Greaves & Ors v R

Money-laundering offences under the Proceeds of Crime Act 2002 are separate, free-standing offences from the criminal conduct producing the property. Where the same offender commits both, however, an additional penalty is justified only if the laundering conduct adds to the culpability of the primary offence. There must be something more; an offender must not be punished twice for the same conduct.

If laundering does add culpability, a consecutive sentence may be imposed. The maximum sentence for the primary offence may inform the assessment of the laundering, but does not cap the total sentence or the sentence for laundering. Sentencing must nevertheless reflect the actual nature of the antecedent offending and any acquittal on an allegation of fraud.

The appellants participated in an unauthorised share-selling operation which cold-called United Kingdom investors and obtained about £2.4 million. The operation contravened sections 19 and 21 of the Financial Services and Markets Act 2000. Much of the investors’ money was transferred from London to a Hong Kong account.

Greaves was convicted of conspiracies to contravene sections 19 and 21 and of an offence under section 328 of the Proceeds of Crime Act 2002. Botcher and Jenkins pleaded guilty to a combined conspiracy count and to the section 328 offence. Greaves was acquitted, and the other appellants maintained not-guilty pleas, on a count of conspiracy to defraud.

They appealed sentences imposed by the Southwark Crown Court. The central issue was whether the laundering arrangement was already punished by the conspiracy sentences or added sufficient culpability to justify consecutive sentences.

1. The appeals were allowed on sentence. The section 328 sentences were reduced, but remained consecutive to the conspiracy sentences. The substituted total sentences were three years’ imprisonment for Greaves, one year and ten months for Botcher, and 12 months for Jenkins.

2. Offences under sections 327 to 329 of the Proceeds of Crime Act 2002 are separate and free-standing from the offences which generated the criminal property. Where the same person committed both offences, no additional punishment should be imposed if the laundering conduct added nothing to the culpability of the primary conduct. That result may be achieved by no separate penalty or by concurrent sentences.

3. An additional, including consecutive, sentence is appropriate where the laundering conduct adds to that culpability. The proper question is whether there is something more, not whether the two offences have a different gravamen. The statutory maximum for the primary offence is not a ceiling on a sentence for separate laundering conduct, although it may be relevant to the seriousness of that conduct.

4. Here, transferring most of the proceeds from London to Hong Kong had no good commercial explanation. It was intended to hinder regulators and investors if the unlawful selling operation were discovered. That conduct went beyond the conspiracies under sections 19 and 21 and justified consecutive section 328 sentences.

5. The original laundering sentences were nevertheless too high. They were more appropriate to disposal of the proceeds of a fraudulent scheme, but no fraud had been established against any appellant. The court also upheld the judge’s 20 per cent credit for the late guilty pleas of Botcher and Jenkins.

• Court of Appeal (Criminal Division) Allowed the appeals against sentence and substituted reduced consecutive sentences: [2010] EWCA Crim 709.
• Southwark Crown Court His Honour Judge Tester sentenced Greaves following conviction, and Botcher and Jenkins following guilty pleas, for conspiracies under the Financial Services and Markets Act 2000 and money laundering under the Proceeds of Crime Act 2002.