Definition: Proceeds of Crime Act (POCA) 2002 – S327, S328 & S329
The Proceeds of Crime Act (POCA) 2002 is the UK’s primary legislation for anti-money laundering, designed to prevent criminals obtaining the proceeds of their crimes. The substantive POCA offences are:
Section 327 offence - Concealing criminal property
It is an offence to engage with a criminal to hide (conceal, disguise, convert, transfer or remove) the proceeds of a crime. The prosecutor must be able to demonstrate the following exists:
Actus Reus – it is a guilty act i.e. it is an arrangement between two parties involving criminal property;
Mens Rea – there is a guilty mind i.e. there must be reasonable knowledge or suspicion of the guilty act.
Section 328 offence -
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The court upheld the appeal against the confiscation order as the property was deemed to be not criminal in the hands of the mortgage broker at the time the arrangement was entered into. The definition of “criminal property” for the 328 offence is that the property must be criminal at the time the arrangement begins.
• Similarly, in the case R v PACE and another (2014) , Pace and Rogers worked at a scrap metal yard and purchased items from individuals who suggested they were stolen. The sellers were undercover police officers and the property belonged to the police. The pair was convicted of offences under Section 327 of POCA, however the court of appeal quashed the conviction on the grounds that a person would not be guilty of the substantive 327 offence if the property in question was not criminal, even if the person believed it to be criminal property at the time.
Whilst the definition of “Criminal Conduct” and “Criminal Property” have been revised, further work is still required to improve the definitions to support the successful conviction of the PoCA
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Her appeal was rejected on the grounds that the judge ruled suspicion need not be ‘clear’ or ‘firmly grounded’. It is my opinion that POCA needs to provide clearer and more consistent guidance in relation to knowledge and suspicion to support the successful conviction of the PoCA substantive offensives.
Sustainability of Existing AML Regime
I have some concerns about the sustainability of the existing regime for the following reasons:
Ability to recover the proceeds of crime form overseas jurisdictions through civil proceedings
In the case of Perry & others v SOCA (2012) Mr Perry was convicted, imprisoned and fined in Israel for offences arising from a pension scheme. SOCA became aware of £14m in two bank accounts in England and Wales, property in a number of jurisdictions outside the UK, antiques and works of art and obtained a worldwide freezing order. Mr Perry successful appealed as the courts ruled that an English court has no jurisdiction abroad. In this case the judge referred to the Strasbourg Convention and found “where POCA speaks of ‘property’ in the context of these processes, the property is worldwide … No power is granted to authorities within the United Kingdom to secure or realise property that is situated
Boghossian and his associates did indeed commit both fraud and knowingly possessing a stolen item (R. v. Boghossian, 2015a). Mr. Boghossian and his defense counsel upon hearing this judgment decided to appeal the decision made by Justice Alfred O'Marra on the ground that his rights guaranteed under the Charter of Rights and Freedom were violated. Specially his right to a trail within a reasonable amount of time guaranteed under section 11(b) as the court took over 22 months and within this time, Mr. Boghossian argued that it was unreasonably lengthy and he lost plenty of business because of it (R. v. Boghossian, 2015b). The appeal though was dismissed as they decided that section 11(b) was not infringed as 22 months was deemed as reasonable due to the complex nature of the case (R. v. Boghossian,
In the Model Penal Code, section 2.01 discussed are the requirements of voluntary act; Omission as Basis of Liability; and Possesion as an Act. Mainly focusing on the “Voluntary” and “Involunatary” sections, first, stated is that “A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. Secondly, stated are acts that are not voluntary wihin the meaning of this section following as, “A reflex or convulsion; a bodily movement during unconsciousness or sleep; conduct during hypnosis or resulting from hypnotic suggestion; and a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.” These requirements correspond with the Latin term “Actus Reus” which is a term used to describe a criminal act. Actus Reus is the wrongful dead that compromises the physical components of a crime. There is a fundamental principle stated in the case textbook that criminal liability always entails an “Actus Reus”, that is, “the commission of some voluntary act that is prohibited by law.”
There are certain standards that the courts use to determine competency. In order to find the accused competent, a court should find out by a preponderance of evidence that the defendant has remarkable ability to consult with his lawyer with a reasonable degree of rational indulgence. The def...
R N Howie and P A Johnson, Annotated Criminal Legislation NSW, 2011-2102, (Lexis Nexis Butterworths 2012) 17769-1774
When it comes to the elements of attempt there are two. It is the purpose or intent to commit a specific crime and an act(s) in order to carry out the intent. There are two types of attempt statures and they are general attempt statute and specific attempt statute. General attempt statute is a single statute that involves the attempt to commit any crime in the state’s criminal code. An example of this is just any crime. Specific attempt statute is defining attempts as specific crimes. An example of this is attempted murder. Prosecution must prove beyond a reasonable doubt in criminal attempt cases and these are attempt mens rea and actus rea. Attempt mens rea is the specific attempt to commit a crime and actus reus is taking steps to complete a crime.
