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May 2015
FEATURE ❱ CASES
were decisive in the Court’s view. This provision, the question. For example, if a solicitor or accountant based in
Court ruled, “appears to admit of no other construction Geneva instructs a UK bank to transfer his client’s monies
than that Parliament intended extra-territorial effect to to a foreign bank account, either by telephone facsimile
this legislation” (judgment, paragraph 48). In addition, the machine or email, arguably (and it is arguable) this action
Court was fortified by the addition of section 327(2A) of might be regarded as sufficiently proximate to the UK for
POCA, which made clear that a person was exempted from the jurisdiction of its criminal courts to be triggered. Here,
the money laundering offences in a tiny number of cases the concern is that by his action a professional person may
specified by Statutory Instrument where foreign conduct have aided and abetted a UK-based client in the commission
would have constituted a minor regulatory offence if it had of one of the money laundering offences, or encouraged
taken place in the UK. The presence of this section gives or assisted the UK-based client in the commission of a
“a strong indication that a defendant’s money laundering criminal offence contrary to sections 44, 45 or 46 of the
activity abroad is potentially within the jurisdiction of the Serious Crime Act 2007. In this situation, the actus reus
English courts” (judgment, paragraph 45). of the criminal offence committed by the professional
As regards the more modern approach to jurisdiction, person would be the conduct which constituted the
the Court of Appeal was gushing in its enthusiasm. The aiding and abetting, or encouraging and assisting, of
Court noted that: “The reliance of international banking his UK based client in the handling of his, i.e. the UK-
on ever developing and advancing communications based client’s, proceeds of crime. What the professional
technology has added new weapons to the armoury adviser did not commit, so it was thought prior to the
of fraudsters, especially those whose purpose it is to decision of the Court of Appeal in R v Rogers, was one of
perpetrate fraud across national boundaries. If the issue of the money laundering offences under sections 327, 328 or
jurisdiction in cases of obtaining is to depend solely upon 329 of POCA. This is because, for the purposes of section
where the obtaining took place it is likely that the courts, 327 and 329, any actual handling of criminal property
and especially juries, will be confronted with complex and, by the professional adviser would have taken place outside
at times, obscure factual issues which have no bearing on the UK, and similarly, for the purposes of section 328,
the merits of the case. This court must recognise the need the professional adviser would have been outside the UK
to adapt its approach to the question of jurisdiction in the when he agreed to enter into an arrangement with his
light of such changes …” (judgment, paragraph 53) client to handle the proceeds of crime. Accordingly, the
Moreover, summarising the “celebrated discussion” by conventional wisdom ran, the professional adviser would
Lord Diplock of the boundaries of international comity in not commit any of the money laundering offences since
Treacy v Director of Public Prosecutions [1971] AC 537, the he was outside of the UK’s jurisdiction at the time when
Court quoted the following “most valuable analysis” put the offence would have been committed. The effect of the
forward by a Canadian judge, La Forest J, in Libman v R decision in R v Rogers is to change this understanding, and
[1985] CCC (3d) 206 at page 221: “The English courts the prospect of criminal liability for UK citizens handling
have decisively begun to move away from definitional criminal property abroad is now placed beyond doubt.
obsessions and technical formulations aimed at finding a But in so doing the decision has left the boundaries of
single situs of a crime by locating where the gist of the criminal liability somewhat opaque in this increasingly
crime occurred or where it was completed. Rather, they complicated area of law.
now appear to seek by an examination of relevant policies There are a number of unanswered questions. Would the
to apply the English criminal law where a substantial conviction in R v Rogers have been upheld if Rogers had not
measure of the activities constituting a crime take place in been a UK citizen? The Court has left the answer unclear.
England, and restrict its application in such circumstances Traditionally, the presumption against a Parliamentary
solely in cases where it can seriously be argued on a intention to make acts done by foreigners abroad offences
reasonable view that these activities should, on the basis which can be tried by an English criminal court is even
of international comity, be dealt with by another country.” stronger than the position where a UK national is concerned.
As Lord Russell said in R v Jameson [1896] 2 Q.B. 425,
Implications for practitioners 430, “[o]ne other general canon of construction is this, that
The decision of the Court of Appeal (Criminal Division) in if any construction otherwise be possible, an Act will not be
R v Rogers has considerable implications for professionals construed as applying to foreigners in respect to acts done
when providing client services abroad, particularly in by them outside the dominions of the sovereign power
cases where arrangements for handling client funds, asset enacting”. Has this principle of statutory construction also
control and management and/or tax planning are involved. yielded to a more modern view of jurisdiction? Applying
Hitherto, professional advisers have been proceeding the reasoning put forward by the Court of Appeal in
on the basis that they are exposed to the commission of R v Rogers, it seems that it has. A substantial measure of
the criminal liability in the UK only where they have the activities constituting the predicate fraud crime took
undertaken – or cause some action to be undertaken place in England, and so the same considerations would
– in the UK with reference to the criminal property in appear to apply. Certainly, public policy considerations