The Proceeds of Crime Act 2002 (POCA) makes it an offence to:
- conceal, disguise, convert, transfer or remove from the UK;
- enter into an arrangement that facilitates the retention, use or control of: or
- acquire, use or possess,
“criminal property” – (being something – whether money or anything else – constituting or representing someone’s the benefit from “criminal conduct”) where which the alleged offender knows or “suspects” it to be criminal property. Criminal conduct is conduct which constitutes an offence in any part of the UK or would do so, if it occurred there.
Case-law indicates that “suspicion” is a relatively low threshold – it must be “more than merely fanciful”, but need not meet any balance of probabilities threshold. In addition, a genuinely held but irrational suspicion would still be relevant to trigger the offence in a particular case. On the other hand, if the alleged offender did not have the suspicion required – even if it might be thought that a reasonable person would have such a suspicion – then there will be no offence. It would be for the prosecutor to show that the person did in fact have the required suspicion.
An example of when these offences may be triggered if is where a parent company receives a dividend from a subsidiary which it knows or suspects comprises or represents profits made from an unlawfully obtained contract.
As well as the “general” money laundering offences, there are a number of offences specific to persons operating in the regulated sector. Some of those offences do not require actual suspicion; in some cases an objective test of whether the person ought to have been suspicious will apply.
Both the general and regulated sector offences carry substantial penalties, with up to 14 years’ imprisonment and/or unlimited fines. But there are also defences available, in particular where the person with the relevant suspicion has made an authorised disclosure to the National Crime Authority.