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Ibori's so-called "phanthom" victory in London.

October 2, 2009

Image removed.The ruling on the Ibori case is merely an adjournment and the Asaba hoax cannot stop the UK trial. The offences are different and d ingredients are independent of each other.


Since 24 February 2003, the new principal money laundering offences in the United Kingdom are now found in sections 327, 328 and 329 of the Proceeds of Crime Act 2002. The Act defines money laundering as an act which constitutes an offence under sections 327, 328 and 329 or a conspiracy or attempt to commit such an offence. These offences are widely defined.

Section 327 of the Act provides that a person commits a money laundering offence if he conceals or disguises or transfers or removes criminal property from the United Kingdom. Concealing or disguising criminal property includes concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it. Section 328 of the Act provides that a person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person. Under section 329, a person commits an offence if he acquires criminal property or uses criminal property or has possession of criminal property.

Of crucial importance to all three offences are the terms ‘criminal conduct’ and ‘criminal property’. Significantly, the legislation does not require a conviction in any foreign jurisdiction before conduct and the associated property can be criminal.

Under the legislation, the Crown has to prove that the laundered proceeds are "criminal property”, that is to say that the property constitutes a person's benefit from criminal conduct. “Criminal conduct” is defined in section 340 as conduct which constitutes an offence in any part of the United Kingdom, or would constitute an offence in any part of the United Kingdom if it occurred there.

Crucially, offences which were committed abroad are relevant predicate crimes if laundering acts provided under sections 327, 328 and 329 are committed within the United Kingdom where the predicate offence committed abroad (from which proceeds were generated) would also constitute an offence in any part of the United Kingdom if it occurred there.
Therefore the Crown Prosecution Service does not require a guilty verdict or a conviction by the High Court in Asaba or any other court in Nigeria to prove that money laundered by Ibori’s accomplices are “criminal property” under the Proceeds of Crime Act 2009.

Proving that proceeds are the benefit of "criminal conduct" will usually be done by circumstantial evidence. Where money laundering offences are proceeded with on the same indictment as the underlying crimes, the underlying criminal conduct will be proved as part of the proceedings to the requisite standard. However, where as in the case of Ibori’s accomplices, the money laundering proceedings are "stand alone" it is necessary to prove the underlying criminal conduct in the money laundering prosecution but it is not necessary to wait for a conviction in relation to the "criminal conduct" (i.e. the underlying or predicate offences giving rise to the criminal property).

Prosecutors are not required to prove that the property in question is the benefit of a particular or a specific act of criminal conduct; as such an interpretation would restrict the operation of the legislation. The prosecution is only required to be able to produce sufficient circumstantial evidence or other evidence from which inferences can be drawn to the required criminal standard that the property in question has a criminal origin, including as is very likely in the case of Ibori’s associates, the unlikelihood of the property being of legitimate origin. The Crown is only required to prove that the women have no legitimate explanation for possessing multi-million pounds worth of cash and other property linked to them to enable a jury to draw an inference that the property is proceeds of crime.

Kayode Ogundamisi and Zainab Abubakar

For Nigeria Liberty Fourm

www.nigerialibertyforum.org.uk

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