CAN YOU COMMIT A MONEY LAUNDERING OFFENCE IF THE PREDICATE OFFENCE WAS NOT CRIMINAL AT THE TIME OF ITS COMMISSION?

Bright Line Law reports on the recent case of Serra & Another v Republic of Paraguay [2017] EWHC 2300 (Admin) in which, although principally concerned with extradition, the Queen’s Bench Division of the High Court also addresses the question head-on. The Paraguayan offence of money laundering did not exist when the appellant’s companies obtained, allegedly fraudulently, $35 million from another company, Cajubi.  The appellants submitted that although they may have been engaged in a money laundering offence post-July 2009 (when money laundering became an offence in Paraguay), but their conduct did not constitute an offence in the UK and thus, they should not be extradited to face that charge.  The lower court had disagreed, finding that the conduct would have amounted to offences contrary to sections 327 and/or 329 of POCA 2002 in the UK.  The appellants’ argument was that “a person cannot possess criminal property within section 329 of the 2002 Act if all that occurs is that he retains property which it was not unlawful for him to possess in the requesting state until a change in the law.”  In response to the proposition, the High Court’s decision included that: “[W]e see no difficultly with the concept that the possession of property which was not unlawful at a particular point in time may become unlawful by virtue of a prospective change in the law with the consequence that as from the date of the law change a person who retains such property or continues to possess it commits a criminal offence.”

https://www.brightlinelaw.co.uk/BLL-Portal/Money-laundering-retrospective-application.html#_ftn6

Author: raytodd2017

Chartered Legal Executive and former senior manager with Isle of Man Customs and Excise, where I was (amongst other things) Sanctions Officer (for UN/EU sanctions), Export Licensing Officer and Manager of the Legal-Library & Collectorate Support Section

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