Clause 94 - Money laundering: defence where overseas conduct is legal under local law
Serious Organised Crime and Police Bill
4:15 pm
Mr Dominic Grieve (Shadow Attorney General, Home Affairs; Beaconsfield, Conservative)
There are two issues. I have already satisfied myself that my amendment on one of them is a bad point, for which I apologise in advance, but at least I will get an answer from the Minister and her advisers rather than my own research on the matter.
I preface my remarks by saying that I am delighted that the Government have addressed what might have been a real howler in the Proceeds of Crime Act 2002. It was explained to me a little time ago when I attended a seminar on the subject conducted by a colleague at the chancery Bar, who sent me some very useful information on the subject. A potential consequence of the way in which the Act had been drafted was that if one carried out in a foreign country an act that was perfectly legal there but that was illegal in England and Wales and from which one made a profit, one would fall within the relevant definition and could be accused of laundering money.
For example, someone importing into Scotland and making a profit from bourbon whisky that had not been made in compliance with the various pieces of whisky legislation in Scotland, would, as I understand the Proceeds of Crime Act, fall into the category of being a money launderer and making a profit that could be seized. Clearly, that was not what Parliament intended.
I therefore welcome clause 94, which, as I understand it, is there to make it crystal clear that someone who carries out an activity that may be relevant criminal conduct in the United Kingdom but is not relevant conduct in the country in which it was carried out cannot fall into the category of money laundering. However, I was concerned that after the words
''is not unlawful under the criminal law of that country or territory'',
the clause did not contain the words in my amendment,
''at the time it occurred''.
That is because the time at which the matter is being considered in the UK may well be different from the time at which the property was acquired in the foreign country or the profit made.
I am reassured by the fact that there appear to be dicta in the Pinochet case that one should consider the act at the time at which it occurred. Perhaps the Minister will confirm that. I might therefore be worrying about nothing, but I did wonder whether, despite the Pinochet case, my amendment might not clarify what could otherwise lead to a misunderstanding. It must surely be right that if the conduct was lawful at the time at which it occurred, even if it has subsequently been made unlawful in the foreign country, it should not place the person in the category of criminal conduct in the UK. That is the point that I am trying to make in a series of amendments. I do not need to run through them as I have gone through the entire clause and amended it in one place after another. The lead amendment defines the remaining ones.
The second amendment probes the fact that it appears that provision will still be made under the clause for certain offences or activities prescribed by an order made by the Secretary of State to remain criminal conduct. Assets can therefore still be seized in the UK even if the conduct took place abroad at a time when it was not a criminal offence there. There may be good reasons for the subsection. One can think of some of them quite quickly. One example, I suppose, is slavery. There may be no countries in the world where slavery is legal, although, unfortunately, slavery certainly exists in a number of countries and appears to be semi-legal and approved of by the Government there. However, if we were discussing the laundering or acquisition of money derived from slavery, it even if it were lawful in the country where it took place, there would be good grounds for the Secretary of State to prescribe that the profits and assets derived from it should be seized in this country.
However, it would be useful to hear from the Minister whether she has a list and how she envisages such matters being dealt with. Clearly, we do not want to close one door only for the Home Secretary to publish an enormous list putting all the offences back in again, although I am sure that he would not do that. I would be very grateful if the Minister dealt with that point, too. That, in fact, ends my remarks on all the amendments, which relate to the two specific points that go through the entire clause.