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Money Laundering - Risk of Being Punished Twice?

It is common for money laundering offences (under the Proceeds of Crime Act 2002) to be charged in conjunction with other alleged criminal activities, especially those related to drug offences.

Whilst dealing with the monetary gains from offending will indeed amount to a separate money laundering offence, it raises the question of how those offences should be sentenced.

The approach to sentencing in this type of case was considered in R v Greaves [2010] EWCA Crim 709; [2011] 1 Cr App R (S) 8, R v Alexander and Others [2011] EWCA Crim 89; [2011] 2 Cr Ap R (S) 52 and R v Randhawa [2022] EWCA Crim 873.

Those decisions show that there is a broad spectrum of cases involving the combination of 2002 Act offences and other underlying, primary, offending.

At one end of the spectrum, the 2002 Act offence does not involve any additional culpability or harm and does not aggravate the seriousness of the primary offence.

At the other end, the offending contrary to the 2002 Act is markedly distinct from the primary offending and involves significant additional culpability and harm, aggravating the primary offence to an extent that would not otherwise be reflected in the sentence for that offence if considered in isolation.

(1) Where the 2002 Act offence adds nothing to the culpability and harm involved in the primary offence then there should be no additional penalty. In such a case it is appropriate to impose concurrent sentences, with no upward adjustment.

(2) Where the 2002 Act offence involves additional criminality (whether increasing the culpability or harm, or both) beyond that involved in the other offences for which sentences are imposed, an additional penalty should be imposed. The seriousness of the additional criminality is to be assessed by reference to the culpability of the offender and the harm caused by the 2002 Act offending. In such a case the sentencing judge may either impose concurrent sentences with an appropriate upward adjustment, or consecutive sentences, often with a downward adjustment.

How do courts approach this assessment?

It is important, in each case, to identify whether the 2002 Act offence involves additional culpability and/or harm, and, if so, the extent.

Examples of cases where there is such an additional factor include those where the 2002 Act offence:

1. takes place over a different period from the primary offending.
2. involves additional or different criminal property, beyond the proceeds of the primary offending.
3. makes it more difficult to detect the primary offending.
4. involves dealing with the proceeds of the primary offending in a way which increases the risk that victims will not recover their losses, or that confiscation proceedings will be frustrated.
5. creates additional victims. This may arise where the proceeds of the primary offending are used to make further transactions which are then thrown into question, resulting in loss to the innocent parties to those transactions.
6. involves additional planning or sophistication, extending the culpability that might otherwise attach to the primary offending.
7. assists in the continuation of offending. In this regard, in Alexander at [13] Moses LJ drew attention to "[t]he pernicious nature of money laundering and its capacity for enabling the proceeds of drug dealing to be not only concealed but to assist in the continuation of such crimes".

Conversely, where the 2002 Act constitutes nothing more than the continued possession of the proceeds of the primary offence, then there is unlikely to be any additional culpability or harm beyond that reflected in the primary offence. In that event, it would be wrong in principle to impose any additional penalty. If an immediate custodial sentence is imposed for the primary offence this principle requires a sentence for the 2002 offence that runs concurrently with it.

It can be seen from the above analysis that the addition of money laundering charges is not something to be brushed to one side as significant additional punishment could flow from it.

How can our criminal defence solicitors help?

Something special is required for serious and complex crime cases. The Solicitors in our Special Case Work Unit approach each case in the most determined and focused manner. We have substantial legal resources within our team of serious crime solicitors, and the latest technology available to us for the analysis, preparation and presentation of serious crime cases. The application of this tried and tested serious crime lawyers team-based system has produced impressive results.

Our Proceeds of Crime Team

Proceeds of crime refers to the money and other assets that criminals have gained through their illegal activity. The UK authorities have the power to confiscate these assets, which may be split between various agencies.

The criminal and civil law in relation to the alleged proceeds of crime is complex and difficult, that is why it requires specialist advice from the very start. At Forbes we have a Specialist Department, which deals exclusively with both Criminal and Civil cases.

Forbes Solicitors is different if not unique. We have an expert team that deals exclusively with financial claims made by the State and public agencies. Those claims may follow a prosecution or increasingly Civil proceedings against a client and often with little or no notice.

The department works with our Commercial, Business Crime, Crime and Regulatory departments, providing specialist advice to clients. We pride ourselves in our specialism and are regularly able to provide a comprehensive in-house service. Our reputation extends this service on a National basis. We act for and advise individuals, commercial organisations and limited companies "suspected", "accused" or "convicted", together with anyone caught up in somebody else's wrongdoing, to protect innocent people's property rights. Where necessary and appropriate, specialist Barristers and Forensic Accountants are instructed.

For more information contact Craig MacKenzie in our Crime department via email or phone on 01772 220 022. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Crime department here

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