Government clarifies Proceeds of Crime Act after Samson Law 'Gold Trial' highlights interpretation problem
The Government will bring into force an amendment to the Proceeds of Crime Act that aims to clarify the evidential basis on which it may be shown that property is criminal property or obtained through unlawful conduct.
The need for this clarification was highlighted by Attorneys from Samson Law Associates during legal argument in the 3-month money laundering trial referred to as the ‘Gold case’ when 5 men were accused of bringing in over $6 million of gold by private jet. All were acquitted.
The previous test under Section 79(2)(b) POCA (2020 Revision) was "that in deciding whether any property was obtained through unlawful conduct …… it is not necessary to show that the conduct was of a particular kind if it is shown that the property was obtained through conduct of one of a number of kinds, each of which would have been unlawful conduct."
This meant that if the police stop you in the getaway car form a bank robbery, matching the serial numbers on the bank notes in your bag to the ones stolen, then establishing the money was obtained form unlawful conduct will be straight forwards.
But what if they believe the circumstances give rise to the irresistible inference that the money came from unlawful conduct? If a person flies into Grand Cayman, with a very large quantity of cash hidden and not declared, and then gives different explanations when questioned about it, with no proof of employment, savings, or the origin of the money, could the law permit you to safely conclude it came from unlawful conduct?
In the Gold Trial the Prosecution presumed that you could rely upon reasonable inferences to prove property came from unlawful conduct, and that the law here would be interpreted in line with the approach in England and the Court of Appeal case of Anwoir that permitted this alternative approach.
Samson Law demonstrated that the position was not as clear cut as that.
When bringing into force the Proceeds of Crime Act the stated aim was to bring the Cayman Islands in line with the best international practices.
The Court had to consider what then were the best international practices. Different jurisdictions take different approaches. Many States require the actual background offence to be established and nothing less will do, whilst others permit that approach and but allow a reasonable inference to be drawn from suspicious circumstances.
This latest amendment to the law confirms that the Anwoir approach is permitted. Section 79(2)(b)(ii) will now be law so that the Prosecution can either establish the background offence (unlawful conduct) that results in the defendant obtaining the property or that “the circumstances in which the property was handled are such as to give rise to the irresistible inference that it can only be derived from unlawful conduct.”
The Prosecution have just been handed a bigger net to cast by Parliament, who clearly want them to catch more money launderers.
This will undoubtedly lead to more prosecutions and investigations. If you require any further information please contact Oliver Grimwood at ogrimwood@samsonlaw.ky , our POCA specialist, who will be able to guide and assist you.