Single Criminality vs Dual Criminality

Written by Jason Morris on Thursday November 12, 2015

This particular story though, has a slight twist in the tale (You can read the full article here), you see the conviction has been founded on the fact that Van Laarhoven’s money was earned through trading in soft drugs, a crime in Thailand (and most other jurisdictions come to that), however, this trade was carried out in his native Holland where the laws are not as clear-cut.

By way of background, the Opium Act – also referred to as the Narcotics Act – is the Netherlands’ main drug legislation. The Act criminalises possession, cultivation, trafficking and importing or exporting. The 1976 Amendments established two classes of drugs: Schedule I drugs are deemed to present an unacceptable risk to Dutch society and include heroin, cocaine, amphetamines and LSD; Schedule II drugs include “traditional hemp products” such as marijuana and hashish.

The sale of cannabis is technically an offence under the Opium Act, but prosecutorial guidelines provide that proceedings will only be instituted in certain situations. For example, an owner or operator of a coffee shop in Holland (which is not permitted to sell alcohol) will avoid prosecution for the sale of cannabis provided no more than 5 grams is sold per person in any one transaction.

Now, I don’t know the specific circumstances of Van Laarhoven’s soft drug business, but for arguments sake, if he made his money in Holland, in the way described above (one has to assume he traded within the requirements of the prosecutorial guidelines given what his defence lawyer has said), and paid his share of taxes on those earnings, and essentially earned a living and lived a life that is considered acceptable, is it fair that he faces a prison sentence in Thailand based on those activities? I wonder if UK courts would prosecute in the same circumstances?

I’m currently studying for the ICA Diploma in AML, some of you may be doing so to, and this case screamed single criminality vs dual criminality to me. Thailand appear to have taken a single criminality stance in this case as it has judged Van Laarhoven’s conduct as criminal because it doesn’t comply with Thai law, even though the activity took place in another jurisdiction where the activity did not constitute an offence.

The issue of single criminality has been addressed by PoCA in the UK with the introduction of the dual criminality override defence, whereby activity outside the UK that would normally be considered criminal under UK law will not constitute an offence, provided it is considered a lawful activity in the jurisdiction in which it took place. The classic example used in the course material, of course, is the Spanish Matador earning a legitimate living in Spain before moving his money to the UK, only to face money laundering offences as the earnings are deemed to be the proceeds of crime under UK law. The Van Laarhoven case is, in my opinion, another really good example of this, the parallels I think are quite clear. But, is there an equivalent defence in Thai law? And if not, does this type of case raise the need for one?

I’m expecting this case to polarise opinion, and in all honesty, that’s a key reason for putting this piece out there! So, let’s hear the arguments for and against, give me your opinions - do you think the Thai courts have acted appropriately? Do you think Van Laarhoven has been harshly treated or does he deserve his comeuppance?

I look forward to the debate!

If you’re interested in learning with ICA, view all courses in AML, governance, risk and compliance and financial crime prevention here. You can find out more about all our courses at a free ICA briefing session, find out more here.


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