Not POCA “acquiring” to receive monies obtained by fraud

The Court of Appeal, in the case of R v Haque, has allowed an appeal on the point of whether a person commits the offence under POCA of acquiring criminal property when it arrives into his bank account as a result of a fraudulent deception.

In this case, a conspiracy to defraud, targeting elderly and vulnerable people in West Yorkshire had operated from mid 2014 to late 2015. Fraudsters would ring victims, pretending to be police officers investigating allegations of bank fraud, and instructing them to withdraw and hand over, or transfer to specified bank accounts, large amounts of money.  The money of 2 victims had been transferred to an account in the name of the appellant and his wife and subsequently most of it was withdrawn or transferred. This hearing was solely about whether, by the transfers into the joint account, the appellant had acquired criminal property.

The appellant claimed he did not know his co-accused nor did he know or suspect the monies were proceeds of crime. He said the payments were for clothing and he had used the money to buy stock for his clothing business.

The judge looked at previous cases and affirmed the principle that the conduct that is itself the subject of indictment cannot of itself render the property criminal property – the property had already to be criminal at the time of the transfer, that is, it had already to be property obtained as a result of or in connecting with criminal activity separate from that which is the subject of the charge itself.  So a thief does not “acquire criminal property” by the act of stealing it, but of course can then be guilty of the possessing, using, transferring and other offences relating to it once he has it.

The question here was whether the money was (a) clean, as it was the lawful property of the complainants which the fraudsters had induced them to pay out (in which case the appeal should be allowed) or (b) dirty because it had been obtained as a result of fraudulent deception and therefore was criminal property by the time it reached the appellant’s bank account.

In this particular case, and on the narrow point of whether the appellant had committed an offence under s329(1)(a) of POCA (which deals only with acquiring criminal property, and not possessing or using it), the court concluded it had to allow the appeal.  It sounded a cautionary note about the importance of getting charges right in the first place.