(vi) Money Launderers
In Allpress[1] the Court of Appeal held that money launderers can be liable to a confiscation order, but only to the extent that they had obtained a benefit from the crime, so they should be treated in the same way as custodians or couriers. In reaching this decision the Court carefully considered the nature of money. Although money is treated differently from tangible property,[2] this is not significant for the purposes of the confiscation regime, since the question is the same whether the property is money or tangible property, namely whether the recipient has a power of disposition or control over the property.
The application of this principle to the confiscation regime is illustrated by the situation where a shopper in a supermarket pays money to a till operator at the checkout. The till operator does not benefit from the receipt of the money or from the money being under their power of disposition or control. They do have some degree of power of disposition or control but their powers are limited by virtue of their employment contract. Physical possession is not a benefit for the purposes of the confiscation regime. The same result would be reached even if the till operator knew or suspected that the money was tainted by crime and so would be liable for the money laundering offence.[3] So, for example, if the defendant is asked to collect an envelope which contains the proceeds of crime and transfers that money to a third party, the defendant will not have an interest in that money for the purposes of the confiscation scheme.
These principles were applied to a number of the appeals which were considered in Allpress. So, for example, one defendant was a cash courier, who took the proceeds of drug trafficking to various countries. It was held that the relevant benefit was the ?800 she was paid for doing so and not the money she was laundering. However, a partner in a firm of solicitors was held to be a trustee of money obtained pursuant to a VAT fraud which had been transferred into a client account and this was therefore considered to be his property. It was accepted that there might be exceptional cases where money is paid into the defendant’s bank account and it will not constitute property which the defendant had obtained for purposes of the confiscation regime. So, for example, if the proceeds of crime are credited to a wife’s bank account which is controlled by her husband, she will be a nominee and so will not obtain any property herself for the purposes of the confiscation regime.
(vii) Tainted Gifts
Where the defendant has given assets away which derive or are presumed to derive from the proceeds of crime, they are still to be taken into account when determining the recoverable amount,[4] even if the defendant is unable to recover the gift from the donee.[5] This consequently provides a mechanism to prevent the defendant from in effect pleading change of position.
- [1] [2009] EWCA Crim 8, [2009] 2 Cr App R (S) 399.
- [2] So, for example, Lord Haldane in Sinclair v Brougham [1914] AC recognized that title to money passes
- [3] when it is paid over as currency. 8 Proceeds of Crime Act 2002, s 327.
- [4] Proceeds of Crime Act 2002, s 9(1)(b).
- [5] Smith [2013] EWCA Crim 502, [2014] 1 WLR898.
