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P v P, High Court Family Division, 8 October 2003

16 October 2003
The issues

Proceeds of Crime Act 2002.

The facts

This matter related to an Application for Ancillary Relief in Divorce Proceedings that came before Dame Elizabeth Butler-Sloss. An Application had been made on behalf of the wife for a ruling as to the effects of the Proceeds of Crime Act 2002 on his client’s Application for Ancillary Relief. The basis of the Application was that the wife’s legal advisors had become very concerned about the husband’s financial position and in particular, they became suspicious that part of the matrimonial assets might be “criminal property” within the meaning of the Act. Section 328, which particularly concerned the team of legal advisors reads:-

“A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person”.

That clause provides that there is no offence committed if an authorised disclosure is made. The issues for Lady Justice Butler-Sloss were:-

(a) Whether and in what circumstances it is permitted to act in relation to an arrangement for the purposes of the Act and;

(b) Whether and in what circumstances, a legal advisor having made an authorised disclosure, is permitted to tell others of the fact that he or she has done so, including his own client.

The decision

1.The duties under Section 328 of a Barrister or a Solicitor were straightforward. Nothing in the Section prevented a Solicitor or Barrister from taking instructions. However, if having taken instructions they knew or suspected that they would become involved in an arrangement that might involve the acquisition, retention, use or control of criminal property, then the disclosure should be made.

2.The legal profession should take into account the fact that the Act makes no distinction between degrees of criminal property. £10.00 falls within the definition as much as £1,000,000.00. The legal profession would appear to be bound in all cases big or small.

3.Provided that there was no improper intention behind the communication (such as aiding a client to evade the law) a Solicitor should be free to communicate the fact that he had reported the matter to the NCIS (National Criminal Intelligence Service), to his client or opponent if necessary. In such cases, good practice (to allow the investigation authorities time to do their job without frustration) would point to a delay of at most, 7 working days before informing a client. In cases where a Hearing was imminent and even a short delay would be unacceptable, the guidance of the Court might be sought.

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