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Money laundering part 4

Last week we were looking at the definition (for money-laundering purposes and the proceeds of crime act) of criminal conduct in the United Kingdom and abroad and the need to see how that was applied in the context of a specific offence. By way of example let us take the offence of theft. That is a crime in all parts of the United Kingdom. It consists of dishonestly appropriating property belonging to another. Therefore each of the elements has to be satisfied. Property is widely defined, so that for example it includes money. The property has to belong to someone else. You cannot steal from yourself. However you can steal from a separate legal person, so that you could steal something from a company, even if you own all the shares, because that company is a different person. Again if the property was determined to belong to no one (such as property which was abandoned) then it could not be stolen. (Just because property is thrown away does not mean it has been abandoned: for example one would probably say that property in a recycling bin is meant to go for recycling, not meant to be taken by anyone else). There has to be an appropriation, i.e. a form of taking. That could be a question of fact and degree, but for example merely touching something would almost certainly not be enough, taking something home almost certainly would be. There also has to be dishonesty. If for example by mistake you take something out of a shop without paying (you get a phone call which distracts you, you suddenly remember you've left the oven on and are worried the house will burn down, you're just absent-minded generally or have something else on your mind, etc) you have not behaved dishonestly (although of course you may do by subsequent deciding to keep it). If you decide to shoplift then you are behaving dishonestly. You might say how does someone know, well if there is no agreement it is for a jury or magistrates to decide whether they are sure that the defendant was behaving dishonestly or not.

That therefore is an offence in the United Kingdom. If by chance (unlikely though that would be) there is some other country where theft is not a crime that matters not for the purpose of this definition (although as we see in certain circumstances whether something is a crime abroad can be relevant for certain money-laundering offences). An important part of this definition is that you don't need to prove at the outset where the crime occurred. Thus if someone appears on the face of it to have the proceeds of crime, saying that those proceeds came from some obscure jurisdiction abroad where it is alleged that the particular conduct is not criminal will not be sufficient to avoid commission of the offence. A practical difference could be where someone took money from a company that they owned but said that was legal in the place that it occurred. (Although of course there would be the argument anyway that, in the context of theft, if you thought that something was legal you could not have been behaving dishonestly). Let us take something different, a very different type of offence. Female genital mutilation is illegal in the United Kingdom, (ignoring for the moment requisite medical surgery including gender reassignment) but let us say there was some state where culturally as well as legally it was permissible and you could get paid for doing it. That would still be criminal conduct here, and so the money obtained would be obtained as a result of doing something which would be illegal here.

This definition is not without its practical difficulties, and there are also circumstances where the foreign legal position is relevant. Before considering the definitions section further, we will look at those matters next week.

Michael J. Booth QC