/her property.

127

Powers of Criminal Courts (Sentencing) Act 2000 s 130.

128

And see R v Taylor and Wood [2013] EWCA Crim 1151.

129

R v Carter and Others [2006] EWCA Crim 416.

130

Although a most obvious example of money obtained as a result of crime is earnings in prison, they would not be subject to confiscation. The deductions régime under the Prisoners’ Earnings Act 1996 and R (on the application of S and another) v Secretary of State for Justice [2012] EWHC 1810 (Admin) excludes POCA from prisoners’ earnings.

131

And see James, above, fn 115.

132

Del Basso & Goodwin v R [2010] EWCA Crim 1119; [2011] 1 Cr App R (S) 41.

133

‘There may be other cases of disproportion analogous to that of goods or money entirely restored to the loser. That will have to be resolved case by case as the need arises. Such a case might include, for example, the defendant who, by deception, induces someone else to trade with him in a manner otherwise lawful, and who gives full value for goods or services obtained. He ought no doubt to be punished and, depending on the harm done and the culpability demonstrated, maybe severely, but whether a confiscation order is proportionate for any sum beyond profit made may need careful consideration.’ R v Waya, para 34.

134

R v Sumal & Sons (Properties) Ltd [2012] EWCA Crim 1840; [2012] Lloyd’s Rep FC 692.

135

Hussain v Brent London Borough Council [2014] EWCA Crim 2344; [2015] Lloyd’s Rep FC 102.

136

R v McDowell [2015] EWCA Crim 173 at para 34.

137

At paras 28–34.

138

R v Paulet [2009] EWCA Crim 288; [2009] EWCA Crim 1573; [2010] QB 678.

139

Paulet v United Kingdom [2014] ECHR 6219/08; [2014] Lloyd’s Rep FC 484.

140

Following Sporrong and Lönnroth v Sweden (1983) 5 EHRR 35; [1982] ECHR 7151/75, para 69.

141

R v Harvey [2015] UKSC 73.

142

Section 6 is the provision imposing the duty to impose a confiscation order.

143

Serious Crime Act 2015 Schedule 4, para 19.

144

Para 352.

145

R v Waya [2012] UKSC 51; [2013] 1 AC 294, paras 2–3.

146

POCA ss 340 et seq.

147

POCA ss 243 et seq. The trustee is not paid from the seized property: R (on the application of Eastenders Cash & Carry Plc) v Revenue and Customs Commissioners [2014] UKSC 34; [2015] AC 1101.

148

POCA s 305.

149

POCA s 305–306. The action thus supplements confiscation orders, which do follow convictions.

150

POCA s 306. This does not, of course, depend upon the money having been invested lawfully. The enforcement authority might therefore benefit from such a windfall as in Foskett v McKeown [2001] 1 AC 102; [2000] 3 All ER 97.

151

POCA s 306.

152

POCA s 266(3)(b). So the problems that arose and required to be remedied arising from the absence of a dual criminality provision in the definition in s 340 of POCA.

153

POCA s 241 as amended by Serious Organised Crime and Police Act 2005 Sch. 6 para 8(a). The 2002 Act as enacted applied to proceeds in the UK acquired by activity performed elsewhere which would have been unlawful in the UK, giving rise to the problem case—cherished but apparently hypothetical—of the Spanish matador living in retirement in Eastbourne on the proceeds of bullfighting.

154

Ie, conduct that is unlawful under the criminal law of the part of the UK in which it takes place, or which takes place in another country, is unlawful there and would be unlawful in the relevant part of the UK. POCA s 241. A suggestion that this expression might be read restrictively was made in Director of Assets Recovery Agency v John and Lord [2007] EWHC 360 (doubtful whether monies received for goods sold in the course of unlicensed trading would amount to ‘property obtained through unlawful conduct’ for the purposes of s 242 of the Act).

155

http://www.assetsrecovery.gov.uk/downloads/ARA_settlement_policy.pdf (civil recovery) http://www.assetsrecovery.gov.uk/downloads/TaxCaseGuidance.pdf (taxation). SOCA Annual report 2008–2009.

156

Walsh v Director, Assets Recovery Agency [2005] NICA 6; [2005] NI 383.

157

HM Advocate v McIntosh [2001] UKPC D1; [2003] 1 AC 1078. Above, fn 53.

158

Walsh at para 26.

159

House of Lords minutes 7 July 2005, 17th Report from the Appeal Committee, para 12.

160

Walsh v United Kingdom [2006] ECHR 1154.

161

SOCA v Gale [2011] UKSC 49; [2011] 1 WLR 2760. See King, Colin, ‘Civil forfeiture and Article 6 of the ECHR: Due Process Implications for England and Wales and Ireland’ (2014) 34 Legal Studies 371–394, Boucht, Johan, ‘Civil asset forfeiture and the presumption of innocence under article 6(2) ECHR’ (2014) 5 New Journal of European Criminal Law 221–255.

162

Shapps, Grant, Report into the Underperformance of the Assets Recovery Agency (London: Shapps, June 2006) http://www.shapps.com/AssetsRecoveryAgency-underperformance.pdf.

