Jersey's judgement highlights the direct relationship between a laundering offence and the original antecedent [predicate] offence.

In a Jersey Judgments [AG v Dang 14-Nov-2022 [1]], the Judgement noted the following:-

• With regard to possession of the criminal property under the Proceeds of Crime (Jersey) Law 1999in AG v Goodwin [2016] JRC 165 [2], the principles were considered and were set out by the Superior Number:
• "(i)There is not necessarily a direct relationship between the sentence for the laundering offence and the original antecedent offence.  
  • Where, however, the particular antecedent offence can be identified, some regard will be hadto the appropriate sentence for that offence when considering the appropriate sentence for the laundering offence. 

(ii)       The criminality in laundering is the assistance, support and encouragement it provides to criminal conduct. 

(iii)      Regard should be had to the extent of the launderer's knowledge of the antecedent offence. 

(iv)      The amount of money laundered is a relevant factor." 

Comsure commentary

1. Before a substantive offence of money laundering can be committed, there must have been an antecedent (or "predicate") offence committed by someone which generated the criminal property concerned.
2. The antecedent offence might, of course, be one of several different types.
   • Fraud, drug trafficking, smuggling and the management of prostitution are no doubt common offences that generate money benefits that fall within the definition of criminal property, but there are also many others.
3. So, for a prosecution for a substantive money laundering offence to succeed, the prosecution must prove that somebody committed such an antecedent offence. [The House of Lords so held concerning similar earlier English legislation in
   • R v Montila [2004] UKHL 50; [2004] 1 WLR 3141]
   • [ https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd041125/mont-1.htm]
4. It does not, however, follow that
   • For a defendant to be convicted of a substantive offence of money laundering, there must have been a conviction for the antecedent offence.
   • What has to be proved is that an antecedent offence was committed, not that a conviction followed.
5. It may quite often happen that there has been no conviction, for example,
   • If the antecedent offender has died before he could be prosecuted or has escaped to a place from which he cannot be extradited.
   • A conviction is only one way of proving that an offence has been committed.
6. Moreover, it may often happen that a plain case of money laundering is revealed, but it cannot be known exactly what the antecedent offence was.
7. In other cases, there may be a plain case of money laundering but a mixture of antecedent offences.

JUDGEMENTS

• [1] DANG https://www.jerseylaw.je/judgments/unreported/Pages/[2022]JRC251.aspx
• [2] GOODWIN = https://www.jerseylaw.je/judgments/unreported/Pages/[2016]JRC165.aspx

Regina v Montila and Others: HL 25 Nov 2004

1. The defendants faced charges under the two Acts.
   • They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in the case of the 1988 Act, of crime.
   • The Crown APPEALED a ruling that it was necessary.
2. Held:
   • The appeal was dismissed.

Background

3. The House examined the history and background of the legislative provisions, including the international treaties from which they were derived.
4. The fact that the words of the subsections differed, allowing a conviction based upon suspicion did not mean that the money itself need not be shown to be the proceeds of crime.
5. The words in each required that interpretation.
6. The old rules about the non-use of side notes in Acts in support of interpretation needed to be revisited after the changes in procedures in recent years, where a separate explanatory note was now used.
7. The subject matter of these sections is 'proceeds' and no distinction is made as to subject matter between the various offence-creating subsections within each section.
8. There is no indication that the subject matter of the activities that are being criminalised need not actually be proceeds of drug trafficking or of criminal conduct.
9. Any problem this created was not to be resolved by relieving the Crown of the burden of proving the criminal origin.
   • 'A person may have reasonable grounds to suspect that property is one thing (A) when in fact it is something different (B).
   • But that is not so when the question is what a person knows. A person cannot know that something is A when in fact it is B.
   • The proposition that a person knows that something is A is based on the premise that it is true that it is A.
   • The fact that the property is A provides the starting point. Then there is the question whether the person knows that the property is A.'
10. Judges:
    • Lord Bingham of Cornhill, Lord Steyn, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell

11. Citations:
    • [2004] 1 WLR 3141, [2004] UKHL 50, Times 26-Nov-2004, [2005] 1 Cr App R 26, [2005] 1 All ER 113, [2005] Crim LR 479

Source

• https://swarb.co.uk/regina-v-montila-and-others-hl-25-nov-2004/