Elderly and vulnerable people were induced into withdrawing and handing over cash or transferring money into bank accounts totalling £240,000 in a conspiracy to defraud. Money from two of the conspirators was transferred into the joint bank account held in the names of the defendant and his wife, from which cash withdrawals were then made. At interview, the defendant said he neither knew the co-accused nor suspected that the money put into his account was the proceeds of crime. His position was that the funds were payments for clothing which he used to buy stock and pay for other expenses connected with his clothing business. The defendant was charged with acquiring criminal property, contrary to section 329(1)(a) of the Proceeds of Crime Act 2002 rather than with using or having possession of it, contrary to section 329(1)(b) or (c). It was the Crown’s case at trial that by such transfers to the account the defendant had acquired criminal property. It was the defendant’s case that he was not involved in any conspiracy and did not acquire any criminal property. At the close of the evidence counsel for the defence made a submission of no case to answer. The judge ruled in favour of the Crown and said in his written reasons (i) money obtained by fraud constituted criminal property for the purposes of section 329; (ii) an offence was committed by someone who acquired such money knowing or suspecting it to be criminal property; (iii) it could properly be inferred by a jury that the defendant had acquired the criminal property as withdrawals could only be made from an account by the account holder and the fraudsters would not have put monies into the defendant’s account unless they knew he would return the monies to them. The defendant was convicted and appealed against conviction on the ground that, by reference to the facts and the Crown’s case at trial, the count charged under section 329(1)(a) of the 2002 Act was the incorrect charge and the judge should have accepted the defence’s submission of no case to answer.
On the appeal—
Held, appeal allowed. For an offence to be committed under section 329(1)(a) of the Proceeds of Crime Act 2002 the property had to be “criminal property” prior to the transfer in question and its transfer could not, of itself, render the property criminal. The word “acquired” had to have a meaning which was not coextensive with the use or possession provided for in section 329(1)(b) and (c). The judge, in his ruling, was driven to rely on conduct which occurred after the money had been transferred into the account to support his conclusion on acquisition. Such further dealing with the money could readily be accepted as consistent with use or possession of criminal property, pursuant to section 329(1)(b) or (c) but was not, of itself, an acquisition of criminal property at the time the money was first paid into the bank account. Because the case had been charged under section 329(1)(a) rather than under section 329(b)(1) or (c) the conviction was not good and had to be quashed. Not only had the statement of case been drafted solely by reference to section 329(1)(a) but the particulars of the offence had solely and expressly focused on acquiring criminal property in the form of the bank transfers. The court was precluded by section 3 of the Criminal Appeal Act 1968 from substituting an alternative verdict (paras 24, 30, 32 ).
Per curiam. (i) It is questionable that section 329 of the Proceeds of Crime Act 2002 creates one offence which is capable of being fulfilled in three different ways rather than three different offences (para 31).
(ii) The case stands as an illustration of the care which needs to be taken when formulating and particularising charges under the money laundering provisions of the Proceeds of Crime Act 2002. Failure to formulate and particularise the charges correctly can have serious consequences unless any error is identified in time (para 32).
Stanley Reiz (assigned by the Registrar of Criminal Appeals) for the defendant.
Denise Breen-Lawton (instructed by Crown Prosecution Service, Appeals Unit, Special Crime Division) for the Crown.