Money Laundering – A Double Penalty?
It is prevalent for money laundering offences (under the Proceeds of Crime Act 2002) to be charged alongside other alleged criminality, particularly drug offences.
Whilst dealing with the monetary gains from offending will indeed amount to a separate money laundering offence, it raises the question of how those offences should be sentenced.
The approach to sentencing in this type of case was considered in R v Greaves  EWCA Crim 709;  1 Cr App R (S) 8, R v Alexander and Others  EWCA Crim 89;  2 Cr Ap R (S) 52 and R v Randhawa  EWCA Crim 873.
Those decisions show that there is a broad spectrum of cases involving the combination of 2002 Act offences and other underlying, primary, offending.
At one end of the spectrum, the 2002 Act offence does not involve any additional culpability or harm and does not aggravate the seriousness of the primary offence.
At the other end, the offending contrary to the 2002 Act is markedly distinct from the primary offending and involves significant additional culpability and harm, aggravating the primary offence to an extent that would not otherwise be reflected in the sentence for that offence if considered in isolation.
(1) Where the 2002 Act offence adds nothing to the culpability and harm involved in the primary offence then there should be no additional penalty. In such a case it is appropriate to impose concurrent sentences, with no upward adjustment.
(2) Where the 2002 Act offence involves additional criminality (whether increasing the culpability or harm, or both) beyond that involved in the other offences for which sentences are imposed, an additional penalty should be imposed. The seriousness of the additional criminality is to be assessed by reference to the culpability of the offender and the harm caused by the 2002 Act offending. In such a case the sentencing judge may either impose concurrent sentences with an appropriate upward adjustment, or consecutive sentences, often with a downward adjustment.
How do courts approach this assessment?
It is important, in each case, to identify whether the 2002 Act offence involves additional culpability and/or harm, and, if so, the extent.
Examples of cases where there is such an additional factor include those where the 2002 Act offence:
(1) takes place over a different period from the primary offending.
(2) involves additional or different criminal property, beyond the proceeds of the primary offending.
(3) makes it more difficult to detect the primary offending.
(4) involves dealing with the proceeds of the primary offending in a way which increases the risk that victims will not recover their losses, or that confiscation proceedings will be frustrated.
(5) creates additional victims. This may arise where the proceeds of the primary offending are used to make further transactions which are then thrown into question, resulting in loss to the innocent parties to those transactions.
(6) involves additional planning or sophistication, extending the culpability that might otherwise attach to the primary offending.
(7) assists in the continuation of offending. In this regard, in Alexander at  Moses LJ drew attention to “[t]he pernicious nature of money laundering and its capacity for enabling the proceeds of drug dealing to be not only concealed but to assist in the continuation of such crimes”.
Conversely, where the 2002 Act constitutes nothing more than the continued possession of the proceeds of the primary offence, then there is unlikely to be any additional culpability or harm beyond that reflected in the primary offence. In that event, it would be wrong in principle to impose any additional penalty. If an immediate custodial sentence is imposed for the primary offence this principle requires a sentence for the 2002 offence that runs concurrently with it.
It can be seen from the above analysis that the addition of money laundering charges is not something to be brushed to one side as significant additional punishment could flow from it.
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