Criminal property

A real life burglar... no idea why police can't catch them given they all
wear stripy tops and carry bags marked "SWAG"

Tomorrow I am at a west London Crown Court starting a trial for possessing criminal property, contrary to section 329(1)(c) of the Proceeds of Crime Act 2002.  Let me begin by assuring you that this is a provision that does two things: a) it really pisses me off; and b) it shows why the legislature should not put its faith in the prosecuting authorities only using criminal offences for the purpose the legislature intended.

My case is straightforward, prosecution say my guy has a stolen laptop in his possession and that he knew or suspected it to be stolen.  If they are correct then he is guilty, if he bought it honestly then he is not guilty.  Easy.

You may be forgiven for thinking that possessing stolen property is an offence called “handling stolen goods”.  If you thought that then you are correct, section 22(1) of the Theft Act 1968 reads:

“A person handles stolen  goods if (otherwise than in the course of the stealing) knowing or believing them to be  stolen  goods he dishonestly receives the  goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.”

So, to convict somebody of handling the prosecution would have to prove that the laptop was stolen, that he knew or believed the goods to be stolen and having such knowledge dishonestly receives the goods.  The dishonesty part is important here; let us say that John offers Mark a laptop, which Mark recognises as having been stolen from Lucy.  Mark agrees to buy the laptop from John so that he can return it to Lucy.  In those circumstances, he is accepting stolen goods that he knows to be stolen but he is not acting dishonestly so he is not guilty of an offence.  Obviously, if he intended to keep the laptop rather than return it he would be acting dishonestly and would be guilty of handling.

Now, let us turn to section 329(1) of the 2002 Act, which reads:

“A person commits an offence if he—

(a) acquires criminal property;

(b) uses criminal property;

(c) has possession of criminal property.”

Section 329(1) creates three ways in which an offence can be committed, i.e. by acquiring, using or possessing criminal property.  This section must be read in conjunction with section 340(3), which defines “criminal property”:

“Property is criminal property if—

(a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and

(b) the alleged offender knows or suspects that it constitutes or represents such a benefit.”

So, to prove an offence of possessing criminal property the prosecution need only to prove that the defendant had possession of something that is the “benefit” of a crime and the defendant needs to suspect that the property represents such a benefit.  Because it is much easier to prove a suspicion than a belief, as required for the Theft Act and because there is no need to prove any dishonesty at all the prosecution find it much easier to secure a conviction for possessing criminal property than for handling stolen goods.  In our example with John, Mark and Lucy, Mark would be guilty of possessing criminal property even where he intends to return it to Lucy because there is no need to be dishonest.  Mark might well have a defence, but remember in the Theft Act the prosecution must prove dishonesty, there is no requirement for Mark to prove anything.  In the possession offence, it is for Mark to prove his defence, so we can see that this offence effectively reverses the burden of proof for Mark.

Like me, you may be thinking that describing a stolen laptop or TV as “a person’s benefit from criminal conduct” is a bloody odd thing to do.  The wording looks daft as a brush for a very good reason; section 329 is designed to unify and replace old offences under the Drug Trafficking Act 1994, Criminal Justice Act 1988 and various offences relating to Scotland and Northern Ireland.  When Parliament sat down to write this piece of legislation it was trying to bring to justice drug smugglers, gangsters and those who work for them ferreting away their ill-gotten gains.  In other words, Parliament’s intention was to prosecute money launderers.

You can see this clearly when you look at the defences to possession of criminal property, which include making an authorised disclosure to the authorities before taking possession of the criminal property.  Thus if you are a lawyer who is holding money for a client you suspect may have got it from crime you can report this to the police before you take the loot and your back is covered… well until your gangster client finds out and you wake up with a horse’s head on your pillow!  Another defence relates to crimes committed overseas where the activity was lawful… these are not defences that are ever likely to apply to stolen TVs and computers!

At no point, did Parliament intend this heavy-duty legislation to be used to criminalise a the type of person who buys an iffy tele from a bloke in the pub… they didn’t need to do that because it was already illegal!

This leads us on to a very important question: why do the Crown Prosecution Service insist on charging inappropriate offences when there are offences designed for the precise facts of their case?  Around 2004, I started to notice handling charges being preferred with possession of criminal property as an alternative count.  It was obviously being done so that if the CPS failed to get home on the proper charge they had the easier one to fall back on.  10-years later and they don’t even bother trying to get a conviction on handling the only reason I can think is that when you have to prove extra points the trial takes slightly longer resulting in higher costs.  So, the prosecution pursue these inappropriate charges simply to save money rather than to see justice done properly.

Does it make a difference in practice?  We’ve already seen that in some cases charging s.329 instead of handling stolen goods results in an effective reversal of the burden of proof thus making it harder for an innocent defendant to prove their innocence.  You’ll also notice that handling and possession of criminal property have a maximum sentence of 14-years-imprisonment, so you might think it a little unfair that the prosecution can get you sent to prison for just as long by using an offence that requires far less evidence.  Also, handling is an offence of dishonesty.  Prospective employers may make a decision about hiring somebody who has proven themselves to be dishonest in the past, whereas possessing criminal property has no dishonesty element to it.

Although this post was written before the start of the trial – I have held it back until the conclusion so as to avoid any problems.

After the case, I spoke to the police officer about why they use money laundering legislation rather than the Theft Act.  He pointed out that for every successful prosecution of Proceeds of Crime Act offences, his team receive a share of any cash recovered.