Amir & Anor, R v

An arrangement under section 328(1) of the Proceeds of Crime Act 2002 must facilitate the acquisition, retention, use or control of property which is already criminal property when the arrangement begins to operate on it. It is insufficient that the arrangement facilitates the criminal acquisition of property which was legitimate when the arrangement operated. Under section 340(3), criminal property must in fact be a benefit from criminal conduct, or represent such a benefit. An intention to acquire property by criminal conduct does not itself give the property that character. The distinction between facilitating the acquisition of criminal property and facilitating a criminal acquisition of property is material.

Akhtar operated a mortgage-introduction business and gave mortgage brokers false information and references to obtain mortgages for clients. He pleaded guilty at the Crown Court at Stoke-on-Trent to five counts under section 328(1) of the Proceeds of Crime Act 2002, received concurrent sentences of imprisonment, and was made subject to a confiscation order.

Amir, a co-accused, had been convicted under section 329. Following successful appeals by other co-accused, recorded at [2009] EWCA Crim 2242 and [2010] EWCA Crim 819, she sought permission to appeal out of time.

The central issue in Akhtar's appeal was whether mortgage funds were criminal property for section 328 when the arrangements were made or began to operate, or only became criminal property through the intended deception.

1. Both appeals were allowed. Time was extended and Amir's conviction was quashed. The Crown accepted that her appeal was governed by the earlier decisions concerning the co-accused.

2. Akhtar's conviction under section 328(1) of the Proceeds of Crime Act 2002 was unsafe. The court rejected the Crown's submission that section 328 criminalised an arrangement which facilitated the criminal acquisition of property. The statutory language instead requires an arrangement facilitating the acquisition of criminal property.

3. Under section 340(3), criminal property is property which in fact constitutes, or represents, a person's benefit from criminal conduct, and which the alleged offender knows or suspects to have that character. The definition does not include property merely because the accused intends to obtain it by criminal conduct. Nor did the funds become criminal property for this purpose at the point at which they left the mortgage company: by then the arrangement had already operated on them.

4. This construction was consistent with Loizou [2004] EWCA Crim 1579 and with the directly applicable reasoning in R v Geary [2010] EWCA Crim 1925. It also accorded with the relevant EC money-laundering directives, which did not require the broader construction advanced by the Crown.

5. Accordingly, Akhtar's conviction was quashed and the confiscation order fell with it. The court observed that the conduct could have been charged under section 15A of the Theft Act, or under the later Fraud Act, but the availability of an alternative offence could not sustain the conviction actually obtained.

• Court of Appeal (Criminal Division): Amir was granted permission to appeal out of time and her conviction was quashed. Akhtar's appeal against conviction was allowed; his confiscation order consequently fell.
• Crown Court at Stoke-on-Trent: Akhtar pleaded guilty to five offences under section 328(1) of the Proceeds of Crime Act 2002. He received 22 months' imprisonment on each count and a confiscation order. Amir had been convicted under section 329.