163

Public Accounts Committee 50th Report of Session 2006–2007, Assets Recovery Agency (HC 391).

164

Serious Crime Act 2007 s 74 and Schedules 8 & 9.

165

Serious Crime Act 2007 s 74. From 2013 these powers have been vested in the National Crime Agency: Crime and Courts Act 2013 Part 1.

166

SOCA Annual Report available at http://www.soca.gov.uk/about-soca/library. SFO annual report 2011–2012.

167

The Asset Recovery Incentivization Scheme, as to which see, for HMRC, http://www.hmrc.gov.uk/about/cf-framework-exec-summary.htm.

168

Under the Scheme, half of all assets recovered are returned to law enforcement and prosecution agencies involved in the asset recovery process. The Home Office calculates quarterly the amounts to be allocated. For cash forfeitures, civil recovery and taxation, agencies receive a 50 % share of the money remitted to the Home Office. For confiscation receipts, 50 % of the receipts to the Home Office are split between the investigation, prosecuting and enforcing agencies in the following ratio: 18.7 %: 18.7 %: 12.5 %. HC Deb, 11 June 2012, c86W (Brokenshire, James).

169

Milford, Alan, ‘The new challenges to organised crime prosecution’ May 2011 ‘powers we are starting to exercise in the High Court’ CPS website. Earlier, when civil recovery had been thought more specialised, there had been less interest in it in the CPS.—HC 10 February 2009: Column 1861W (Baird, Vera, QC, Solicitor-General).

170

Numbers of orders obtained by the SFO remain low, however. Serious Fraud Office Annual Report and Accounts 2012–2013 (HC 9) page 11.

171

National Audit Office, Confiscation Orders (HC 738, 2013–2014) page 4.

172

Ibid.

173

Vaz, Keith (Chair), Home Affairs Committee Evaluating the new architecture of policing: the College of Policing and the National Crime Agency HC 800 (2015).

174

National Crime Agency, ‘NCA approach to criminal assets’ Press Release 17 February 2015.

175

King, Anthony and Ivor Crewe, The Blunders of Our Governments (London: Oneworld Publications, 2013) Ch. 11.

176

See, eg, Boucht, Johan, ‘Civil asset forfeiture and the presumption of innocence under article 6(2) ECHR, (2014) 5 New Journal of European Criminal Law 221–255, Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union EU 2014 PE-CONS 121/13.

177

There is a significant literature around Al Capone: see Capone v United States (1931) 56 F 2d 927, cert denied, 286 US 553, 76 LEd 1288, 52 SCt 503 (1932); United States v Capone 93 F 2d 840 (1937), cert denied, 303 US 651, 82 LEd 1112, 58 SCt 750 (1938). More generally, see Baker, Russell, ‘Taxation: potential destroyer of crime’ (1951) 29 Chicago-Kent Law Review 197; Gallant, Michelle, ‘Tax and the proceeds of crime: a new approach to tainted finance?’ (2013) 16 Journal of Money Laundering Control 119–125; Bucy, Pamela H ‘Criminal tax fraud: The downfall of murderers, madams and thieves’ (1997) 29 Arizona State Law Journal 639.

178

On a charge of a POCA laundering offence, the prosecution does not have to prove a specific predicate offence but a type to give the mental state for the purposes of POCA laundering offences: R v Kuchhadia [2015] EWCA Crim 1252; [2015] Lloyd’s Rep FC 526.

179

FATF, Interpretive Note to Recommendation 3 (MONEY LAUNDERING OFFENCE) para 4.

180

R v William, William & William [2013] EWCA Crim 1262, approving and expanding upon R v Gabriel [2006] EWCA Crim 229; [2007] 2 Cr App R 11 R v K [2007] EWCA Crim 491; [2008] STC 1270; and Serious Organised Crime Agency v Bosworth [2010] EWHC 645 (QB).

181

German and Austrian law both exclude liability for self-laundering: § 261 and § 165 StGB of the respective Criminal Codes.

182

R v Kuchhadia [2015] EWCA Crim 1252; [2015] Lloyd’s Rep FC 526.

183

The suggestion first made in HMRC, Tackling Offshore Tax Evasion: A New Criminal Offence (London: HMRC, 2014); See now HMRC, Tackling offshore tax evasion: A new criminal offence for offshore evaders Summary of Responses and Further Consultation (London: HMRC, 2015). Finance (No 2) Bill 2016 Part 10.

184

POCA ss 327–329.

185

Alldridge and Mumford, above, fn 129.

186

POCA s 76(5) (confiscation) and s 340(6) (criminal laundering): ‘If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.’

187

But not falsely claiming rebates.

188

A legal judgment is implied in ‘constituted’, and consequently mistake or ignorance in that regard should, in principle, provide a defence: R v Smith (DR) [1974] QB 354.

189

Finance (No 2) Bill 2016.

