13 - Prosecuting money laundering

Summary

Countries who don't have brave prosecutors and fearless judges will instead have plenty of thieves, many killers and even stupid dictators.

Mehmet Murat ildan (Turkish playwright)

Prosecuting money launderers is the ultimate weapon in the war on dirty money. The enemy's ultimate weapon is to kill prosecutors and judges, to which Mehmet Murat ildan alludes. The stakes could not be higher. Money launderers are the criminals that make crime pay and finding them guilty beyond reasonable doubt would seem to be the ultimate goal of our army of compliance, law enforcement and prosecution personnel. FATF evaluations devote an entire section to ensure that: ‘Money laundering offences and activities are investigated, and offenders are prosecuted and subject to effective, proportionate, and dissuasive sanctions.’

Yet, in some ways this is the biggest red herring of the shoal of red herrings that we discuss in this book. Finding a person guilty of the crime of money laundering does not actually matter. The investigation of money laundering at the beginning of the process matters a lot, because it widens the scope of the evidence being sought and the powers to find it. The effective, proportionate and dissuasive sanctions at the end of the process matter too; but in between a criminal conviction for money laundering matters not very much at all, provided that they are convicted of a crime which is capable of generating money. The technical decision to prosecute money laundering is exactly that, a technicality. The investigation determines what will be presented to the court, so that matters, and the court judgment determines what happens to the criminal and the criminal asset, so that matters as well. The decision to prosecute for money laundering is just a choice among many that could be made along the journey.

It all comes back to Eve again, and the fact that money laundering is and always has been integral to the predicate offences. So long as the predicate offences are prosecuted and effective, proportionate and dissuasive sanctions are applied, then the inclusion of money laundering on the indictment does not matter very much.

So let us just set out what does matter. We suggest that the investigation of money laundering does matter. This is because a money laundering investigation looks at the circumstances of the dirty money.