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INTRODUCTION
American culture has a dominant global influence. Thus the best-known global brands are usually American and American entertainment regularly features in most nations' television schedules. Similarly, though perhaps less frequently, legal terms and concepts from American jurisprudence have also had a pervasive influence. More than one English barrister has asked for a witness to 'take the stand', rather than 'enter the witness box'. Since the USA is a market leader in money laundering legislation, and jurisdictions around the world often benchmark themselves against the developments that occur there, it should come as no surprise that the language from, and thinking behind, American money laundering legislation is influential far beyond US shores. This article comments on one example of that influence, namely the use of the term 'predicate offence', which has crept into common usage in the UK,1 Europe2 and further afield.3 When used outside a US context, or other limited contexts where it does properly apply, the term can give rise to confusion as to what the prosecution must prove in order for a money laundering conviction to be obtained.
THE ORIGIN OF THE CONCEPT
A predicate offence is the underlying criminal offence that gave rise to the criminal proceeds which are the subject of a money laundering charge. The concept is an important one in US law because, in order to prosecute successfully for money laundering, there must be proof that the property involved in the transaction was the proceeds of 'specified unlawful activity,4 as defined by 18 USC 1956(c)(7). This subsection contains a list of crimes that constitute specified unlawful activities (SUAs), most of which are crimes commonly associated with organised crime. Since the money laundering statutes were enacted in 1986, the US Congress has regularly added new offences to the list of SUAs. One of the difficulties faced by US prosecutors is that proving that the funds are derived from one amongst a specific list of offences is clearly more difficult than simply proving that the funds had a criminal origin. Sometimes it may not be possible to narrow down the offence to one SUA in particular. This may be particularly so where the predicate SUA occurred in a foreign jurisdiction. Inevitably the difficulty will increase if the criminals who committed...