Criminal Defence in a POCA case at the Court of Appeal which defines ‘criminal property’

Shahid Miah, criminal defence solicitor and serious fraud specialist, represented the Appellant in a case which defined ‘criminal property’ at the Court of Appeal.

The Court report was as follows:

R v URFAN AKHTAR : R v ABIDA SHAHEEN AMIR (2011)

[2011] EWCA Crim 146

CA (Crim Div) (Elias LJ, Kenneth Parker J, Judge Beaumont Recorder of London) 27/1/2011

CRIMINAL LAW

ACTUS REUS : MONEY LAUNDERING : NEED FOR PROPERTY TO BE “CRIMINAL PROPERTY” AT TIME OF RELEVANT ARRANGEMENT : s.328(1) PROCEEDS OF CRIME ACT 2002 : s.327 PROCEEDS OF CRIME ACT 2002 : s.329 PROCEEDS OF CRIME ACT 2002 : s.340(3) PROCEEDS OF CRIME ACT 2002

The offence of money laundering under the Proceeds of Crime Act 2002 s.328(1) would only be committed where the property in question was “criminal property” at the time of the relevant arrangement; the appellant, who had knowingly submitting false mortgage applications on behalf of third parties, was not guilty of the offence, because when he entered into the relevant arrangements with the mortgage brokers the property in question was not criminal in the hands of the mortgage company.

The appellant (X) appealed against his conviction for money laundering contrary to the Proceeds of Crime Act 2002 s.328(1). X operated a business under which he introduced clients to mortgage brokers in return for a fee. He was prosecuted for knowingly submitting false mortgage applications on behalf of third parties. X would give false information to the brokers; in one case, for example, he falsely claimed that the applicant had a particular income and supported the application with a false employer’s reference. The issue was whether property became “criminal property” for the purposes of s.328 only after some other offence had been committed or whether it was to be characterised as criminal property because of the criminal objective which the arrangements were designed to achieve. X argued that when he entered into the arrangements with the mortgage brokers, and even when they were carried into effect, he was not thereby facilitating the acquisition of criminal property, because at that time the property was not criminal in the hands of the mortgage company; it only became criminal property when it came into his hands or the hands of those for whom he was securing the mortgage.

HELD: Section 327, s.328 and s.329 of the 2002 Act were all concerned in one way or another with dealing with “criminal property”. By s.340(3) that was property which in fact constituted a person’s benefit from criminal conduct or represented such a benefit and the offender knew or suspected that that was so. The definition did not embrace property which the accused intended to acquire by criminal conduct, and the language of the statute was not capable of producing such a construction of “criminal property”, R v Loizou (Lisa) (2005) EWCA Crim 1579, (2005) 2 Cr App R 37 applied, and R v Geary (Michael) (2010) EWCA Crim 1925, (2011) 2 All ER 198 and Kensington International Ltd v Congo (2007) EWCA Civ 1128, (2008) 1 WLR 1144 followed (see para.20 of judgment).

Appeal allowed

Counsel:

For the appellant: Simon Farrell QC

For the Crown: Malcolm Morse

Solicitors:

For the appellant: David Phillips & Partners

For the Crown: CPS

LTL 10/2/2011 : (2011) 1 Cr App R 37