Section 333A POCA: Transaction-Specific “Tipping Off” Within a Wider Investigation; and “Duty” for Forgery Includes Investigative Employment/Public Duties

Introduction

In Osmond, R. v [2026] EWCA Crim 979, the Court of Appeal (Criminal Division) (Lord Justice Males, Mrs Justice Cutts and His Honour Judge Andrew Lees) refused leave to appeal against the appellant solicitor’s convictions for:

  • tipping off contrary to section 333A(3) Proceeds of Crime Act 2002 (“POCA”), and
  • forgery contrary to section 1 Forgery and Counterfeiting Act 1981.

The case arose from the Serious Fraud Office (“SFO”) using its statutory powers under section 2 Criminal Justice Act 1987 to obtain information and documents about a Mayfair property purchase transaction (“the property transaction”), in circumstances where the SFO’s broader corruption/money-laundering investigation into ENRC was publicly known.

The key issues were: (i) what “investigation” the indictment alleged had been disclosed for POCA tipping off purposes (a transaction-specific strand vs the wider ENRC investigation), (ii) whether information from the SFO could be “received… in the course of a business in the regulated sector”, (iii) what “likely to prejudice” requires, and (iv) for forgery, whether an SFO investigator receiving a false document is acting “in connection with [the] performance of any duty” under section 10(1)(c) of the 1981 Act.

Summary of the Judgment

  • Prosecution defines the disclosure: The Crown was entitled to frame the tipping off case as disclosure of an investigation into alleged money laundering in connection with the property transaction, even if that strand sat within a wider ENRC investigation known to the recipient.
  • “Regulated sector” element satisfied: The fact that the information came from the SFO did not prevent it being received “in the course of” a regulated-sector legal business; the critical question is the capacity in which it was received (here, as solicitor in relevant transaction work).
  • “Likely to prejudice” does not require actual prejudice: The Crown need prove likelihood assessed at the time; informing the target is inherently capable of meeting that threshold.
  • Forgery “duty” includes investigative duties: Once the SFO commences an investigation, those conducting it act under duties owed to their employer and to the public; the absence of a statutory duty on the SFO to investigate does not defeat section 10(1)(c).
  • ENRC civil findings did not assist: The ENRC litigation did not undermine the convictions; no disclosure breach or abuse of process issue arose on the facts and issues at trial.
  • The Court noted this was the first section 333A(3) POCA case to reach it, and gave permission for the judgment to be cited.

Analysis

Precedents Cited

Eurasian Natural Resources Corporation Ltd v Dechert LLP; Eurasian Natural Resources Corporation Ltd v The Director of the Serious Fraud Office [2022] EWHC 1138 (Comm) (“ENRC 1”)

The defence relied on ENRC 1 as demonstrating serious wrongdoing by SFO officials in connection with the broader ENRC investigation. The Court of Appeal held ENRC 1 was known to (and cited by) the defence before trial, but it was neither deployed in cross-examination nor used as the foundation for an abuse of process application or a section 78 Police and Criminal Evidence Act 1984 exclusion argument. More fundamentally, the alleged misconduct related to earlier contacts and different actors, and did not bear on the elements the jury had to decide in this prosecution.

Eurasian Natural Resources Corporation Ltd v Dechert LLP; Eurasian Natural Resources Corporation Ltd v The Director of the Serious Fraud Office [2023] EWHC 3280 (Comm) (“ENRC 2”)

ENRC 2 was said to “go further” by fixing state responsibility and by questioning the legitimacy of the ENRC investigation. The Court rejected that characterisation: ENRC 2 principally concerned causation in a tort claim (whether earlier wrongdoing was causative of ENRC’s loss), not a finding that the investigation was unlawful. It therefore had “no bearing” on whether the appellant committed tipping off and forgery in 2018.

R v Ng & O'Reilly [2024] EWCA Crim 493, [2024] 1 WLR 3221 and R v BKR [2023] EWCA Crim 903; [2024] 1 WLR 1327

These authorities were cited for the modern structured approach to abuse of process stays, emphasising:

  • the exceptional nature of a stay (a “last resort”),
  • the two limbs (fair trial impossibility; or affront to justice/propriety/public confidence),
  • the rarity of limb 2 (“very exceptional”) and the requirement for “something out of the ordinary”, and
  • the balancing of public interests where misconduct is alleged.

The Court used them to explain why—had it been pursued—an abuse of process argument would have faced a “demanding test” not met on these facts, given the disconnect between the ENRC civil findings and this prosecution.

Legal Reasoning

1) What was the “investigation” alleged to have been disclosed (section 333A(3)(a) POCA)?

The Court treated it as “fundamental” that the prosecution frames the charge and defines the alleged disclosure. Although the indictment referred generally to the SFO “investigating allegations of money laundering”, the prosecution clarified pre-trial that the case concerned investigation of alleged money laundering in relation to the property transaction.

The defence contention—that the relevant “investigation” must be the wider ENRC investigation (already public)—was rejected. The Court held there was no barrier to a disclosure being of a particular transaction-specific strand even if it sits within a broader public investigation, and no “issue of fact” for the jury arose from the wider context once the Crown’s case was properly identified.

