The inter-relationship between theft and POCA: is every thief also guilty of a money-laundering offence?
| Author | Gavin A. Doig |
| DOI | 10.1177/0022018315591132 |
| Published date | 01 June 2015 |
| Date | 01 June 2015 |
| Subject Matter | Supreme Court |
Supreme Court
The inter-relationship between theft and POCA: is every thief also
guilty of a money-laundering offence?
GH v R [2015] UKSC 24
Keywords
Criminal property, confiscation, POCA, money laundering, theft
The respondent, GH, was tried on a charge of entering into or becoming concerned in a money-
laundering arrangement, contrary to s. 328(1) of the Proceeds of Crime Act 2002 (‘the Act’). A fraudster,
B, had established four fake websites pretending to offer cheap car insurance. He recruited others,
including GH, to open bank accounts to enable him to channel the proceeds from each website.
GH opened two bank accounts shortly before the relevant website became active. B took control of
the accounts. Some £594,000 was paid into the bank accounts by unsuspecting members of the public for
non-existent insurance cover.
The prosecution did not contend that GH necessarily knew the full details of B’s fraud. The prosecu-
tion case was that the circumstances of the opening of the accounts meant that GH must have known, or
at least suspected, some criminal purpose on B’s behalf.
The particulars of the offence charged alleged that he and another had
...entered into or became concerned in an arrangement which they knew or suspected would facilitate the
retention, use or control of criminal property namely money received into [the accounts] from the sale of
motor insurance ...by or on behalf of [B].
In the Crown Court the respondent submitted that there was no case to answer. The argument advanced
was that at the time GH entered into the arrangement, no criminal property existed, so s. 328 of the Act
did not apply. The trial judge upheld the submission. The prosecution appealed against her terminating
ruling to the Court of Appeal.
The appeal was dismissed. The Court of Appeal ruled that although it is not necessary for the criminal
property to exist at the time the arrangement is made, the property concerned must be criminal property
when the arrangement begins to operate on it. Here, because the money paid into the accounts by the
victims was not criminal property when it was transferred by them, it was not criminal property when
the arrangement made between GH and B began to operate on it.
The Court of Appeal certified the following question for the Supreme Court:
Where by deception A induces the payment of money to a bank account opened for that purpose by B, pur-
suant to an arrangement with A to receive and retain that money, then may B commit an offence contrary to
s.328 of the Proceeds of Crime Act 2002, on the basis that the arrangement to receive and retain the money in
that bank account can be treated as both rendering the property criminal property and facilitating its retention,
use or control?
The Journal of Criminal Law
2015, Vol. 79(3) 165–169
ªThe Author(s) 2015
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DOI: 10.1177/0022018315591132
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