Wiese v The UK Border Agency

Forfeiture of cash under Part 5 of the Proceeds of Crime Act 2002 requires proof, on the balance of probabilities, that the cash was obtained by or in return for an identifiable kind of unlawful conduct. Suspicious circumstances may justify an inference of wrongdoing, but they do not necessarily establish money laundering where a plausible alternative explanation is available. The court must address the competing explanations and give adequate reasons for preferring one. No adverse inference should be drawn merely from a person’s decision not to give evidence where the decision is reasonably explained. An officer may set out the basis of a forfeiture case, but argumentative opinion is not evidence.

Cash seized from the appellant at an airport was forfeited by a district judge under section 298 of the Proceeds of Crime Act 2002. The district judge found on the balance of probabilities that the cash had been obtained through money laundering, relying on its amount, condition, method of carriage and the absence of supporting documentation.

On appeal by way of case stated, the appellant challenged the sufficiency of the evidence, the degree of specificity required in identifying unlawful conduct, and the admissibility of an investigating officer’s opinion evidence. The central issues were whether the evidence established money laundering rather than a breach of South African exchange-control laws, and whether the district judge had applied the correct statutory test.

1. The appeal was allowed and the forfeiture order was revoked. The cash and accrued interest were ordered to be repaid to the appellant’s solicitors within 28 days. There was no order for costs.

2. The real issue on ground 1 was whether the evidence justified the inference that the cash had been obtained through money laundering. The circumstances showed that the appellant had something to hide, but did not identify money laundering as opposed to exchange-control violations. The latter explanation was plausible and, on the evidence, inherently more likely.

3. The district judge therefore failed to give adequate reasons for preferring money laundering over the alternative explanation. In truth, the alternative explanation was the only conclusion open on the evidence. The conclusion was fact-specific. In other cases, lies, refusal to explain the cash, or other circumstances may properly support an inference of money laundering or another particular offence.

4. No adverse inference was drawn from the appellant’s silence. The district judge was entitled to recognise that the appellant had acted on legal advice and might reasonably have wished to avoid incriminating himself.

5. Under sections 241 and 242 of the Proceeds of Crime Act 2002, the prosecution of a forfeiture application requires proof that the property was obtained by or in return for conduct of an identifiable kind which constitutes unlawful conduct. The judge’s reasoning was, however, consistent with the approach in Green because money laundering had been identified as the particular kind of offence relied on. The issue did not need to be finally determined because ground 1 succeeded.

6. Argumentative opinion in an officer’s statement was inadmissible as evidence, but it was permissible for an officer seeking forfeiture to explain the basis of the case. The judge had not treated the material as evidence.

The judgment itself states that the appellant appealed by way of case stated from an order made by District Judge Snow at the City of Westminster Magistrates’ Court on 1 and 2 December 2010. The Administrative Court allowed the appeal and revoked the forfeiture order.