POCA 2008 - Refresher

Jennifer Carter-Manning
7 Bedford Row
www.7br.co.uk

Jennifer Carter-Manning is a barrister based in

London, specialising in complex investigations and
litigation. She has extensive experience of fraud
and money laundering cases, both in the UK and on
the Isle of Man.
7 Bedford Row is a large set of UK barristers, with
specialisms including crime, civil, commercial,
international and regulatory law.
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Why?

Why POCA 2008?

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Why a Refresher?
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It contains crimes you might commit

Most people have forgotten what it does

Why Jennifer Carter-Manning?

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UK Barrister fraud & money laundering

Extensive on-Island experience

POCA Regulated Sector: Codes dominate

Suspicious transaction trigger

event

Risk assessments

Identification procedures

Due diligence

Record keeping

The bigger picture

The even bigger picture

Point of POCA?

Bring laundering of drug money and other

criminal money into one piece of legislation.
(CJA 1990 and DTA 1996)

Wider & stronger investigative powers

Create offences for regulated businesses

Enhance cooperation with other jurisdictions

Point of POCA?

The response to international pressure

Followed broadly the UK Act of 2002

...a major piece of legislation which is likely to

have a substantial impact on working practices
for financial institutions, regulators, law
enforcements agencies and lawyers
(Very Wise Barristers, 2008)
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Parts of POCA
1: Civil Recovery
2: Confiscation & Restraint
3: Money laundering
4: Investigations

Parts of POCA
5: Bankruptcy & Winding up
6 & 7: Information & Cooperation
8, 9, 10: Amendments & Misc
Schedules

The Codes

Section 157 Codes:

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Money Laundering & Terrorist Financing

(amended) Code 2013

Proceeds of Crime (Money Laundering

Online Gambling) Code 2010

Section 157(2)(d)

Provides that the Codes made under POCA

can create criminal offences for noncompliance max of 2 years custody
The Codes do provide for criminal offences
for non-compliance: Paragraph 28(1).

Defence? Reasonable measures

Guidance will be considered

Regulated sector offences

142 failure to disclose

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Regulated sector
Knowledge / suspicion / reasonable grounds to
suspect
Offence not committed if disclosure made to a
nominated person

Regulated sector offences

143 failure to disclose (regulated

nominated officers)
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Regulated sector
Knowledge / suspicion / reasonable grounds to
suspect

144 failure to disclose (other nominated

officers)
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Knowledge / suspicion

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Regulated sector offences

145 tipping off

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Regulated sector
Disclosure of a disclosure
Likely to prejudice an investigation

146 148
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Disclosures within a group

Exceptions for group activities
Exceptions for institutions
Exceptions for supervisory authorities & advisers
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Money laundering offences - overview

Section 139, 140, 141

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139: Concealing, disguising, converting,

transferring or removing criminal property

140: Arrangements

141: Acquisition, use and possession

Money Laundering Offences

139: Concealing, disguising,
converting, transferring or
removing criminal property
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Includes disguising / concealing ownership / rights

over it
Breadth of converting (R v Fazal [2010])
Not an offence if a person makes an authorised
disclosure

Section 158: Definition of criminal

property

Property is criminal property if:

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It constitutes a persons benefit from criminal

conduct or represents such a benefit (in whole
or in part, directly or indirectly); AND
The alleged offender knows or suspects that it
constitutes or represents such a benefit.

Immaterial who the offender is, or when

they offended

Defences
No offence if:
l Authorised disclosure made
l Involved in enforcement of the Act or
similar
l Know / believe that the criminal
conduct was abroad and legal
l Deposit-taking body does the act in
operating an account and it is less than
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Money Laundering Offences

141: Acquires, uses or has possession
of criminal property
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Not an offence if: as for 139 & 140

Not an offence if an authorised disclosure is
made
NB that adequate consideration has gone
(although note that the definition of adequate
consideration remains....)

Money Laundering Offences

140: Arrangements
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Enters into or becomes concerned in an

arrangement
Which the person knows or suspects facilitates
(by whatever means)
The acquisition, retention, use or control of
criminal property by or on behalf of another
Not an offence if: as for 139
Not an offence if an authorised disclosure is
made

Arrangements

R v Geary 2011
Dare v CPS 2012
AG v Holt
Calls for the adequate consideration
defence to be reinstated and
broadened

Penalties

Section 139, 140, 141:

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Section 142, 143 or 144:

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Summary conviction 6 months / 5000

On conviction on information 14 years or fine
Summary conviction 6 months / 5000
On conviction on information 5 years or fine

Principles of sentencing; do not look

lightly on professionals

What is an authorised disclosure?

A creature of primary legislation

Defence to a money laundering
offence
Disclosure to a constable or a
nominated officer.
Particular requirements, but it is the
essence which is important

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How does POCA work?

Disclosures made
to a nominated
person

MLRO duties
outlined

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Changes to POCA 2008

Table of Endnote References at p195

of POCA candidate for least helpful
page of legislation award.
Hidden at the bottom:
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Para (c) repealed by Organised and International

Crime Act 2010 s18
Removal of defence of adequate consideration
As a result of pressure from the IMF

Forthcoming

Moves to control digital currencies

Recent proposal to amend section
140 arrangement replaced with
facilitation (Terrorist & other crime (Financial
Restrictions) Bill 2013)

Further discussion over adequate

consideration defence
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The even bigger picture

Wider, deeper, not time limited

Areas of likely impact:

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Bribery as a predicate offence in a

money laundering investigation
Cash forfeiture
Civil recovery orders
Freezing orders
Failing to disclose

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Available guidance re bribery

Manx government

MoJ & SFO under UK provisions

Transparency International website

(Diagnosing Bribery Risk)
FCA (UK) guidance

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When do I need advice?

If the police want to interview me

If I am unsure about a disclosure

If I am threatened with litigation

If I suspect current criminal activity

If I suspect past criminal conduct such as

bribery
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