2) “In the course of a business in the regulated sector” (section 333A(3)(c) POCA; Schedule 9)

The Court endorsed the trial judge’s conclusion that the element was plainly satisfied. The relevant “information on which the disclosure is based” was that the SFO was investigating the property transaction. The appellant received that information in his capacity as a solicitor whose work included:

  • participation in real property transactions,
  • managing client money, and
  • company acquisition/structuring—

all of which are regulated-sector activities under Schedule 9, Part 1, paragraph 1(1)(n) POCA.

Critically, the Court rejected the argument that the element is concerned with the source of the information (here, the SFO). The provision is “precisely” aimed at preventing regulated-sector professionals from alerting clients to investigations; the source will “typically” be the investigating agency. What matters is the capacity in which the defendant receives it.

3) “Likely to prejudice that investigation” and mens rea (sections 333A(3)(b) and 333D(4) POCA)

The Court reaffirmed that:

  • the Crown must prove likelihood of prejudice assessed at the time of disclosure,
  • it is not necessary to prove actual prejudice with hindsight, and
  • it is no defence that no prejudice in fact occurred.

On the no-case submission, the Court agreed it was open to a jury to find “likely prejudice”, and went further: disclosure to the target is “inherently likely” to prejudice because of risks of destruction/compromise of evidence or evasion, even if (as the defence argued) responses ultimately provided were not demonstrably different.

4) Pre-trial rulings and the jury’s role

The Court rejected the complaint that the trial judge “usurped” the jury by determining issues pre-trial. It held the rulings were needed to give effect to the overriding objective in the Criminal Procedure Rules, para 1.1 (efficient and expeditious justice) and to prevent the trial becoming mired in irrelevant satellite issues (particularly about the wider ENRC investigation).

Two of the pre-trial points were characterised as pure questions of law not dependent on trial evidence: the regulated-sector interpretation and the meaning of “duty” for forgery prejudice.

5) Forgery: “prejudice” and “duty” (sections 1 and 10(1)(c) Forgery and Counterfeiting Act 1981)

The Court emphasised the structure of the forgery offence: the question was the appellant’s intention to induce acceptance of a false instrument as genuine so that the recipient would act (or omit to act) to prejudice. Under section 10(1)(c), prejudice includes acceptance of a false instrument “in connection with [the] performance of any duty”.

The Court held that deceiving (or attempting to deceive) a public official conducting a criminal investigation in the course of employment is necessarily connected with performance of duty—owed “both to the employer… and to the public”. It was immaterial that the SFO had a power rather than a statutory duty to investigate; once it commenced an investigation, those conducting it had duties to act lawfully and in accordance with instructions.

Impact

  • Clarifies the unit of “investigation” for section 333A(3): a transaction-specific money-laundering enquiry can be the relevant “investigation” even where it is a strand of a wider, publicly known investigation.
  • Confirms “regulated sector” focuses on capacity, not source: regulated-sector professionals cannot avoid section 333A(3)(c) because the tip originated from the SFO rather than from an internal report or suspicious activity report process.
  • Lowers practical disputation over prejudice: while still formally a jury issue, the Court’s observation that tipping off the target is “inherently likely” to prejudice will be relied upon in future no-case submissions and directions.
  • Broadens (or confirms breadth of) “duty” in forgery contexts involving investigators: section 10(1)(c) is satisfied by investigative duties arising from public function and employment obligations, not only by express statutory duties.
  • Case management message: pre-trial rulings are appropriate to define the real issues and avoid expansive “context” disputes that risk distracting from statutory elements.

Complex Concepts Simplified

  • “Tipping off” (POCA): telling someone that a money-laundering investigation is being contemplated or carried out, where doing so is likely to harm the investigation and the information was obtained through regulated-sector work.
  • “Regulated sector” (Schedule 9 POCA): includes certain legal work—especially property transactions, handling client money, and corporate structuring—because these areas are vulnerable to money-laundering.
  • “Likely to prejudice”: means a real likelihood of disadvantaging the investigation at the time; the prosecution need not prove the investigation was actually harmed.
  • Forgery “prejudice” under section 10(1)(c): includes where a person accepts a false document as genuine while performing a duty (including investigative work done as part of a public function).
  • Abuse of process (stay): an exceptional remedy used only where a fair trial is impossible or where prosecutorial misconduct is so serious that proceeding would undermine justice/public confidence.

Conclusion

[2026] EWCA Crim 979 is a significant first Court of Appeal decision on section 333A(3) POCA. It confirms that the Crown may allege (and a court may treat as determinative for trial scope) a disclosure of a transaction-specific money-laundering investigation even where a broader investigation is public; that “regulated sector” turns on the defendant’s professional capacity rather than the information’s source; and that “likely prejudice” does not demand proof of actual harm. It also gives clear appellate endorsement that, for forgery, an investigator’s role in an active SFO investigation is connected with the performance of “duty” within section 10(1)(c), notwithstanding the SFO’s discretionary power to investigate.