Reviewing these international legal pronouncements/conventions it is noted that many are all- encompassing and therefore vague and a suggestion on ‘what should happen’ and yet have no power of enforcement. Left open to national interpretation, if adopted, these ‘laws’ are limited. However, rather than dismiss these approaches completely the law(s) are a needed to prevent and ultimately prosecute, and hopefully convict, those caught laundering illegal proceeds. However, a note of caution is needed as even if laws are adopted there is the potential that it is little more than a paper exercise (see results chapter six) and the problem of definition is irrelevant if claims to prevention are an exercise in political obfuscation.
It appears that the English law(s) regarding money laundering have seen significant changes in recent years. It is understood that the Government made those changes to consolidate, update, expand and reform the criminal law in the United Kingdom with regard to money laundering in order to reduce the incidence of known and potential money laundering. However, it has been seen that the definition of money laundering is very wide and the structure of the English law is complex to the point of impenetrability and is best understood by reference to the full English legislation and regulations relating to money laundering189. The abolition of the distinction between the proceeds of narcotics trafficking and serious crime190, however, is useful as it simplifies the law and makes it perhaps easier to understand and apply.
189 The Proceeds of Crime Act 2002, The Terrorism Act 2000, The Money Laundering Regulations 2007
190 Under the pre-Proceeds of Crime Act 2002, there were separate offences for drug money laundering under the Criminal Justice Act 1988 and the Drug Trafficking Act 1994. For more details see Taby Graham et al. “Money Laundering” Butterworth Lexis Nexis 2003 p.10. The approach of the Proceeds of Crime 2002 is in line with the International obligations and in particular with recommendation 1 which stated that Countries should criminalise money laundering on the basis of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 (the Vienna Convention) and the United Nations Convention against Transnational Organized Crime, 2000 (the Palermo Convention). Countries should apply the crime of money laundering to all serious offences, with a view to including the widest range of predicate offences. Predicate offences may be described by reference to all offences, or to a threshold linked either to a category of serious offences or to the penalty of imprisonment applicable to the predicate offence (threshold approach), or to a list of predicate offences,
Undoubtedly, POCA (2002) made significant changes in the law of money laundering, but not to the point of removing all the uncertainties created by previous laws. There are still problems and these uncertainties will continue with all their unwanted effects. For example, most money laundering offences allows a defence of ‘reasonable excuse’.191 However, POCA (2002) gave no definition or guidance on what ‘reasonable excuse’ meant. This uncertainty in POCA (2002) includes the use of wide terms, which need interpretation and explanation i.e., the terms ‘entering into arrangement’192, ‘knowledge’193, ‘suspicion194 and ‘reasonable grounds’.195 This, however, could be levelled at all criminal laws rather than this specific act. 196 Furthermore, definition of “criminal conduct” is also unclear and it is uncertain in what circumstances conduct outside the
or a combination of these approaches. Where countries apply a threshold approach, predicate offences should at a minimum comprise all offences that fall within the category of serious offences under their national law or should include offences which are punishable by a maximum penalty of more than one year’s imprisonment or for those countries that have a minimum threshold for offences in their legal system, predicate offences should comprise all offences, which are punished by a minimum penalty of more than six months imprisonment. Whichever approach is adopted, each country should at a minimum include a range of offences within each of the designated categories of offences 3. Predicate offences for money laundering should extend to conduct that occurred in another country, which constitutes an offence in that country, and which would have constituted a predicate offence had it occurred domestically. Countries may provide that the only prerequisite is that the conduct would have constituted a predicate offence had it occurred domestically. Countries may provide that the offence of money laundering does not apply to persons who committed the predicate offence, where this is required by fundamental principles of their domestic law.
191 Section 332 of the Proceeds of Crime Act 2002 192 Section 328
193 Sections 330-332 194 Section 332 195 Section 332
United Kingdom is criminal conduct Act 2002 (therefore, it is uncertain as to who has to be reported as suspected of money laundering and which transactions need consent)197.
It also needs to be emphasized that money-laundering offences are not confined to cases involving money; they can, and do include terrorism, the sexual exploitation of children, fraud, environmental offences and other organised crime”.198,199