Haque, R. v

For money-laundering offences under Proceeds of Crime Act 2002, property must already be criminal property when the alleged prohibited dealing occurs. A transfer induced by fraud does not itself make the transferred money criminal property for the purpose of charging its receipt as an acquisition.

An allegation under section 329(1)(a) must therefore identify an acquisition of property already bearing that status. Subsequent use, possession, transfer or withdrawal may found a differently framed offence, but cannot retrospectively establish acquisition on the initial transfer. An appellate court cannot substitute such an alternative conviction unless the jury could have convicted of that offence on the indictment.

The appellant was convicted in the Crown Court at Leeds of acquiring criminal property contrary to section 329(1)(a) of the Proceeds of Crime Act 2002, and was sentenced to 27 months’ imprisonment.

Victims of a telephone-fraud conspiracy transferred money into a joint account held by the appellant and his wife. Further transfers and cash withdrawals followed. The prosecution alleged that the appellant acquired criminal property when the victims’ transfers entered that joint account.

The appellant appealed, contending that the money was lawful property at the moment of those transfers and that the count had therefore been incorrectly charged. The central issue was whether later dealings with the funds could establish acquisition of criminal property under section 329(1)(a).

1. Appeal allowed. The conviction under section 329(1)(a) of the Proceeds of Crime Act 2002 could not stand. The prosecution case and particulars alleged acquisition when the victims transferred money into the joint account.

2. Following Loizou and others [2004] EWCA Crim. 1579 and the directly applicable reasoning in GH [2015] UKSC 24, property must already be criminal property at the time of the alleged dealing under sections 327, 328 or 329. The transfer itself cannot confer that status. At the moment the victims paid the money into the account, it remained their lawful property, notwithstanding that they had been induced to make the payments by fraud.

3. Section 329(1)(a) must be given a meaning distinct from section 329(1)(b) and (c). The appellant’s subsequent dealings with money after it entered the account could be consistent with use or possession of criminal property, but could not themselves establish that he acquired criminal property when the initial transfers occurred. The court did not decide whether later transfers to a company account or cash withdrawals might separately amount to acquisition, because that was not the case advanced at trial and a different case could have affected the conduct of the defence.

4. The court could not substitute a conviction under section 328 or section 329(1)(b) or (c) pursuant to section 3 of the Criminal Appeal Act 1968. Although the evidence might have supported such a charge, those were not offences of which the jury could have convicted on this indictment. Both the statement and particulars confined the allegation to acquiring bank transfers under section 329(1)(a).

5. The court expressed no concluded view on whether section 329 creates one offence capable of commission in three ways or three separate offences. It considered the suggestion that it creates only one offence questionable, but that issue did not alter the result.

• Court of Appeal (Criminal Division) Allowed the appeal against the conviction under section 329(1)(a) of the Proceeds of Crime Act 2002.

• Crown Court at Leeds On 21 June 2018, a jury convicted the appellant of acquiring criminal property and he was sentenced to 27 months’ imprisonment. No lower-court citation was stated.