BL-2021-002235 - [2025] EWHC 1966 (Ch)

Lastly, I must refer to the Proceeds of Crime Act 2002. Section 340 of this Act relevantly provides:

“(1)

This section applies for the purposes of this Part.

(2)

Criminal conduct is conduct which—

(a)

constitutes an offence in any part of the United Kingdom, or

(b)

would constitute an offence in any part of the United Kingdom if it occurred there.

(3)

Property is criminal property if—

(a)

it constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and

(b)

the alleged offender knows or suspects that it constitutes or represents such a benefit.”

But, contrary to the suggestion made by the respondent in his Notice of 9 May 2025, section 340 does not impose any duty on any person to make such a notice as he has made.

The importance of the definitions given in section 340 is that the preceding sections of the 2002 Act create a number of criminal offences dealing with “criminal property”. For example, section 329, subject to exceptions (such as making an authorised disclosure, and acquisition or possession for adequate consideration), provides that

“(1)

A person commits an offence if he –

(a)

acquires criminal property;

(b)

uses criminal property;

(c)

has possession of criminal property.”

Section 337 of the Act provides for what is called a “protected disclosure”. But the section does not impose a duty on any person to make such a disclosure. Instead, the consequence of making such a disclosure is simply that there is no breach by reason of the disclosure of the particular information. It is facultative, and not mandatory. In any event, sending the notice to the addressees given in the notice could not amount to a protected disclosure, because one of three conditions that have to be satisfied is that “the disclosure is made to a constable, a customs officer or a nominated officer as soon as is practicable after the information or other matter comes to the discloser” see section 337(4)). That condition would not be satisfied here.

Section 338 of the Act provides for what is called an “authorised disclosure”. Once again, the section does not impose a duty on any person to make such a disclosure. Instead, making such a disclosure can prevent another offence under earlier provisions of the Act from arising. One of the conditions required for an authorised disclosure is that it is a disclosure “to a constable, a customs officer or a nominated officer by the alleged offender that property is criminal property” (see section 338(1)(a)). The notice in this case does not satisfy that condition, firstly because none of the addressees of the notice was a constable, a customs officer or a nominated officer, and secondly because the respondent was not, and does not claim to be, the alleged offender.