Mapping the contours and limits of “irresistible inference”

Published date30 May 2020
Date30 May 2020
AuthorKenny Foo
Mapping the contours and limits of
irresistible inference
Kenny Foo
The Ofces of Kenny Foo, Hong Kong SAR
Purpose In R v Anwoir [2008] EWCA Crim 1354, the English Court of Appeal held that, in money
laundering prosecutions, the criminal provenance of property can be proved by showing that the
circumstances in which the property was handledgive rise to the irresistible inference that it can only have
been derivedfrom crime. The purpose of this paper is to analysesubsequent developments that have revealed
the contours,and some of the limits, of proof by irresistibleinference.
Design/methodology/approach This paper reviews the reported cases in which an irresistible
inferencewas drawnand identies the features common to most of them. It then explores thelimits of proof
by irresistibleinferenceby reference to the continuing relevance of predicateoffences and the use of money
launderingtools and techniques for non-laundering purposes.
Findings Most of the cases in which an irresistibleinferencewas drawn fall within a narrowcompass of
ve categories. The breadthof the principle is constrained by the characteristics of the predicate offence, and
its usefulness is limited in cases where the typologies of the predicate offence and the money laundering
offence overlapsignicantly.
Originality/value This paper may be useful to those involved in prosecuting or defending money
laundering cases, as well as regulated persons assessing their money laundering risks and disclosure
Keywords Money laundering, Irresistible inference, Burden of proof, Tax evasion
Paper type Research paper
In money laundering cases, the Prosecution must prove beyond a reasonable doubtthat the
property alleged to have been laundered actually is or represents property obtained as a
result of, or in connection with, criminal conduct R v Montila [2004] UKHL 50. There are
two ways to do this. First, the Prosecutioncan show that the property derives from criminal
conduct of a specic kind or kinds. The second way is to adduce evidence of the
circumstances in which the property is handled, which are such as to give rise to the
irresistible inferencethat it can only be derived from crime.
Proof by irresistible inference was rmly established as part of English law by RvAnwoir
[2008] EWCA Crim 1354 and of Scots law by Ahmad v HM Advocate [2009] HCJAC 60. These
cases opened up a new dimension in the prosecution of money laundering offences. They
prompted a call to develop a consensus as to the circumstances that might give rise to the
irresistible inference of criminal provenance. A lively debate also arose as to whether the concept
of a predicate offenceshould have a continuing role in money laundering jurisprudence.
More than a decade has passed since those seminal decisions. This paper reviews some of the
key developments and attempts to map the contours and limits of proof by irresistible inference.
The Contours of irresistible inference
The decisions in Anwoir and Ahmad afrmed the principle that criminal provenance could be
proved by circumstantial evidence, but they did not suggest what circumstances other than the
Journalof Money Laundering
Vol.23 No. 4, 2020
pp. 735-743
© Emerald Publishing Limited
DOI 10.1108/JMLC-03-2020-0027
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