Stan Reiz on the impact of the appeal of Haque on POCA offences

R v Haque (Mohammed) Judgement

The case highlights the potential consequences for prosecutors who charge offences under the Proceeds of Crime Act 2002 (“POCA”) without having a clear understanding of the Supreme Court decision in R v GH [2015] UKSC 24.

The facts of the Appellant’s case were virtually identical to GH, save for one significant distinction. Whilst the defendant in GH was charged with a section 328 offence, the Appellant Haque was convicted of Acquiring Criminal Property contrary to section 329(1)(a) of POCA.

The brief facts of the case against the Appellant were that victims were deceived into paying money into his bank account by fraudsters. It was thereafter withdrawn in cash or transferred to his business account and then withdrawn in cash. The trial Judge concluded there was a case for him to answer.

On appeal, the Court accepted the submission made on behalf of the Appellant that the money received by him had a legitimate source and was therefore not criminal property until it was credited to his bank account. As a consequence, the Appellant was not ‘acquiring’ criminal property, as the money did not obtain its criminal character until after it had been received by him.

It was conceded on behalf of the Appellant that had the Crown charged him with almost any other offence associated with dealing with the proceeds of crime (i.e. possessing, using, transferring, converting or being party to a money laundering arrangement), he would have been properly convicted. However, the Crown had elected to charge him with Acquiring Criminal Property and therefore the conviction had to be quashed.

The Crown’s application to substitute a conviction for another offence, pursuant to section 3 of the Criminal Appeal Act 1968, was also refused. The Court accepted that it only had power to do so if there was an alternative offence the jury could have convicted of on the indictment. There was not.

At paragraph 31 of the judgment, the Court observed that contrary to what is suggested in the Explanatory Notes to POCA, it was “very questionable” that sections 327 and 329 each contained one offence which could be committed in different ways. Davis LJ said that the sections are “worded and structured so as to connote, ostensibly, different offences.”

This observation may be of significance in cases where the Crown, as they sometimes do, charge an offence contrary to section 329(1) in broad terms to include “acquiring, possessing or using criminal property”. The reasoning in paragraph 31 may tend to suggest that a count framed in that way would now be bad for duplicity.

Stan Reiz is an exclusively criminal defence practitioner specialising in cases of serious fraud and money laundering.

He also appeared for four Appellants in the reported case of R v Ogden [2016] 1 Cr.App.R.29, in which the Court of Appeal considered the meaning of “converting criminal property” for the purposes of POCA.