Actus Reus of Murder When a man of sound memory over the age of discretion unlawfully kills
...ment; denied the sale of the personal property; denied taking the trees; admitted they took the hay carriage; and as to all the articles that they took, they contended that they were taken under a claim of right and therefore not feloniously.
There are different principles that makeup the crime control model. For example, guilt implied, legal controls minimal, system designed to aid police, and Crime fighting is key. However one fundamental principle that has been noted is that ‘the repression of criminal conduct is by far the most important function to be performed by the criminal processes’. (Packer, 1998, p. 4). This is very important, because it gives individuals a sense of safety. Without this claim the public trust within the criminal justice process would be very little. The general belief of the public is that those that are seen as a threat to society, as well as those that fails to conform to society norms and values should be separated from the rest of society, from individuals who choose to participate fully in society. Consequently, the crime control model pro...
Major problems were experienced in the early years after the Act over how the preserved common law conspiracy to defraud dovetailed with the new statutory conspiracy to commit a crime as frequently, an agreement to defraud will necessarily involve an agreement to commit a substantive offence entailing dishonesty such as theft or the new offence of fr...
Crime is some action/omission that causes harm in a situation that the person/group responsible ‘ought’ to be held accountable and punished irrespective of what the law book of state say.
The issue in this question is regarding the effect of Criminal Justice Act 2003 (CJA 2003) to previous English sentencing system regarding one of the aims of punishment i.e. retribution. It is a duty for courts to apply under section 142 (1) of CJA 2003. The section requires the courts to have regarded the aims in imposing sentence to offenders which has now plays a smaller role in serving punishment. And how profound this changes has been.
To be criminally liable of any crime in the UK, a jury has to prove beyond reasonable doubt, that the defendant committed the Actus Reus and the Mens Rea. The Actus Reus is the physical element of the crime; it is Latin for ‘guilty act’. The defendant’s act must be voluntary, for criminal liability to be proven. The Mens Rea is Latin for guilty mind; it is the most difficult to prove of the two. To be pronounced guilty of a crime, the Mens Rea requires that the defendant planned, his or her actions before enacting them. There are two types of Mens Rea; direct intention and oblique intention. Direct intention ‘corresponds with everyday definition of intention, and applies where the accused actually wants the result that occurs, and sets out to achieve it’ (Elliot & Quinn, 2010: 59). Oblique intention is when the ‘accused did not desire a particular result but in acting he or she did realise that it might occur’ (Elliot & Quinn, 2010: 60). I will illustrate, by using relevant case law, the difference between direct intention and oblique intention.
The Law today is a summary of various principles from around the world from the past and the present. Early practises of law were the foundation of the law that we know and abide by today. These practises were referred to as the Classical school. Over time however, different criminologist have altered and greatly improved the early, incomplete ideas and made them more complete and practical to more modern times. This newer version is referred to as the Positivist school. This rapid change from the classical to the positivist perspective was due to the change and growth of civilization. Even though one perspective came from another, they are still different in many ways and it is evident when relating them to section 462.37, Forfeiture of Proceeds of Crime, and section 810, Sureties to keep the Peace. The Classical School of criminology’s time of dominance was between 1700 and 1800. Its conception of deviance was that deviance was a violation of the social contract. Classical theorists believed that all individuals were rational actors and they were able to act upon their own free will. A person chose to commit crimes because of greed and because they were evil. The primary instrument that could be used in regards to the classical school to control crime was to create “criminal sanctions that instil fear of punishment in those contemplating criminal acts” (Gabor 154). Classical school theorists believed the best defence was a good offence and therefore they wanted to instil so much fear into people about what would happen to them if they were to commit a crime that even those who were only thinking of committing a crime were impacted greatly. The classical school individuals operated entirely on free will and it was their ...
Attempted murder, involved the voluntary act of Jack pointing a gun and firing it (act) at Bert that resulted in (causation) death of Pratt (social harm), which proves the elements of actus reus. ...
A defence in criminal law arises when conditions exist to negate specific elements of the crime: the actus reus when actions are involuntary, the mens rea when the defendant is unaware of the significance of their conduct, or both. These defences will mitigate or eliminate liability from a criminal offence. Insanity, automatism and diminished responsibility are examples of said defences. They each share characteristics but can be distinguished in their scope and application.