He’s not off to sunny Spain

I have always felt that one of the benefits – nay, the joys – of working in AML is that there is never time to become bored or complacent.  Just as you get to grips with how it all works, something changes or is questioned, and there’s a new angle to learn.  In June 2013, three people living in East Anglia and an Englishman living in Málaga, Bradley Rogers, were found guilty of involvement in an advance fee fraud.  In short (and here I am quoting from the official report of the case) “call centres based in Spain or Turkey, employed British nationals who dealt with calls in respect of debt elimination or escort services.  Consumers in the UK who called the centres, having seen advertisements, were persuaded by staff to pay advance fees on false promises made to them of dates or debt elimination.  The money was paid into UK accounts of bogus UK companies and used to pay expenses.  The profit was transferred to Spain.”  Specifically, some of that profit was transferred to the account of Rogers in Málaga, and so he was sent to prison for two years and ten months for money laundering.

So far, so ordinary.  But (and I quote here from the ever-fabulous Money Laundering Bulletin) “at the end of the prosecution’s case [against Rogers], the judge had accepted inclusion of a new count alleging that he had converted fraudulently obtained sums by permitting receipt of the money into his Spanish bank accounts and its subsequent withdrawal.”  Rogers appealed against this, saying that the UK AML legislation could not be made to apply to money laundered overseas – although the money had been fraudulently obtained in England, he and his grubby accounts were in Spain.  (He may not have referred to himself as grubby.)  I daresay he preferred the thought of having a go in the Spanish courts.  But the appeal failed.

To see why, let’s go back to PoCA – come on, there’s nothing like a bit of legislation to get your Friday morning going with a swing.  If you look at section 327(1) of PoCA, the offence of concealing etc., it defines it thus: “A person commits an offence if he – (a) conceals criminal property; (b) disguises criminal property; (c) converts criminal property; (d) transfers criminal property; (e) removes criminal property from England and Wales or from Scotland or from Northern Ireland.”  As the appeal court pointed out, only (e) has any geographical limitation to it – the rest can apply anywhere.  Moreover, if you now take a shufti at section 340(9), you will see that “[criminal] property is all [criminal] property wherever situated…”.  In other words (again, from the official case report): “Whilst the moneys obtained by the fraud in the UK became criminal property once they reached a bank account in the UK controlled by conspirators, those proceeds did not cease to be criminal property when they arrived in the defendant’s bank account in Spain.  By permitting the use of the bank account for receipt and then withdrawal of those moneys, the defendant was converting them and the actions of the defendant continued the harmful consequences of the fraud to be experienced by those victims in the UK by providing a haven further beyond the reach of UK consumers for the criminally obtained moneys.”  So that’s it for Mr Rogers – and I advance my AML understanding by another small step.

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6 Responses to He’s not off to sunny Spain

  1. Zoe Phelps says:

    Hi Susan,

    Why would Rogers only have had to repay a quid when he benefited over 46k (pound sign broken on my keyboard!!)? Appreciate he got 2 yrs on so in the clink, but what’s the thinking behind the repayment?

    Thanks,
    Zoe

  2. Hi Zoe
    That’s a very fair point – I can hear you spitting chips from here! Under confiscation orders, criminals are generally relieved of the “benefit” of their criminality, and calculating that is a dark art practised by FIUs and financial investigators. I will admit that I haven’t read all the conclusions of this case, but it might be that all of the money has gone, and the only realistic way of getting any order at all is by setting it at a token £1.
    If any lawyers are reading, is it something to do with lodging a confiscation order that can then be varied in the future if further money is found – getting it on the record, so to speak – rather than not going for any confiscation at all and losing the chance forever?
    Best wishes from Susan

  3. Zoe Phelps says:

    What a lovely thought…everytime he goes to pay for something the crisp notes are snatched from his thieving little paw and handed swiftly back to the rightful owner!

  4. Zoe, with your instinctive intolerance of the slug-like criminal, you are obviously a woman after my own heart!

  5. come on! the NSA knows who everyone is - you dont need to says:

    Correct, the order can be varied in the future. Then again, if the courts were run for the benefit of the people, it should have been set at something like 1000 just to put some lemon in the wound…

  6. Very helpful – thank you. So by getting a confiscation order of any size you are marking the spot, saying that there are criminals assets to be discovered, and then when you find them, you get the order varied.

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