Section 31 of the Criminal Justice Act 1994 is of a type of provision to give the State more problems than the draftsman intended.
Section 31(3) neatly encapsulates the problem. It reads:
(3) A person shall be guilty of an offence if he handles any property knowing or believing that such property is, or in whole or in part directly or indirectly represents, another person’s proceeds of drug trafficking or other criminal activity.”
Despite the terms of Section 31 (7) this presents considerable problems to the prosecution.
Section 31 (7) reads;
(7) Where a person does, in relation to any property which is, or in whole or in part directly or indirectly represents, another person’s proceeds of drug trafficking or of any other criminal activity, any of the acts specified in subsection (2) or (3) of this section in such circumstances that it is reasonable to conclude that he knew or believed that the property was, or in whole or in part directly or indirectly represented, another person’s proceeds of drug trafficking or other criminal activity, he shall be taken to have so known or believed unless the court or jury, as the case may be, is satisfied having regard to all the evidence that there is a reasonable doubt as to whether he so knew or believed.”
Section 31 (8) reads;
(8) In this section believing property to be, or in whole or in part directly or indirectly to represent, another person’s proceeds of drug trafficking or other criminal activity includes thinking that the property was probably, or probably represented, such proceeds.”
The problem is this; what of the case where the property is not the proceeds of criminal activity? Is it a criminal offence to handle property that is not the proceeds of criminal activity? The answer, clearly, must be no. Otherwise everybody, ultimately, would commit the offence. In addition, to handle property which is the proceeds of criminal activity is not, of itself, an offence.
Is it proper, therefore, to convict a person of a criminal offence having simply established that that person believed the property was the proceeds of a criminal offence? Or, even more so, having simply established that the circumstances of the arrest of the person is the basis of an inference of the belief or thoughts of the person; that is, it is not established either that the property is the proceeds of criminal activity or that the person thought so.
The Court of Criminal Appeal thought it was not, in People (DPP) v McHugh [2002] CCA.
(Note that the Circuit Court judge allowed the case to go to a jury which convicted. In addition, the office of the Director of Public Prosecutions also thought the evidence warranted convicting the accused.)