Tracing criminal proceeds through fungible mixtures in money laundering cases

Abstract

Purpose The purpose of this paper is to examine the problem of tracing criminal proceeds through fungible mixtures, in the context of money laundering prosecutions and with a specific focus on whether clean withdrawals can be made from tainted mixtures. Design/methodology/approach The question of withdrawing clean funds from a tainted mixture is framed as a problem of proof rather than a problem of impossibility. The tracing rules are then engaged to overcome evidential difficulties, but the rules are shown to operate very differently in civil proceedings and criminal proceedings. The proper application of the tracing rules in criminal proceedings is then illustrated using the facts of William v R [2013] EWCA Crim 1262. Findings Because evidential uncertainties must be resolved in favour of the accused person in criminal proceedings, the tracing rules – properly applied – limit the range of situations in which the Prosecution can successfully trace criminal proceeds through fungible mixtures. Originality/value This paper may be useful to law enforcement, those involved in prosecuting or defending money laundering cases and regulated persons assessing their money laundering risks and disclosure obligations.