190

And see above, page 39 et seq. See also Shah v HSBC Private Bank (UK) Ltd [2010] EWCA Civ 31; [2010] 3 All ER 477. K Ltd v National Westminster Bank Plc [2006] EWCA Civ 1039; [2007] 1 WLR 311.

191

In the early sentencing cases on laundering the courts were strongly influenced by the gravity of the predicate offence: R v Goodyear [2005] EWCA Crim 888; [2005] 1 WLR 2532; R vYoonus [2004] EWCA Crim 1734; [2005] 1 CAR (S) 46; Attorney General’s Reference No.48 of 2006 (Andrew Farrow) [2006] EWCA Crim 2396. Since then there has been a move away from that position: Sentencing Council, Fraud, Bribery and Money Laundering Offences: Definitive Guidelines (2014).

192

Above, page 3.

193

Department of Justice Press release, ‘United States and Switzerland Issue Joint Statement Regarding Tax Evasion Investigations’, Thursday, 29 August 2013. http://www.justice.gov/opa/pr/united-states-and-switzerland-issue-joint-statement-regarding-tax-evasion-investigations.

194

Foreign Account Tax Compliance Act 2010 (US) 124 Stat. 97–117.

195

OECD, Standard for Automatic Exchange of Financial Account Information (Paris: OECD 2014).

196

Above, pages 29 et seq.

197

Zucman, Gabriel, ‘Taxing across Borders: Tracking Personal Wealth and Corporate Profits’ (2014) 28 Journal of Economic Perspectives 121–148.

198

Henry, James S, The Price of Offshore Revisited (London: Tax Justice Network, 2012).

199

‘We will ensure developing countries have full access to global automatic tax information exchange systems.’ Conservative Party Manifesto, 2015 General Election.

200

National Audit Office, Confiscation Orders (HC 738, 2013–2014), Hodge, Margaret (Chair) House of Commons Public Accounts Committee, Forty-ninth Report of Session 2013–2014, Confiscation Orders (HC 942, 2014).

201

The amendments made by Part 1 of the Serious Crime Act 2015, dealing with third party interests and various other ways of securing compliance, reflect this view. See Fisher Jonathan, ‘Part 1 of the Serious Crime Act 2015: Strengthening the restraint and confiscation regime’ [2015] Crim LR 754.

202

Gallant, Michelle M, ‘Money Laundering Consequences: Recovering Wealth, Piercing Secrecy, Disrupting Tax Havens and Distorting International Law’ (2014) 17 Journal of Money Laundering Control 296–305.

203

The main study to which reference is made seems to be European Commission Directorate-General Justice, Freedom & Security, Assessing the effectiveness of EU Member States’ practices in the identification, tracing, freezing and confiscation of criminal assets Final Report June 2009.

204

Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union EU 2014 PE-CONS 121/13. Even this does not satisfy the hawks. Alagna, Federico, ‘Non-conviction Based Confiscation: Why the EU Directive is a Missed Opportunity’ (2014) European Journal on Criminal Policy and Research 1–15.

205

And see Forsaith, James, Barrie Irving, Eva Nanopoulos, Mihaly Fazekas, Study for an impact assessment on a proposal for a new legal framework on the confiscation and recovery of criminal assets prepared for the European Commission (Directorate General Home Affairs, 2012).

206

Hunt, Murray, ‘The Human Rights Act and legal culture: the judiciary and the legal profession’ (1999) 26 Journal of Law and Society 86–102.

207

The Harvey (above, fn 126) type of case, which is comparatively rare.

208

Citing Nagin, Daniel S ‘Deterrence in the twenty-first century’ (2013) 42 Crime and Justice 199–263. (my fn).

209

Levi, Michael, ‘Legitimacy, Crimes, and Compliance in “The City”: de maximis non curat lex?’ in Tankebe, Justice & Alison Liebling (eds.) Legitimacy and Criminal Justice (Oxford: OUP, 2013) 157–177.

210

On which the Yukos case, below fn 116, is a strong example (author’s footnote).

211

Halliday, Terence, Michael Levi, Peter Reuter, op cit fn 71 above, page 9 para 7.

212

R v Cuthbertson [1981] AC 470, above page 14.

213

Kant, Immanuel, The Metaphysical Elements of Justice (Indianopolis, IN: Bobbs-Merrill, J Ladd trans. 1965) at 102.

214

Above, page 16 et seq.

215

Dillon, Patrick, Gin: The much-lamented death of Madam Geneva (Brookline, MA: Justin, Charles & Co, 2004).

216

Above, page 19.

217

Above, page 9.

218

Hall, Stuart, J Clarke, C Critcher, T Jefferson and Brian Roberts, Policing The Crisis: Mugging, Law And Order and the State (London: Macmillan, 1978).

219

Above, page 61.

Titel: Impacts upon Substantive Laundering Law
verfasst von: Peter Alldridge
Verlag: Palgrave Macmillan UK
Buch: What Went Wrong With Money Laundering Law?
Print ISBN: 978-1-137-52535-2

Electronic ISBN: 978-1-137-52536-9

Copyright-Jahr: 2016
DOI: https://doi.org/10.1057/978-1-137-52536-9_2