Dirty Money?
Case Study: World Uyghur Congress v National Crime Agency
By Alexandra-Maria Eugenicos, Criminal Defence Barrister, Libertas Chambers.
Abstract
A consideration of World Uyghur Congress v National Crime Agency [2024] EWCA Civ 715. The fact that there might not be sufficient evidence to justify use of powers under POCA at time of importation, should not preclude the launch of an investigation. This judgment has also changed the interpretation of money laundering offences under POCA with real impact across many professions, including the Bar.
Introduction
The appeal in the case of WORLD UYGHUR CONGRESS v NATIONAL CRIME AGENCY [2024] EWCA Civ 715 relates to whether the National Crime Agency (‘NCA’) had misdirected itself in law in one or more material respects when reaching the decision:
- Not to investigate alleged offences under Part 7 POCA 2002;
- Not to commence a civil recovery investigation under Part 5 POCA in respect of certain cotton products brought into the UK and monies derived from or connected to purchase.
These issues were considered in the lower court where a claim for judicial review was brought by the World Uyghur Congress against three law enforcement agencies including the NCA. This was focused on challenging the decision not to carry out investigations into whether consignments of cotton goods originating from the Xinjiang Uyghur Autonomous Region of China (‘XUAR’) was a product of forced labour. It was submitted that the authorities should have investigated whether these items imported into the UK were the product of forced labour or other human rights abuses perpetrated by the People’s Republic of China.
The general approach was re-iterated that rarely will the courts involve themselves in decisions as to whether to prosecute; caselaw confirms that only in exceptional cases would the court interfere with a prosecutor’s decision-making. However, it is of note that the law does not render a decision-maker’s powers unfettered – and it was emphasised that those tasked with decisions must direct themselves correctly in law.
Context
It was not in dispute that there is a growing body of diverse and substantial evidence confirming serious human rights abuses occurring in the XUAR cotton industry on a large scale. There is clear and widespread exploitation including forced labour which accounts for a significant proportion of all cotton originating from China. It was undisputed that 85% of cotton grown in China comes from the XUAR.
Parties agreed that products derived from forced labour anywhere in the world can amount to criminal property for the purposes of money-laundering offences under Part 7 or recoverable property for purposes of civil recovery under Part 5. As a result, funds from sale of such products – and any property into which those funds are put – could also be criminal or recoverable property.
The appellant had gathered extensive evidence raising ongoing concerns in relation of importation of cotton products originating from XUAR where forced labour and human rights abuses are widespread within that industry. These were provided to the authorities with the aim of persuading them to act.
Ground of Appeal
The Appellant’s main complaint was that the NCA should have been actively investigating and thereby prohibiting importation of goods originating from the XUAR using powers under s. 1 Foreign Prison-Made Goods Act 1897 and s. 139 Customs and Excise Management Act 1979. Moreover, the NCA should also have started a POCA investigation on basis that cotton goods originating from XUAR (or proceeds) could be criminal property.
Discussion
The court concluded that the fact that there might not be sufficient evidence to justify use of powers under POCA at time of importation, should not preclude the launch of an investigation. The opposite notion would suggest that the NCA, police and other investigative bodies would not investigate overseas criminality being imported to the UK in absence of concrete evidence of specific crimes perpetrated by particular people.
The Court of Appeal also held that it was wrong in law to suggest that criminal liability for money laundering or civil recovery is removed where the proceeds have passed through several hands in a business context where adequate consideration is paid. There should also be distinction between a bona fide purchaser and one who suspects that this is the product of servitude. Appeal allowed.
Wider Application
This judgment has already impacted the interpretation of money laundering offences under POCA. This is directly applicable to a barrister in practice who may receive payment for fees knowing or suspecting that those funds are derived from criminal property. This would mean that they are in possession of criminal property even if adequate consideration is given. To avoid any exposure to criminal liability, the Bar Council strongly recommends that those who find themselves in such a position carefully consider whether they should make a Defence Against Money Laundering disclosure to the National Crime Agency.
They have provided further guidance on this issue in a practice note – Practice note on Rex (on the application of World Uyghur Congress) v the National Crime Agency [2024] EWCA Civ 715.
