Tax Crimes Money Laundering and the Professional Adviser
| Published date | 01 March 2000 |
| Pages | 37-43 |
| DOI | https://doi.org/10.1108/eb027260 |
| Date | 01 March 2000 |
| Author | Ben Brandon |
| Subject Matter | Accounting & finance |
Journal of Money Laundering Control — Vol. 4 No. 1
Tax Crimes Money Laundering and the
Professional Adviser
Ben Brandon
The fight against money laundering has moved in a
new and unforeseen direction. All-crimes money
laundering means what it says: the offence-creating
provisions of s. 93A of the Criminal Justice Act
1988 encompasses all crimes, including tax evasion.
What is more, it is intended to criminalise the pro-
fessional adviser who enters into arrangements or
provides transactional advice to a client that facilitates
the retention of the proceeds of crime, if the adviser
suspects the client has been engaged in tax evasion.
The views of HM Treasury on the subject of
all-crimes money laundering legislation and its appli-
cability to both domestic and international tax crimes
have been discussed elsewhere.1 There can be little
doubt that both the political will and prosecutorial
zeal exists to prosecute domestic and foreign tax
crimes money laundering, but does the law allow
for it?
THE OFFENCE
Section 93A is not designed to capture the criminal
whose enterprises generate the illicit profit; his
crimes will be prosecuted elsewhere. It is designed
to regulate, and if necessary punish, those in the
financial, legal or commercial sectors who know or
suspect that their client is a criminal, yet launder his
illicit profits. The act of laundering is in entering
the arrangement that facilitates the retention or dis-
posal of the proceeds of crime. The relevant
offence-creating subsection of 93A provides:
'Subject to subsection (3) below, if
a
person enters
into or is otherwise concerned in an arrangement
whereby—
the retention or control by or on behalf of another
("A") of A's proceeds of criminal conduct is
facilitated (whether by concealment, removal
from the jurisdiction, transfer to nominees or
otherwise); or
A's proceeds of
criminal
conduct—
are used to secure that funds are placed at A's
disposal; or are used for A's benefit to acquire
property by way of investment,
knowing or suspecting that A is a person who is
or has been engaged in criminal conduct or has
benefited from criminal conduct, he is guilty of an
offence.'
A prosecutor need only prove to the requisite
standard2 that:
'the professional adviser knew or suspected that
his client was engaged in or had benefited from
criminal conduct, and
the funds (or property) retained or disposed of by
operation of the arrangement were in fact the
proceeds of crime.'
There is no corresponding obligation on the pro-
secutor to prove that the professional adviser also
knew, suspected or believed that the arrangement
related to the proceeds of crime, unless a defence is
raised3 by the accused under s. 93A(4)(a) discussed
in the 'Option 3: Do nothing' section below.
THE PREDICATE OFFENCE
Criminal conduct as it appears in the section is
sometimes described as 'the predicate offence'.
Section 93A presupposes that an offence has been or
is being committed by another which generates the
proceeds of crime which are the subject of the
arrangement. It also presupposes that an offence has
been or is being committed by another which gives
rise to the knowledge or suspicion in the mind of
the professional adviser.
It should be appreciated from the outset that there
is nothing in s. 93A that obliges a prosecutor to prove
that the criminal conduct that gave rise to the
suspicion is the same criminal conduct that generated
the proceeds of crime. A prosecution can be brought
where the predicate offence is one and the same, or
where there are two entirely different predicate
offences — one which is suspected, the other which
generates the proceeds.
Consider the position where the criminal conduct
suspected by the professional adviser is a different
Journal of Money Laundering Control
Vol.
4,
No.
1,
2000,
pp.
37-43
© Henry Stewart Publications
ISSN 1368-5201
Page 37
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