Sentencing for POCA s.328: “Role” disputes resolved by inference from agreed material do not require a fact-finding hearing

1. Introduction

This renewed application for leave to appeal against sentence concerned a conviction, on a guilty plea, for entering into or becoming concerned in a money laundering arrangement contrary to section 328(1) of the Proceeds of Crime Act 2002 (“POCA”). The applicant was sentenced in the Crown Court at Manchester to three years and ten months’ imprisonment.

The laundering operated through a car business and encrypted communications (EncroChat). The principal issue on appeal was not the arithmetic of the amount laundered (the sentencing judge took the lower defence figure, £1.5 million), but the culpability level under the Sentencing Council guideline: the applicant contended for a lower “lesser/level C” role; the judge found medium/level B culpability.

2. Summary of the Judgment

• The Court of Appeal refused leave to appeal.
• The sentencing judge was entitled to assess the applicant’s role by drawing inferences from the EncroChat messages and other agreed material.
• The dispute was characterised as not a “genuine and significant dispute of fact” requiring special procedure; rather it was a dispute about the proper categorisation of role from essentially common ground material.
• The prosecution’s stance (“no evidence to contradict” the applicant’s assertions) did not prevent the judge from rejecting minimisation where the inferences from the evidence pointed the other way.
• The sentence was “well within” the guideline.

3. Analysis

3.1 Precedents cited

No previous case titles were cited in the judgment. The court instead referred at a high level to “well-established rules” governing sentencing where there is a “genuine and significant dispute of fact”.

In context, that reference points to the familiar sentencing framework used when parties disagree about material facts relevant to sentence (often addressed through agreed bases, admissions, or—if necessary—a fact-finding procedure). Although the judgment does not name any authority, its reasoning aligns with the general approach that a judge must resolve material factual disputes fairly, but need not convene an evidential contest where the dispute is interpretative (what role those facts amount to) rather than evidential (what happened).

3.2 Legal reasoning

(a) What was the “dispute” really about?

The applicant provided a written “factual statement” accepting that he: (i) handled cash; (ii) used an EncroChat phone; (iii) participated in arrangements for transfer of cash; and (iv) received a percentage fee—while asserting that his role was “solely” cash handling and not organising conversion/transfer beyond handover.

The Court of Appeal treated this as, in substance, not a competing factual narrative supported by proffered evidence, but a categorisation argument—a “rehearsal” of actions largely consistent with the prosecution case, coupled with an attempt to place those actions into the lowest culpability bracket.

(b) The prosecution’s “no evidence to contradict” did not concede the point

The prosecution’s written position was that it did not agree with the applicant’s assertions but accepted there was “no evidence to contradict” them, leaving assessment to the court. The Court of Appeal clarified the proper reading of that stance: it did not bind the judge to accept the applicant’s minimisation; it simply meant there was no additional live evidence to be called by the prosecution on that point. The judge could still reject the asserted “lesser role” if the inferences from the EncroChat material contradicted it.

(c) Why medium culpability was justified on the evidence

The Court of Appeal endorsed the sentencing judge’s reliance on messaging and CCTV-derived context, highlighting features pointing beyond a “mere handler” role, including:

• Invoices being issued—suggesting a mechanism to disguise cash as legitimate car-sale receipts.
• Provision of bank details—consistent with facilitated placement of cash into accounts under a false pretence of business revenue.
• A 4.5% fee on handled sums—suggestive of significance and responsibility within the laundering structure, especially given scale.
• Liaison with “those above him in the chain” about movement of monies—consistent with involvement in “relatively sophisticated arrangements”.

Those matters supported the conclusion that the applicant’s conduct and awareness were aligned with medium culpability rather than a minor, low-agency role.

(d) Fairness and opportunity to address the basis of sentence

The applicant argued the judge failed to identify the evidence justifying rejection of his case and failed to give the defence an opportunity to address the material on which the judge relied.

The Court of Appeal rejected this: the defence was on notice that the prosecution invited the judge to resolve the role assessment; the judge expressly re-read the EncroChat messages and relied on them; and there was no application for the applicant to give evidence (nor was it apparent what evidence could have usefully added, given the nature of the disagreement). On the court’s analysis, the sentencing process remained procedurally fair because the judge decided the issue on material already in play, not on undisclosed or unexpected evidence.

(e) Guideline application and the overall sentence

The sentencing judge:

• Placed culpability at medium.
• Assessed harm as category 3, producing a five-year starting point on the guideline.
• Selected the lower laundered sum advanced by the defence (£1.5 million rather than the prosecution’s figure).
• Reduced for mitigation (good character, strong references, serious family health circumstances).
• Applied a reduction of fractionally under 15% for a late (but pre-trial) guilty plea, yielding 3 years 10 months.

The Court of Appeal held the sentence sat comfortably within the guideline approach.

3.3 Impact

The decision reinforces several practical points for POCA laundering sentencing (and guideline sentencing more generally):

• “Role” can be an inference exercise: even where the defendant asserts a limited role and the prosecution lacks additional rebuttal evidence, a judge may reject minimisation if the agreed material supports a higher culpability inference.
• Not every disagreement triggers a fact-finding hearing: where the dispute is essentially how to classify conduct already evidenced (rather than what happened), the court may resolve it on submissions and the existing record.
• Digital communications drive culpability findings: EncroChat-style messaging can evidence sophistication, coordination, and knowledge sufficient to move a defendant from “lesser” to “medium” culpability.

4. Complex concepts simplified

• POCA s.328 “money laundering arrangement”: criminal liability arises from being involved in an arrangement that facilitates another person’s acquisition, retention, use, or control of criminal property (here, drug cash).
• Culpability and harm categories (Sentencing Council): guidelines often combine (i) how serious the offender’s role/intent was (culpability) with (ii) the scale/impact (harm, frequently driven by amount) to produce a starting point and range.
• “Basis of plea” / “factual statement”: a written account offered by the defence to explain what is admitted and what is disputed for sentencing. If it materially conflicts with the prosecution case, the court may need a method to resolve the conflict; but if it mainly argues over categorisation, the judge can decide on the papers and submissions.
• EncroChat evidence: encrypted-device messaging recovered by law enforcement can provide direct insight into roles, instructions, coordination, and concealment methods.
• Procedural fairness at sentence: the parties should know the case they must meet; a judge should not rely on undisclosed material. However, a judge may draw reasonable inferences from the evidence already deployed and tested by submissions.

5. Conclusion

[2025] EWCA Crim 1787 confirms that where a defendant’s “lesser role” claim is, in substance, an argument about how to label conduct already evidenced—rather than a true factual dispute—a sentencing judge may determine culpability by inference from the existing record (including encrypted communications), without any need for an evidential hearing. The court also clarifies that a prosecution concession of “no evidence to contradict” does not equate to acceptance where the documentary trail supports a different, higher-culpability conclusion.