Cases on criminal intent and money laundering

Where the act of the defendant that is relied on by the prosecution was done in advance of the crime, which was committed in the defendant’s absence, it must be proved that the act in fact assisted the later commission of the crime, that it was done deliberately, that the defendant realised that it was capable of assisting the commission of the offence, and foresaw its commission as a real possibility, and that when doing the act the defendant intended to assist the principal in what he was doing. Where this was proved, the defendant would only avoid liability if he did a further act that amounted to a countermanding of the earlier assistance and a withdrawal from the common purpose. Repentance alone, unsupported by action, would not suffice, and if the defendant had the necessary mens rea at the time of his act of assistance, the fact that his mind was innocent at the time when the crime was committed was no defence.

CLW Comment
It should be noted that the reference to ‘intending to assist’ the principal, as with ‘intention’ in the criminal law generally, is not to be confused with ‘desire’. The actor may have no wish to help, but may nevertheless do so for any number of reasons. Short of a defence of duress, the person who does an act which in fact assists the principal in the commission of the offence will be guilty if the act is deliberately done, is done in contemplation of the commission of the offence by the principal – which is foreseen as a real or substantial risk or possibility, or done in the realisation that it was capable of assisting the principal in his enterprise.

The reference to ‘countermanding’ earlier assistance hits the right note provided it is understood as requiring more than a mere communication of withdrawal, or lack of continuing support in the enterprise. The offence consists (in modern English) of ‘assisting’ the commission of an offence. The only question for the tribunal of fact should be whether they are satisfied, on the whole of the evidence, that the defendant in fact assisted (with the requisite mens rea). Where the defendant claims to have had a change of heart after lending assistance, the issue will be as to whether he took steps, such as effectively to undo or negate his assistance. Even if he has gone some way to undoing the assistance he previously gave, he should not escape liability if, on an assessment of the whole of the evidence, the conclusion is that he did in fact assist in the commission of the crime, albeit his assistance may have been more valuable had he not repented at a late stage. Repentance short of a complete negation of the assistance previously given should go only to mitigation.

Money laundering 1

In R v Montilla (CLW/04/43/11), it was said that on a prosecution under Section 93C(2) of the Criminal Justice Act 1988 (“A person is guilty of an offence if, knowing or having reasonable grounds to suspect that any property is … another person’s proceeds of criminal conduct, he (a) conceals or disguises that property; or (b) converts or transfers that property or removes it from the jurisdiction, for the purpose of assisting any person to avoid prosecution …”) or the corresponding provision in the Drug Trafficking Act 1994 (S.49(2)), it is necessary to prove that the property in question was in fact the proceeds of criminal conduct or drug trafficking.

CLW Comment
This decision, which reversed the decision of the Court of Appeal, was clearly right. It is a matter of first principle that the criminal law seeks to criminalise an act that it is desired to prohibit, when that act is accompanied by a ‘criminal mind’. The act, which this provision was intended to prohibit, was the concealment etc., by one person of another’s criminal property. Parliament had no concern to prohibit the concealment etc., by one person of another person’s non-criminal property. Having identified the evil to be prohibited, the next question was as to whether all concealment by one person of another’s criminal property was to be made punishable