In the shadow of the dark twin – proving criminality in money laundering cases
| DOI | https://doi.org/10.1108/JMLC-02-2016-0009 |
| Date | 03 October 2016 |
| Pages | 447-458 |
| Published date | 03 October 2016 |
| Author | Kenneth Murray |
| Subject Matter | Accounting & Finance,Financial risk/company failure,Financial compliance/regulation,Financial crime |
In the shadow of the dark
twin – proving criminality in
money laundering cases
Kenneth Murray
Forensic Accountancy, Police Scotland, Glasgow, UK
Abstract
Purpose – This paper aims to highlight the persistent inuence of the concept of “predicate offence” in
respect of how the crime of money laundering is conceived and discussed, and to discuss how this
inhibits the ability to prosecute the crime even where, as is the case in the UK, “predicate offence” is not
a requirement of the relevant legislation.
Design/methodology/approach – Discussion of a recent UK Supreme Court judgment, R v GH, in
particular, how the import of it appears to contrast with perceptions offered by the experience of two
recent money laundering convictions on Scotland, where no evidence was led on establishing the money
was criminal before the criminal act was libelled as money laundering. Design of modern money
laundering schemes are illustrated and assessed in terms of how they can be prosecuted in the context
of prevailing interpretations of the law.
Findings – The effectiveness of the UK money laundering offences as set out in the Proceeds of Crime
Act of 2002 requires revaluation. Clarication is required in respect of how criminality in such cases can
be proved. Consideration should be given to introducing new legislation targeted at the transmission of
money or value under the cover of false documentation.
Research limitations/implications – Clarication is required on how the concept of “irresistible
inference” as established by R v Anwoir can be applied to money laundering cases in light of theRvGH
judgement of the UK Supreme Court.
Practical implications – Upgrade of law enforcement knowledge base and investigation skills is
required to prosecute existing money laundering offences more effectively, but the lack of clarity as to
what will sufce as proof of criminality serves to inhibit the investigation of these crimes as well as their
prosecution.
Social implications – Protection of democracies, democratic institutions and the communities they
serve from the corrupting inuence of laundered criminal money through more effective prosecution of
money laundering offences.
Originality/value – To encourage discussion on whether the relevant legislation remains t for
purpose and what practical measures can be taken to improve it.
Keywords Money laundering, Irresistible inference, Proving criminality
Paper type Viewpoint
Money Laundering offences have not been used against organised crime groups to the
extent originally envisaged when the Proceeds of Crime Act 2002 was enacted in the UK.
The issue of proving criminality remains the most difcult practical obstacle. The design of
the POCA legislation was such that specication of a predicate offence was not necessary,
yet the concept of predicate offence still persists in academic discourse as if it is still an
absolute requirement for the offence. The “Placement-Layering-Integration” model used to
The views expressed in this paper are those of the author and should not be taken as those of
Police Scotland.
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/1368-5201.htm
Criminality in
money
laundering
447
Journalof Money Laundering
Control
Vol.19 No. 04, 2016
pp.447-458
©Emerald Group Publishing Limited
1368-5201
DOI 10.1108/JMLC-02-2016-0009
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