Q&As

Can an advisor be paid for acting for an individual who they know or suspect does not have leave to remain in the UK or is disqualified from working in the UK where there is a possibility that payment could be made from the proceeds of unlawful work?

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Published on LexisPSL on 27/04/2018

The following Practice Compliance Q&A provides comprehensive and up to date legal information covering:

  • Can an advisor be paid for acting for an individual who they know or suspect does not have leave to remain in the UK or is disqualified from working in the UK where there is a possibility that payment could be made from the proceeds of unlawful work?

This is a complex question and much depends on the specific facts of the case. In general terms, it is unlawful for any person to be involved in the laundering of criminal property—Proceeds of Crime Act 2002 (POCA 2002). This includes acquiring, using, or possessing funds derived from criminal conduct (POCA 2002, s 329). For the offence to be committed, the person involved must know or reasonably have suspected that the proceeds were derived from criminal sources. For the purpose of this Q&A it will be assumed that such knowledge or suspicion exists.

Funds derived from unlawful working may represent criminal property and, if so, money laundering will occur where an advisor is paid a professional fee from these funds.

There are four defences available to the solicitor in these circumstances:

  1. defence 1—they make an authorised disclosure under POCA 2002, s 338 and they have the appropriate consent

  2. defence 2—they intended to make such a disclosure but had a reasonable excuse for not doing so

  3. defence 3—they acquired or used or had possession of the property for adequate consideration, and

  4. defenc

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