Proving the Criminal Origin of Property in Money‐Laundering Prosecutions
| Pages | 12-25 |
| Published date | 01 March 2000 |
| Date | 01 March 2000 |
| DOI | https://doi.org/10.1108/eb027258 |
| Author | R.E. Bell |
| Subject Matter | Accounting & finance |
Journal of Money Laundering Control — Vol. 4 No. 1
Proving the Criminal Origin of Property in
Money-Laundering Prosecutions
R. E. Bell
INTRODUCTION
A successful prosecution for a criminal offence
requires a prosecuting authority to prove beyond a
reasonable doubt that a defendant possessed the requi-
site mens rea, or mental state, and that at that time he
also committed the actus reus of the offence, that is to
say those elements of the crime apart from the mental
element. One of the most common features of the
actus reus of money-laundering offences across differ-
ent legal jurisdictions is that the prosecution usually
has to prove, inter alia, that the property which was
the subject of the transaction was, as a matter of
fact, the proceeds of crime.1 Some variations will
however occur, in that in certain jurisdictions there
may be a requirement to prove that the property is
the proceeds of a particular predicate offence; in
others it may be sufficient to prove that the property
is derived from any form of criminal conduct. This
paper examines the ways in which law enforcement
authorities have attempted to prove this clement
of a laundering offence, and concludes by making
some suggestions for alleviating the difficulties
inherent in doing so. Given that there have been
relatively few convictions for money laundering
in the UK, many of the examples are drawn
from other jurisdictions, some of which have
much greater experience of such prosecutions.2
Occasional examples are also drawn from civil for-
feiture cases. While the standard of proof in such
cases is that applicable in civil proceedings rather
than the criminal standard applicable in money-
laundering prosecutions, such cases may neverthe-
less be useful so as to see the type of evidence
adduced before the courts in order to prove that
property is the proceeds of crime.
It should not be supposed that, in proving the
criminal origin of property, the prosecution is
required to prove that the property in question is
the proceeds of a particular criminal act. In the
Canadian case of R v Clymore,3 where the prosecu-
tion had to prove beyond a reasonable doubt that
cash was the proceeds of crime in order to obtain for-
feiture, the British Columbia Supreme Court held
that, dealing with the matter from a theoretical
interpretative approach, it seemed obvious that if a
specific crime had to be proven, the provisions as to
both laundering and forfeiture could only be effective
if the prosecution were able to introduce evidence of
each illegal transaction, that is to say, in drugs cases,
each wholesale or retail sale of
drugs.
The prosecution
would therefore be required to establish on a strict
interpretation that the funds in question were the
proceeds of the sale in question and, ultimately, if
there had been two street sales negotiated, one
might impose on the prosecution the obligation to
establish which of two $20 bills arose out of which
street sale. Should such a restrictive interpretation
be imposed, it seemed obvious to the court that the
purpose of the legislation would very seldom be
carried out except for cases of street-level vendors
where very little funds were involved, or the
occasional large-scale 'bust' where exchanging of
'the traditional briefcases' was witnessed. The court
therefore concluded that that construction was not
one that could reasonably be attributed to Parliament
and was satisfied that the specific crime or crimes
need not be proven.
Money-laundering prosecutions will usually be
based on circumstantial evidence, whereby a
number of pieces of evidence are adduced, from
which inferences are drawn proving to the criminal
standard of proof that the property in question has
a criminal origin. While circumstantial evidence is
occasionally compared unfavourably to direct evi-
dence, there is a long tradition of acceptance of
such evidence:
'It has been said that the evidence against the
appellants is circumstantial: so it is, but circum-
stantial evidence is very often the best. It is evi-
dence of surrounding circumstances which, by
undesigned coincidence, is capable of proving a
proposition with the accuracy of mathematics.
It is no derogation of evidence to say that it is
circumstantial.'4
Circumstantial evidence derives its main force
from the fact that it usually consists of a number of
items pointing in the same direction:
Journal of Money Laundering Control
Vol 4, No 1, 2000. pp 12-25
V) Henry Stewart Publications
ISSN 1368-5201
Page 12
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