Proving the Criminal Origin of Property in Money‐Laundering Prosecutions

A successful prosecution for a criminal offence requires a prosecuting authority to prove beyond a reasonable doubt that a defendant possessed the requisite mens rea, or mental state, and that at that time he also committed the actus reus of the offence, that is to say those elements of the crime apart from the mental element. One of the most common features of the actus reus of money‐laundering offences across different legal jurisdictions is that the prosecution usually has to prove, inter alia, that the property which was the subject of the transaction was, as a matter of fact, the proceeds of crime. Some variations will however occur, in that in certain jurisdictions there may be a requirement to prove that the property is the proceeds of a particular predicate offence; in others it may be sufficient to prove that the property is derived from any form of criminal conduct. This paper examines the ways in which law enforcement authorities have attempted to prove this clement of a laundering offence, and concludes by making some suggestions for alleviating the difficulties inherent in doing so. Given that there have been relatively few convictions for money laundering in the UK, many of the examples are drawn from other jurisdictions, some of which have much greater experience of such prosecutions. Occasional examples are also drawn from civil forfeiture cases. While the standard of proof in such cases is that applicable in civil proceedings rather than the criminal standard applicable in money‐laundering prosecutions, such cases may nevertheless be useful so as to see the type of evidence adduced before the courts in order to prove that property is the proceeds of crime.