R v Jonathan Porter & Anor

For an arrangement offence under section 328 of the Proceeds of Crime Act 2002, the property must already be criminal property because of completed criminal conduct distinct from the alleged money-laundering arrangement. That requirement does not impose a tracing requirement into the immediate source of each bag of cash. Cash may represent a benefit from an earlier duty-evasion offence even if the particular notes delivered were generated by lawful sales or another source, provided the jury can be sure that the cash was conveyed within an arrangement to route that criminal benefit to the offenders.

An indictment does not disclose no offence merely because it includes surplus words identifying persons who were not the intended beneficiaries of the criminal property, where the substance of the charge was clear.

The applicants were convicted at the Crown Court at Southwark of entering into, or becoming concerned in, a money-laundering arrangement contrary to section 328(1) of the Proceeds of Crime Act 2002. The prosecution alleged that an organised crime group evaded alcohol duty and that cash was moved from cash-and-carry businesses to Europlus Trading Ltd as part of an arrangement to route the resulting benefit to the smugglers.

They renewed applications for leave to appeal after refusal by the Single Judge. The principal issue was whether there was sufficient evidence that the cash delivered to Europlus was criminal property, notwithstanding uncertainty about its immediate source. One applicant also contended that the indictment disclosed no offence because its particulars referred to him as a possible beneficiary.

1. The renewed applications for leave to appeal against conviction were dismissed as unarguable.

2. The combined effect of section 328 and section 340 of the Proceeds of Crime Act 2002 requires the relevant property already to have become criminal property through completed criminal conduct distinct from the conduct alleged as money laundering. That principle was supported by R v GH [2015] UKSC 24. The trial judge’s directions correctly required the jury to be sure that the cash was criminal property because it represented a benefit from criminal duty evasion.

3. The prosecution did not allege that cash became criminal property merely when the cash-and-carry businesses paid for contraband. Its case was that the earlier evasion of duty created a criminal benefit and that cash was then routed to the smugglers through the arrangement. Accordingly, the immediate origin of the notes was immaterial. The case was distinguishable from Loizou [2005] EWCA Crim 1579, where payment for smuggled cigarettes did not itself make the payment criminal property.

4. There was ample circumstantial evidence from which a properly directed jury could find that the cash represented the proceeds and benefit of duty evasion. This included evidence of alcohol and cash seizures, surveillance, coded records, unexplained large cash movements, false explanations, and a payment to Mr Porter for participation in the arrangement.

5. The indictment challenge had no merit. Its reference to Mr Porter and Mr Howard as possible beneficiaries was surplusage. The charge and trial had plainly concerned laundering funds for the benefit of the smugglers, and the words could have been deleted before verdict without changing the substance of the case.

• Court of Appeal (Criminal Division) — renewed applications for leave to appeal against conviction were dismissed as unarguable in [2023] EWCA Crim 1485.

• Crown Court at Southwark — the applicants were convicted on 10 January 2022 of a section 328(1) money-laundering arrangement offence and were sentenced on 11 February 2022.