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Wages should not be deemd proceeds of crime

Comment 19th August 2010

                                               THE WAGES OF SIN



Twice I have represented illegal immigrants on sentence for money laundering charges, where the money they had supposedly laundered was their wages. In both cases Crown Court judges allowed them to vacate their pleas, expressing overt distaste that the legislation was being used in this way. In both cases the Crown ultimately, but reluctantly, conceded the point, in the latter case only after protracted legal argument.


The facts of that case are simple. The house in which the defendant lived was raided and the defendant found. He admitted being an illegal immigrant and alerted the officers to the existence of £7,000 of earnings. In addition he had sent £9,000 to his wife and children in Nigeria.


He was charged with two counts of money laundering (under s.327(1) and 329(1) of POCA). He had worked hard, paid his taxes and committed no crime other than getting a job. One might think that no one would deem this an appropriate use of the legislation. POCA is designed to penalise the camouflaging or concealing of dirty money and to catch the secondary party who launders another person’s ill gotten gains. The editor of Blackstone had commented some time ago that ‘the structure of the new money laundering offences appears to rely on the assumption that they will be applied sensibly and that prosecutors will not attempt to exploit the more bizarre or extreme possibilities that they create.’ Experience proves that such reliance is in vain where the CPS is concerned.


After my client’s pleas were vacated the Crown added a 3rd count of obtaining a pecuniary advantage by deception (giving false particulars in his job application). The prosecutor admitted that this was to ensure that they could still institute confiscation proceedings in relation to the £7,000 seized. They wanted, in effect to steal his money and to hell with the cost to the public in taking this matter through the courts. No one seems to have stepped back and considered whether what they were doing was either just or moral. It was obvious to anyone other than those mired in the CPS that it was neither. For tactical reasons the defendant pleaded not guilty to count 3 but made it plain that should the Crown give an undertaking not to institute confiscation proceedings, he would change his plea.


Before trial I argued that the statutory limitation in s.329(2) applied: ‘a person does not commit an offence if he acquired or used or had possession of the property for adequate consideration.’  The judge upheld that submission and the Crown offered no evidence on the first two counts. In addition I also successfully argued that any attempt to confiscate his earnings upon a guilty plea to count 3 should be stayed as an abuse on the grounds of oppression. This too the judge upheld in the strongest terms.


In arguing abuse I had relied heavily on the part heard case of Paulet, the facts of which were virtually identical to mine: an illegal immigrant, on a conviction for obtaining a pecuniary advantage by deception had his wages filched in confiscation proceedings. The feisty appellant had drafted his own grounds of appeal. Not only did the Court of Appeal grant leave but it was heard in February before the LCJ himself.  The Court sympathised with the plight of the appellant and agreed he had an arguable case of abuse on the basis of oppression. In adjourning the case to await guidelines from the DPP the LCJ expressed the hope that by such guidance ‘the possibility of what on any realistic view would be rank injustice, and orders for confiscation which are utterly disproportionate to the offender’s criminal activity, or his benefits from crime, would be avoided.’


It was not until 28th May that they were issued. They are begrudging, and offer little protection from a zealous prosecutor to the illegal immigrant who works for a living. Referring to a situation existing ‘which might be susceptible to a challenge by a defendant to stay confiscation proceedings as an abuse of process, namely where a defendant has obtained paid employment by a false representation to his employer…. some cases will arise where the link between the criminality and the receipt of payment from dishonestly obtained employment is too remote, for example, where had the representation been corrected, the employment would have continued, or where after many years of otherwise lawful employment, a relatively minor previous conviction is discovered.’


Is this grudging concession really reflective of the view of Keir Starmer? I hope not. I have never been more incensed at the sheer immorality of a prosecution than by this and expect everyone else to feel likewise. That includes the CPS.

Why does this matter?

So that the state is not party to legalised theft. See above

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