What Went Wrong With Money Laundering Law? PDF
Preview What Went Wrong With Money Laundering Law?
WHAT WENT WRONG WITH MONEY LAUNDERING LAW? Peter Alldridge What Went Wrong With Money Laundering Law? Peter A lldridge What Went Wrong With Money Laundering Law? Peter Alldridge Department of Law Queen Mary University of London London , United Kingdom ISBN 978-1-137-52535-2 ISBN 978-1-137-52536-9 (eBook) DOI 10.1057/978-1-137-52536-9 Library of Congress Control Number: 2016939221 © The Editor(s) (if applicable) and The Author(s) 2 016 The author(s) has/have asserted their right(s) to be identifi ed as the author(s) of this work in accordance with the Copyright, Designs and Patents Act 1988. This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifi cally the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfi lms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or here- after developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specifi c statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the pub- lisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. Printed on acid-free paper This Palgrave Macmillan imprint is published by Springer Nature The registered company is Macmillan Publishers Ltd. London P REFACE In 2003 I published a book entitled Money Laundering Law .1 This is not the second edition, and I doubt if a second edition ever will be completed. Since 2003 money laundering law has burgeoned. There has been much law, in the form of international instruments, statutes, statutory instru- ments, and cases.2 Dealing as it does with the power of the State to appro- priate the property of the subject, like tax statutes, money laundering law necessarily involves highly technical law. The vast and intricate body of law with a wide range of sources raises many perplexing problems, and they are dealt in a number of excellent expository texts. The purpose of this book is rather different: it is to stand back a little way, to ask what has happened. It is not a comprehensive account but one which selects the areas that have given rise to the greatest impact and controversy. There are remediable technical fl aws in the laundering law of England and Wales. The Proceeds of Crime Act 2002 has been to the highest courts numerous times. It would have been better had a restitutionary perspec- tive been incorporated. It would have been better to revive and deploy the distinction between victimless and non-victimless crime. It would have been better to enunciate clearly the purpose of the criminal proscription on laundering. The real problem, however, is the power of the AML narrative, which proceeds, from shaky evidential foundations to a very widespread and 1 Alldridge , Peter, Money Laundering Law (Oxford: Hart, 2003) (hereinafter MLL). 2 POCA has been amended countless times, more frequently by statutory instruments. v vi PREFACE unrefl ective enthusiasm both in the UK and the ‘international community’ for the Anti-Money Laundering/Countering the Financing of Terrorism (AML/CFT) project, even amongst those who do not have a career inter- est in its pursuit,. It is the purpose of the book to consider it more scepti- cally than is usually done. A CKNOWLEDGEMENTS Thanks are due to the Universities of Luxembourg, Edinburgh, and Manchester for invitations to deliver seminars, and for the help derived from the comments of the people who attended and contributed; to Julia Willan for drawing to my attention this series as being an appropriate medium through which for me to say what I wanted to say about launder- ing; and to Dominic Walker for help in bringing it to fruition. The usual disclaimer applies. London, January, 2016. vii C ONTENTS 1 Introduction and a Short History 1 What Does Laundering Look Like? 3 A Principle 4 Countervailing Principles and Policies 7 Consequences 8 Building on Sand—The Development of the AML Narrative 9 The Foundation and Growth of the Financial Action Task Force 1 1 The Involvement of the EU 1 2 The Instantiation of the AML Industry 1 4 The General Narrative(s) on Quantity 1 5 Rhetoric, Mythology, Slurs, and the Narrative 16 The Narrative and Professional-Client Relations? 1 8 The Narrative—Specifi c Issues 1 9 2 Impacts upon Substantive Laundering Law 3 3 Resultant Law 3 4 The Criminalisation of Laundering—What Exactly Is the Harm? 34 Suspicion 39 Double Counting in Criminalisation 41 Confi scation and Amplifi ed Benefi ts 4 1 Civil Recovery 6 1 Tax 66 ix
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